At rush hour on Dec. 7 last year, Colin Ferguson boarded New York's Long Island Rail Road. As the train headed for the suburbs, the Jamaican immigrant opened fired into a carload of 90 commuters with a 9-mm Ruger semiautomatic handgun. Six died; 19 were wounded. At the time of his arrest, Ferguson had in his pockets notes voicing hatred of whites, Asians and "Uncle Tom Negroes." He had a long history of angry run-ins with whites. In an earlier incident, he yelled at his perceived enemies, "Black rage will get you!" Now "black rage" may become the defense in his trial this fall.
Ferguson's lawyers, famed criminal defense attorney William Kunstler and co- counsel Ronald Kuby, intend to shape an insanity plea using black rage. In a widely praised 1968 study titled Black Rage, African-American psychiatrists William Grier and Price Cobbs argued that racism forced blacks to make certain social adaptations, becoming mistrustful and suspicious of outsiders. That, say Ferguson's lawyers, combined with a mental disorder, triggered their client's attack -- and should mitigate whatever punishment is meted out to him. Says Kuby: "Being exposed to racist treatment over a long period of time drove Ferguson to violence." Critics say arguments based on black rage are troubling because, unlike battered women who kill their abusive husbands, defendants in such cases would not need to produce a record of specific life- threatening conditions -- just social and environmental causes. "Crime is not a function of group characteristics," says attorney Alan Dershowitz. "It is an individual phenomenon that must be treated on an individual basis." Asks University of Chicago law professor Richard Epstein: "Anytime you fire a black worker, is he entitled to murder you?" Furthermore, Grier cautions that what he wrote about in 1968 was "not a diagnosis" or a psychosis, simply an observation about how blacks adjust to racism. "Naturally, blacks are angry."
Kunstler does not know yet whether he will be allowed to use testimony linking Ferguson's rage to the resulting violence. If the courts say yes, Kunstler has reason to hope for juror empathy. A National Law Journal survey of 800 people taken in March showed that 68% of blacks and 45% of whites felt that a "compelling" defense could be made of fury resulting from long-term racism.