NCJ Number
163125
Journal
San Diego Justice Journal Volume: 3 Issue: 2 Dated: (Summer 1995) Pages: 461-484
Date Published
1995
Length
24 pages
Annotation
Although cultural defense is not yet recognized as a formal substantive defense, new immigrants and citizens of different ethnic backgrounds have used it to mitigate criminal charges and sentencing.
Abstract
As the United States continues to accept immigrants from different parts of the world, the demographic distribution of the population has become more diverse and more criminal cases based on cultural defense will probably be raised. Allowing the use of cultural defense adheres to the notion of individual justice for the defendant and seems to be tailored to an individual's culpability. Allowing the unlimited use of cultural defense, however, may undermine equality for the majority. Disallowing the use of cultural defense denotes equal treatment for everyone, and knowledge of being treated by one set of laws may deter defendants from circumventing these laws to commit crimes. Nonetheless, adhering to one set of laws and providing individual justice are both important concepts. Punishing new immigrants for acts their culture considers proper without giving them an opportunity to adjust to the new host country is not fair. Therefore, the author suggests giving new immigrants to the United States up to 5 years to modify their conduct, allowing them to raise cultural defense within the first 5 years of their residency in the United States. The use of cultural defense, however, should not be allowed by anyone who has been in the United States for more than 5 years. Recent cases in which cultural defense has been used to mitigate or exonerate criminal charges are noted. 124 footnotes