American Roulette: The Social Logic of Death Penalty Sentencing Trials 9780520975507

Citation preview

American Roulette

American Roulette the social logic of death penalty sentencing trials

Sarah Beth Kaufman

university of california press

University of California Press Oakland, California © 2020 by Sarah Beth Kaufman Library of Congress Cataloging-in-Publication Data Names: Kaufman, Sarah Beth, author. Title:American roulette : the social logic of death penalty sentencing trials / Sarah Beth Kaufman. Description: Oakland, California : University of California Press, [2020] | Includes bibliographical references and index. Identifiers: lccn 2019045949 (print) | lccn 2019045950 (ebook) | isbn 9780520344389 (cloth) | isbn 9780520344396 (paperback) | isbn 9780520975507 (ebook) Subjects: lcsh: Capital punishment—United States. | Sentences (Criminal procedure)—United States. | Criminal justice, Administration of— Social aspects—United States. Classification: lcc kf9227.c2 k38 2020 (print) | lcc kf9227.C2 (ebook) | ddc 345.73/0773—dc23 LC record available at https://lccn.loc.gov/2019045949 LC ebook record available at https://lccn.loc.gov/2019045950 Manufactured in the United States of America 28 27 26 25 24 23 22 21 20 10 9 8 7 6 5 4 3 2 1

Contents

Acknowledgments Introduction

part i.

vii 1

the social logic of death penalty cases

1.

Constructing Capital Homicide

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2.

Governing Capital Sentencing

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3.

The Capital Sentencing Field

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part ii.

the social logic of death penalty trials

4.

Performing Punitive Citizenship

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5.

Performing Mercy

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6.

Performing Danger

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7.

Mourners in the Court

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Conclusion

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Appendix A. Methodology

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Appendix B. Court Cases Cited

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Notes

203

Bibliography

221

Index

245

Acknowledgments

Though I didn’t know it at the time, this book began during the late 1990s in New Orleans, where Christopher Eades, Shauneen Lambe, Mike Lenore, Billy Sothern, and I learned to negotiate the worlds of criminal justice advocacy and young adulthood simultaneously. I dedicate this book to them and to R. Neal Walker, whose presence was unforgettable, in court and out. The majority of the book was written more than a decade later, when Charley Price gave me the gifts of joy and time, for which I am eternally grateful. Our remarkable children Raymond Everett Kaufman Price and Aviva Faith Kaufman Price are evidence of the best of us both. The path between these two time periods was not at all straight, and could have taken a turn at several junctions. That I became a scholar is a testament to friends, family, and teachers. I was first a graduate student at Tulane University where Joel Devine, Beth Fussell, Melinda Milligan, and especially Scott Frickel exemplified sociology’s potential. Scott introduced me to something called the sociology of knowledge, which I did not realize I had been looking for. I was then mentored by an extraordinary group of scholars at New York University. Primary among these was David Garland. That his scholarship shaped this book is evident. Less evident is vii

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his influence as a human being. Whether I was at my worst or at my best, David was as incisive and kind a mentor as any I’ve ever met. He is a model to me. Craig Calhoun and Richard Sennett were also formative advisors. They introduced me to cultural sociology and the NYLON network that provided my much-loved institutional home. Craig’s generosity is as astonishing as his mind, offering without hesitation his home, family, and dogs, as if his detailed and always brilliant feedback wasn’t enough. Richard’s insistence on the human, creative aspects of sociology inspires me to this day. NYLON gave me the opportunity to appreciate the smarts and friendship of—among others—Will Davies, Saran Ghatak, Jane Jones, Monika Krause, Amy Leclair, Tey Meadow, Ashley Mears, Owen Whooley, and Grace Yukich, all of whom read and commented on earlier drafts of this work. I love you all. Lynne Haney, Rayna Rapp, Eric Klinenberg, and David Greenberg were teachers and advisors extraordinaire. I conducted research for the book while traveling around the country. In this, I benefited not only from a National Science Foundation Doctoral Dissertation Research Improvement Grant in the Law and Social Sciences (#0719721), but also from the homes, conversations, and other essentials provided by Richard Bourke and Christine Lehman, Ellen and George Galland, Hillary Galland, Scharlette Holdman, Jane Jones, Phil, Ronnie, and Aron Kaufman, Monika Krause, Maya Kremen and Jeff Davies, Denny LeBoeuf, Amy Leclair, Ashley Mears, Katya Semyonova, Rebecca Snedeker, Billy Sothern and Nikki Page, and Kim Watts. I also spent a year as a visiting scholar in the Department of Sociology at the University of Texas at Austin. There Javier Auyero, Ben Carrigan, Danielle Dirks, Sheldon Eckland-Olsen, Jim Marcus, Mary Rose, and Meredith Rountree were wise guides. Mary LaMotte Silverstein also provided editorial advice and, with Jake Silverstein, great intellectual and emotional companionship. I cannot say enough how fortunate I am to then have landed at Trinity University in the Department of Sociology and Anthropology. My colleagues Christine Drennon, Jennifer Matthews, Meredith McGuire, Alfred Montoya, Tahir Naqvi, Richard Reed, Ben Sosnaud, David Spener, and Amy Stone are the absolute best of academia. Bill Christ, Stacey Connelly, Irma DeLeon, Kathleen Denny, Habiba Noor, Elizabeth Rahilly, Kate Schubert, Sussan Siavoshi, and Claudia Stokes have also supported me intellectually, organizationally, and emotionally. My weekly writing group—Patrick

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Gallagher, Anne Hardgrove, and Tahir Naqvi—kept me on task and laughing despite the neoliberal charter school advocates’ encroachment. At Trinity, an excellent cadre of undergraduate researchers worked on this project with me. To Faith Deckard, Erin Drake, Frances Kennedy-Long, Madison Matthies, Jacob Metz-Lerman, and Lily Sorrentino: thank you! I am also indebted to Trinity University’s president, Danny Anderson, and the vice president for academic affairs, Deneese Jones, who enabled this project by trusting me (and funding me!) to stray from it. It was only by collaborating with Habiba and Bill on our play, To Be Honest, that this book took its shape. While on pretenure leave granted by Trinity, I also benefited from the care of Emily Bolton and Clive Stafford-Smith (even in absentia), Megan Colletta and Bill Short, and Shauneen Lambe in Dorset and London. To turn the manuscript into a book, I could not imagine a better team than mine at the University of California Press, including Madison Wetzell, Cindy Fulton, and Jeff Wyneken. Patrick Anderson and Maura Rossener in particular improved this book in ways that I did not anticipate. I waited to finish it until you were ready to help me, I think! Thank you for going above and beyond. I also thank Garth Bryant, Craig Calhoun, Ron Levi, and Mary Rose for feedback on chapter 3. Finally, in a category of their own are my parents, Phil and Ronnie Kaufman. Among the thousands of ways they helped during this project’s formulation, my mother rescued me from an employment disaster and cared for my children. My father read chapter drafts and never hid his pride. For them I am so very lucky. And to Steve Kaufman: I would never have gotten to this place without your tremendous support. My mistakes, of course, remain all my own. Two chapters were published in earlier versions as journal articles: chapter 4 appeared as “Citizenship and Punishment: Situating Death Penalty Jury Sentencing,” Punishment and Society: The International Journal of Penology 13, no. 3 (2011): 333–53; and chapter 7 as “Mourners in the Court: Victims in Death Penalty Trials, through the Lens of Performance,” Law and Social Inquiry: Journal of the American Bar Foundation 42, no. 4 (2017): 1155–78.

Introduction

I first encountered the death penalty up close in 1998 when I was twentytwo. After college, I worked as an investigator at a small nonprofit law office in New Orleans, Louisiana, that represented poor people accused of capital murder. Much of my work involved gathering evidence to help demonstrate to juries that seemingly reprehensible defendants might also deserve compassion. One of the first cases I was assigned involved a man named Albert, who was a few years older than I. Albert was nineteen when he was accused of committing murder, and while I passed my early adulthood at a prestigious East Coast university, he spent his on death row. He and his family were raised in a plantation culture that still exists in parts of the southeastern United States; the family had lived and worked on the same farm continuously since Albert’s grandparents were enslaved. According to the court record, the farm owner, Joey Smith, a direct descendent of the owner of the plantation on which Albert’s grandfather was condemned to servitude, hired Albert to kill his second wife. Albert considered Smith to be not only his boss but also an archetypal godfather—a parraine, as it is called in Cajun country—who was responsible for his family’s livelihood. Albert had been following Joey’s orders since he was young, and believed that he and his family would be in danger if he disobeyed any request Joey made. There was 1

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little question that Albert had been involved in killing Joey’s second wife; he confessed to shooting her at Joey’s instruction and helping to make it look like a robbery. But Albert tested as having an intellectual disability, and he had never committed any other violent act. Joey was suspected of involvement with the mysterious disappearance of his first wife and had been convicted of federal drug trafficking. The inequality that our office was trying to reconcile was that Joey, nearly twenty years Albert’s senior, was sentenced to live the rest of his years in prison, while Albert was to be executed for an act he committed while still a teenager. Albert deserved, at worst, a sentence equal to his parraine’s. This was the first example of an unforgettable lesson I would learn during my years in Louisiana: the murderers who seem to be the most morally despicable are not necessarily those who are sentenced to death row. It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others. But these are not the criteria that determine who is “death-worthy” in the United States; Albert and his parraine are not an anomaly. Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment. Corinio Pruitt and Corey Wimbley each committed single robberymurders and were sentenced to death by execution. In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death. Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.” During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018, as shown in figure 1. This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society. Whether for or against the death penalty, few people are satisfied with the current system. As a court reporter said to me during an especially frustrating day of jury selection when most of the potential jurors were dismissed: “We all hate these here. They take so much time! Nobody gets anything else done. And what’s the point? We all know the outcome anyway.” (The trial

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Figure 1. Death Sentences and Executions in the United States, 1993–2018.

was in a jurisdiction known to have anti–death penalty jurors.) Pro–death penalty groups think justice takes too long, and anti–death penalty groups argue that justice is not served using capital punishment. By the time I left Louisiana, five years after first meeting Albert, I was of the same mind as the hard-charging civil rights attorneys I worked for: I believed that race and class discrimination, not morality or justice, drove the death penalty. I went to graduate school in part to escape the overwhelming injustices I witnessed. I thought I had little to add to the study of the US death penalty because its story seemed so simple: defendants who received sentences of execution were disproportionately poor young men who had grown up under conditions of exceptional violence and deprivation, and received particularly weak legal representation. Indeed, scholarship confirms that race and class continue to influence capital punishment.1 But the professors in the sociology department where I completed my PhD pushed me to look again, beyond both the existing death penalty scholarship and the perspective of the dedicated advocates I admired. What could I learn about the persistence of such a seemingly discriminatory system by contextualizing my experiences using the sociology of knowledge, culture, and punishment? In this book, I take readers with me as I reexamined the world of death penalty trials. Capital sentencing ostensibly sorts murderers into

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death-worthy and non-death-worthy categories. But neither the relative heinousness of the crime nor simply the race and class of the defendant determines who will face the harshest of the criminal punishments in the United States. Instead, I argue, capital sentencing reflects a legal system at the limit of its powers, locked into practices defined by adversary and performance rather than justice or compassion.

resea r c h i n g ca p i ta l t r i a l s : a s u r p r i s i n g agno t o l o g y To begin my sociological inquiry into the world of capital trials in which I had been embedded, I looked, as any young graduate student does, to the academic literature. Much has been written about the contemporary death penalty, and a lot of data gathered. The Bureau of Justice Statistics at the US Department of Justice produces extensive figures on homicides, arrests, and prison sentences for convicted murderers, and organizations such as the Death Penalty Information Center and Human Rights Watch have detailed information on death row and executions. Scholars know a lot about people who are murdered, and those who are eventually executed for those murders, but I was surprised by the lack of data about the legal processes between the homicide and the execution. There is no central list of when or where capital trials occur across the nation. This was a major problem for me. I wanted to conduct an ethnography of a representative group of death penalty trials but could find no one to tell me even the most basic information. My goal was to closely examine the ways prosecutors and defense attorneys argue for death by execution or for lifetime imprisonment, crafting, as I saw it, dueling narratives of a person’s life. Death penalty trials take place in courtrooms across the country like other criminal trials, but with a major distinction. When prosecutors seek a death penalty, juries rather than judges hear evidence to determine the defendant’s sentence. Capital juries not only determine whether a defendant committed the murder; they also decide whether that defendant then deserves a sentence of life in prison or death by execution, the only two options for a defendant convicted of capital murder in all death penalty states today. The central role of these non-experts in capital sentencing

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makes it an exceptional site in the US criminal justice system, and not only because the death penalty is on the table. In most every other setting, experts of one sort or another, be they legislators, judges, parole officers, or psychiatric caseworkers, determine criminal sentences. I wanted to understand how evidence pertaining to criminal punishment was presented to everyday Americans. But I found that no organization tracks death penalty trials around the country, nor their results. The lack of systematic information on capital trials is itself salient. Sociologists believe that an agnotology—or absence of knowledge—is not an accident. Missing knowledge should be treated as an active rather than incidental aspect of sociopolitical power. Rather than think of a lack of capital trial data as an oversight, I began to consider why a systematic review of capital sentencing trials might jeopardize or destabilize an established source of power. My desired research methodology, it turned out, was itself a potential critique of the status quo. In 2007, I was lucky to find a self-described “crazy law professor” who had begun to create an ad hoc database of capital trials. By scouring newspaper accounts with the help of law students, David McCord found about three hundred capital trials in each of the years 2004 and 2005. Starting with this information, I adapted McCord’s method to eventually create a database of all capital trials in 2005, 2012, and 2016. As I gathered this data, I also crafted a research plan that enabled me to pilot the first and only systematic ethnography of capital trials in the United States, observing nearly one thousand hours of capital trials in seven states across the country between 2007 and 2009, and in 2014. I observed thirteen state and three federal trials, lasting from a few days to several weeks, in Pennsylvania (two), New York (two federal), Virginia (one federal), Louisiana (three), Texas (seven), and Illinois (one). I also conducted documentary research; interviewed lawyers, testifying experts, victims’ family members, and others; read and analyzed newspaper articles describing capital homicide trials; and became intimately familiar with death penalty jurisprudence, homicide statistics, and legislation. I spent years learning about the world of US capital punishment, the details of which readers can find in appendix A on methodology. Given the lack of systematic data on capital sentencing, my guiding questions became these: What are capital sentencing trials? What happens in practice when a group of Americans are asked to decide

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whether a person deserves to live or die? And what power could be destabilized by answering these questions? In addition to methodological challenges, I faced ethical issues when beginning this study. Capital punishment is an emotional as well as intellectual problem. Even without the bias of having worked for a capital defense organization, pretending to be completely “detached” from such a topic would be disingenuous. To deal with this head-on, I follow in the tradition of postcolonial ethnographers and feminist researchers who recognize the impact of their own subjectivity on academic inquiry. Much sociolegal scholarship on criminal court proceedings relies on legal transcripts as sources of data. Of utmost importance to this project was deciding not to study what Diana Taylor calls an “archive,” but instead focusing on “repertoire,” the real-time practices of humans in their environment. I rejected the typical method of legal and even sociolegal analysis of capital sentencing, which is limited by its use of the most accessible archive, the legal transcript. I knew from my experiences in capital trials in Louisiana that much courtroom activity never makes it into the legal transcript. Among the central findings of this book is that legal transcription in fact systematically erases whole aspects of capital trials that would seem to impact juries but are never made available for higher courts to review.2 Ethnographers gather data by immersing themselves in a social scene or community. The goal is to experience the scene from the perspective of a participant, in order to understand what social forces shape it. We are taught how to let go of the scholarly role enough to really feel what is happening. Later we interpret how the relationships, institutional demands, and knowledge claims shape those experiences. Readers will notice that I include, throughout the book, some of the notes, photographs, and sketches I made during my ethnographic immersion. It is these field notes—a catch-all category for the documentary evidence we create as ethnographers—that I use to discern the social forces impacting capital sentencing. These notes represent a particular way of viewing a complex social scene. Like most ethnographers, I analyze them as situated in the actualities of my own history, to paraphrase Dorothy Smith. I take for granted that role conflicts are present in any attempt at objectivity and that these

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conflicts can be managed more or less badly. I am therefore reflexive in the task of analysis.3 I do not aim for transcendent objectivity in this study, but instead “start where I am.” 4 We cannot understand a social scene without recognizing our own biases, especially vis-à-vis global capital, racial, and gender positionality, so I take pains to call attention to my particular way of seeing as a matter of not only ethics, but also empiricism.5 My dual experiences as a capital defense employee and ethnographer provided both handicaps and advantages. On the one hand, my work experience gave me a head start in courtroom observation; even before graduate school, I was cognizant of the staged quality of death penalty trials. I knew that attorneys and witnesses were not simply sharing facts with the judge and jury but instead choosing which facts to reveal and how to reveal them. My own archive provides a record of exactly when I became aware of this. I wrote a letter to friends a few months after I began work in Louisiana, in which I told them about my first experience in court, which was different than I had expected: It was a hot summer morning, and I put on a flowered dress that I thought appropriate for a rural Southern courtroom. About a dozen of us from the office had driven several hours to live in a four-bedroom cottage in a small town that our office had rented in order to be close to the courthouse where one of our clients was being tried. At the house, the lead lawyers were deep in trial mode—intense writing, sudden requests, and food eaten over focused conversations. Most of us younger investigators and interns were working day and night, and on the morning of the first day of trial I was going to the courthouse with information relevant to the proceedings that had just begun. What I was carrying was urgent, and I ran up the courthouse steps noticing quickly that it was grander than its location warranted—marble pillars, domed ceilings, and embellished hallways in a town with only one main street. Before I could enter the courtroom though, one of our office’s lawyers grabbed me in the hallway. She shook her head impatiently and said, “No, no.” I knew I had done something wrong, but was startled as she reached for the pair of cat-eye glasses I was wearing. She took them off of my face and motioned that I take out the small silver nose ring—leftover from college—as well. I was stunned but obedient. The trial was in progress, and I could see that the courtroom was packed, but I was only passing a note to one of the attorneys at counsel table. What difference did it make what I looked like? I could see almost nothing without my glasses, but did my task and exited the courtroom without incident.

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This memory, and my initial shock at being abruptly instructed to remove my glasses and nose ring, illustrate what I realize now is the importance of theatricality in the courtroom. I saw myself simply as a messenger delivering a piece of paper, but my experienced colleague saw me as a prop in an all-important performance. As a young person, I felt conflicted at this seemingly duplicitous act. I was working for the good guys, right? Why would I have to pretend to be anything but myself? Wasn’t it dishonest? But in graduate school I learned that all social acts can be understood as theatrical in some sense. One of sociology’s most influential theorists, Erving Goffman, conceptualized human interactions as sets of dramaturgical performances. People string together basic blocks of activities, physical and verbal gestures that make us recognizable to those we encounter. “Social norms”—or those behaviors that signal belonging to a particular culture—are performed in everyday life. These performances are not entertainment, nor are they necessarily duplicitous, but are instead the reflexive processes through which humans assert themselves and recognize others. A young man might perform “respectability” by putting on a suit and tie when going to meet his potential in-laws for the first time. This is not necessarily disingenuous but rather a way of showing that he shares social niceties with the people he hopes will like him. When he dresses another way to go to a college class, he shows that he understands a different set of social norms. Capital trials, I learned that day, are no different. But in my experience, no one exactly enunciated what constituted the intricate costuming, choreography, and scripts we were working to construct. The lawyers knew what did not fit when they saw it, but I wanted to understand the full scaffolding. How did they decide which parts of a client’s life to detail in open court? How did they know what would matter to a jury in deciding between one very harsh criminal punishment and another? And what were the impacts of their decisions? Having experienced the staging and performative qualities of capital trials, I was at an advantage as an ethnographer. Ethnographers are meant to try to understand a situation from the point of view of its participants, and I already had been a participant. In this sense I knew about many of the behind-the-scenes details of capital trials in advance. But in another way, my past experience worked to my disadvantage: neutral observation was impossible at first. Though ethnographers do not deny the ways past

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experiences inform their observations, they are supposed to attempt a more holistic view. I wanted to discern capital trials in their entirety, and learned quickly that this was going to be a challenge. I was most familiar with, and empathetic toward, the defense. At one of the first trials I observed, I wrote this in my notepad: I have to hold myself back from slipping a note to the defense table suggesting a question for them to ask the witness. Would it really be such a violation? I know I’m not supposed to be producing the phenomena I am observing, but surely it is just a little thing? And someone’s life is at stake!

