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LAW, CULTURAL DIVERSITY,
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N AND CRIMINAL DEFENSE
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ISBN 978-1-138-58117-3
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www.routledge.com
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Law, Cultural Diversity, and
Criminal Defense
American legal scholars have debated for some time the need for a cultural
defense in criminal proceedings where minority cultural information seems
perti nent to a finding of criminal responsibility in situations where a minority
cultural defend ant has violated a valid criminal statute. This work presents a
systematic analysis of this issue. Drawing from sociological, anthropological,
and philosophical materials, as well as traditional legal discussions, the authors
develop a scheme that indicates when cultural factors can be used as the basis for
such a defense and when they are irrelevant to a finding of criminal responsibility.
The argument moves from general concerns of social justice that apply under
conditions of social and cultural pluralism to practical policy recommendations
for the operation of American criminal justice. It thus connects more theoretical
materials with the practical concerns of jurisprudence. The justification for legal
recognition of a cultural defense in American criminal law is anchored firmly in
American cons titutional law.
Craig L. Carris professor emeritus of political science at the Hatfield School of
Government, Portland State University. He has published several books and
numerous articles in the areas of political and legal philosophy, constitutional law,
and American politics. His more recent books include Liberalism and Pluralism:
The Politics of E Pluribus Unum, and Orwell, Politics, and Power.
Lisa Johnson is a professor in the School of Business and Leadership at the
University of Puget Sound, where she teaches courses in law and legal studies.
Cultural Diversity and Law
Around the world, most states are faced with difficult issues arising out of cultural
diversity in their territories. Within the legal field, such issues span across matters
of private law through to public and constitutional law. At international level too
there is now considerable jurisprudence regarding ethnic, religious and cultural
diversity. In addition, there are several layers of legal control – from communal
and religious regulation to state and international regulation. This multiplicity of
norm setting has been variously termed legal pluralism, inter-legality or inter-
normativity and provides a fascinating lens for academic analysis that links up to
cultural diversity in new and interesting ways. The umbrella of cultural diversity
encompasses various population groups throughout the world ranging from
national, ethnic, religious or indigenous groupings. This series particularly wel -
comes work that is of comparative interest, concerning various state jurisdictions
as well as different population groups.
Series Editor:
Prakash Shah, School of Law, Queen Mary University of London, UK
Also in the series
Declarations of Interdependence
A Legal Pluralist Approach to Indigenous Rights
Kirsten Anker
State and Legal Practice in the Caucasus
Anthropological Perspectives on Law and Politics
Edited by Stéphane Voell and Iwona Kaliszewska
Muslim Families, Politics and the Law
A Legal Industry in Multicultural Britain
Ralph Grillo
Legal Pluralism in the Holy City
Competing Courts, Forum Shopping, and Institutional Dynamics
in Jerusalem
Ido Shahar
The Challenge of Legal Pluralism
Local dispute settlement and the Indian-state relationship in Ecuador
Marc Simon Thomas
Access to Justice and Human Security
Cultural Contradictions in Rural South Africa
Sindiso Mnisi Weeks
The State and the Paradox of Customary Law in Africa
Edited by Olaf Zenker and Markus Virgil Hoehne
Law, Cultural Diversity, and Criminal Defense
Craig L. Carr and Lisa Johnson
For more information about this series, please visit:
https://www.routledge.com/Cultural-Diversity-and-Law/book-series/
CULTDIV
Law, Cultural Diversity,
and Criminal Defense
Craig L. Carr and
Lisa Johnson
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 Craig L. Carr and Lisa Johnson
The right of Craig L. Carr and Lisa Johnson to be identified as authors
of this work has been asserted by them in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record for this book has been requested
ISBN: 978-1-138-58117-3 (hbk)
ISBN: 978-0-429-50686-4 (ebk)
Typeset in Galliard
by Florence Production Ltd, Stoodleigh, Devon, UK
Contents
Introduction 1
1 Law, politics, and social justice 11
Déjà vuall over again 13
Law and social homogeneity 17
The great American compromise 22
In defense of social justice 25
2 The question of culture 31
Culture and being human 31
Conceptions of culture 34
Norm systems and sharing 39
Culture and action-guiding norms 42
Culture and morality 46
3 Social justice and legal practice 51
Social justice: the freedom factor 52
The right to cultural autonomy 55
Freedom and cultural autonomy 58
Law, crime, and justice 62
Government and sovereignty 66
4 Criminal defense and cultural autonomy 69
