Scholars in the social sciences and related disciplines (including law) often circulate “working papers” –basically, rough drafts of their articles. The main reason is to give other scholars a chance to read and offer comments, which authors can then use to improve their work.
Scholars value the chance to make their papers as strong as possible before submitting them for peer review. And they for sure don’t want to end up publishing something that later is shown to be flawed.
In response to a recent blog, a commenter called my attention to a draft paper that reports the results of a study of “stand your ground” laws. These laws provide that a person who honestly and reasonably believes that he or she faces an imminent threat of death or great bodily harm doesn’t have to retreat before resorting to deadly force in self-defense. Numerous states have enacted such laws in the last decade in response to a campaign orchestrated by the National Rifle Association to promote their adoption.
The study investigates a really interesting question: what effect did enacting a“stand your ground” law have in states that had previously imposed a “duty to retreat”—ones, in other words, that before had restricted the right to use deadly force to circumstances in which a person could not have been expected to escape an attack by fleeing? As the authors (economists, by training) put it:
These laws alter incentives in two important ways. First, the laws reduce the expected cost of using lethal force. . . . In addition, the laws increase the expected cost of committing violent crime, as victims are more likely to respond by using lethal force. The purpose of our paper is to examine empirically whether people reasoned to these incentives, and thus whether the laws lead to an increase in homicide, or to deterrence of crime more generally.
Using multivariate regression analysis, the study found that homicides went up in these states. The “stand your ground” standard, in other words, makes people less safe, not more.
This finding has received considerable media attention, in large part because a debate has been raging about the impact of “stand your ground” laws on homicide rates since the murder of Trayvon Martin in Florida last spring.
There’s only one problem. The majority of the states that enacted “stand your ground” laws already permitted citizens to use deadly force to repel a lethal attack regardless of the possibility of safe retreat. The law in these states didn’t change when they enacted the statutes.
The paper lists 21 states in which it says enactment of “stand your ground laws” “remove[d] [the] duty to retreat ... outside the home.”
Not true—or less than 50% true, in any case.
I’ve prepared a list (click on the thumbnail to inspect it) that identifies pre-“stand your ground” law judicial decisions (self-defense is one of those legal doctrines that traditionally has gotten worked out by judges) in 11 of these states. They all indicate clearly that a person needn’t retreat before resorting to deadly force to repel a potentially lethal assault in a public place. (Do realize my research wasn't exhaustive, as it would be if I were writing an academic paper as opposed to a blog post!)
But hey, put scholarly errors aside for a second. There’s an interesting story here, and I can’t resist sharing it with you!
The traditional “common law” doctrine of self-defense that U.S. states inherited from England was that a person had a duty to “retreat to the wall” before using deadly force against another. But in the late 19th Century and early 20th, many U.S. states in the South and West rejected this position and adopted what became known as the “true man” doctrine.
The idea was that that a man whose character is true—that is, straight, not warped; as in “true beam”—appropriately values his own liberty and honor more than the life of a person who wrongfully attacks him in a public place. Punishing an honorable man for behaving honorably, one of the early authorities explained, is contrary to the“ 'the tendency of the American mind' ” (Beard v. United States, 158 U.S. 550, 561 (1895) (Harlan, J) (quoting Erwin v. State, 29 Ohio St. 186, 193, 199 (1876)).
“It is true, human life is sacred, but so is human liberty," another court explained (State v. Bartlett, 71 S.W. 148, 152 (Mo. 1902)).
One is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment that such an anomaly to be possible. In other words, the wrongful and violent act of one man shall not abolish or even temporarily suspend the lawful and constitutional right of his neighbor. And this idea of the nonnecessity of retreating from any locality where one has the right to be is growing in favor, as all doctrines based upon sound reason inevitably will . . . . [No] man, because he is the physical inferior of another, from whatever cause such inferiority may arise, is, because of such inferiority, bound to submit to a public horsewhipping. We hold it a necessary self-defense to resist, resent, and prevent such humiliating indignity, — such a violation of the sacredness of one’s person, — and that, if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity.
Yikes! Many jurists and commentators, particularly in the Northeast, found this reasoning repulsive. “The ideal of the courts” that have propounded the “true man” doctrine, explained Harvard Law Professor Jospeph Beale in 1903 (Retreat from a Murderous Assault, 16 Harv. L. Rev. 567 (1903),
is found in the ethics of the duelist, the German officer, and the buccaneer. . . . The feeling at the bottom of the [the rule] is one beyond all law; it is the feeling which is responsible for the duel, for war, for lynching; the feeling which leads a jury to acquit the slayer of his wife’s paramour; the feeling which would compel a true man to kill the ravisher of his daughter. We have outlived dueling, and we deprecate war and lynching; but it is only because the advance of civilization and culture has led us to control our feelings by our will. . . A really honorable man, a man of truly refined and elevated feeling, would perhaps always regret the apparent cowardice of a retreat, but he would regret ten times more, after the excitement of the contest was past, the thought that he had the blood of a fellow-being on his hands.
This debate was realllllllly bitter and acrimonious. I suppose the two sides disagreed about the impact of the “true man” doctrine on homicide rates. But obviously this conflict was a cultural one between groups—lets call them hierarchical individualists and egalitarian communitarians—both of which understood courts’ adoption or rejection of the “true man” doctrine as adjudicating the value of their opposing visions of virtue and the good society.