This was not a neutral observation. I was invested in the outcome of the case, a very human but not very helpful strategy if I wanted to understand capital sentencing as a whole. I had to refocus. (And I did hold myself back from passing that note.) When an ethnographer is especially concerned with their ability to reach toward objectivity, one technique is to increase the distance between themselves and the people they want to study. Getting too close might leave the researcher vulnerable to “going native”—interpreting the scene as a member of the group might, with no critical distance.6 For this reason I did not conduct a traditional ethnography, integrating myself into the lives of a small group of participants. Instead, I made clear that my role was set apart from anyone in the court. In the language of ethnography, I acted as an observer rather than a participant-observer. When in the courtroom, I literally and figuratively positioned myself with different groups of people in the space. At the second trial, I sat with the law clerks for the prosecution; at another, with journalists covering the trial; and at yet another, with victims’ supporters. It was this physical repositioning of myself in space that began to allow me to see the trial from different perspectives. But this took some work. At the beginning of the trial at which I sat with victims’ supporters, I noted to myself: I just went to the bathroom and looked at myself in the mirror, saying: “I’m a student. I am a sociologist.” I used to be an employee, an advocate. Now I am scientist, a learner of facts. Is it possible that I feel okay about this?

I had to learn to separate my ethnographer self from my defense advocate self so that I might pay attention to all of the positions involved. Once

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I was able to make this shift, the reward was palpable. By the fourth trial I was listening as openly to prosecutors as I was to defense attorneys and victims’ family members. My notes reveal that I sympathized with bailiffs, experts, and jurors. Near the end of my time in the field, I recorded a formal interview with a prosecutor. Listening to it later, I heard myself say, and mean, “I really understand where you are coming from.” I had moved toward a more universal set of observations and inquiries that were not only rewarding as a personal journey but have also resulted in this book.7 From my years as a member of a capital defense team, I learned that it is possible to look beyond people’s worst acts and find sympathy for the most hated people in society. I also saw up close the unspeakable agony of losing loved ones to homicide. From the research documented in this book, I deepened my understanding of the stakes of capital punishment. The performances that I witnessed have consequences beyond even the excruciating decision of whether a homicide defendant lives or dies. Two decades ago an influential death penalty scholar, Austin Sarat, said that state killing should provoke the question, not what it does for American society but what it does to American society. Among other things, he argued, the US capital punishment system legitimates vengeance, intensifies racial divisions, and distracts Americans from the hard work of solving complex problems by offering seemingly simple solutions.8 In this book, I document the ways in which capital sentencing today is etched through with these dynamics, imprinting more deeply the most shameful tendencies in US society under the guise of what scholars call “super” due process. Supreme Court jurisprudence affords capital defendants a set of legal protections not guaranteed noncapital criminal defendants, but these do not negate a fundamentally partisan system. Today capital sentencing is lionized as individuated criminal sentencing par excellence. But if one observes capital sentencing across multiple cases, its systematic failure to identify the “worst from the worst” should give pause to those who would hold it as a model democratic process.

the a r g u m e n t As I describe to readers, I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably

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die, and that I had no power to stop. Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power. In part I, I take readers through the first major structuring logic: the construction of capital homicide. From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide—the result of malicious human intent—before settling on those worthy of being considered capital. What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic. The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics. The stages of this narrowing structure can be visualized in figure 2, where I use 2016—the latest year’s data available as of this writing—as a touchstone. Importantly, the stages of capital narrowing are unknown to most of the parties involved. Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally. Capital jurors, I will argue, are likewise and necessarily uninformed. When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer. Chapter 1 begins by delineating how liberal democracies enact criminal punishment. It problematizes the mechanisms that distinguish the vast majority of the 2.7 million “nonnegligent” human deaths in 2016 from those 17,250 that the law defines as criminal. I adapt the term “necropolitics” to describe how some deaths happen with little notice or care, while others garner a great deal of legal concern. This process—dependent especially on a racial-capital nexus of power—is the first step in constructing the group of people who prosecutors call the “worst of the worst,” charged with capital murder. Chapter 2 moves from the social forces that make capital punishment possible in the United States, to the way it is governed. I introduce the US Supreme Court’s shaping of “modern” capital punishment, beginning with Furman v. Georgia and Gregg v. Georgia. This jurisprudence refashioned the capital punishment system during the 1970s but failed, I argue, to rid the system of its fundamental inequity. In the post-Furman era, mechanisms developed at the state and local level differentiating between the

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Solved aggravated homicides in death penalty states ~2,500

Capital trials 56

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Aggravated homicides in death penalty states ~4,000 Homicides in death penalty states 12,978 Homicides 17,250

Figure 2. Narrowing Capital Eligibility: Thirty-Two Death Sentences for 17,250 Homicides (2016).

thousands of homicides committed annually and the hundred or so that eventually result in a capital trial. Chief among these processes are state legislators’ decisions whether to retain or abolish the death penalty, and how to narrow the class of homicide offenders who would be eligible. As of January 2020, only twenty-nine states have the death penalty on the books, and four of those have enacted a moratorium. This means capital punishment is effectively absent from fully half of American states. Within retentionist states there is also great variation in the use of the death penalty. As I will explain, prosecutors, state legislators, and policing practices align with the Supreme Court’s rulings but use a separate set of social logics that nonetheless reinforce racial and economic cleavages. Chapter 3 moves from this broader context into an examination of those who shaped the capital sentencing field. Using the concept of “field” proposed by French thinker Pierre Bourdieu, I show that the Supreme Court decisions in the 1970s catalyzed new professional communities that created templates for staging capital sentencing trials. I show how juries’ required participation necessitated the development of communicative performances by prosecution and defense teams that are not socially neutral but embedded in the same biases that “super due process” was sup-

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posed to have corrected. Many aspects of these performances furthermore are written out of the appellate record because they are not captured by legal transcription. These performative aspects of the courtroom, I argue, act as a link between the social and juridical worlds in capital sentencing, which is detailed in the second part of the book. Part II takes readers into capital courtrooms to detail how the biases of the mid-twentieth century were refashioned for the twenty-first. Chapter 4 lays bare the unique process of choosing “death qualified” jurors to sit on capital trials. Jurors are recruited into a role I call punitive citizenship, which demands that they take personal responsibility for particularly harsh state punishments. Lawyers eliminate potential jurors who show emotional vulnerability in the face of the life-and-death decisions. Choosing only those jurors who agree to sublimate the nuances that complicate crime-and-punishment narratives, the state claims capital jury selection to be a democratic endeavor. Chapters 5 and 6 detail the presentation of evidence for and against the death worthiness of particular defendants based on competing constructions of their lives. Defense teams present evidence to convince jurors that defendants deserve mercy, and prosecutors explain why defendants must be put to death. These chapters analyze how experts’ performances attempt to establish order on a messy and contradictory set of experiences. Attorneys, judges, psychologists, and psychiatrists weave in and out of their official areas of expertise to construct oft-conflicting sets of knowledge parcels about childhood, mental illness, and hypothetical future behavior, much of which is inseparable from the psychomedical knowledge on which necropolitical logic depends. Chapter 7 exposes one of the most heart-wrenching and controversial parts of the capital trial: the participation of victims’ families. Here I demonstrate that victim supporter testimony—which the Supreme Court says should provide jurors with a “quick glimpse” of the impact of the victim’s death—stretches well beyond its legal limits. Victims’ supporters who appear in court and perform their role in a socially hallowed manner receive the confirmation of judges, courtroom staff, lawyers, and audience members. This gives their emotional appeals for the death penalty immeasurable power. Those who do not appear, or do not perform their role in culturally “normal” ways, do not wield that same power.

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introduction

In the book’s conclusion, I reframe the Supreme Court’s nominative attempt to ameliorate capital punishment’s racist past. Joining with others in the prison abolitionist movement, I argue for the elimination of death sentencing.

a not e o n l a n g ua g e Readers will notice that throughout the book I use male pronouns when discussing capital defendants. This is a deliberate choice meant to signal how gender biases intersect with other forms of subjugation in the capital punishment system.9 The vast majority of capital murder defendants are male. Of the nearly three thousand people on death row, fewer than one hundred, or about 3 percent, are women. This misrepresents the percentage of murders committed by women; approximately 10 percent of all known homicide offenders in the United States are female. Scholars explain the underrepresentation of women on death row as a sort of “chivalry” bias. Actors throughout the criminal justice system—police officers, judges, prosecutors, and jurors—are more sympathetic toward female offenders and less likely to judge them as harshly as men. The gendered assumptions about violence constitute one of the many nonlegal factors that come into play to determine who is sentenced to death in the US’s criminal justice system. This book helps readers to understand many others.

a not e o n m e t h o d Throughout, I also obscure the locations of the trials that I observed. I made this decision not only because I wanted to protect the identities of the people I observed and talked with, as is the case with much “sensitive” social scientific work. For the most part, revealing the locations of the trials would have been ethically defensible because most of my observations were in courthouses open to the public. In fact, I include enough information in the methodology (appendix A) that a persistent reader might, with a little cross-referencing, identify exactly which trials I observed.

introduction

15

My decision not to identify the trials in the main narrative of the book comes instead from an epistemological imperative. I am presenting a particular way of knowing about capital sentencing. Alerting readers when one observation comes from Los Angeles and another from Nashville (neither of which I actually visited in the course of this study) would distract from the proposition that there is something common to capital sentencing trials across the country, set into motion by the system’s “modernization” in the 1970s. No doubt the place-ness of Los Angeles or Nashville influences capital proceedings. Much important research on local factors—be they court culture, demographic, or political-historical— demonstrates their influence on criminal justice processes, which this book does not dispute. My goal in this study is to emphasize localities’ commonalities through their shared social performances. There is something to be said about this moment in the history of capital punishment that can be found even in the most specific of interactions. This is one of the conceits of ethnography and one of the most meaningful lessons I learned by becoming a sociologist: fine-grained analyses of complex settings allow researchers to illuminate powerful social forces usually shrouded by the immediacy of everyday life.10

part i

The Social Logic of Death Penalty Cases

•

•

•

•

•

Summer 2008. I’m driving through the swampy heat of a large southern city to attend the first day of a murder trial. The new state’s attorney general is being interviewed on the radio and is bragging about putting a serial killer on death row. I make my way downtown, looking for the county courthouse. There are few people on the street but many cars, so different from the West Village neighborhood in New York where I attend graduate school. The building I am looking for turns out to be a shade of lighter tan among many shades of tan, a nondescript modern monolith, a ten-story rectangular building with standard rectangular windows inside standard rectangular sides. I pull up just outside the back entrance where a parking garage connects to the courthouse, and see groups of two and three people standing around, smoking leisurely. I imagine they are clerical staff, gossiping about their coworkers and delaying the start of the day inside. I park with the dozens of other people coming to work for the day and make my way toward the main entrance. There are no metal detectors as I come into the building, which surprises me. In other courthouses I’ve found security heightened to the 19

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point of ridiculousness. In the post–9/11 era, federal and state buildings have closed parking garages, erected concrete barriers, and have forbidden visitors from bringing in electronics. At one federal courthouse I was told that I could not bring my laptop inside. When I said I had taken public transportation and had no place to put it, the sheriff ’s deputy told me to go across the street to a convenience store where the owners had started a small side-business, charging courthouse visitors five dollars to store their banned cellphones and laptops for the day. At this courthouse, however, people are walking into the large black marble foyer from a few different entrances with nobody checking them at all. Several dozen people hang around in the big open space, seemingly waiting for the day’s events to begin. In one corner of the lobby a group of about twenty professionally dressed people cluster around a man at a podium. Each is holding an identical large, legal-sized document, flipping through its pages. I ask someone what it is, and she says, “Sheriff ’s auction.” I step closer as houses and cars that have been repossessed by the county are sold to the highest bidder, without mention of the people who have lost them. The quickness of these transactions disturbs me. Hundreds of thousands of dollars are traded in just seconds, documents passed from what looks like one white male hand to another. This is what sociologists call capitalism’s “disinvestment” in the urban poor, I think. Turning my attention elsewhere, I identify a courthouse deputy by his dingy brown sheriff ’s uniform and ask him if he knows which floor is having the big murder trial. He looks blasé and says, “Sixth.” I take an elevator up to the sixth floor, and there I find the security I was surprised didn’t exist downstairs. Four elevators open onto a big hall with two metal detectors through which sheriff ’s deputies are checking bags and sending people on into what look to be several courtrooms. The uniformed checkers are all African American, many being women and many overweight, a decidedly different crowd from that at the auction in the lobby. Up here the deputies variously joke and look surly, and they are all moving frustratingly slowly. This is a big day—testimony is beginning for a local murder case, and I feel a slightly edgy sense of anticipation. Having been through these trials before, I know I will be questioned as the outsider I am, a young Yankee. Noticeable in the public space of the court-

the social logic of death penalty cases

21

room, my appearance does not fit with the professional crowd, and very few people who aren’t actively involved ever watch these things. When it is my turn at the security check, the deputy stops and says she loves my bag. I say thanks and tell her that I bought it for myself for my thirtieth birthday. We talk about handbags for a minute and I realize I am bullshitting her because I think it will get me privileges. I don’t care that I’m holding up the line because maybe this conversation will get me easier access in the weeks to come when I have to cross between the courtroom and the central hall that holds the bathroom and lounge. I’ve noticed that the professionals who seem to know what they are doing go around the gate without having to be scanned, and I want this too: I want to join the ranks of those who belong instead of those who are considered part of the lowly “public.” The trial is going to be a long one, I think. Thinking about what in my suitcase might outfit me for these privileges, I am about to ask the checker her name when she stops me with her arm coming down across my chest like a gate. “Step back for a moment,” she says abruptly. Everyone in the hall freezes as if playing a children’s game. Led by a sheriff, five men emerge from a doorway I hadn’t noticed, chained together at wrists and ankles and wearing identical orange jumpsuits. One looks like an archetypal crazy old white man, unshaven, slovenly, and muttering to himself. The other four are young and African American. As they shuffle past, a silence hangs momentarily over the procession. The shackled men pass slowly through one of the courtroom doors and the activity and the noise resume. I decide to skip the name exchange and find the courtroom with the trial I’ve come to watch. The bag I was so proud of a minute ago feels like a heavy, bourgeois symbol on my shoulder. The courtroom I am looking for is easy to identify. It hasn’t been unlocked for the day yet, and lots of people are congregating nearby. This might be different from the other trials I’ve watched, I realize. There are so many people! Trying to figure out what to do with myself, I spot a man about my age who looks like a reporter. He’s wearing wire-rimmed glasses and carrying a steno pad, trying to get people to talk to him. I sidle up to him, watch until he pauses to look at his notes, and I say, “Excuse me, can I ask you what’s going on?” I tell him I’m writing my dissertation about murder trials and give him my best smile. In an accent that is not local, he tells me about

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the progress of the pretrial motions. He’s African American and he tells me he moved here for a reporting job from the Midwest only six months ago. He is still pretty surprised by the goings on in the courthouse. In thirty seconds of looking over each other’s clothing (solid earth tones rather than pastels; no cowboy boots, flowers, or bows) and hearing our shared accent and a few code words, we establish that we share a mutual appreciation for the injustices usually done to the accused, and we back into a corner of the room so we can talk in our foreign liberal language without being overheard. He tells me hurriedly that the prosecutor on this case has a reputation for being cruel and that the judge is known for letting the prosecutor run the courtroom. He says this case is especially fucked up because it shouldn’t even be a death penalty case. The defendant isn’t the shooter, and they are just using the death penalty to scare him into testifying against his codefendant. Everybody’s waiting to see if the defense lawyers are going to be able to stop the proceedings and secure a deal for a term of years. Last week, he tells me, he was reporting on a homicide that was not tried as a death penalty case. It was across the hall in a different courtroom, with a different judge and prosecutor. In that case the defendants picked up two kids, ages fifteen and seventeen, duct-taped their ankles and hands and mouths, and put them in the trunk of their car. They drove into the woods and shot one in the head and the other something like seventeen times— but the prosecutors didn’t seek death for them. He paused meaningfully and I said, “Because the victims are African American, right?” He said yes, and we both shake our heads. The victim in the case we’re about to watch is white. He continues to explain to me the workings of this particular county’s criminal court system. Every one I’ve visited has its own quirks and patterns. He says that this system has a docket that works by weeks. Depending on the date when a crime is committed, it gets assigned to one of the six courtrooms that comes with its own judges and prosecutors. “If you get a bad prosecutor or judge like the case we’re about to see . . . ” As he’s telling me this, a man who looks like he is wearing face makeup and has his eyebrows plucked walks up to us, holding a microphone with a TV station logo on it. My new friend goes into work mode, tensing up. I turn to the crowd waiting for the doors to be unlocked and wonder who else I

the social logic of death penalty cases

23

should talk to. Nobody seems to notice me because so many people are swarming close to the door. I think I’ll blend in with the reporter crowd, adopting their efficient mannerisms and clutching my notebook in front of me conspicuously. •

•

•

•

•

Despite the fact that the defendant in the above case was not the shooter, he was tried and sentenced to death in less than forty-eight hours, the shortest trial I observed. My field notes position these decisions in the social world, a world of bodies and clothing, skin tones, voice modulations, and changes of gaze. None of these make it into a legal record. Most people assume that some sort of majestic force is behind American death sentences and that each decision to sentence a person to death is accomplished with a dignity equal to that of the (idealized) law, or of death itself. In reality the death penalty is an object that gets produced and contested in venues scattered across time and place, with some sensible and other nonsensical elements. The reporters, judges, prosecutors, and court clerks who work in capital sentencing might be able to evaluate one aspect or another of this multifaceted process. But few discern the systematic logic of selecting who faces capital sentencing each year. Sociologists regularly problematize taken-for-granted “truths” of a given society. No less than art, beauty, and science have suffered such treatment in recent years. The chapters in part I bring capital sentencing into this company, bringing to the fore the full array of institutions and actors that influence who is sentenced to death. I begin with the broadest factors.

Criminal courthouse USA, no. 1.

1

Constructing Capital Homicide

In capital trials, jurors are given a host of reasons to punish defendants. For one, if jurors have reached the sentencing stage, they have confirmed as a group that the defendant has murdered at least one person, the details of which jurors suffer in minute detail. To their mind, the defendant’s guilt is no longer in question. The central conflict is whether they should recommend a sentence of lifetime imprisonment or execution. To decide between these two punishments, juries are given a variety of considerations. At the beginning of the sentencing procedure at one trial I observed, a prosecutor told jurors: My daddy would always say there’s a road that you are gonna travel, Son, in life. . . . As you travel through life you can go wrong or you can go right. And when you travel down the road of wrongfulness, you don’t blame society for what happens to you. You have to be accountable for your actions in this country. Our legislature and our courts have given us a small window in which we can ask for the death penalty. And our law has reserved the right for us to put someone to death when their conduct deviates from the standard of which you and I and the rest of us must live by. I submit to you that as a man, with a family and a wife at home, that if someone were to break into your house and humiliate your wife and wreaked utter horror upon you and your family—that’s what we are dealing with over there [pointing to 25

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defendant]. That’s the part of society we’re dealing with. His conduct has fallen so far below that he has to be stopped. You can send that message to him. You can send a message to him that if first degree murder were a tailored suit, it would be custom-made to fit him. And that’s why he should be put to death.