Culture and crime: a classification scheme 70
Category 1: Intra-cultural controversies 70
Category 2: Inter-cultural controversies 72
Category 3: Culturally variable controversies 74
Category 1: Intra-cultural controversies 76
Kargar: Innocence and cultural practice 77
Crow Dog: Internal cultural jurisdiction 79
vi Contents
Moua: Internal cultural politics 83
Assad: Intra-cultural abuse 88
The cultural defense and inter-cultural affairs 90
Butler: Inter-cultural violence 90
Le: Inter-cultural threats 92
Cultural autonomy and the cultural defense 93
5 Culture and the Constitution 95
Immunity rights 95
Cultural autonomy and civil liberty 99
The free exercise of religion and cultural autonomy 101
Cultural autonomy and freedom of association 103
Due process of law and cultural autonomy 103
A cultural defense apology 107
The absolutist objection 108
The arbitrariness objection 110
The equal protection objection 112
The intolerable practice objection 114
Conflict and cultural change 118
6 Culture and criminal responsibility 123
Cultural variation and criminal law 123
Cultural variables and the cultural defense 128
Cultural meanings and criminal wrongdoing 133
Culture and justice 137
Bibliography 141
Index 149
Introduction
Some time ago criminal defense attorneys began making appeal to cultural factors
as part of their defense strategy when representing individuals from minority
cultures charged with some transgression of the criminal law. This approach to
criminal defense was soon noticed by more academically oriented legal minds,
and there emerged in the law reviews of the land a small flurry of controversy
over the desirability and propriety of establishing something called the cultural
(or culture) defense in American criminal jurisprudence. In the most general
of terms, such an imagined defense “refers to a wide range of ways in which
evidence about a defendant’s cultural upbringing or practices could influence legal
judgment about his guilt or responsibility” (Greenawalt, 2014, p. 153). To date,
it appears that none of the 53 criminal law jurisdictions of the United States
has officially adopted or endorsed a stand-alone cultural defense for members of
minority cultures (Renteln, 2014, p. 177). Yet, the controversy continues.
And well it should, for some challenging and important concerns of social justice
lurk beneath the veneer of legal technicality. Unfortunately, these concerns are
rarely discussed or explored in the legal literature that surrounds this issue, and
consequently, the debate over the propriety of a cultural defense in American
criminal law remains largely, though by no means entirely, unconcerned with them.
The purpose of what follows is to focus more explicitly upon these concerns
and to derive from them an argument supporting the case for a cultural defense
in American criminal law. As these remarks may suggest, the issue regarding
legal sensitivity to cultural differences in criminal jurisprudence necessarily pushes
the discourse beyond the confines of mere legal argument and into more
theoretical waters—or at least this is the view to be adopted here. By way of intro -
duction to what follows, then, it seems appropriate to say something in defense
of this view.
I
There are two distinct ways to approach and address questions about the need
for a cultural defense in American criminal law. First, one can suppose these
questions fall exclusively within the domain of criminal jurisprudence and explore
2 Introduction
them as technical matters of criminal defense. Some defenders of such a defense
argue that a defendant’s cultural background may be invoked to establish a partial
or complete excuse for an otherwise criminal act (Renteln, 2004; Note, 1986).
Other defenders of the defense contend that cultural factors may be used to
establish a justification for putatively criminal conduct (Chiu, 2006). And still
others claim that cultural factors may properly be introduced at the sentencing
stage of a criminal prosecution for purposes of sentence mitigation. But all these
arguments remain within the context of traditional criminal defense and do not
stray into more theoretical waters. Their supporters suppose only that Themis,
the goddess of justice, should be permitted to peak out from behind her blindfold
just enough to measure the psychological effect that cultural variables have on a
defendant’s decision to act as she or he did.
Similarly, some critics of the defense also regard the issue as exclusively a matter
of criminal jurisprudence. Some of these question, sensibly enough, whether such
a defense is really necessary and contend, or at least suggest, that the concerns
of culture can be used within the context of traditional criminal defense to help
sharpen understanding of the mental state of the defendant to see if it fits the
requirement of the specific charge(s) she or he faces (Greenawalt, 2014; Golding,
2002). This view raises an important question about what a stand-alone cultural
defense would look like in practice and why the legal concerns of the proponents
of the defense discussed in the previous paragraph should justify a policy shift in
the mechanics of criminal defense.
