Hastings Race and Poverty Law Journal


In rural Northern California, two young black men are shot multiple times from behind. Their friend, who is also black, is charged with their murders, while the gunman, who is white, walks free. During an alleged gang brawl between teenagers, a young Latino man is stabbed and killed. His friends, and not the actual perpetrator, are charged and convicted of the crime. The defendants are Latino, the gunman is white. California's little-known provocative act doctrine, which holds felons liable for killings that are provoked by a felon's provocative act, is the vehicle prosecutors used to charge each of these young men with murders they did not commit. This article analyzes the doctrine in the context of implicit bias testing, and looks at the ways in which such implicit racial biases lead to the use of the doctrine in racially-suspect prosecutions. Because the doctrine relies on the subjective notion of provocation and holds individuals liable for the reactions their conduct provokes, it allows for the infiltration of racial bias into the criminal process. The author argues that the prevalence of subconscious racial stereotyping in our society means that, in the moment, a person of color is more likely to find him or herself in a provocative act situation, and after the fact, is more likely to be charged under the doctrine than a similarly situated white person.

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