His statement contained a variety of reasons jurors should decide on execution, which was not at all unusual in my observation of lawyers’ opening statements. The prosecutor suggests that the defendant should be punished because of an act that is terrible on its face: he broke into someone’s home and “wreaked utter horror.” He employs the image of the “family man,” evoking a sort of “protecting the castle” metaphor, a gamble that jurors will relate to the heteronormative script. He tells jurors that the defendant deserves death so that he can take personal responsibility for his actions rather than blame society; that the death sentence will avenge the outrage of a family man; that the defendant’s actions fall outside the norms of civilized society; and that the death sentence will send a message. Further, the prosecutor argues that this defendant fits the “small window” for the death penalty like a “tailored suit.” The social world permeates the legal in this speech; it is neither random nor entirely explained by law. Zooming out to grasp its significance, the prosecutor’s speech is useful in grounding this chapter’s broad perspective. I argue that the construction of capital homicide shapes the eventual plea for a death sentence from a capital prosecutor. The notion of individual responsibility, the shared assumptions about “horror,” the “part of society” the prosecutor refers to: these are not legal dictates but cultural norms. As this chapter describes, the law itself does not accomplish the narrowing between the vast majority of homicides in the United States and the “worst of the worst” selected for capital sentencing. Only about half of one percent of all human deaths in the United States are considered criminal, and many fewer are singled out for capital charges. Out of approximately 2.7 million human deaths in the United States in 2016, for example, 17,250 were categorized as criminal by law enforcement agencies across the country, but only 56 tried for the death penalty. This chapter takes on the question of how and when a death is deemed criminal on the one hand, and “blameworthy” enough to ask jurors to consider capital punishment on the other.

constructing capital homicide

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enli g h t e n e d c r i m i na l p u n i s h m e n t It might be strange to think of blameworthiness as subjective, or homicide as a constructible category. But sociologists who study knowledge production analyze the processes by which subjective ideas—such as beauty or truth—come to be considered objective facts. In the United States, taking personal responsibility for criminal harm is a taken-for-granted part of establishing blame, as the prosecutor above argues. But this emphasis on individuality is a cultural norm rather than an inevitability. The state’s authority to affix criminal blame comes from the United States’ foundation as a liberal democracy. During the Enlightenment in the late seventeenth and eighteenth centuries, democratic nation-states formed in opposition to aristocratic and religious authorities. Rather than looking to gods or kings to establish principles of justice, modern democracies purported to mete out blame according to a “rational” logic, replacing haphazard brutality with reason and science.1 No text was more influential in this project than Cesare Beccaria’s Enlightenment treatise, An Essay on Crimes and Punishments, which was the first to describe the responsibilities of a modern nation-state in regard to the criminal punishment of its citizens. Written in 1764, the work’s concern was what Beccaria perceived to be the state’s random and excessively cruel practices in his native Italy. He argued that the infliction of pain on perceived wrongdoers, their communities, and their families did little to improve society. Instead, he argued that criminal punishments under a liberal state should be orderly and predictable, based on the goal of creating a better society. Among other changes, only the wrongdoers themselves would be punished, in order to dissuade others from committing further bad acts. Criminal punishments could be thus used to help prevent further crimes, a principle later known as deterrence. Immanuel Kant and Jeremy Bentham—two other influential Enlightenment thinkers—expanded on Beccaria’s work systematizing criminal punishment. Kant was primarily concerned with the state’s potential for violating citizens’ natural autonomy in pursuit of deterrence. He wrote that “judicial punishment can never be used merely as a means to promote some other good . . . for a human being can never be manipulated merely as a means to the purposes of someone else.”2 To protect individual

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the social logic of death penalty cases

rights, Kant proposed that punishment should be directly related to the act under consideration. He did not mean that every punishment should mimic the criminal offender’s own act, but that they always be proportionately related. He advocated execution for murder, for example, but a fine or humiliation for many lesser criminal acts. This “retributive” thinking tied criminal justice more tightly with individual rather than social good. But social good is not entirely absent from the ideals of liberal democratic state punishment. Jeremy Bentham, was dismissive of Kant’s concern with individual rights and famously called them “nonsense upon stilts.” Bentham thought that government intervention should increase overall social well-being. The method for creating such well-being however, also prioritized individuality. Bentham envisioned people as rational actors with the potential to make decisions based on their perceived gains and losses. Government’s role was to create laws that would help encourage citizens to act in ways that would increase their personal well-being, thereby increasing society’s well-being as a whole. Violators of law who chose to act in ways that damaged other people, however, in turn made them responsible for diminishing the overall utility, or happiness, of society. But wrongdoers’ happiness also would be calculated as part of overall social utility. Criminal punishments were to be used to discourage bad actors from further misdeeds, but would be parsimonious, never “more than is necessary to bring it into conformity with the rules,” and predicated on an understanding of offenders’ circumstances. Justice would be tempered with mercy. Today Beccaria, Bentham, and Kant’s writings provide the ideals around which criminal punishments in the United States are meant to revolve. In liberal democracies, criminal punishments are predicated on the notion of individual responsibility, though they are also meant to better society as a whole by deterring future crimes, and assuring parity between the offense and the punishment.3 Yet these ideals are embedded in systems of governance that do not grant individual rights equally. One of the main contributions of sociology to the study of criminal punishment has been to show how liberal democratic governance, with its philosophical commitments to justice and equality, is also entwined with a more ancient project: the maintenance of social hierarchy in service of power. Concern for law’s role in controlling “undesirable” citizens is core to sociology. Social theorists influenced by

constructing capital homicide

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Karl Marx position the state and therefore its laws as evidence of conflict between the bourgeois and proletariat classes. Criminal law in this view is an instrument of the capitalist economy. Max Weber, another foundational social theorist, specified how violence becomes a legitimate part of such governance. He argued that the state is in fact defined by its monopoly on violence. Citizens give up their power to act violently toward one another as members of liberal democracies, and accept that the state acts in their stead. Criminal law discourages citizens from violence, but permits violence for purposes of enforcing the law. Assault, imprisonment, and killing are not absent from liberal democratic societies, but rather circumscribed as legitimate powers of governance.4 Michel Foucault, a French theorist writing in this tradition in the 1970s, specified how such violence was written into the laws of the Enlightenment era. Foucault argued that the punishment practices suggested by Beccaria, Kant, and especially Bentham served not to excise the unpredictable cruelty of the aristocratic rule, but rather to shift the power of violence to a different ruling class. The forms of punishment that emerged in the wake of Enlightenment-era ideals and the prison based, in particular, on Bentham’s design did not improve overall social happiness. Instead such prisons effected a new means to control the “disposable” classes. Modern prisons, Foucault argued, did not punish illegal acts as much as they created the notion that illegality resided in a class of delinquents. An entire “carceral system,” as he called it, trapped the impoverished and unemployed in a cycle of imprisonment and struggle that served the myth of a “barbaric, immoral, and outlaw class.”5 Scholars such as Stanley Cohen, Marie Gottschalk, Stuart Hall, and David Garland extended Foucault’s analysis of the prison system into twentieth-century British and American contexts. Work in this tradition cites contemporary prisons as enacting “social control” over those who are incarcerated, but also by shaping the general population’s notion of criminality.

raci a l i z e d c r i m i na l p u n i s h m e n t Today it is impossible to speak about the use of prisons in the United States without a discussion of slavery and racism. For one, imprisonment

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in the United States is fundamentally tied to the abolition of slavery. The Thirteenth Amendment to the Constitution accomplished abolition, but also excepted slavery for use in criminal punishment. The amendment reads: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. (emphasis added)

Built into the Thirteenth Amendment was state authorization to use prison as a means to extract free labor under conditions of slavery. Prison populations—almost entirely white during slavery’s era—changed to accommodate masses of former slaves in a very brief time. Scholars argue that the prison at this time took on not only former enslaved people but also the conditions of slavery. “Black Codes” and the like were used to usher those former enslaved people into prison, and prison conditions changed to accommodate them. Citing such practices as chain gangs, plantation labor, whipping and mauling punishments, coerced entertaining, and convict leasing, Dennis Childs describes Reconstruction-era prisons as “neo-chattel slavery.” 6 Throughout the twentieth century, scholars show, the US prison system has been used in conjunction with other institutions to control black Americans.7 Of particular interest is the use of criminal justice penalties as sources of social control during the past fifty years. The magnitude of this investment is illuminated when viewed in comparison to other wealthy democracies. Collectively, the United States federal and state governments imprison more people than any other nation, between five and eight times the proportion of its citizens compared to countries such as Germany, Japan, and France. In the United States, 7.3 percent of the population is in jail, prison, or on probation or parole, more like Rwanda and El Salvador in the rate at which it incarcerates its citizens.8 Again using 2016 as the touchstone, the stunning reach of this system is illustrated in table 1. In 2016, there were 6.6 million people caught in state and federal criminal processing, and this does not include the tens of thousands of people who are detained and monitored as part of the criminalized immigration system, nor those children who are unlucky enough to be held in one of the hundreds of youth lockups around the country.9 Neither are

constructing capital homicide

Table 1

31

Adults under Criminal Justice Supervision in 2016 (total 6.61 million)

In prison In jail On probation On parole

Number of People

Male

Identified as Black, Hispanic, Asian, or Native American

1.51 million 740,000 3.67 million 870,000

93% 85% 75% 87%

65% 52% 44% 54%

Convicted of Violent Offenses

55% N/A 20% 30%

note: Figures rounded to the nearest ten thousand. All data from the Bureau of Justice Statistics, available at www.bjs.gov/content/pub/pdf/cpus16.pdf, www.bjs.gov/content/pub/pdf/ji16.pdf, and www.bjs.gov/content/pub/pdf/ppus16.pdf.

the majority of these 6.6 million people violent, as “criminals” are imagined to be. The high imprisonment rate in the United States might seem selfevident. In recent decades, the United States has had one of the highest crime rates among industrialized nations. But statisticians have shown that incarceration rates do not track crime rates in the United States, especially accounting for variation among states.10 Neither was the country’s imprisonment rate always so high in comparison to its industrialized peers. During the earlier part of the twentieth century, the US prison system had similar rates to its Western counterparts. The prison population comprised about 0.1 percent of the population, or one of every thousand people.11 To a great extent, experts agreed that criminals could be reformed through the course of state punishment. Criminal punishment’s accepted aim was to accomplish rehabilitation, and incarceration was one of its accepted methods. Scholars recognize that the country’s comparative acceleration of imprisonment—what is now termed mass imprisonment—began in the 1980s with the era of the US “War on Drugs,” the trajectory of which is shown in figure 3.12 While the US criminal justice system operated on the presumption of what scholars call a penal-rehabilitative model for much of the twentieth century, it now is less concerned with rehabilitation, either in the ideal or in practice. Instead, most prisons operate on unabashedly

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the social logic of death penalty cases 1,600,000 1,400,000

Number of people

1,200,000 1,000,000 800,000 600,000 400,000 200,000

2016

2014

2008 2010 2012

2004

2000

1996

1992

1988

1984

1980

1976

1972

1968

1964

1960

1956

1952

1948

1944

1940

1936

1932

1928

1925

0

Figure 3. US State and Federal Prison Populations, 1925–2016.

penal-retributive models.13 The prison’s purpose is no longer to improve those it detains. Instead, prisons are designed to isolate and disable. This penal-retributive model impacts Americans far beyond those held behind prison walls. Sociologists Katherine Beckett, Alexes Harris, Monique Morris, Victor Rios, Devah Pager, Forrest Stuart, Christopher Uggen, Bruce Western, and many others have documented the system’s harms.14 Criminal justice involvement negatively affects the life chances not only of people convicted of offenses but also of their families and communities through its deleterious impact on employment, health, housing, education, and family formation.15 This overwhelmingly impacts poor and especially black Americans. Sociologists situate mass incarceration as an oppressive institution on a scale with slavery and Jim Crow.16 Today black men in the United States have an almost one in three chance of facing incarceration at some point in their lives, nearly forty times more than white women’s chances. Incarceration also impacts impoverished Americans disproportionately; over 80 percent of defendants in felony cases have no money to pay for their lawyers. Organizations like “The Sentencing Project” have been detailing class and racial disparity in sentencing since the 1980s. As their

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many reports attest, these disparities are neither incidental to the mass incarceration era nor explained by disparities in crime rates.17 Among critical sociologists and criminologists, then, it is now axiomatic that the subjugation of millions of poor people of color is not incidental to imprisonment’s purpose, but rather core to its function. The contemporary criminal justice system is understood to be one in a series of social institutions that achieve “social control” of marginalized populations. Mass incarceration joins institutions like healthcare and education in allocating very different living conditions to those in power compared to those with less in the United States. Together, these institutional formations all but guarantee that those in the dispossessed classes will remain that way. For many who support law enforcement through “tough on crime” measures, much of this inequality is explained away by state crime statistics. Imprisoning masses of young people of color is the unproblematic result of what the criminal justice system calls “criminality.” 18 According to the FBI or the Bureau of Prisons, young black men commit more violent crime than any other social group. But such statistics depend on definitions of crime that ascribe violence to the disenfranchised and give the criminality of the elite a different name. Homicide is a case in point. Being held criminally responsible for another person’s death in the United States is unusual, impacting only a fraction of a percent of all human deaths each year. But all deaths are tied to human action. Obvious examples include soldiers killing in the name of war, or large-scale industrial deaths. Leaders of states, pollution-creating industries, or insurance executives whose companies deny coverage to those most in need are not described as criminal. If ending life through war, cancer, heart disease, or stress was considered criminal, prisons would house a very different population. The history of protecting the elite from state criminalization while keeping the poor delinquent defines our criminal justice system.19 Further, the mass incarceration of young men of color prompts Americans to believe crime to be committed by these people most often caught. This creates a double subjugation. The overproduction of violence and criminal punishment of young, impoverished men of color in the criminal justice system in turn produces evidence that dangerousness resides in this part of the American population. From the local news to

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criminal justice statistics distributed by neighborhood watch programs, Americans are inundated with the notion that violent criminality is synonymous with black and Latino young men.20 One scholar suggests the term “criminal” should actually be written “criminalblackman” because the very notion of criminality in the 1990s was inseparable from black masculinity. In the second decade of the twenty-first century, criminality’s reach has expanded. Not only is blackness associated with criminality, but so is “brownness” through (cr-)immigration and (cr-)Islam.21 The label of criminality can even link white people with blackness; association with the criminal justice system erases white privilege when white defendants are compared to their noncriminalized peers. When the prosecutor ask jurors to consider death for the defendant as that “part of society,” he is not only imbuing crime with color and class but also imbuing criminality with extreme punishment.22 Becoming a capital defendant makes one eligible to be killed by the jurors who have judged them.

prose c u t i n g ca p i ta l h o m i c i d e The next chapter details how federal, state, and local governance of capital punishment magnifies the inequalities in the criminal justice system. Prosecutors are powerful in this regard. What the prosecutor in this chapter does not tell jurors is that the vast majority of qualified homicides are not pursued capitally. Each year, approximately 2,500 qualified capital homicides are reduced to fewer than 100 that prosecutors say are the “worst of the worst,” tailor-made for the death penalty. But what constitutes this fit is subjective, and there is little information about how cases are chosen. The prosecutor’s office chooses which few homicides to bring to capital trial, with little or no oversight. To understand what types of cases eventually are tried as death penalty cases, I created a database of all capital trials that took place in 2005, 2012, and 2016, with the help of four research assistants over the course of several years.23 This laborious process is described in detail in appendix A. Four master narratives describe the vast majority of capital cases brought to trial during this period. These “normal” capital murders reflect prosecutorial choices that reflect cultural norms rather than a logical accounting of lethal violence.24 According to

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my research, the four types of capital defendants during the first decades of the twenty-first century are: 1. A poor African American or Latino man in his teens or twenties, who has committed a crime in a public setting, such as a convenience store or fast-food restaurant. The sale or use of drugs is often involved, as are multiple victims, some of whom are “innocent” bystanders or law enforcement officials. People commenting on the articles about these defendants call them “thugs” or “cop killers.” 2. A poor man who breaks into a home at night and commits a murder or murders in the course of a burglary. The victim or victims are often elderly or otherwise vulnerable, and sometimes have had a prior relationship to the defendant, where the homeowners have been somehow “kind,” for example, in providing a few dollars for menial work. 3. A poor older man commits a sexual act in conjunction with a murder. He is often but not always white. The victim and defendant might know one another or have met in passing, and the woman is usually taken from a “safe” location such as her home or place of work. These defendants are called “perverted,” sexually deviant, or generally socially abnormal by commentators and prosecutors. 4. A murder of intimates: an immediate family member or person involved with an immediate family member kills multiple victims of the same family. Children are often involved. This is the only category that meaningfully includes women as offenders.

This research suggests that the ultimate punishment is most often invoked for social types depicted as what I came to think of as thugs, nighttime prowlers, sexual perverts, and deranged family members. They illustrate the cultural contingency of what prosecutors call the “worst of the worst.” They separate not only interpersonal violence from other types of nonpunishable violence at the hands of leaders of states and industries; they also leave off the most common forms of interpersonal violence. Homicide occurs most commonly between two people who know each other. In domestic contexts especially, physical domination has been used to solve interpersonal conflict across cultures and time.25 But capital trials do not circumscribe those most common forms of deadly violence as the “worst of the worst.” Instead, the worst types of violence are ascribed to particular groups of deviants: those (mostly men)

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whose behavior is uncivilized or impossible to discern. The first two groups—the “thugs” and “night prowlers”—endanger public and private space. They disrupt what is imagined to be a public sphere’s peaceable community on the one hand, and the sanctity of the private home on the other. The second two groups—those whose acts violate sexual and familial norms—traverse boundaries held culturally sacred. They fail to protect the women and children whom jurors can see as vulnerable. Ascribing criminal violence only to such “uncivilized” groups is a project of colonial domination. Colonialist John Stuart Mill wrote about the tragedy of what he saw as the necessary use of violence to “domesticate” the natives his countrymen conquered in the name of progress. The typologies of capital defendants at trial, too, seem a type of domestication of deviance, rather than a rational accounting of lethal violence. Capital murder defendants are gleaned from among the most disenfranchised citizens in late modern America, but also from those whose acts are discernible only through racial and “perverse” logics. When prosecutors use the term “worst of the worst,” they hide the elite norms that account for at least some of the ways they decide to charge capitally.

the n e c r o p o l i t i c s o f ca p i ta l p u n i s h m e n t Throughout the book, I will use the term “necropolitics” to signal the complex sociohistoric process that brings only particular criminal defendants to death penalty trials. Necropolitics is a term coined by postcolonial social historian Achille Mbembe. It is generally understood to signal a “politics of death.” Necropolitics, Mbembe explains, expands Foucault’s concept of social control to include the control over death. Key to necropolitics is also the everyday enactment of racial violence. From colonial Africa and plantation slavery through to modern warfare, the elite exercise sovereignty through the constant, and racialized, threat of death. The state controls not only the conditions of life, but also the power to kill.26 Other scholars have leveraged the concept of necropolitics to illustrate the ways the US criminal justice system keeps those labeled as criminals alive upon threat of death.27 Nowhere is this state threat of death more apparent than in capital sentencing. The state calls the sentence into

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being, denying in open court the capital defendant’s right to live. Regardless of whether an execution is ever eventually carried out, the allocution of the death sentence brings into being the state’s domination.28 Like the US criminal justice system that methodically ignores the social causes of death and punishes only those considered responsible for “immediate” causes, so constructing the “worst of the worst” during a capital trial inscribes its authority. Capital sentencing leverages extensive legal, performative, and social scientific resources to obscure what are social norms, rooted in necropolitics. Although other nations embedded in these traditions share some elements of necropolitics with the US criminal justice system, the latter is unique in its governing of the death penalty, as the next chapter will describe.

