Tuesday, June 1, 2010


A New York appellate court recently upheld the manslaughter conviction of John White, an African American man living on Long Island for shooting and killing one of 5 white high school students who came to his house shouting racial slurs and threatening to harm his teenage son. White’s defense was based on “justification,” that as a black man who, while growing up, had experienced racial discrimination and been told that two family members were killed by the KKK, he understandably armed himself with a pistol and used it to protect himself and his family without intending to shoot the victim.

Legally speaking, a person is justified in using deadly force if he or she “reasonably believes” it is necessary to protect their home against an intruder. The jury rejected this defense, and in reviewing the evidence, the appellate court concluded that the defendant did not have such a reasonable belief. The legal standard applied by the Court was:

“A determination of whether a defendant has a reasonable belief that deadly force is necessary to prevent or terminate a burglary requires the application of a reasonableness standard which has both objective and subjective elements. ‘The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’"

This standard has as its premise that 12 jurors who may or may not have shared a defendant's life experiences can determine whether or not the defendant's fear of harm to himself, his home and his family was reasonable. What does that mean? If the fear was “unreasonable” but, nonetheless, the defendant experienced it, why does that make him guilty?

In a diverse society with a history of racial conflict, how do we determine what is reasonable for another person to believe. Is the application of the “reasonableness” standard really another way of determining whether or not the defendants’ claim is credible. Perhaps, but it is one thing to ask do you believe that the defendant felt as he said he did and, given how he felt, was he justified in resorting to deadly force, and quite another to ask one group of people, called a jury, in this case one with ten white people, one black and one Latino, to determine whether or not another person’s, a black person’s, feelings of fear were reasonable.


  1. I don't know if my comment was removed, or if Blog Spot screwed up

    Pls advise

    Bill Kelleher

  2. Hi Mr. Kresky!

    I think that the Reasonable Person Standard (RPS) is one of the Common Law’s greatest legacies for civilized conflict resolution. But it also holds the potential to go far beyond the courtroom as a way for Reason to set standards. This is one of the central points of Michael Polanyi, a well known philosopher of social science (The Study of Man, and Personal Knowledge).

    He addressed one of the most difficult political/philosophical questions of our time. That is, “by what standard can people assess the appropriateness of governmental action, policies, and laws?” If our scientific age rejects the notion of universal moral principles, then is “good” policy, law, etc simply the will of the stronger, or whatever the government can politically get away with? Also, are intelligent people, who want to criticize political conduct reduced to the impotency of accepting everything as “good” relative to the culture it happens in?

    Polanyi argues, in effect, that the RPS provides the solution to that problem. In his view, all normal people have the natural capacity to think over and to decide on the question “what would a RP have done under those circumstances?”

    This decision making process entails several elements, and may be the best humanity can do to achieve trans-cultural standards. Among these elements are the use of a practical sense, based on each person’s experience in society and in life; a moral sense, based on each person’s intuition that all persons are worthy of at least a minimum of respect, respectful treatment, and due consideration for their safety and dignity; and a capacity to exercise empathy – that is, to understand another person’s thoughts, feelings, and actions by dwelling in that person’s point of view as one person to another.

    Indeed, the law requires that each juror exercise his or her ability to both intuitively grasp how a defendant thought and felt in a given situation, and then intuitively evaluate the reasonableness of that person’s thoughts, feelings, and actions.

    Polanyi takes on Napoleon as his defendant, and evaluates Napoleon’s career by the RPS. Of course, there are many details to consider in the process. But it is the process, rather that the mechanical application of supposed “universal” moral principles, that matters most in making this kind of judgment.

    By implication, this process can be applied to all political actors, government policies, and laws. In this process, human Reason can be used to develop a body of principles for the development of a civic morality, which can both guide further political action, and criticize that action.

    I have two essays elaborating these points at http://ssrn.com/author=1053589
    (“Respect and Empathy …” and “The Reasonable Person …”)

    Anyway, white people empathizing with black defendents is a challenge for this human capacity, but in my opinion, if it is done in good faith, it can be done well.

    BTW in my recent email to you, I neglected to discuss how presidential candidates could be selected and nominated in a system based on Internet voting, and without the involvement of political parties. If you are interested, I discuss this briefly on my blog, at
    http://tinyurl.com/IV4Indies There is a thorough discussion in another essay on SSRN, “How to …”

    Thanks for your thought-provoking post,