Cynthia Lee (The George Washington University Law School) has posted Interest Convergence Theory and the Cultural Defense on SSRN. Here is the abstract:
Much has been written about the so-called “cultural defense” or, more accurately, the proffer of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition of an official cultural defense.
In Interest Convergence and the Cultural Defense, Professor Lee neither defends nor criticizes the practice of using culture in the criminal courtroom. Rather, she seeks to illuminate why some uses of culture in the criminal courtroom seem to be more successful than others. After extensive review of the literature discussing various uses of the cultural defense, she observed a pattern that suggests immigrant and minority defendants who introduce cultural evidence in their defense are more likely to succeed in mitigating a charge or sentence when their interests are either similar to or coalesce with dominant White majority interests. Borrowing from Derrick Bell’s interest convergence theory, Professor Lee argues that interest convergence is one way to explain the successful use of culture in the criminal courtroom. Interest convergence, according to Bell, is the idea that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.” In the cultural defense arena, the interests of minority and immigrant defendants in obtaining an acquittal or mitigation of the charge seem most likely to be accommodated when those interests converge with the interests of mainstream Americans. Professor Lee uses three types of cases to support her thesis: (1) Asian immigrant men who kill their Asian immigrant wives and claim they acted reasonably within the dictates of their culture; (2) Hmong men charged with rape who claim they were engaging in the Hmong custom of marriage-by-capture; and (3) Black men who successfully use deviance defenses like “Black Rage” or “mob contagion.”
This article proceeds in four parts. Part I provides the reader with an overview of the major legal issues surrounding the use of cultural evidence in the criminal courtroom. Part II introduces the reader to Derrick Bell’s interest convergence theory. Part III provides a taxonomy of the different ways interest convergence has been applied by legal scholars writing on a variety of subjects. Part IV demonstrates how interest convergence theory can help explain the successful uses of culture in the criminal courtroom.