Sign over a courthouse: “Open 24/7/365.”

2

Governing Capital Sentencing

Today the United States is the only Western industrialized nation that has not abolished the death penalty. Common sense might dictate that this is because of the exceptionally high crime rates in the United States. Indeed, the United States has a significantly higher homicide rate than any other Western industrialized nation, and there is little doubt that the higher rate of homicide and fear of homicide fuels popular support for capital punishment. But these broad explanations do not take into account that the United States paralleled or preceded Europe in reforming punishment generally and capital punishment more specifically until the vast shift of the last forty years. The last execution in Western Europe was in France in 1977, when several US states had already abolished the death penalty. The United States also made executions more “humane” ahead of other countries with the abolition of hangings and firing squads. David Garland recounts the US’s “peculiar” relationship with capital punishment, purposely calling attention to its relation to another American peculiarity, the extended slave trade. US criminal punishment had been more or less in step with other Western nations for most of its history, diminishing the length and physical cruelty of its sentences. But it did not go as far toward “civility” as other nations because of a number of unique characteristics rooted in social structure and governance.1 39

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At its founding, the United States instituted an unusual split between federal and local powers, part of the country’s attempt to differentiate itself from the perceived monarchic overreach against which it rebelled. Still today, issues defined as “federal” are decided by separate governing bodies from those left to the states.2 States, for the most part, have been left to define most US law impacting crimes and punishments. There are broad-stroke influences of the federal government on the criminal justice policies of a given state, but the specific policies and responsibilities primarily rest with local actors. Out of the 1.5 million Americans in prison in 2018, for example, only about 13 percent, or 200,000, were under federal jurisdiction.3 State control of criminal punishment has led to great variation in punishment regimes among states. Variations in penal policy among states are in no way separate from necropolitical forces. Relative punitivity varies with social and political interdependence among the people doing the sentencing and those being sentenced. High rates of civic and political participation among diverse groups create high rates of interdependence, or trust.4 Extraordinary racial segregation and subordination of minority groups, in the southern United States especially, stymies this interdependence. This has come to mean that each state has its own particular criminal justice character. Texas and California, for example, imprison the highest number of people in the United States (in part because these are also the most populous states in the nation), but California spends about three times the amount Texas does on corrections on a yearly basis. Louisiana and Oklahoma have the highest incarceration rates in the nation, while Maine is at the opposite end of the spectrum. Racial disproportionality also varies. States with low rates of incarceration like Minnesota and Iowa are among those with the highest disparity between the percentage of black and white prisoners incarcerated, while states with high rates of incarceration like Louisiana, Mississippi, and Alabama sentence black and white Americans closer (though not at all in proportion) to the ratio of their in-state populations. The consequences of incarceration also vary: Mississippi and Florida deny the right to vote to about one in ten of their residents on the basis of felony conviction. In Vermont and Maine, by comparison, there is no felony disenfranchisement.5 Part of the history of capital punishment, then, is embedded in the peculiar power-sharing between federal and state governments. Indeed,

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the struggle between state and federal governance determined capital punishment’s judicial fate in the middle of the twentieth century. Because of the lack of uniformity across states’ capital sentencing regimes, defense advocates challenged the constitutionality of the death penalty in front of the Supreme Court in the 1970s. It is this next part of the story that the prosecutor quoted at the beginning of chapter 1 alludes to: the Supreme Court, according to him, has left a “small window” into which the death penalty can fit. If the United States is the only Western industrialized nation with the death penalty intact, the prosecutor is correct in telling the jury that the country has not fully embraced it either.

the s u p r e m e c o u rt ’s m a ndat e : indi v i d uat e d a n d e q ua l For much of the country’s history, there was such a disparity in sentencing codes and procedures among states that periodic drives to standardize criminal justice proceedings across states were not uncommon. The post– World War II era brought such a movement. During the 1960s, a fairly successful movement was made to standardize criminal statutes at the federal level. In 1962, a “Model Penal Code” (MPC) was established to systematize criminal sentencing schemas with the logic that there was too much difference in the ways US citizens were being treated. Though not a legal mandate, the MPC had the effect of calling attention to the problem of variation, and supplying solutions that could be taken up.6 In this atmosphere the Supreme Court accepted a capital defense case on the grounds that death sentences were not handed down fairly or distributed evenly nationwide, but decided arbitrarily.7 Some jurisdictions left capital sentencing to judges; others to juries. Some even mandated a sentence of capital punishment after a verdict of capital murder. This changed in 1972 when the Supreme Court agreed to take a case on point. Furman v. Georgia involved a twenty-five-year-old impoverished black man who had been found guilty of murder. William Furman had a sixthgrade education and suffered from what was then called “mental instability.” He was burgling a house in the middle of the night when he shot and killed its occupant, a white father of five then living alone. Although

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Furman said that he fired the gun accidentally when trying to escape, the prosecution argued that he shot blindly into the house while running away, thus demonstrating a particular disregard for human life. A jury sentenced him to death. On appeal, Furman’s defense lawyers argued that the sentence was unjust, in part because the facts of his crime were so unremarkable that they would not typically result in a capital indictment. They collected information from death penalty cases all over the country to show that defendants were given death sentences based not on the relative heinousness of their crimes but on the whims of judges and juries. Defendants who were black, poor, uneducated, and mentally ill like Furman had not committed the worst crimes but nonetheless were given death penalties by juries. Thus, the defense argued, Furman was subjected to “cruel and unusual” punishment, in violation of the Eighth Amendment to the Constitution, as his trial outcome was both random and unfair. In a 5–4 decision, the Court found that William Furman’s death sentence indeed violated the Eighth Amendment ban on “cruel and unusual” punishment, thus halting all death penalty proceedings across the country.8 The affirming justices could not agree on the reasoning for the violation and wrote a remarkable five separate opinions. Two contended that the death penalty should be abolished outright, as there was no way to ensure parity, while the others posited that death penalty proceedings could be constitutional if states could identify suitable procedures to prevent arbitrary outcomes. Disagreement about this core problem of parity was a harbinger of the difficulties that followed. As one scholar said, Furman v. Georgia was not so much a legal case as it was a “badly orchestrated opera, with nine characters taking turns to offer their own arias.”9 Regardless, states took from it a central message: legislatures could potentially reinstate capital punishment if they found a better way to treat defendants both as individuals with differing circumstances and as equal to others who might be tried for homicide. It has been said that these “twin stars”—individuality and equality—have most shaped what is now referred to as the “modern era” of capital punishment.10 In the mid-1970s, states experimented with different types of sentencing procedures meant to fulfill these two requirements. In 1976, the Supreme Court decided on the constitutionality of a different death penalty case, this one titled Gregg

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v. Georgia.11 They affirmed that the statute under which Gregg received his sentence did indeed conform to the Eighth and Fourteenth amendments. This decision clarified the controversy in Furman. The majority wrote that states could again prosecute defendants capitally but only by ensuring protections against arbitrariness. Though the Gregg decision itself was vague, the cases that followed standardized to some extent capital sentencing across the country. This was the beginning of a long line of jurisprudence that differentiates capital sentencing from any other in the criminal justice system, then or today. The Court emphasized that death is different, writing: The respect for human dignity underlying the Eighth Amendment . . . requires consideration of aspects of the character of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of imposing the ultimate punishment of death. . . . This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.12

Thus marked the beginning of what is now called a “two tack” sentencing dynamic in the criminal justice system. When death is a potential punishment, trials and appellate processes differ in significant ways from noncapital trials.13 Decades later, the Supreme Court continues to maintain the essential difference, often citing the words “qualitatively different.”14 There are three ways in which modern capital sentencing is defined as “different” in keeping with the central tenants of Gregg and its progeny. First, the question of a defendant’s guilt or innocence must always be separate from the question of punishment. This is meant to ensure that jurors do not allow their feelings about the death penalty to interfere with matters of culpability. Thus, a two-part (or “bifurcated”) trial is expected. During the first part of the trial, jurors hear evidence to decide whether the accused is guilty or innocent; and during the second (if the accused is convicted), jurors hear evidence to determine the sentence. Second, all death sentences must be reviewed by state and federal justices. While automatic appeals are not guaranteed for the vast majority of criminal cases, every case that results in a death penalty sentence is automatically sent to a higher court: first state, then federal. This appellate process is

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meant to ensure that capital defendants across the country are treated with some degree of equivalence. Finally, juries rather than judges must hear evidence to determine capital sentences. The infrequency of this requirement—that juries determine criminal sentences—cannot be overstated. With most criminal convictions, sentences are decided by judges and with little or no consideration of the offender’s background. Upwards of 90 percent of criminal sentences nationwide are secured at the same time as the convictions in negotiated “pleas” between attorneys. In the small percentage of criminal charges that do go to trial, sentences are generally determined by a judge using the sentencing guidelines of a given legislative body.15 But when a prosecutor chooses to pursue the death penalty, a jury must hear evidence. After deciding on a defendant’s guilt, capital jurors participate in a second trial to hear evidence of the defendant’s social history. (It is this sentencing procedure that is illuminated in the second half of this book.) Jury sentencing has created a particular miasma of legal issues. A principle called “guided discretion” has developed to try to curtail the prejudices deemed unconstitutional in cases such as Furman. “Guided discretion” requires state legislative bodies to give capital jurors guidelines that conscribe the types of evidence allowable at sentencing. Juries are to be given enough information so as to be able to consider defendants’ differing circumstances, while also preventing outside prejudices from entering into the decision-making. In most states, legislatures produced a list enumerating pro-death (aggravating) and anti-death (mitigating) factors. “Guided discretion” has been the topic of much legal and scholarly analysis. (One scholar even said that the guided discretion requirement “effectively inspired new growth industries in legal doctrine-making.”16) Posed as a solution to the “unbridled discretion” found in Furman, guided discretion tries to accomplish sometimes contradictory tasks. On the one hand, state guidelines must guarantee some boundaries on what should and what should not be allowed in jury decision-making. But the Court has also been insistent that legislatures cannot direct juries to use any type of mathematical precision in considering sentencing evidence. Each juror separately and every jury together must contemplate how and whether to use the specific evidence that is given. This insistence on flexible reasoning is particularly alien to a legal setting purported to be composed of

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rational and predictable decision-making. Though enacted to curtail jury prejudices, evidence suggests that “guided discretion” has not accomplished this goal. Extensive research with empaneled and mock juries demonstrates how personal prejudices still impact capital sentencing.17 Together these three qualities—bifurcation, automatic appeal, and guided jury sentencing—have come to characterize the modern American death penalty. In the years that followed the Furman and Gregg decisions, all of the states that retain the death penalty have adjusted their sentencing procedures to include some version of these three factors. This activity in the United States Supreme Court in the mid-1970s standardized, to some extent, capital sentencing for death penalty cases across the country. Yet while they sounded logical and fair to at least five justices and about half the country in 1976, all three factors have necessitated considerable reworking. A great deal of Supreme Court jurisprudence has been occupied by determining the circumstances under which, and how much review, death penalty cases should require. Questions about the way death penalty jurors are chosen, the admissibility of evidence during guilt/innocence and penalty phases, and how juries should weigh sentencing evidence have been taken up by the courts.18 Throughout, the Court has consistently emphasized that “death is different” and that the finality of the punishment deserves extra attention from the courts.19 I will not review the hundreds of opinions the Court has since issued on death penalty practice, but I will note a handful that have narrowed the classes of people who can be considered eligible for capital sentencing, thus significantly shaping the sentencing procedure at trial. The procedures surrounding capital sentencing have changed a good deal in the first decades of the twenty-first century. In cases decided in 2002, 2005, and 2008, the Court established classes of defendants who became newly ineligible for capital punishment. Three types of people were declared incapable of the complex thought needed to commit capital homicide. In Atkins v. Virginia (2002), the Court excluded from capital sentencing those with mental retardation. A few years later, in Roper v. Simmons (2005), the Court deemed children under age eighteen ineligible. (In doing so, the United States removed itself from the company of other countries in the world that allow the execution of children, leaving only a handful, which today include Sudan, Saudi Arabia, and the

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Democratic Republic of the Congo.) In 2008, the Supreme Court excluded one final category of people who could be executed. Kennedy v. Louisiana ruled out the possibility of including child rapists in the capital category, clarifying that only those who commit homicide would be death-eligible. In the decade following these “narrowing” years, capital sentencing declined. As shown in figure 1 in the introduction, this decline was gradual and steady. Death sentences moved off their peak of about three hundred per year in the late 1990s to fewer than two hundred annually from 2001 to 2010, then below one hundred each year until 2015, when new death sentences dipped below fifty and remained there until this book’s writing in 2019. This decline is not generally attributed to the Supreme Court. It mirrors a drop in prison population during this same period. Between 2008 and 2015, the incarcerated population in the United States declined by an average of 1 percent every year.20 Both declines are attributed to a general waning of appetite for mass imprisonment, because of humanitarian and economic concerns. The early 2000s saw massive publicity around “innocence” campaigns resulting in successful exonerations, and the 2008 recession drew attention to the enormous amount of money states were spending on criminal processing and incarceration. During this time period, a remarkable nine states abolished the use of the death penalty. States that retain the death penalty also use it less regularly. As a result of all the factors discussed in this chapter, capital sentencing procedures during the twenty-first century are more standardized than in eras past, and some say more just. The choice of a capital murder charge instead of a noncapital indictment now means a difference in trial procedure and appellate review. Yet even in the twenty-first century, studies show that black defendants are more likely to be charged capitally and sentenced to death in comparison to white defendants.21 To understand why, state and local actors come into play.

state a n d l o ca l g o v e r na n c e While it is true that the United States retains the death penalty when all of its Western counterparts have abolished it, a more precise description is that the United States only partially retains capital punishment. Today

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fewer than 20 percent of the country’s thousands of local jurisdictions are responsible for all of the people currently sentenced to execution. This type of narrowing happens in three steps, described in the next sections: states choose whether or not to retain the death penalty and what types of homicides are eligible for capital punishment, and finally, along with local governing districts, create policing, prosecutorial, and indigent legal defense systems that determine who among homicide defendants are eventually brought to trial. These will be examined in turn. To Retain or Not to Retain: From 17,250 to 13,000 First, state legislators decide whether or not to retain capital punishment. This means many homicides that might otherwise be charged capitally had they occurred in different locations are never brought to a capital trial. In 2016, there were 17,250 homicides committed, according to FBI statistics. Of these, fewer than 13,000 took place in states that retain the death penalty. This means that people who commit homicides in abolitionist states like New Jersey, New Mexico, or Washington state will never be part of the group tried capitally, despite the relative heinousness of their crimes. People who commit homicides in neighboring Pennsylvania, Utah, and California, however, may be eventually executed. It is too simplistic to say that states that retain the death penalty are also the most racist; measures of racism are notoriously difficult to measure. But scholarship shows that racial politics at the state level should not be ignored. Table 2 shows the variation in retention and use of the death penalty among US states. As of January 2020, twenty-one states and the District of Columbia had abolished capital punishment, shown in the first column. Nine of these were recent; between 2007 and 2019, Connecticut, Delaware, Illinois, Maryland, New York, New Hampshire, New Jersey, New Mexico, and Washington each abolished the death penalty. This maps onto the decrease in overall incarceration during this same period and might be thought of as similar to other periods of concentrated abolition, such as the post–World War II era.22 Twenty-nine out of the fifty states officially retain the death penalty.23 Its use is extremely uneven, however. Seven (in the second column) have not used the death penalty in the past decade, including three—Colorado,

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Table 2

the social logic of death penalty cases

States’ Use of Capital Punishment since 2000

Abolitionist

Alaska Connecticut Delaware Hawaii Illinois Iowa Maine Maryland Massachusetts Michigan Minnesota New Hampshire New Jersey New Mexico New York North Dakota Rhode Island Vermont Washington West Virginia Wisconsin (Washington DC)

Symbolic

Colorado Kansas Nebraska Nevada Oregon Pennsylvania Wyoming

Active

Arkansas California Idaho Kentucky Louisiana Montana South Dakota Tennessee Utah

Aggressive

Alabama Arizona Florida Georgia Indiana Mississippi Missouri Ohio Oklahoma North Carolina South Carolina Texas Virginia

Oregon, and Pennsylvania—that currently have moratoriums on new death sentences and executions. These are “symbolic” users of capital punishment, states that retain the death penalty but do not actually commit executions.24 In the third column, a group of nine states might be said to be active, having performed a handful of executions during the twentyfirst century. Included in this group is California, whose governor halted executions in 2019. The states in the fourth column are more aggressive users, continuing to send new prisoners to death row most years and executing at a steady pace. Three of these—Texas, Oklahoma, and Virginia— account for well over half the number of executions in the United States since the death penalty was reinstated in 1976.

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Scholars have tried to understand why some states retain the death penalty while others abolish it. Retention of the death penalty maps onto a collection of other state characteristics that point to racial discrimination as a determining factor. States with histories of high rates of incarceration, parsimonious social welfare benefits, and high degrees of racial and socioeconomic inequality are most likely to use the death penalty.25 Scholars also point to a “racial threat” impact, in which white Americans feel encroached on by nonwhite racial “outsiders” and then support the most punitive criminal justice policies as a solution to that threat.26 As such, the states that retain the death penalty also are those whose relatively empowered white residents experience the biggest “threat” from nonwhite residents. The impact of racism becomes even clearer when examining the county-level use of the death penalty, as I will detail below. State legislators, local police forces, and prosecutors next decide which homicides within retentionist states are deemed the “worst of the worst.” Legislating Eligibility: From 13,000 to 4,000 States need to decide not only whether to retain capital punishment, but also how to determine which homicides are so egregious as to be eligible for capital punishment. This is required by the Supreme Court. In Gregg v. Georgia, the Court instructed states to “provide a meaningful basis for distinguishing the few cases” in which the death penalty might be imposed from the many cases in which it cannot be. Thus, state legislators must separate out those murders that are extraordinary in comparison to more common types of homicides. Of the approximately 13,000 homicides committed in states that retain capital punishment in 2016, roughly 4,000 fit these state legislative criteria.27 This too, though seemingly unproblematic on its face, is a controversial process marked by elite interests. In the wake of Gregg, most retentionist states defined general categories of murder that were especially “aggravated,” as they came to be called, and therefore available for prosecutors to pursue capitally. Many state legislatures took the relatively safe route of adapting their statutes to the closest thing there was to a federal sentencing guideline—the Model Penal Code (MPC), which was the result of the 1960s drive for criminal justice

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standardization across states.28 The MPC listed eight types of aggravated murder as a guide for states to consider the harshest punishments: 1. Murder by a convict in prison 2. Murder by a person previously convicted of a violent felony 3. Multiple murders on the same occasion 4. Knowingly creating a great risk of death to many persons 5. Murder in an attempt at, perpetration of, or flight from another felony such as robbery, rape, arson, burglary, or kidnapping 6. Murder to avoid or prevent arrest or escape from custody 7. Murder for pecuniary gain 8. Murder that is especially heinous, atrocious, or cruel, manifesting exceptional depravity

This list, defining some types of homicides as more offensive than others, should provoke questions. It may be clear why the murder or risk of harm to multiple people might be considered worse than the murder or risk of harm to only one person. But the logic for including other types of homicides on this list of “worst” types is less clear. One might ask, why is it worse to commit a murder in order to prevent arrest than under some other circumstances? Why punish someone more harshly who commits murder to get money than someone who does it for some other reason? These questions gain urgency when one tries to account for additional aggravating factors that accrued on capital statutes in the decades since Gregg. During the 1990s and 2000s, several states each year expanded death eligibility by adding types of homicides deemed appropriate for the harshest punishment.29 Florida’s list of statutory aggravators, shown with minimal editing here, is a representative example of capital statutes today. One can see not only the influence of the MPC but also the addition of groups of victims who were later given increased protection, on the one hand, and defendants eligible for harsher punishment, on the other. Advocates who argue for this type of “enhanced” sentencing make the case that increased punishment will act as a deterrent. Police officers face more risk of homicide than others and therefore deserve this increased protection, for example. One problem with this argument is that capital punish-

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ment does not deter homicide. There is little connection between increased use of the death penalty and decreased homicide.30 Florida’s Statutory Aggravating Factors31 1. The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation. 2. The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. 3. The defendant knowingly created a great risk of death to many persons. 4. The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb. 5. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. 6. The capital felony was committed for pecuniary gain. 7. The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. 8. The capital felony was especially heinous, atrocious, or cruel. 9. The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. 10. The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties. 11. The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties. 12. The victim of the capital felony was a person less than 12 years of age. 13. The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim. 14. The capital felony was committed by a criminal gang member. 15. The capital felony was committed by a person previously designated as a sexual predator.

