An interesting story: on whether "strengthening self-defense law deters crime" - Cultural Cognition of Health

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 19 th Century and early 20 th , 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.