Well, along came the amazing super-liberal superhero Justice Holmes to save the day! In a 1921 decision called Brown v. United States, 256 U.S. 335, the U.S. Supreme Court had to figure out whether the federal self-defense standard—which like defenses generally was not codified in any statute—imposed a “duty to retreat.” Holmes concluded it didn’t. But his explanation why didn’t sound at all like what the Western and Southern “true man” courts—or anyone else—was saying in the “true man” controversy.
The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. . . . Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.
We can’t punish the poor bastard, Holmes was saying, not because he bravely defended his honor but because the circumstances reduced him to an unreasoning mass of blind impulse. The “true man” doctrine had become the “scared shitless man” doctrine!
WTF? Who had won? Who had lost? It was the result the Hierarchical Individualists wanted but without the meaning that the Egalitarian Communitarians loathed.
Holmes had rendered this issue culturally meaningless--and therefore made disputing this one aspect of the law pointless for the dueling cultural factions.
And you know what the best thing is? Holmes did this on purpose!
The truth was, Holmes personally identified with the honor norms that animated the “true man” doctrine. It resonated with his own pride over having been part of a Civil War regiment that “never ran.” In his famous 1884 Memorial Day Address, Holmes spoke not of the thoughtless impulses of those who survived hand-to-hand combat, but rather of the “swift and cunning thinking on which once hung life or freedom.”
Writing of the issue in Brown to to his confidant Harold Laski, Holmes explained:
[L]aw must consider human nature and make some allowances for the fighting instinct at critical moments. In Texas where this thing happened, . . . it is well settled, as you can imagine, that a man is not born to run away . . . .
Yet for Holmes the liberal jurist, the law decidedly was not not a place for civil war even when waged in the weaponry of partisan moralistic and largely symbolic language. Acknowledging how much less passionately he defended the no retreat rule in Brown, Holmes tells Laski, “I don’t say all I think in the opinion.”
Holmes's gambit worked. The law stayed as it was. But because the “no retreat” principle no longer had any clear cultural resonance, people stopped fighting about it (and focused their attention elsewhere: e.g., on guns, and nuclear power, and climate change).
Until . . . the NRA, a tapeworm of cognitive illiberalism, got a brilliantly evil idea: Mount a campaign in Southern and Western states to get “stand your ground” laws passed!
Sure these new statutes wouldn’t actually change the law. But that wasn’t the point of them.
The point was to reignite the cultural conflagration that Holmes had snuffed out. By enacting these laws, the NRA predictably provoked today’s egalitarian communitarians, who denounced the laws as certain to unleash a torrent of death and carnage.
That sort of response is really good for the NRA. It gets today’s hierarchical individualists very mad, which makes them give lots of money to the NRA to strike back against the insults that are being hurled upon them!
The sort of media coverage of the study that is the subject of this post is very welcome PR fodder for the NRA too.
Sigh; where is our Holmes?
But . . . back to the paper!
I’d say the study’s mistaken premise – that the “law changed” in the “stand your ground” states—rises to the level of a serious flaw. The authors didn’t measure what they thought they were measuring. The thing that their complexly structured statistical model says “caused” something—a change in law in 20 states--didn’t happen.
I’m not really sure, in all honesty, that this problem can be fixed. The commenter who brought the article to my attention wondered if maybe the authors could argue that even though the law didn’t change in so many of the “stand your ground” law states, the enactment of these symbolic laws put citizens who previously didn’t know the law on notice that they didn’t have to retreat and that’s what “explains” the homicide rate going up.
Interesting, but I myself would feel queasy even attempting this sort of rescue mission here. If one discovers that what one measured isn’t what one thought, it’s pretty dubious to invent a hypothesis that fits the result one nevertheless managed to find. That’s not materially different, in my view, from just poking around in data and concocting a story after the fact for whatever happened to be significant. But maybe that's just me.
Here’s another interesting thing, though. While they might have forgotten (or simply never recognized) the heroic liberal statesmanship of Justice Holmes, lawyers, judges, law students and anyone else who had happened to pick up any basic text on criminal law knew that the “true man” doctrine was widespread—indeed, declared by many commentators and courts to be the “majority rule” in the U.S. Naturally, it occurred to scholars long before now to examine whether this position is linked to homicide rates in the (mainly) Southern & Western states that follow it.
The first-rate scholars Nisbett & Cohen wrote a great book, Culture of Honor: The Psychology of Violence in the South, that presented empirical evidence that the “no retreat” standard, along with other manifestations of cultural honor norms, were linked to high homicide rates in the South way back in 1996.
The authors’ very rough draft doesn’t mention Nisbett & Cohen either. If they tried to deal with this now, what would they say? That the “true man” doctrine made homicide rate higher than in “no retreat” sates, and yet the “stand your ground” laws made it go up higher still? Was there some dip in the middle? Perhaps betweeen1994 and 2000, people momentarily “forgot” what the law was in their states was, and were only reminded again by the new “Stand your ground” laws?...
But I myself think it is really not sensible to even try to make sense of results generated by a statistical model that rests on a mistaken factual premise.
Of course, these are matters for the authors to consider. I'm sure they are relieved they circulated their working paper so that they will now have an opportunity to think about these difficulties.
Brown, R.M. No Duty to Retreat: Violence and Values in American History and Society (1991).
White, G.E. Justice Oliver Wendell Holmes : law and the inner self. (Oxford University Press, New York; 1993).