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16. The capital felony was committed by a person subject to an injunction or protection order of any spouse, child, sibling, or parent of the petitioner.

Constitutional scholars contextualize the existence of these sorts of lists using comparative cases. In Sweden, for example, there is no such categorization of homicides into those that deserve worse or lesser punishment; discretion is left with the fact-finders in each individual case. At the other extreme, countries that have more codified law, such as France, set out extensive descriptions differentiating levels of culpability.32 The United States falls somewhere between these two. Critical victimology provides a framework for making sociological sense of the US list.33 Embedded in categories of aggravators are cultural assumptions almost too commonplace to notice. Increased criminal sentencing, critical victimologists argue, does not line up with logics of crime control but instead marks the positions of those who occupy places of social honor at the expense of those who do not. Criminal informants, emergency medical technicians, and prison staff have been extended death penalty protection, for example, for the reason that they are at high risk of homicide. Yet people who experience homelessness and those who are trans-identified—also groups with extremely high risks of homicide— are not thus protected. Writing about capital aggravators, scholars Jonathan Simon and Christina Spaulding34 called the groups added to the protected list “tokens of esteem.” As they intimate, capital statutes, like many other “enhanced sentencing” statutes in the United States that select categories of victims for special protections, show social respect for the groups they feature. Juxtapose Florida aggravators 5, 7, 10, and 11 that “honor” government officials, for example, with aggravator 14, which condemns “gang” members to harsher punishment. There are unavoidable differences in these categories. Those who accept payment to murder another human being do not occupy positions of relative wealth, and those who endanger officers of the law are disproportionately young men of color who are policed in inner-city neighborhoods. The category of “gang” member is especially telling. Where a “gangster” might have been associated with white masculinity during the early part of the century, in the post-Furman era, gang

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membership was a label extended almost exclusively to poor urban youth.35 Death penalty statutes must be read in this history of racial politics. Winnowing down the 13,000 homicides that occur in death penalty states by nearly three-fourths is not a neutral process. Encoded in legislative limitations on the use of the death penalty are yet more traces of white supremacy. As with many tenets in the criminal justice system, its roots are only obscured by the vast commonness of the system’s methodological targeting of already subjugated people. Investigating Homicides: From 4,000 to 2,500 Among the least transparent of the processes that produce capital defendants are those that then occur at the local levels. While state legislatures provide the regulations that govern capital charging, state municipalities do not sentence people to death. It is local prosecutors who decide whether or not to bring capital charges. Before a prosecutor can bring charges, however, homicide “clearance” patterns intervene, and this is the domain of police forces. Of all deaths considered homicide in the United States, only a portion of them are ever “solved” or “cleared” by law agencies. The US’s homicide clearance rate is relatively weak compared to other industrialized nations. Approximately 40 percent of homicides go unsolved every year in the United States, while Canada reports 75 percent of its homicides solved annually; New Zealand, 91 percent solved; and Finland, 98 percent solved.36 A fair amount of research in the United States attempts to explain why law enforcement fails to clear such a high percentage. Clearance rates are impacted by dynamics inside and exogenous to police organizations. For one, there are vast differences in clearance rates among local police precincts; as with other social institutions in the United States, resource distribution varies mightily across precincts. In counties where schools and hospitals are well funded, policing tends to be as well. Resources that impact a precinct’s ability to solve homicides include the ratio of detectives to homicides and the types of technology available, and organizations with more resources tend to have better clearance rates than those

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the social logic of death penalty cases

with fewer.37 Exogenous to police organizations, the demographic profile of the population served and the dynamics of police-community relations, along with political and media forces, also impact homicide clearance rates.38 Police-community relations are situated within the broader history of race and class relations in the United States. Police devaluation by the community on one hand, and victim devaluation by the police on the other, create situations in which criminal investigation is difficult. Identifying criminal actors in a given community is a social project. For example, scholars have recently found policing to be impacted by what they are calling the “Ferguson effect.” In the wake of highly publicized police shootings, mistrust between police and community increases, which negatively impacts community members’ likelihood to call on or assist police in criminal investigations. Heightened mistrust might also dissuade police from pursuing criminal investigations.39 The types of murders that are solved and those that remain unsolved, then, are connected to the broader history of necropolitics in the United States. At a fundamental level, policing is a resource controlled by elite interests, historically and in the twenty-first century. Local police forces— especially in the South, where today’s capital punishment is concentrated— were constituted to control slave populations.40 Today, poor inner-city neighborhoods suffer from what sociologists call “over-policing,” creating the conditions of mass incarceration, while simultaneously suffering from “under-policing” when it comes to solving crime. Distrust leaves crime victims and their families hesitant to ask for help from the police, and the police less likely to aggressively assist.41 When 60 percent of homicides are “cleared” by police forces in the United States today, then, the clearances are not equally distributed. Homicides of the most disenfranchised victims are in danger of being disregarded, while disenfranchised potential suspects are most likely arrested. The concentration of policing in this way centers the search for capital defendants on the most disempowered. Prosecutors and Indigent Defense: From 2,500 to 56 After states provide the regulations that govern capital charging and once police forces solve a proportion of homicides, it is local prosecutors who finally decide whether or not to bring capital charges on the homicide

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defendants who have been identified by police. It is this narrowing of approximately 2,500 homicide defendants to fewer than 100 each year— and only 56 in 2016—that is the least transparent among these layered processes. Critical criminological scholars regularly lament the unchecked power of prosecutors at all levels of the criminal justice system, and capital punishment is no exception.42 In the twenty-nine states that currently retain the death penalty, most counties within these states do not pursue it. This means that those prosecutors who do are even more impactful. Richard Dieter, former executive director of the Death Penalty Information Center, characterizes capital punishment as driven by 2 percent of counties that use the death penalty aggressively. As of 2013, all of the more than 3,000 inmates on death row came from just 20 percent of US counties; and all of the death sentences in 2012 came from 2 percent of US counties.43 In Texas, the most active among retentionist states, fewer than half of its 254 counties have ever sentenced a defendant to death.44 Urban centers and especially their surrounding suburbs tend to account for most of these. As one of my informants told me, “We talk about death belts around the South, but there’s a little death belt around every major metropolitan town.” He meant that the suburbs immediately proximate to urban centers produce the most death sentences. In fact, three counties—those surrounding Dallas/Fort Worth, San Antonio, and Houston—account for more than half of Texas’s death sentences since 1976. The dynamics of such communities’ overproduction of death sentences have been explained by the racial politics of urban cores. In another example of “racial threat,” animus has been shown to be especially strong in areas where white Americans feel the need to “defend” their neighborhoods against nonwhite “outsiders,” a dynamic that in turn influences support for the death penalty.45 As I described in chapter 1, research on a sample of trials from the last twenty years suggests that prosecutors pursue capital trials for those cases that are the most culturally perverse, rather than those that might best serve crime control interests. Capital defendants are among the most disenfranchised in multiple ways. Disenfranchised defendants are historically served by a match set of disempowered attorneys. One of the most powerful mechanisms in deciding who gets the death penalty has to do with the quality of the legal defense. By my own estimate, about two out of every three capital

56

Table 3

the social logic of death penalty cases

Capital Trial Outcomes

Life sentences Death sentences Total capital trials

2005

2012

2016

Total

76 (36%) 138 (64%) 214

37 (32%) 77 (68%) 114

24 (43%) 32 (57%) 56

137 (36%) 247 (64%) 384

defendants are sentenced to death at trial in the twenty-first century. My research team and I found 384 total capital trials occurring during 2005, 2012, and 2016, as shown in table 3. Of that total, 247, or 64 percent, ended with a death sentence.46 As others have argued before me, the remaining 36 percent of capital defendants who receive the more “merciful” sentence of life imprisonment most likely were represented by lawyers considered to be among the best in their field. A major aspect of the development of “modern” capital sentencing has been the differentiation between “effective” and “ineffective” counsel at trial.47 The vast majority of capital defendants are poor: close to 100 percent in most states.48 Because they cannot pay for hired counsel, capital defendants must depend on lawyers supplied to them. Unlike prosecutorial offices, which are relatively stable, indigent defense, as it is commonly called, takes one of two more tenuous forms. Under statewide public defender systems, capital defendants are represented by attorneys who work in full-time, salaried capital defense positions. If a capital defendant is tried in Kansas City, Missouri, for example, he will be appointed a lawyer from the state’s Capital Defense Unit, a specialty office within the state’s public defender office. This is because Missouri operates on the public defender system, and the Capital Defense Unit of Missouri employs full-time lawyers, paralegals, investigators, and administrative assistants, all of whom work only on capital cases. By contrast, a capital defendant who is prosecuted in Montgomery, Alabama, will most likely be represented by a lawyer who does not practice capital defense full-time. Alabama works under the assigned defender system. Judges in each county in Alabama who preside over capital cases have a list of attorneys who have met qualifications to represent capital defendants, and they call on

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these when needed. Some of these “contract” or “assigned” lawyers have become the most notorious among advocates for defendants across the country. Capital defense organizations have proliferated during the past thirty years. While my informants agreed that this has improved capital defense since Furman and Gregg, a more controversial question asks whether such incremental progress has ultimately done more harm than good to the cause of justice. The next chapter wades into that debate.

the a g n o t o l o g y o f d e at h e l i g i b i l i t y It is a truism that certain social phenomena receive more attention than others. There exists a lot of information about some parts of the world and very little about others. The study of “agnotology,” or the absence of knowledge, frames missing data not merely as accidentally unmeasured or as the result of an overly complex world. Instead, knowledge is socially constructed, entwined with power, and generative of political effects. Knowledge is one of those structural, political, and cultural resources necessary to sustain elite interests. Knowledge “holes” or gaps signal information too sensitive or “dangerous” to be produced. Its absence can prevent the mobilization of intellectual resources needed to promote change or empower disenfranchised social groups.49 One would not imagine that the death penalty would be among such problems that suffer the problem of agnotology. A tremendous amount of resources have been expended in trying to make sense of it. But the public still does not have a full understanding of how capital charges happen, and how death sentences are handed down. This does not mean that there is no logic to the ways capital defendants are selected for prosecution. As these first chapters show, the logics of necropolitics structure the process by which thousands of criminal murders become dozens of capital defendants each year. Revealing this process demonstrates some of the failures of “super due process” meant to cure the ills of race and class bias in capital punishment. With this in mind, the next chapter fills in another agnotology: the coherence of a performative–social scientific–legal capital sentencing field that cohered in the post-Gregg era.

Criminal courthouse USA, no. 2.

3

The Capital Sentencing Field

This chapter draws attention to one of the lesser-documented aspects of capital punishment in the United States. I argue that what I call the development of the capital sentencing field has bred a procedure that both obscures and anchors the institutional injustice of its era. Using ideas from Pierre Bourdieu—one of the most influential social theorists of the twentieth century—I show that capital sentencing is a legal, social scientific, performative field. Contrary to those who celebrate the capital jury as an exemplar of democracy at work, I claim that the institutionalization of juries as capital sentencers in particular guarantees prosecutors’ advantage at trial. I explain this in three parts. After defining the concepts necessary to a field analysis, I document the development of the capital sentencing field, focusing on its legal-social scientific hybridity, before introducing readers to its performative quality. In the chapter’s conclusion, I bring these elements together to map the field that structures all capital trials. Capital sentencing’s theatricality is necessitated by the presence of jurors, and this is not incidental to its continued disproportionate production of disenfranchised defendants, but instead to a constitutive force. Though there is no lack of scholarship about the death penalty in the United States, with a few notable exceptions social scientists have not 59

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treated the capital sentencing trial as a discrete object to be theorized. Austin Sarat’s 2001 groundbreaking study developed what he termed the “cultural life” of the modern death penalty. Using media analysis, interviews, and observations of a single trial in Mississippi, Sarat showed that the capital punishment system—and the capital trial he observed— depended on narratives of retribution, racial hatred, and the state’s ability to solve complex problems through killing. This racialized retribution was characteristic of the mass incarceration era, distinct from the “rehabilitative” period that had come before. Following Sarat, Paul Kaplan—a former capital defense investigator like me—studied capital sentencing transcripts in California and found that prosecutors and defense attorneys share a core narrative. Arguments for and against the death penalty are made with reference to the “American Creed,” an antisociological ideal that imagines the United States to be a bastion of individual achievement and liberty. It is a core narrative at sentencing, where prosecutors argue that defendants have squandered their opportunities for success, while defense attorneys argue that defendants’ opportunities were interrupted or taken from them through no fault of their own. To a great extent, I think that both Sarat’s and Kaplan’s findings continue to hold true, and my study builds on their central claims.1 Craig Haney, a psychologist and scholar who has testified as an expert in capital trials, captures a different aspect of capital sentencing. He documents the ways mitigation evidence can impact capital jurors at a social-psychological level. For most jurors, narratives of extreme childhood deprivation and family dysfunction provoke alienation from rather than empathy for the defendant. This insight is now axiomatic among capital defenders; narrating mitigation evidence is a tricky art, as I discuss below. My study moves on from this research, demonstrating that the alienation of jurors from defendants is not only social-psychological, but also a structuring element of the capital field.2

law, f i e l d, h a b i t u s , e t h n o g ra p h y Capital sentencing’s liveness makes it a site rich with possibilities for social research. Along with social-psychological implications, capital sentencing could be a location in which to study what sociologists call “emotion work,”

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or careers that involve emotional investment. One could observe capital trials to explore the influence of biomedical and psychiatric expertise in the law, or how women perform different roles than men in justice settings, for example. My early observations made clear that capital sentencing trials are all of these things and more. I found the setting so complex that I knew the sociological project would be first to understand all of the forces that converge to bring it about. I chose my research method accordingly, the details of which can be read in appendix A. I conducted the first systematic ethnography of capital sentencing practices, using a “small N” comparative case study, in order to realize the subject’s nature.3 By observing a purposeful sample of capital trials in seven states across the country, I centralized the question, What is this a case of? As I will demonstrate, it was only through the methodological commitment of observing practices in action that the trial’s “structuring structures,” per Bourdieu, became apparent. At stake in capital sentencing is not only one of two particularly harsh punishments but also the ability of US criminal law to rationalize retributive punishment during an age of supposed civility. Bourdieu’s concept of cultural “fields” makes legible capital sentencing’s structure. People who work in the capital sentencing field are conventionally depicted as occupying one of two primary orientations, which are in opposition to one another: anti–death penalty (defense) and pro–death penalty (prosecution). Indeed, the contentiousness of the field is important. Yet like competing athletic teams or schools of architecture, this overarching rivalry does not diminish the fact that both are embedded in the same game. The field would not exist without both types of legal team. Bourdieu’s interest—like most great sociologists’—is in the unequal distribution of resources in society. He conceptualizes the power to control resources as residing in interrelated but autonomous fields of human action. Capital sentencing as a field is involved in the distribution of a particular type of legal resource. In the legal field the resource at stake is knowledge. The legal field has the authority to define and determine the fate of the “worst” criminals in the United States, among other things. As the prosecutor I observed said, “Our law has reserved the right for us to put someone to death when their conduct deviates from the standard of which you and I and the rest of us must live by.” Actors in the legal field determine which people and which action be considered outside the boundaries of state

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norms.4 The legal field is a particularly important field in the area of governance. Bourdieu argues that it is a “science” of and for the state, as it monopolizes the right to define and solve conflicts in the same way that science monopolizes the authority to define and explain the “natural” world. At stake in legal conflict is no less than the state’s power to determine the truth of responsibility, innocence, and blame. This power to determine “truth” is protected by strong barriers to entry; not just anyone can weigh in on the “law.” Legal “truth contests,” as Bourdieu calls them, are open only to tightly controlled professional groups such as lawyers and legislators. Legal “truths” therefore are created only by people who have invested significant resources in the field, and rely on its continued authority. Capital sentencing might be considered a subfield of criminal law. But I argue that capital sentencing is a social science–performative–legal field that is distinct from the contemporary criminal legal field characterized by the daily mass production of criminality. Hundreds of thousands of mostly impoverished people are processed in criminal courts around the country each year, with little evidence, argumentation, or defense.5 Trials, much less juries, are an unusual resource in the contemporary criminal justice system. Jury trials have been “vanishing” steadily over the course of the twentieth and twenty-first centuries. Today only 2 percent of all criminal convictions are estimated to have been secured by jurors. The rest are the result of plea deals and judge trials.6 Capital trials are fundamentally different from those few thousand criminal trials that do occur each year. Among other things, they require vastly greater resources. Seeking the death penalty is estimated to cost one to three million dollars more per case than a noncapital homicide trial.7 The development of the capital sentencing field is embedded in some of the same sociohistoric structures as other types of criminal processing, as described in chapter 1. But following Gregg, especially during the Supreme Court’s active period of defining capital sentencing in the 1990s and early 2000s, capital sentencing has become significantly autonomous from many of these processes, making it a separate cultural field. Fields, as Bourdieu used the term, are collections of human activity that are organized around all aspects of material and ideological goods that have social value, from art and science to education and health. All fields create their own internal rules defining the stakes of success, while simultaneously

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competing for the financial and reputational rewards common to all fields in modern democracies. In the fields of art, genetics, or humanitarianism, for example, participants share collective practical, professional, and intellectual community but are also competing to “win” the stakes of their fields—creating beauty, advancing genetic knowledge, or drawing publics’ attentions to desperate human conditions.8 “Winning” comes not only with benefits to the field and the knowledge it produces, but also with status and financial awards for those at their fields’ apexes. “Winning” in capital sentencing involves different stakes and rewards than “winning” in the criminal legal field, as this chapter describes. Winning any legal contest, however, depends on some degree of affirmation of the rules by which it operates, and this tendency is of particular interest to this study. The fundamental failure to put itself out of business, as it were, is the primary occupation of any field. Like all fields, the survival of the legal field—or juridical field, as Bourdieu refers to it—depends on its ability to prove its own worth. The juridical field legitimates its power in a particular way. In the United States, the law employs procedures that show some autonomy from the status quo by allowing small alterations to occur but never truly disrupting the law’s authority. Through legal contests, the content of the law changes but only to the extent that it also preserves the hierarchical relationships and rules of the game that serve the field. Because the law is a field embedded in state power—acting as the “science” of the state—the law necessarily preserves the state’s power, even as it changes incrementally.9 The capital sentencing field then relies on the criminal legal field for much of its structure, but is autonomous from it in significant ways. Figure 4 shows a simplistic map of the modern criminal legal field in the United States, importing two of Bourdieu’s observations about the “juridical field,” or field of law.10 Inspired by Bourdieu’s concept of social space in fields, the map is a representation of the relational positions of the criminal legal actors most relevant to my particular inquiry.11 Groups of actors are shown in boxes in relation to one another, an insistence of Bourdieu’s that the stakes of a given field are defined by the groups of actors who participate in relation to one another. The structure of the criminal legal field is not a “natural” or “logical” outcome of some abstract force, but rather formed by the historical struggles of the actors to define and control its authority, in relation to other fields of power.