Other critics appear to want to stay within the narrow parameters of this legal-
istic approach, but broaden their arguments sufficiently to include consid eration
of what might be regarded as basic principles of the rule of law. Some insist, for
example, that such a defense would violate the principle of equal treatm ent of
the law by permitting cultural minorities to have access to a defense not available
to members of the dominant culture. Others argue that such a defense would
leave more vulnerable individuals (women and children in particular) within certain
male-dominated cultural communities without legal support or redress. Stillothers
contend, somewhat vaguely, that this defense would essentialize or reify culture
in a manner that tends to undermine inappropriately judgments of individual
responsibility (Renteln, 2004, pp. 192–194; Renteln, 2014, p. 181).
However, if we approach the issue as a technical matter of criminal juris-
prudence, a cultural defense can make sense only as a strategy for defeating or
diminishing findings of criminal responsibility. According to the mechanics
of criminal law, this involves pressing either an excusing or a justifying argument
in the event the defense acknowledges that the defendant did commit the
allegedly criminal act. Since defenders of the cultural defense who approach the
issue in the fashion now under discussion typically insist that cultural variables
can excuse, mitigate, or justify putatively criminal conduct, it looks like they merely
want to insist that cultural variables are relevant to assessing criminal responsibility.
But this does appear to reduce to the view that cultural variables can fold rather
neatly into existing criminal defense strategies without further need for a cultural
defense (Golding, 2002). Thus one is left wondering why such a defense is needed
Introduction 3
and precisely what it would involve that distinguishes it from standard defense
strategies.
The second way to approach the cultural defense controversy is to see it as an
instance of the much larger political problem involving the accommodation of
difference. The fact of social difference—cultural, religious, ethnic, ideological,
and moral—is a familiar and disconcerting source of conflict and unrest within
the annals of human history. In more philosophical terms, the fact of social
difference introduces the problem of pluralism: How can a collection of disparate
groups separated by deep and contentious normative difference, and also sharing
a common social space, manage to live together in a secure, stable, and peaceful
fashion? If this matter cannot be resolved successfully, then Charles Larmore’s
concern (borrowed from Matthew Arnold) that social life could become a
place “where ignorant armies clash by night” might be realized (Larmore, 1996,
p. 151). Needless to say, the problem of pluralism is much discussed within
the disciplines of moral and political philosophy, political science and political
theory, social theory, and legal theory. Scholars working within the liberal
tradition of political thought have spent considerable time and effort addressing
this problem. Their hope is that liberal theorizing can identify and articulate
normative political principles that can serve as the basis for the peaceful coexistence
of normatively distinct groups. Such principles would then introduce a political
morality capable of establishing social justice within those civil arrangements that
subscribe to them.
These reflections would seem to take us some distance from the cultural defense
question. But viewed from the perspective of this second approach, the matter
of recognizing the need for a cultural defense in criminal law may follow from,
or be inconsistent with, general principles of social justice that guide policies
suitable for the accommodation of normative difference. And there is some
reason to suppose this view is rather plausible, for the problem addressed by
defenders of the defense is a product of the fact of cultural difference. What we
want to know, then, is how the fact of this difference should influence our thinking
about the proper operation of criminal jurisprudence. So, regardless of outcome,
moving to a more theoretical posture may enable us to identify principled grounds
for a politicalargument that can help resolve questions about the propriety of a
cultural defense in American criminal jurisprudence.
This general approach, though not as well traveled as the first approach, is
hardly unheard of and has an important presence in the cultural defense literature.
Alison Dundes Renteln (2004), whose work on the cultural defense is both
insightful and extensive, has pushed in this general direction by arguing that a
cultural defense is justified by virtue of a person’s “right to culture” (p. 213).
Unhappily, however, she says little about where this right comes from or why
anyone should think such a right exists, other than to notice that it has a degree
of currency in international law. And more recently, a collection of essays edited
by Will Kymlicka, C. Lernestadt, and M. Matravers (2014) has discussed the
subject in interdisciplinary fashion and opened the issue to more philosophical
and theoretical analysis.
