IN THESE TIMES-APRIL 5,1993

H E L A W

The ghetto made me do it

W T ¥ hen Felicia

Should the same legal

defense that’s used/or

violence- crazed

Vietnam vets be applied to

violence- crazed

inner-city residents?

By Francis Flaherty

Lisa” Mor- gan was growing up, her parents would sit down to meals with guns next to their plates. They were defending themselves— against each other.

“This was Lisa’s din- ner,” explains attorney Robin Shellow. “She was seven at the time.”

If nothing else, Lisa Mor- gan’s childhood in a poor, inner-city Milwaukee neigh- borhood starkly illustrates the tragic effects of urban violence. “Mom shot Dad,” Shellow says. “And Mom shot boyfriend. … [Lisa’s] uncle, who was actually her age, was murdered. Two days later, her other uncle was murdered. Her sister’s boyfriend was paralyzed from the neck down by gunfire. Her brother was shot at and injured. Her mother once had set her father on fire.”

If this weren’t enough tragedy in one young life, Lisa Morgan’s mother was a drug addict and Lisa was raped at age 12.

So perhaps it’s not too surprising that Mor- gan, as a teenager, committed six armed rob- beries and one intentional homicide in the space of 17 minutes in October 1991. The vic- tims were girls; the stolen objects were jewel- ry, shoes and a coat. The dead girl was shot at point-blank range.

What is surprising—to the legal establish- ment, at least—is the approach Robin Shellow used in defending Morgan. In the girl’s neigh- borhood and in her family, Shellow argued, violence is a norm, an occurrence so routine that Morgan’s 17 years of exposure to it have rendered her not responsible for her actions.

This “ghetto defense” proved fruitless in Morgan’s case. In court last year, the young woman was found both sane and guilty. Unless Shellow wins on appeal, Morgan will be behind bars well into the next century.

But despite its failure for Morgan, Shel- low’s “cultural psychosis” or “psychosocial history” strategy has taken hold. “I’ve gotten hundreds of calls from interested attorneys,” Shellow says. Already, the defense is being

floated in courtrooms around the nation. It’s eliciting both enthusiasm and outrage.

Technically, Shellow’s defense is a medical one. She believes that Morgan suffers from post traumatic stress dis- order (PTSD) and other psychological ailments stemming from her lifelong exposure to violence.

Like other good lawyers, Shellow knows that the law abhors broadly applicable excuses, so she emphasizes the narrowness of her claim. Morgan belongs to a very small group of inner-city residents with “tremendous intra-famil- ial violence,” only some of whom might experience PTSD. She also stresses the un-revolutionary nature of the defense, medically and legally. PTSD has been recognized as a mala- dy in standard diagnostic texts since 1980, she says, and it has been employed as a criminal defense for Vietnam veter- ans, battered wives and many other trauma victims.

Despite Shellow’s attempts to show that her defense is neither new nor broad, the case is ringing loud alarms. For, however viewed, her strategy sets up an inflammatory equa- tion between inner-city conditions and criminal exculpation. The implication is that if you grew up in a poor, violent neighborhood and you commit a crime, you may go scot- free.

Yet why not a ghetto defense? After all, if a Vietnam vet- eran can claim PTSD from the shock of war, why shouldn’t a similar defense be available for a young black reared in the embattled precincts of Bed-Stuy? Sounds sensible, no? Isn’t a ghetto like a battlefield?

Alex Kotlowitz, who chronicled the lives of two Chicago

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IN THESE TIMES-APRIL 5,1993________

black boys in There Are No Children Here, goes even fur- ther. He says the inner city can be worse than war. “You hear constant comparisons of these neighborhoods to war zones, but I think there are some pretty significant differences,” he says. “In war, there’s at least a sense that someday there will be a res- olution, some vision that things could be different. That is not the case in the inner cities. There is no vision. And there’s no sense of who’s friend and who’s foe.”

There are other analogies that make the ghetto defense seem very legitimate. For instance, despite traditional self- defense principles, a battered wife in some jurisdictions can kill her sleeping husband and be legally excused for the homicide. The reason is the psychological harm she has sus- tained from her life of fear and violence.

Why not Lisa Morgan? Hasn’t her life been debilitatingly violent and fearful?

These arguments make some lawyers hopeful about the future of Shellow’s pioneering strategy. But most observers are pessimistic. “We’ll get nowhere with it,” says famous defense lawyer William Kunstler.

Why? One reason is that the American justice system often favors the powerful over the poor. For generations, for instance, the bloodiest crime in the nation—drunk driving— was punished with a relative wrist slap. By contrast, a recent federal law mandates that those convicted of the new crime of carjacking get socked with a minimum and mandatory 15-year sentence.

What explains these disparate approaches? Simple: pro- tection of the affluent classes. Light penalties for drunk dri- ving protect the affluent because they often drive drunk. Harsh carjacking penalties protect the affluent because they are the usual carjacking victims. “The middle class sees car- jacking [laws] as protecting them from people coming out of some poor neighborhood and just showing up in their neighborhood and committing a crime in which they are at risk of dying,” says Professor James Liebman of Columbia University School of Law.

Because the ghetto defense protects the poor instead of the powerful, Kunstler and others doubt it has a bright future. Other factors further dim the strategy’s chances. Fear is a main one, says Professor Liebman. The ghetto defense brings a gulp from jurors because “their first thought is, ‘If he’s not responsible, then none of those people are,'” he rea- sons. And we all know what that means: riots, mayhem, Los Angeles.

Social guilt raises even higher the hurdles for the ghetto defense. To allow such a defense is a tacit admission that we—society—tolerate a situation so hobbling that its vic- tims have become unaccountable for their actions. “If it ain’t them who’s guilty, it’s us,” says Michael Dowd, direc- tor of the Pace University Battered Women’s Justice Center in New York. And “it’s just too horrific for us to accept responsibility, too horrific to say, ‘I’m responsible for what happened in L.A.’ We will be able to accept the [ghetto] defense at the same moment that we are seriously moved to eradicate the realities behind that defense.”

What are the biggest criticisms of the ghetto defense? One focuses on the victim’s identity. Battered spouses and battered children are accused of killing precisely those who hurt them. This endows the crime with a certain rough jus- tice. But in a ghetto defense case, the victim is usually an innocent stranger.

Others, like Kotlowitz, worry that the ghetto defense might dislodge the cornerstone of our justice system: person- al responsibility. “We have to be careful not to view people growing up in [inner-city] neighborhoods completely as vic- tims; they are both victims and actors,” he warns. “We can’t absolve them from responsibility.”

Lisa Morgan “went up to someone she didn’t know, stole a jacket from her, and then just blew her away,” he says. “There’s no way as a society that we can excuse that. We can understand it, but we can’t excuse it.”

He raises a fundamental question. Everyone can point to scars from the past—alcoholic parents, tragic love, etc.— and claim exculpation. And if all are excused, who is responsible?

Another worry is diminished standards. “[The ghetto defense] lowers expectations,” Kotlowitz continues. “It says, ‘OK, I understand what you’ve been through, so it’s OK to

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