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the social logic of death penalty cases

Symbolic + $$ Reward +

Symbolic + $$ Reward –

THEORY

ACADEMICS

EXPERT WITNESSES

JUDGES TRADITION

ACTIVISTS

CHANGE

LAWYERS

JURORS Symbolic – $$ Reward +

LAY WITNESSES PARTICULAR

Symbolic – $$ Reward –

Figure 4. The Field of American Criminal Law.

The structuring orientations of the criminal legal field are represented on the x- and y-axes. These are drawn from Bourdieu’s claims about the orientation of actors in any given legal field. Actors in legal fields—like those in all fields—are more or less oriented toward the preservation of the traditions of their fields. The legal field serves as the science of and for the state, as all actors in the field have some relationship to the governing structure of their time.12 One of the most important stakes of the criminal legal field, then, represented on the x-axis, is no less than defining how the state’s authority impacts those who live within its reach. All actors in US criminal law are more or less oriented (on the x-axis) to the state’s maintenance of power. Some actors are more interested in defending the law and therefore the state’s power (signaled with the label “tradition” on the left), while others in the field have the goal of diminishing or challenging its power (labeled “change” on the right). The map depicts how judges (on the left) are more inclined toward defending the rules of the law, for example, than activists (on the right). When we turn later in the chapter to the map of the capital sentencing field, the positions of some of the groups of actors along this axis will shift. The second most important structuring orientation in the criminal legal field is represented on the y-axis, showing how actors’ desired impact

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varies. Bourdieu argued that actors in the juridical field differ according to the outcomes they desire from their work. Some actors in the criminal legal field are invested in the outcomes of particular cases, such as jurors and witnesses. These are found toward the south of the map. Other actors, such as academics and scientists who testify as expert witnesses, are more attuned to their broader influence on the field. These are oriented toward the theories of the criminal legal field, toward the north. These two groups’ positions—labeled “particular” and “theory”—represent two different core sets of stakes that differentiate actors’ roles in the field. For some, “winning” in the field involves a single case victory. For others, “winning” means changing policy or legislation. This differentiation too will become important when we map the capital sentencing field.13 Toward the middle of the field the divisions between “particular” and “theory,” “tradition” and “change,” are less clear-cut. Lawyers in particular have been found to occupy differing positions in these regards, depending on their subfield.14 In the criminal legal field, it is enough to say here that lawyers have the potential to be oriented toward two very different positions regarding the state’s authority. This is signaled by the arrows leading from either direction of “lawyers,” labeled in the center. Prosecutors who try capital cases are oriented toward the preservation of the capital sentencing field’s rules, as we will see, while defense attorneys as a group are more inclined to challenge these laws. This does not suggest that all capital defense attorneys work to challenge the hegemony of the state, nor do all capital prosecutors necessarily defend the capital legal process. (It will be interesting, for example, to see whether the crop of “reformist” or “progressive” prosecutors elected in the second decade of the 2000s might in fact be shifting the field.) Suffice to say for now that when my observations were conducted, prosecutors as a group defended capital punishment law, while defense attorneys challenged it. The map also accounts for actors’ orientations toward the larger field of power, signaled by the descriptors outside the corners of the table. This is less relevant for this study but is essential in understanding any field. Actors within fields are also always competing for the stakes common to modern capitalist democracies: financial reward and symbolic reward.15 In legal fields the production of legal knowledge is the symbolic reward. Academics in the legal field shown above are primarily interested in

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this type of capital while judges and expert witnesses have a potential but not as clearly vested interest. Lay witnesses and jurors have little stake in the production of legal knowledge, in contrast. Monetary reward is of primary interest to the groups of actors who enter the field as a means of supporting themselves. In the case of the contemporary US criminal legal system, the work of judges and jurors is entirely encompassed by the criminal legal field, while lawyers and expert witnesses may be more or less dependent on the criminal legal field for financial reward, depending on their subfields. One of the theoretical powers of Bourdieu’s “field” concept is that it does not just set out the structures of a given arena, but defines them by participants’ actions. Fields are delineated by actors’ “feel of the game,” as Bourdieu called it: the deeply ingrained skills and dispositions of a field’s participants. The term habitus describes the dual nature of actors’ fielded activity. Habitus is the everyday actions of those in a given field, defined by actors’ struggles to formulate fields in relation to other fields and “win” the contests defined by the field itself at the same time. Lawyers might not describe exactly how they behave in order to dominate a courtroom any more than artists can describe how they create something beautiful. But their actions can be explained by the internalization of the fields’ schemes that guide their behavior. Actors’ practices therefore are the only way to truly know what is at stake in a given field. Observing fielded actors’ practices makes visible shared logics and stakes. This is why Bourdieu emphasized the role of ethnography in his own research. Observing practices in a field is not so much a methodological choice as an empirical imperative. Fields can only be understood as ongoing constructions, unavailable to theoretical musings.16 The field of capital sentencing cannot be read in newspapers or transcripts; there is too much meaning contained in the embodied interactions, voices, and gestures of participants. By placing myself at one of the sites of the field’s construction—the courtroom—my observations provide the material through which I can analyze the way habitus works to construct capital sentencing. When I pair this with a sociohistorical account of the field’s construction, the field’s stakes become apparent.17

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the e m e r g e n c e o f ca p i ta l “ t e a m d e f e n s e ” The adversarial relationship between capital defense and prosecution communities goes beyond disagreement on matters of law. As this section describes, their relationship embodies a deeper ideological conflict. The capital defense community’s origin is in the pre-Furman era, as civil rights attorneys from the National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU), and Amnesty International struggled to abolish capital punishment by bringing an ideal case to the Supreme Court. As memorialized in the writing of one of the lawyers involved, this small group of abolitionist lawyers not only created the Furman strategy but also then responded to the Gregg decision that revived capital sentencing. Their continued influence in the decades that followed shaped the field of capital sentencing.18 The lawyers who brought Furman to the Supreme Court were part of a shifting arrangement of elite and “public interest law” organizations challenging corporate interests in the law during the 1960s and 1970s.19 Their goal was singular: the abolition of the death penalty. The Furman lawyers decided that the best way to achieve abolition was to find a case that illustrated how capital sentencing violated the US Constitution’s requirements of fair and equal treatment. The defendant in Furman was a troubled young man who had committed a single murder. His lawyers argued that his crime was no worse than those of many others who had received lesser sentences. Although the Court agreed, it also left open the possibility that death penalty sentencing could be made more equal, and thus constitutional. To this day the lawyers who achieved success in the Furman case speak of deep conflict about their legal strategy. In an interview, one of the lead lawyers told me that he continues to wonder, forty years on, whether they made a “grave error” in pursuing the type of litigation that they did, as it left the door open to reform. With the Gregg decision that followed, the Court institutionalized the “modern” capital sentencing procedure I observed thirty years later. Constitutional scholars describe the Supreme Court’s post-Furman capital jurisprudence to have developed over three stages, with contradictions and accretions.20 In the first decade after Gregg, the Court largely left

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states to regulate the penalty phase as they saw fit. The second stage was more active, taking on the question of what exactly comprised constitutional capital sentencing. In J. L. Austin’s words, the Supreme Court effectively “called into being” a practice that previously was undefined.21 This second phase, I argue, was defined by the process of integrating social science knowledge into the legal evaluation of capital defendants. This is not to suggest that social science expertise had not influenced legal fields prior to this. One sociological truism about modern criminal sentencing has been its shared history with social science. As Michel Foucault documented in his account of a trial in nineteenth-century France, one of the primary targets of modern state punishment has been the interior life of the accused, and it was the development of the social sciences that provided its tools.22 But while scholars regularly lament the toothlessness of social science in the broader US legal context,23 capital sentencing is one of a handful of “special” fields that makes punishment dependent on such expertise.24 Capital sentencing might be considered the pinnacle of social scientific influence on criminal punishment in the United States, as it developed during this post-Gregg era, decades ahead of the drug and family courts that are now the subject of scholarly inquiry. The influence of psychological expertise was evident from the beginning of the modern capital sentencing era. One of the founders of “capital mitigation” described his early thinking about convincing jurors to vote against death sentences at trial: We called it the Team Defense Project . . . it was going to be a psychologist, it was going to be a lawyer and the two were going to interface their skills together. And those two people in those two disciplines were going to be able to convince jurors of the wrong in giving people death sentences.25

During the late 1970s, the skill of investigating, culling, and presenting such evidence to lay jurors became the central task of the “abolitionist bar,” as the capital defense community became known. The legitimacy of this task was solidified in jurisprudence with the Supreme Court’s 1984 decision Strickland v. Washington. Strickland extended two previous decisions—Powell v. Alabama (1932) and Gideon v. Wainwright (1963)— guaranteeing impoverished defendants a minimum standard of legal representation. Strickland applied this standard of “effective” counsel to capi-

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tal penalty phases, stipulating that the constitutionality of capital sentencing procedure depended not only on the criteria laid out in Gregg but also on a more nebulous quality that made defense attorneys “effective” at sentencing. While “effective” defense lawyering had been a legal concept for decades, “effective” defense sentencing was entirely new. Unlike most defense lawyering, capital sentencing involved finding and providing defendants’ biographical information to jurors specifically. To support this new project of providing “effective assistance” to capital defendants, “Capital Habeas Corpus Resource Centers” were established with federal money in states where death penalty prosecutions were high. These “Resource Centers,” as they were called, were central to the development of capital sentencing as a standardized practice, although they were in essence defunded by the federal Antiterrorism and Effective Death Penalty Act during Bill Clinton’s presidency.26 They created learning environments for capital defenders to learn to work closely with experts outside the contemporary boundaries of their profession. Though some more progressive public defenders’ offices were beginning to routinely create “sentencing reports” with the help of psychological experts, one interviewee told me that it was far from standard practice. In the years that followed Strickland, practitioners, experts, and scholars filled out the differences between “effective” and “ineffective” lawyering, distinguishing those lawyers whom the courts held to bring sufficient biographical life-course evidence from those who do not.27 Resource Centers staffed not only attorneys but also “mitigation specialists,” often young social workers or aspiring social scientists, to help find and evaluate the types of stories eventually presented at trial. Thus, the “mitigation” expert, as it came to be called, emerged as a new profession. Mitigation experts have become standard in capital trial offices, even when the centers have been defunded.28 Into the early 2000s, the Supreme Court continued to specify the legal standards to which effective capital defense was to adhere. In Penry v. Johnson (2001), the Court twice reversed a defendant’s sentence because the jury was not explicitly instructed that it could consider the defendant’s background of mental retardation and abuse. In Wiggins v. Smith (2003), the Court held that defense attorneys were responsible for conducting full investigations of their clients’ backgrounds prior to trial in order to provide juries with information needed for sentencing. In response to these developments,

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states further specified capital jury instructions as well as mitigating and aggravating factors.29 As one lawyer described it to me, Wiggins “gave defense attorneys a stick with which they could essentially beat the trial judge over the head for resources,” because they could claim they were going to be found ineffective if they did not complete full investigations into defendants’ backgrounds. State legislatures and bar associations also revised statutory and professional standards for capital defense attorneys.30 This helped define the beginning of what scholars call the third stage of the development of the penalty phase, where capital mitigation became somewhat standardized. In 2003, the American Bar Association (ABA) issued “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.”31 These guidelines catalog, in over 130 detailed pages with 350 footnotes, attorneys’ responsibilities from appointment to postconviction.32 Of note is how these guidelines specify effective capital sentencing practices in relation to helping jurors understand social scientific evidence. The document catalogs twelve main obligations for capital sentencing defenders, more than half of which are directly linked to the presentation of such evidence to lay rather than expert judges.33 The field cohered not only around social science knowledge but around its presentation to non-expert Americans. Social scientific knowledge has not only contributed to the content of the capital sentencing procedure, then; it has shaped the procedure’s narrative style, with jurors as its audience. As one prominent capital defense attorney told me, convincing jurors that convicted murderers are worth saving requires lawyers to learn to narrate evidence in a way they were not accustomed to. They have to use evidence of their clients’ life histories, provided by non–legal experts, to curate stories that would “tug at the heartstrings” of mainstream Americans. Of course, trial lawyers use narrative craft to recruit jurors into their version of events in a variety of noncapital legal settings. But the capital lawyers I spoke with emphasized that the skill they were learning was different than “normal lawyering.” One of the defense attorneys told me that senior lawyers in the death penalty community taught newbies how to “quit being lawyers and start being more storytellers.” He struggled to understand how to tell the stories of his clients’ lives, he said, knowing that the excruciating detail, when viewed through a psychological lens, should “bring jurors to their knees.” Indeed, the newness of this task

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for lawyers is captured by the chronicle of Supreme Court attempts to manage the emerging knowledge amalgamation.34 Today capital defenders share more than this set of professional guidelines; they are part of an autonomous field. Not only attorneys but also social workers and psychological and medical experts together attend conferences, share e-mail listservs, and work in a few dozen government and nonprofit organizations around the country dedicated to capital sentencing. Like other fields, members of capital defense teams populate their own professional organizations, conferences, and schools. The National Alliance of Sentencing Advocates and Mitigation Specialists (www.nlada.org/ NASAMS), founded in 1992, supports social workers and others who provide social biography for capital sentencing; lawyers are connected through the Capital Defense Network (www.capdefnet.org), the Legal Defense and Education Fund, and the ABA’s National Capital Standards network, among others.35 Law clinics at the University of California, Berkeley, the University of Texas at Austin, and Cornell, Harvard, and Yale universities, for example, train young lawyers for careers in the field. Psychiatric and psychological experts in particular have created their own subfield of inquiry into the matter of predicting “future dangerousness” in the capital trial setting. A cadre of psychologists, psychiatrists, and social workers writes about the ways that insights from the behavioral sciences can help capital defenders shape investigations and presentations of evidence.36 Like all fields, capital sentencing has its more and less dedicated members. Legal scholars laud the capital defense “cause lawyers” as highly dedicated advocates for people who are accused of committing atrocious crimes; they go beyond their legal duties to support the disenfranchised.37 Indeed, several capital defenders I interviewed measure themselves against luminaries who not only practice capital defense but live it. Anthony Amsterdam, Scharlette Holdman, and Millard Farmer, among others, were mentioned as examples of dedicated abolitionists who “lived and breathed” capital defense. (They have also been the topic of scholarly and journalistic interest.38) These professed luminaries set standards to be lived up to, and their mention also signaled that “lesser” members belong to the same field. This “boundary work” makes legible the contours of the capital sentencing field. Part of any professional group is the drawing up of restrictions between those who rightly belong and those who are outside the field’s expertise.39

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One quality of the luminaries in the field is that their work commitment stretches beyond common professional boundaries. My interviewees told stories of becoming capital lawyers and mitigation experts, from New York and Atlanta to Houston and San Francisco, with the greats as their guides. In the words of one interviewee, the key to becoming part of this world was to “never sleep . . . or do anything other than work.” In their dedication to their work and defending the boundaries of their expertise, capital defenders are like other professionals at the peak of their field. But core members of the capital defense community are different from other professional luminaries in another important sense. They say they are opposed to the existence of their field, even as they operate within it. Recalling the legacy of the lawyers who argued Furman, the “stars” of the field do the work because they are against the death penalty. In a joke I heard more than once, capital defense attorneys say that they would be “happy to be put out of business.” Unlike artists or geneticists, capital defenders describe trying to “win” in a field they would prefer did not exist. This puts them in a precarious position in the courtroom. They must show utmost respect for the judge and jurors who decide their case, while struggling against the laws that bring them there. Some say that capital defense standardization has worked against this goal of abolition. From a Bourdieusian perspective, a field cannot exist without centralizing its survival among its goals. The history of capital punishment (and all fields) is of challenges and absorptions that preserve the essential structure of the field, provide it with more legitimacy, and allow it to adapt. Indeed, with the power to shape capital sentencing has come an increase in position and prestige for dedicated capital defense lawyers. But the decrease in death sentences and executions since the 1990s is also their legacy. Winning the legal right to bring mitigating evidence to bear on potential death sentences is no small feat. Bourdieu’s account of social change is filtered through such fielded contexts, and capital defenders are no doubt one of the causal forces in capital punishment’s decline. Their failure to abolish capital punishment altogether, however, points to another powerful element shaping the capital sentencing field. State criminal prosecution, and law enforcement more generally, which are comparatively more secure institutionalized forces, provide structuring elements against which capital defenders have had to struggle.

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capi ta l p r o s e c u t o r s : t h e “ w h i t e h at s ” Though I did not have the same breadth of access to capital prosecutors as I did capital defense attorneys, both my own limited research and others’ show that prosecutors occupy a similarly coordinated position in the capital sentencing field. Prosecutors are legendarily protective about the vast discretion that they enjoy in the criminal justice system, and my study did not adequately penetrate this. Future studies might take up more explicitly how the capital prosecution community took shape in the post-Furman era. The capital prosecutors I did speak with told me that their work in capital prosecution depended on their membership in a professional community separate from other (noncapital) prosecutors. They pointed me to the Association for Government Attorneys in Capital Litigation (AGACL) and the National District Attorney’s Association’s “Capital Litigation Resource Center” as evidence of their professional “homes.” These organizations help them keep up with the latest jurisprudence and evidentiary techniques. Like the organizations that cohered around the capital defense bar, the AGACL grew in the post-Gregg era. Its website recounts the organization’s formation in response to capital defenders shortly after Gregg: In the early spring of 1979 . . . representatives from fifteen states discussed a variety of issues that were being raised by the defense bar in opposition to the imposition of the death penalty . . . [and] determined that further prosecution cooperation was urgently needed. . . . The states agreed to have an annual conference where government attorneys at all levels could receive professional instruction and share ideas.

Forty years later, these conferences are ongoing and remain explicitly oriented toward the defense bar “opposition.” Paging through their resources online, it is apparent that the actors connected through these organizations include not only attorneys and judges but also the same sorts of extralegal experts circulating among capital defense organizations. Forensic psychiatrists and leaders of victims’ advocacy organizations, such as the National Center for Victims of Crime, feature in the AGACL’s conferences and publications. These organizations are situated in the broader world of criminal prosecution. Interviews with criminal prosecutors show that they use one

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metaphor above all others to describe their work: that of the “white hat.” They perceive their jobs to involve securing bad, violent people in prison to protect the good citizens of the United States. Like sheriffs in old Western movies, prosecutors use this metaphor of whiteness in juxtaposition to the outlaws they fight in black. They understand themselves to be the “good guys” in the criminal justice system and speak not only about the accused but also of defense attorneys as potential outlaws, occupying the “dark side.” 40 This too is evidence of actors who share a field; they are oriented toward one another. Like capital defenders, capital prosecutors can understand their jobs as more than a way to make a living. Prosecutors I spoke with talked of sacrificing themselves for a greater good. One told me that his everyday work can be terrible, but he “does it for his daughter,” to help protect the most innocent members of society. He described having to spend one afternoon looking for evidence of intent among gruesome autopsy pictures, and then going home to his family. “I tell her,” he said, “that I’m doing it so that I can keep the world safe from bad guys for her.” In a separate conversation, a different prosecutor told me he “takes no joy” in his work but that “somebody has to do it.” Like his colleague, he saw his job as a way to help make the world better. This metaphor of the “white hat” has obvious racial parallels. The “Old West” films which popularized this image are steeped in racial iconography. But its significance is not only symbolic. Prosecutors are overwhelmingly white-identified. One study from the late 1990s found that a full 98 percent of chief prosecutors (also called district attorneys) in the United States in fact identified as white. By 2014, this number had decreased somewhat: 95 percent of the nation’s 2,437 elected state and local prosecutors were white, and 79 percent were white men.41 This reflects a broader history of male whiteness in US law enforcement that was visible in the distribution of actors I observed. I noted to myself many times the contrast between the (older, male) people who surrounded capital prosecutors during trials, and those (younger, more likely female) clerks and investigators who support capital defenders. In the second part of this book readers will see how members from each of these professional communities—defense and prosecution—reveal their “fieldedness” in the courtroom. Choosing a jury, creating cases for mitigation and aggravation, and eliciting victim-support testimony are

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not spontaneous or structured by legal rules alone. Instead, rhetorical techniques, bodily practices, and jurisprudential manipulations appear in multiple trials. It is this habitus—the shared dispositions of those who occupy the field—that demonstrates its influence. Its inscrutability to the casual observer, however, also obscures the field’s structural roots. Of utmost importance in shaping capital sentencing is the adversarial relationship between defense and prosecution communities. These are not a single group of people working together from slightly different perspectives to come to the best solution. The sentence of execution or a life imprisoned is not reasoned through a logical consideration of a set of factors, but rather won through an adversarial battle.

theat r i ca l i t y a n d p e r f o r m a n c e The theater seems a long way from capital courtrooms. Yet thinking of courtrooms as theaters is not unusual for legal practitioners. Here I draw attention to theatricality not only as a professional technique but as a fundamental part of the capital sentencing field’s ongoing power. The concept of theatricality is a slippery one often understood to imply deception or illusion. For scholars, however, theatricality signals the staging of a relationship between actors and audience in a specific historical and cultural context. Unlike most social settings that involve less purposeful setting out of scenery, actors, and props, capital sentencing is theatrical in the sense that it is one step removed from immediate social relationships.42 Lawyers do not have the actual, live evidence of a defendant’s background or a victim’s family’s experience of losing a loved one, for example, so they must represent these stories. As one capital practitioner described it, lawyers “painstakingly reconstruct a representation” of an act’s reality similar to the representations created by novelists, painters, or directors. There is no misinterpreting the stakes of this particular type of representative “art,” however, as executions require actual defendants rather than the representations the jurors have evaluated.43 Scholars who study performance say that staging is never neutral. In the case of capital sentencing, a trial’s staging is constrained by, among other things, the field in which it resides. To make sense of the full range of

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experiences I observed, I draw from scholarship that takes performance as its primary lens. Performance theory accounts not only for actors’ language—which receives a lot of attention from sociolegal scholars—but also for the sensory, emotional, and material aspects of trial. This is not to say that a study of performance ignores language. To the contrary, language is a core part of human communication and can even be synonymous with action.44 But performance demands a grammar of the body and its environs rather than a grammar of language alone.45 Enquiring into the totality of communicative practices is a proper anthropological project; humans experience the world using all of the senses, and a legal scene is no different.46 Performance also links the staging of a particular scene to the everyday world. Performance scholarship draws attention to the context through which actors and viewers understand any given performative event. Performance is only made meaningful through shared associations formed outside the staged event. Capital trials, like theater, “simultaneously conjure another place and time even as they act on their audiences in the present,” and this relationship between audience and performer brings capital trials in conversation with theater.47 Performance in the theater and performance at trial both “extend before and beyond” embodied events, and “successful” performances require audiences to understand what performers are referencing.48 The legal “battle” for truth, for example, is a familiar cultural trope in the contemporary United States; jurors do not have to be taught much about why the defense and the prosecution sit at different tables, whisper so as not to be heard by one another, or dispute what the other’s witness might attest. The staged rivalry of criminal trials is so familiar, in fact, that capital jurors might not question why sentencing evidence too takes this form. In other words, capital sentencing, like all communicative performances, features audiences as its key concern, and in capital trials jurors are the prime audience. Capital trials are constructed as staged events rather than rhetorical ones, with lay jurors rather than experts as their audiences. Key to understanding capital sentencing as a field, then, is centralizing the role of its audience, asking, What referents are the performers making? What is included in the extension beyond the embodied events of a given trial? The shared associations are limitless, but the associations I observed are constrained in ways that are telling about the stakes of the field.

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mapp i n g ca p i ta l s e n t e n c i n g Figure 5 is a map of what I argue to be a capital sentencing “field.” I bring together some elements of the criminal legal field, with a fundamental reliance on performativity and social scientific expertise. This map is different from the map in figure 4 in three important ways. First, one of the axes is different. While the x-axis remains the same, representing the tension between upholding and challenging the traditional authority of the state, the y-axis is different. The concern with “theory” or the “particular” has dropped out. This element of the field could be included, but I deemphasize it in this study because Anglo-American law is oriented more toward practice in comparison to the German-French models that Bourdieu theorized,49 and because capital sentencing is defined more by the actors who operate in the realm of the particular in comparison to those abolitionist scholars and activists on the periphery.50 The second difference between figures 4 and 5 is the organization of the lawyers. In figure 5, lawyers are organized into two groups, recognizing the adversarial structure of capital sentencing. I also refer to them as “teams,” as these two opposing sides are populated not only by lawyers but also by social scientific experts, including mitigation specialists and forensic psychiatrists, as discussed above. A third notable difference is the orientation of the action, signaled by the dotted lines. The action in this field is directed toward jurors, which is not the case with the US criminal legal system more broadly. Both legal teams create their cases with these laypeople in mind, with judges acting as gatekeepers. This is not to say that judges, appellate courts, and various public constituencies are irrelevant in capital sentencing. Rather, modern capital jurisprudence has made the jury’s response to evidence its primary concern. Juries are the audiences that structure the communicative acts at the heart of the capital sentencing. Notably, the two main groups of performers—prosecutors and defense teams—find themselves in different positions relative to the decisionmakers. Defense teams work to change the punitive-retributive tradition that defines the contemporary criminal punishment system. As such, they are oriented toward the “change” end of the spectrum.51 These attorneys, along with their expert and lay witnesses—labeled defense supporters in the figure—must narrate mitigation stories that for the most part run

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the social logic of death penalty cases PERFORMER PROSECUTING TEAM

DEFENSE TEAM

DEFENSE SUPPORTERS

VICTIM SUPPORTERS JUDGES

TRADITION

CHANGE

JURORS AUDIENCE

Figure 5. The Field of Capital Sentencing.

contrary to the jurors’ own experiences and expectations around criminality. On the left side of the map, prosecuting teams and victim supporters are aligned more closely with the traditions of the criminal justice system. They are the “white hats” in the drama of capital sentencing, defending the rules of the system. Prosecutors argue to jurors that a given defendant is “tailor-made” for the death penalty law of this country. The prosecutors employ psychiatric and psychological expert witnesses like defenders do, but as I show, these experts need not perform paradigmatic shifts like defense witnesses. Victim supporters embody this moral authority of the prosecutor. As mourners, I demonstrate, they provide a moral imperative to enact the tradition of retributive punishment. The performances on which jurors’ decisions are based, then, do not begin from equal grounds. I argue that the institutionalization of laypeoplecum-judges in capital sentencing creates bias toward the prosecution. Trial judges, such as the ones I observed, have varying degrees of commitment to the rules of the field in which they work. In states that retain the death penalty, especially, most fall on the side of conserving these rules. Juries, on the other hand, are commonly held as democratic “checks” on such authority figures. Idealized as a reflection of community values regarding justice and punishment, the use of juries in criminal sentencing is said to safeguard

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against the potential bias of a single judge. Regardless of any one bias, a group of twelve biases will average out, the theory goes.52 But there are several reasons why capital jurors do not fulfill these ideals. As figure 5 shows, I argue that capital jurors in particular occupy a position that is more aligned with tradition, when compared with judges. First, capital jurors are not a randomly biased group of Americans. They are triply shaped by the racialized twenty-first-century politics embedded in the criminal justice system. All criminal juries exclude the millions of disproportionately black and Hispanic Americans with felony convictions, as well as their loved ones who have resulting negative associations with law enforcement.53 Added to this is the unique “death qualification” process in capital sentencing, which bars from participation those many Americans who are qualified to sit on a jury but are too critical of the criminal justice system to be selected. As I describe in the next chapter, capital jurors must pledge to accept the rules of the game as defined by the state. During an extensive jury selection process that can take days or weeks, only those who convince the lawyers and judges that they are willing to be involved in the controversial process of deciding whether another deserves to live or die become part of the proceedings. I am not the first to point to this problem of constricted democracy. But I add to this already comprised process a third factor. Those jurors who are chosen to sit on capital juries must perform what I call punitive citizenship, publicly declaring a type of emotional disinvestment and ability to “stick to their guns.” Together these techniques result in capital juries that are not only whiter and wealthier than Americans as a whole, but also more likely to defend the traditions of the criminal justice system. One might ask why jurors are required for capital sentencing. Why did the Supreme Court institutionalize juries as the ultimate decision-makers rather than judges? The answer to this question is suggested by the comparison between capital jurors and the judges who would otherwise be imbued with the power of capital sentencing. Judges who sit on capital trials are veterans of the criminal justice system. They cannot fail to be aware of the multiple layers of staging involved in producing capital defendants. Capital jurors, on the other hand, are fundamentally more naïve about the performative aspects of capital trials, especially when compared to judges. When jurors witness capital trials, they are audience to a process they know very little about. They are more easily enchanted

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by the process than judges. The ability to create the collective experiences I document in the second part of this book depends on an ability to obscure the problematic influences that shape them. For a performance to be judged as authentic, actors must hide the laborious construction that any staging necessitates. Outside referents brought in must support the performance rather than undermine it. This is not to suggest that all judges interact critically with all capital trials. To the contrary, judges are the engines of the capital sentencing process as much as any other state actor, and many have been prosecutors themselves. Yet the Supreme Court institutionalized jurors as sentencers in the very most controversial punishment currently deployed in the United States. Jurors affirm that death sentencing is democratic, enacted by a dozen American citizens, and guided by the “super due process” that protects against prejudice. They symbolize community, whereas judges stand for authority.54 A death sentence is thought to correspond to the horror of a single criminal act. But a death sentence, like art, depends on the many different social groups who bring it to the attention of the jurors, as much as on the crime itself. The creation of a great piece of art—as sociological great Howard Becker detailed—involves machinations usually ignored by those lovers of beauty who judge it. The people who manufacture the material used to create the art, those who distribute artistic works, and those who review it are instrumental in whether art is “seen” or not. Like the art field, one of the purposes of the legal field is to obscure the importance of the labor that produces legal “truths.” All kinds of participants produce capital sentences—not just judges, lawyers, clients, and witnesses but also courtroom stenographers, forensic psychiatrists, TV and newspaper reporters, and courthouse maintenance workers. These actors create a “narrowing” process steeped in the necropolitics of the era, which I detailed earlier. The production of the capital sentencing trial is mostly invisible to juries, and it is this invisibility that helps jurors believe they are sentencing “the worst of the worst.” Performance carries with it a special type of immediacy that differentiates it from other social experiences. There is no substitute for attending a wedding, music concert, or dinner party, because the meaning of these experiences is in the interactions that take place in real time. “Things of

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the heart,” as one performance scholar calls them, rely on a feeling created by humans in a room.55 Such “truths,” whether about criminality, beauty, or love, must be recruited, shaped, and interpolated. As the next chapter will show, only a particular type of American is included among those jurors who participate in the production of the “worst” criminality. Without them, the system would not work.

part ii

The Social Logic of Death Penalty Trials

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The judge calls a break so that the defense counsel can respond to the prosecutors’ motion. Defense counsel, jurors, audience, and court reporter leave the room. I stay, along with the defendant, a couple of bailiffs, one prosecuting attorney, and the judge. da: [talking to the judge] Did you hear the Fifth Circuit finally affirmed

Johnson? judge: They’re gonna kill him now? da: [nodding] They’re gonna kill him now. judge: [pause] I wouldn’t care, but he said some nasty things about me. da: I think he said nasty things about lots of people, including his

attorneys. [laughing] I think they want to go down and watch [the execution]! judge: [joining in the laughter] Probably take pom-poms with them. . . . Now

is he the one you told me they found with a cellphone? da: Yes, in a certain place on his anatomy. And they were using it after

they found it there!

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The two stop talking abruptly when the defense attorneys return to the courtroom, and the judge asks if they have a question he can answer. •

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The primary method through which the practice of law is preserved— transcription—systematically erases bodies, tones, and movements. It also does not include such off-the-record conversations as above. Yet most of our knowledge of legal proceedings comes from court transcripts. Court reporters, those professionals tasked with creating the legal record, document lawyers’, judges’, and witnesses’ official speech acts, including opening and closing statements, witness questioning and testimony, and bench conferences with the judge, but little else. From the first time I observed a death penalty trial, this taken-for-granted method of recording trial proceedings seemed drastically inadequate for a social scientific inquiry examining the practices of capital trials. Much of what is written by social scientists about trial courts is also void of action. This is due in part to the high cost of analyzing action: ethnographic data are difficult to gather, and transcripts are more readily available. There is much to be gained from a strictly linguistic analysis, but different dynamics are available when action is taken into account. Above, the prosecutor and the judge reveal a relationship that differs from the one displayed during court sessions. They share a camaraderie (truly felt or not) not seen in open court. What exactly they mean when they speak of someone finding a cellphone “in a certain place” on the condemned man’s “anatomy” I never learned. But the sociological meaning of the exchange is not in the anecdote’s details. It is instead in the contrast between these two people’s relationship in “open” court and their more informal banter. One of the demands of a court in session is that the prosecutor and judge perform a professional relationship suggesting that the objectivity of the law structures the field in which they participate. When the court is out of session and transcription has stopped, the judge and prosecutor evidence a different dynamic. Sharing a joke about an upcoming execution, their interaction demonstrates interpersonal familiarity, humor, and callousness as to the death of another human. Whether gallows humor or simple cruelty, the judge and prosecutor also demonstrate

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their attitude about the legal setting: its rules shift depending on who is present. The courtroom was not empty. I was sitting in an audience pew; court personnel were moving around; and incredibly, the defendant was in his usual seat at the defense counsel table, only feet away from the judge. Among other things, the joking shows absolute disregard for the feelings of the defendant. They literally do not regard him. This is illustrative of one of the strangest parts of a capital trial: the defendant’s actions are central to the case, yet the person himself seems almost invisible in the practice of the sentencing. Thousands of such telling moments occur in a given trial. Death penalty courtrooms are complex hives of activity, even in quieter, “off-therecord” moments. The physical movements and shifting emotional tenor cannot be captured by the transcription of words alone. The way courtroom actors come together to dispute the worth of a defendant’s life— officially and unofficially—involves moments of contradiction, conflict, and most certainly physical interaction. Defendants, though often ignored by courtroom actors who become seemingly inured, do draw the attention of those less accustomed to the scene. Interviews with jurors show that they in fact pay close attention for signs of defendants’ inner lives and other “offstage” dynamics.1 But less often discussed are the ways others in the court interact. Legal teams work wordlessly for much of the trial, communicating by exchanges of looks and signals. Witnesses manage their appearances using a variety of manners, props, and modes of dress. Courtroom staff attend to the technical and architectural features of the space itself. Yet the interactions that are preserved in the legal record are almost always focused on those between the lawyers, witnesses, and the judge. Everything else is lost. Many of these unrecorded dynamics are apparent to members of the jury, however, and some have been shown to influence capital sentencing decisions. Ethnographic observation of capital trials is a natural choice to capture the complexity of death penalty sentencing. Ethnography’s strength as a method is its focus on illuminating process and interaction, as well as discursive and performative conflict. A large body of legal ethnographic studies has focused on the ways that language and action constitute meaning in courtroom settings.2 Many studies come out of a tradition of ethnomethodology and conversation analysis. One of the best known of these

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is Harold Garfinkel’s study of a “degradation ceremony,” in which he describes the process by which members of the public come together to condemn another human being to a morally lesser status, such as in a criminal trial. Key to this ceremony is convincing the public that the person they are condemning did not only do something outside the moral realm; they actually are outside the moral realm. As Garfinkel puts it, this involves demonstrating that the defendant’s evil nature “is what, ‘after all,’ he was all along.”3 Most criminal sentencing forums in the United States today are largely devoid of such drama. Upward of 95 percent of all criminal convictions in the country today are determined by plea agreement with little negotiation on the record. In contemporary death penalty sentencing trials, however, the presence of lay jurors significantly changes this business-asusual. To persuade the jury to vote for a lifetime sentence to prison or death by execution, courtroom actors—lawyers, judge, victims’ friends and family, and witnesses—refer to the defendant, talk about the defendant’s past and present, and construct arguments about what type of person he is and what type of punishment he deserves. In some ways the capital punishment hearing might be viewed as a battle to create the defendant’s identity. The prosecutor’s witnesses seek to show that the defendant’s murderous act defines the whole of his life and person, while defense teams try to demonstrate that the defendant is more complex and perhaps deserving of understanding. Unfortunately, the legacy of Garfinkel’s work in sociology tends to narrowly define “legal proceedings” in the same ways that courts do. Even the classic “law in action” scholarship treats legal scenes as mostly linguistic endeavors.4 Analyses center on the witness stand, where the interactions between witnesses, lawyers, and judges take place. Such a constricted focus allows for close interrogation of the arena of action as defined by the legal institution, but it obscures the ways humans experience any given social setting. We are not able to categorically ignore the sights, sounds, and smells that constitute human landscapes. There is a smaller body of scholarship at the nexus of legal and theater scholarship that prioritizes embodied action, and it is from this tradition that I draw.5 Erving Goffman’s conceptualization of social interaction as dramaturgical performance is foundational to this literature. For Goffman,

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everyday performances function as more than entertainment; they are the reflexive processes through which humans recognize themselves and others. Goffman also analyzed what he called total institutions, or those organizations of human activity, like prisons or mental hospitals, that require participants to live without acknowledgment of the other parts of their social lives—their families, their religious communities, or their educations, for example. The capital trial is a gateway into such an institution, and the sentencing trial a harbinger of erasures to come, whichever sentence is decided on. Goffman would explain the prosecutor and judge’s off-the-record interaction as part of a “backstage,” as opposed to the “front region” or “front stage” of the trial court. All institutions contain scenes in which actors are aware they have an audience and conduct themselves according to the institutional rules that structure their interaction. Lawyers and judges “do” law like patients and doctors “do” medicine or faculty and students “do” college. When on the front stage, actors generally attempt to maintain the standards of their roles as dictated by the institutional setting. Backstage, they interact according to a different set of standards, often characterized by less formal, more relaxed talk and body positioning. Trial action is thought to be conducted only on the front stage, where institutional norms are at work, and it is from these interactions that transcripts are made. But when the reminder of such institutional norms—the audience—is absent, actors relax and revert to backstage behaviors, which in turn reveal, in their contrast, important dynamics about the front stage. The exchange at the beginning demonstrates that the real audience in capital sentencing is the jury; the stakes revolve around its witnessing, and the rules of the game shift when they are not present. Though some lawyers anticipate appellate court rulings and some witnesses are more concerned with the judge’s appreciation of their expertise than the jurors’, as a field it is the jury that dictates the boundaries on participant behavior. Backstage behavior emerges when the jury is absent, and front stage behavior depends on its presence. By observing the judge and the prosecutor during a backstage moment—or what ethnomethodologists would call a “breach” in their front stage behavior—we learn that these fielded actors do not in fact embody the laws that they work to uphold during the trial. Like most people, they move between different social roles throughout the day. They

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Punitive citizenship

Evaluating childhood

Mourners in the court Fearing the future

Figure 6. Four Features of Capital Sentencing.

have families, religious beliefs, and feelings and ideas about the people with whom they are employed. This freedom to move between roles marks the difference between them and the defendant, who has no such freedom. The defendant will be judged as if every utterance, every gesture, illustrates only his criminality. Others have shown that defendant dehumanization is common in criminal court settings. Nicole Van Cleve’s Crook County is a recent, damning example. Indeed, the defendant who witnesses the prosecutor and judge joke is similarly disregarded. This study goes beyond the truism of interactionist critical criminology that criminal sentencing and mass incarceration rely on the dehumanization of mostly impoverished young men of color. The question in this study is, Does the super due process accorded to capital sentencing negate such dehumanization? If there is any venue in the contemporary US criminal justice system where individuated sentencing and careful consideration of process have the potential to disrupt this norm, it is in the capital sentencing trial. The stakes are

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high, the players handpicked, and review assured. Yet as I will show, even discounting the conversation I witnessed above—which may have been an aberration, after all—the legally sanctioned elements of capital sentencing remain anchored in the necropolitics of the era in which they developed. As we enter into capital courtrooms, I detail the fundamental features of every penalty phase I observed: choosing jurors, narrating the defendant’s childhood, speculating about his future behavior, and eliciting the testimony of victims’ supporters (see figure 6). These are treated as separate occurrences in the following chapters, though they work like the gears of a machine, dependent on one another for their outcome and enmeshed in the social logics on which they depend.

Graffiti, criminal courthouse wall.

4

Performing Punitive Citizenship

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I am looking for a courthouse in a rural county, and it is brutally hot outside. The heat is coming through the windows of my rented sedan despite the air conditioning being on full blast. On the highway leading into the town’s small center, fields host midsummer crops looking barely alive, wilting in the direct sun. They are interrupted occasionally by smokestacks, tangles of old farm machinery, and silos. At the turnoff signaling my arrival, I feel my way into a grid of streets next to the highway. There are buildings sitting low, three or four stories, probably no more than a dozen total, marking the beginning of town. A small residential neighborhood follows, looking to have been built as a subdivision after World War II, with asbestos sideboards and square, quarter-acre yards. Some houses appear to be trailers—called single- and double-wides in this part of the country—that have become permanent fixtures. Almost no one is outside, probably because of the heat. It feels deserted. I make a couple of turns around the streets and follow those that look most likely to lead to municipal buildings. Soon a limited collection of central buildings appears: a police station, courthouse, town hall, and library. 93

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The courthouse is easily identifiable by the classical columns in the front, a gesture to grandeur. Pulling around back, I see that the back and sides look like other midcentury bureaucratic havens—squat and long in brownishgray concrete with regularly spaced windows. I park and wonder if the courthouse is closed; there doesn’t seem to be anyone coming in or out. Opening the nearest door, I enter a wide hallway lined with industrial laminate flooring, a few long wooden benches sitting empty, framed pictures of judges past, battered blinds half covering windows, and long fluorescent lights overhead. This looks familiar—it is typical of courthouses I’d seen before, built in the 1950s and 1960s with little attention since. There is nobody around, and the doors to the few offices off the hallway are closed. A woman in a one-piece jumpsuit shuffles around the corner pushing a mop in front of her half-heartedly. I realize the jail is upstairs and that she is probably a low-security inmate. I ask her where the courtrooms are. Upstairs, she says, and tilts her chin toward an elevator. She is uninterested in me, to say the least, and turns away to continue pushing her mop. Upstairs looks just like the floor below: a wide hallway with doors on either side and nobody around. I hear voices and peek into an open door to see a big, tall man in a sheriff ’s deputy uniform. He is laughing and talking loudly to a second man dressed in a golf shirt and khakis. They are in a windowless office sitting across from one another at a big metal desk, their feet propped up. I say, “Hi, is this where the murder trial is going on?” The sheriff says, good-humoredly, “Sure is, what can I do for you?” I ask, “Is it okay if I watch?” He says, “Who are you? You’re not a witness or anything, are you?” And I say, “No, no, I’m just a student who is watching murder trials.” He nods as if to say that satisfies him, though the man in the golf shirt raises an eyebrow and looks more curious. The sheriff heaves himself out of the chair and gestures for me to follow him down the hall. We pass a door with a handwritten sign taped to the glass window. It says, “Public Defenders Office.” Peeking in the window, I see that the office resembles a grade school classroom, four small metal desks cluttered with paper, pens, and notebooks. The sheriff walks toward a metal detector that looks like a much less sophisticated version of the ones at the airport, and motions me through. He says, “They’re just doing jury selection, you know.” I shrug, trying to convey, “Just doing my job,” and he gestures toward a door marked

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“Courtroom B.” He pulls the door open a few inches and glances in, and then waves me through. I enter into the back of a long courtroom. About a dozen people are at the front of the room: judge, lawyers, and courtroom staff. A lone woman sits by herself in the audience benches. They all turn to look at me as I try to shut the door without making any noise. The judge is in the middle of a speech to the lawyers. He pauses to squint at me and goes back to it. I sit and wait for the inquisition, which I know will come. But first the judge is inviting one of his bailiffs to “Show them in!” I realize that we are not alone; the bailiff opens a side door and a line of people, looking herded and slightly disheveled, begin to file into the courtroom. They confusedly make their way to the audience benches. They are in a very casual mode of dress; to my urban eyes they look very much like a “country” group. Through the doorway several dozen more are visible, lined up in a hallway outside. I play a guessing game as I wait for the bailiffs to organize the potential jurors: that white man with the polo shirt will make it onto the jury; that black woman wearing flip-flops will be dismissed. I think the prosecution will have no trouble getting the death penalty from the majority of these people, especially because the defense team already looks meek. The prosecutor is striding around the front of the courtroom, interacting with bailiffs, clerks, and his prosecution team. The defense lawyers are mostly still or moving minimally on their side of the courtroom. The defendant is almost invisible, he is so small and still. He sits completely unmoving at the defense table, staring straight ahead. The potential jurors glance over at the defense table, and I don’t think they even notice which one is the accused. Later they will stare at him, I know. The case is a grisly rape and murder, with one of the victims surviving the attack. I am not sure how much of the crime evidence I will be able to stomach watching, and I think the jurors have no idea what they are in for. The judge begins his speech to the group: Okay. At this time, I’m going to read the qualifications to serve as jurors in this matter, and I’m going to ask at the end of reading this to you if you don’t feel like you meet one of the qualifications to stand up, please, and tell me about it. . . . If we were to get to the point of a conviction of first-degree murder in this case, the law requires that you be able to consider two possible sentences, okay? You must be able to consider the sentence of life imprisonment, if he is convicted, and you must also be able to consider the

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sentence of death by lethal injection, if he is convicted, okay? . . . I’m going to tell you right now, you can’t stay if—not that we don’t want you—but you can’t stay if you have one of these two problems. We’ve had people who come in and say, “Judge, I’m sorry, I don’t care what you come up with, I don’t care what the evidence shows, I’ve got no problem with finding him guilty, but there is no way on this earth, no matter how bad things are, that I can sentence someone to die by lethal injection.” If you are one of those people, please raise your hand . . . then there is also the person that says this: “Judge, if a person is convicted of murder, I cannot consider life imprisonment as a possible sentence; I will only vote for the death penalty. I cannot even consider life imprisonment. I’m the kind of person, I believe in an eye for an eye and a tooth for a tooth, and I think that’s just the way it’s got to be.” If you’re one of those persons, raise your hand. . . . And look, there’s nothing to be ashamed of about saying this. Look, some people just feel that way. It’s okay. Some people are just in that category. And if that’s what’s in your heart and how you feel, you need to step up and say it and be proud of saying it. •

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This chapter introduces a key element of capital sentencing trials: choosing jurors. One might not think that picking a capital trial jury is any more or less important than picking any other type of jury, but capital juries play a part that is so unusual in the criminal justice system that detailing how juries are formed is essential to understanding everything that follows. As I will show, “choosing” a capital jury is a misnomer. Potential jurors are evaluated, cultivated, and ultimately rejected or recruited. Unlike other actors in capital trials whose roles are well developed before they arrive in any one courtroom—lawyers, judges, and expert witnesses, for example—jurors must be trained for a position that they will perform briefly and shed immediately when they finish.1 They come into the courtroom with little knowledge of the procedures to come, and are often unprepared for a role that has life-and-death consequences. Capital jurors have to do something that not even judges are allowed to do in the United States: decide whether defendants convicted of murder deserve a sentence of life in prison or death by execution. Judges sentence many other criminal defendants after their convictions, but never to death. The official purpose of capital jury selection is to ensure that all chosen jurors can act fairly and impartially. They have to be able to consider the

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facts that determine the guilt or innocence of the defendant, like all other criminal jurors. But many other things are going on at the same time, and official tasks intermingle with less official ones. Attorneys assess potential jurors’ sympathy for their version of events and begin to try to influence the way jurors will eventually vote. Capital jury selection has a history of racial discrimination. In a case titled Batson v. Kentucky (1986), the Supreme Court found that prosecutors regularly excluded jurors who are black. Though the case has been upheld and expanded upon since, it is widely regarded to have failed to keep racism out of jury selection.2 My observations could not document this exactly; I was excluded from the legal wrangling that involved written documents in many cases. But it did not escape me that the vast majority of jurors that were eventually settled on in each case were white. This chapter documents how attorneys recruit potential jurors into a role that I came to understand as a particular type of punitive citizenship, with implications that are not intuitively observable in any given case. Punitive citizens are not only arbiters of reasoned decisions about guilt and innocence. They also have to be willing to be involved in the controversial process of deciding whether another citizen deserves to live or die—within the very specific confines of the contemporary criminal justice system. Capital defense lawyers and prosecutors told me that choosing a good jury is an essential skill for any legal advocate and is no small matter in capital cases. They talked about how cases are won and lost at jury selection, before any evidence is officially presented to the jury. As one defense attorney said, he lost several death penalty cases early in his career because he did not know how to “empower” a jury. At his desk, surrounded by capital appeal transcripts, this sixty-year-old veteran told me: I shudder every time I think about how many times I got it wrong. . . . One that haunts me is the case where we had—we put together a fairly compelling story of our client’s life. Killed a two-year-old, beat her to a pulp. But we had two jurors that were holding out [for a life sentence]. Then we had a guy on the jury who said, well, if we just give him a life sentence, he’ll be out in fifteen years, so they come back and they voted for death. First of all, they had misinformation, but the other thing is we didn’t . . . empower them to hold out against the other jurors.

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His regrets are not about his inability to convince jurors to show mercy to a person who beat a two-year-old to death, but about the problem of what he calls “empowerment,” a slippery concept at best. How can lawyers be sure that jurors who are picked can follow the law, be able to absorb the multitude of legal details they will need to complete their complex task, and have the confidence to stand up to other jurors who might think of those details differently? As he and other lawyers told me, picking a jury can be as pressure filled and haunting as what outsiders might consider the “main” portion of the trial. And in many of the trials I observed, jury selection took as much or more time than the presentation of evidence. This is the first example of the unique quality of the expertise that capital prosecutors and defense attorneys develop. The actors who meet over jury selection work toward multiple and sometimes contrasting ends: lawyers are simultaneously trying to select jurors who will be the most sympathetic to their cases and to “educate” potential jurors about their roles on the jury. Judges work to maintain a measure of order and authority while shepherding dozens of naïve and potentially confused neighbors through a very complicated procedure. Potential jurors act in ways to avoid being selected for jury duty, succeed in being selected, or accomplish an unrelated task such as proving their expertise about the case or the criminal justice system. While these are analytically distinct, they are entwined in practice, making for a strange and often lengthy proceeding in which potential jurors must commit to considering life-ending punishments for a defendant before they have declared him guilty, before they have even been seated on the case. In all of the trials I observed, this complicated parcel of tasks took place in a similar series of steps, which I detail in this chapter. Like other parts of the capital trial, jury selection is rooted in legal structuration both before and after Furman. In noncapital criminal trials and capital trials alike, potential jurors, or “venire” persons, as they are called before they are selected, answer questions to determine their fitness to serve. In a process with roots in the eighteenth century, referred to as “voir dire,” meaning “to speak the truth,” lawyers and judges select and reject venire persons on the basis of their answers to general questions.3

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Potential jurors must disclose whether they know anyone involved in the case or have medical reasons that prevent them from being in court all day, for example. Despite this process’s ubiquity, sitting in court listening to it was a startling reminder to me of the long reach of the criminal justice system into Americans’ personal lives. It felt like half of the potential jurors I heard said that they were either related to a law enforcement agent or that someone they loved had been recently charged with a crime. This is not incidental to the makeup of the jury. Mass incarceration disproportionately impacts low-income people of color. Not only are those millions of Americans with felony convictions excluded from jury service in most jurisdictions, but their loved ones must then disclose their relationships if called, potentially excluding them too from participation.4 Potential capital jurors face a second barrier to participation. Unlike jurors in most criminal trials, capital jurors do not only decide whether an offender is guilty or innocent of a crime; they also decide what punishment the offender deserves if he is found guilty. As the judge in the introductory scene described, today venire people can only serve on capital juries if they say they are able to consider both a sentence of life in prison and death by execution for a capitally convicted defendant. The roots of this are not new. In the early twentieth century, Quakers were excused from capital juries because their religion would not permit them to impose the automatic death penalty that used to follow from a murder conviction. For most of the twentieth century, jurors who claimed to have “conscientious scruples” against the death penalty were excluded from capital jury service. But it is only in the modern era with the post-Furman Supreme Court regulation of capital trials that a relatively uniform “death qualification” process emerged. This has involved much Supreme Court and lower court litigation. In the 1960s, defense advocates raised an objection to the exclusion of all those with general objections to the death penalty. They claimed that by excluding potential jurors with conscientious scruples, capital juries were composed mostly of people “who would be unperturbed by the prospect of sending a man to his death,” and therefore biased in favor of the death penalty. In 1968, the Supreme Court agreed. The majority opinion in Witherspoon v. Illinois stipulated that a venire person must do more than

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simply declare that he or she generally opposes the death penalty in order to be excused from capital jury duty. To be disqualified from serving on a capital case, a potential juror must state that they are unwilling to consider the death penalty in the given case on which they are asked to serve. This makes things tricky. Attorneys must agree on a set of facts about the case that they can tell potential jurors about before the case begins; yet so many “facts” about murder cases turn out to have multiple versions. In Gregg’s wake, the Court clarified this position in Lockhart v. McCree (1986), writing that venire people cannot be dismissed from capital jury duty because of their attitudes toward the death penalty unless it would “prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial.” This more precise requirement remains controversial, as the exact meaning of “substantial impairment” is much debated. Further, the Court held in Morgan v. Illinois a few years later that this standard should be required of potential jurors in relation to both death sentence and life sentence considerations: if venire persons say that they would automatically vote for death if a defendant is found guilty of capital murder, they should likewise be excluded. Over the years this death qualification procedure has been found to be used for less-than-legal purposes. In Batson v. Kentucky (1986) and J.E.B. v. Alabama (1994), death qualification procedures were found to disqualify African Americans and women, respectively. The Court ruled that lawyers must provide what became known as “race neutral” reasons for dismissing all jurors. Nonetheless, accusations of racism persist. Research has demonstrated that death qualification—and especially the exclusion of racial minorities—makes for a jury composed of people more likely to vote for death and less likely to consider mitigation than a non–death qualified jury.5 Yet the procedure continues. In this chapter, I focus on dynamics that have received less attention from judges and scholars. As I detail my observations of the multistep process of empaneling capital juries, I draw out the exclusion of people who fail to perform punitive citizenship. Punitive citizenship requires potential jurors to commit to take personal responsibility for life-changing criminal sentences. Those who show emotional vulnerability in the face of this request are excluded, leaving capital juries composed of people capable of performing detachment, thereby cutting off one potential challenge to the rules of the game.

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beco m i n g a j u r o r Days, weeks, or months before the date of trial, depending on the organization of the court, hundreds of jury summons are sent through the mail to venire persons. Asking around, I found that this process is remarkably inefficient. One bailiff told me that his court sent out over six hundred jury notices for the capital trial I was observing, and that only around 190 people appeared on the day they were called. It turns out that his estimate might have been on the higher end; research shows that an average of 10–66 percent of venire persons do not show up on their appointed day, depending on the circumstances.6 The people who do show up arrive en masse and are given questionnaires to fill out. In three trials legal staff shared these questionnaires with me. They become part of the public record when the case is filed, and do not have jurors’ names on them, so they are not considered sensitive. The questionnaires I saw were surprisingly lengthy—up to twenty and thirty pages—and are intended to find out which potential jurors should be barred from serving on the case because of any knowledge or association that would influence their participation. They ask, for example: “Do you have any personal knowledge of the Assistant District Attorneys you see in the courtroom today? If so, what is that knowledge?” Or: “Have you ever been prosecuted by this District Attorney’s office for a crime? When and for what crimes? Do you think this will prejudice you against the District Attorney in this case?” As if an illustration of this procedure’s twentiethcentury roots, the answers to these lengthy questionnaires were still all handwritten in my observations. This was but one of many reminders that criminal justice proceedings seem stuck in time, immune not only to the social science research that problematized so many of the procedures but also to the digital technologies that would have made proceedings less onerous to the oftentimes disgruntled participants. The second part of the questionnaires includes questions about death penalty attitudes. These varied among those I was able to examine. The most general asked, “What are your feelings about the death penalty?” leaving several blank lines for venire people to fill. The two others were very explicit, with inquiries tailored to the specifics of the case. In a case involving an African American defendant, for example, one questionnaire asked:

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Regarding the death penalty, which of the following statements most accurately represents the way you feel? ( ) I feel that the death penalty is applied fairly against minorities. ( ) I feel strongly that the death penalty is applied fairly against minorities. ( ) I feel that the death penalty is applied unfairly against minorities. ( ) I feel strongly that the death penalty is applied unfairly against minorities. ( ) I have no opinion whether the death penalty is applied unfairly against minorities.

These questionnaires also included inquiries about a potential juror’s political affiliation, religious preference, education, and media consumption. The variation in these forms depended on at least two factors that I could discern. Some jurisdictions provided standardized forms, according to the clerks who provided me with a copy. But the case lawyers also had potential input. More than once I listened as lawyers continued fights that had started before jury selection in what are called “pretrial” proceedings, during which attorneys and judges agree to technical aspects of the case,7 arguing that the language in one or more questions was prejudicial or needed to be worded differently. In other cases I witnessed little contention over the questionnaires. This early step in the trial began to differentiate between those lawyers who demonstrate extreme dedication to the trial process and those who do not. It appeared from my observations that the lawyers’ engagement with these debates varied greatly from case to case, suggesting that the difference between “cause” lawyers and more “ineffective” lawyers might still be germane. On completing the questionnaires, venire people are given numbers that correspond with numbers written on their questionnaires. The questionnaires are copied and then go to the judge, prosecution, and the defense attorneys for consideration. After some time to peruse and organize the questionnaires—in two cases this went on for two days—the judge and lawyers agree on a number of people who will be dismissed without further questioning because of some problem with their answers. During this first round of eliminations, attitudes about the death penalty were not generally reasons for dismissal, from what I could tell. The most common

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reasons for dismissal at these early stages, I observed, were related to issues I mentioned above, such as previous knowledge of the case, a relationship with one or more of the parties, or a medical hardship. In one case I observed, dismissals also had to do with venire overexposure in a high-publicity case. Sorting out those who obtained immediate dismissal, calling others into the courtroom to examine or confirm their conflict, and organizing paperwork around this first series of dismissals was, in all, a slow and tedious process, sometimes taking a day or more in its own right. With the initial dismissals complete, the remaining potential jurors were brought into the courtroom as a group and told that they were to come in for further questioning. On average it looked like about twothirds of the original jury pool was left, generally between one and two hundred people. These were then given specific dates and times to return, sometimes over the course of several days or the week, organized according to their questionnaire numbers. Judges and lawyers then began preparing for the next stage, with the intention of dismissing all but the twelve to fifteen people who would eventually act as jurors and juror alternates.

beco m i n g d e at h q ua l i f i e d The second stage in selecting capital jurors feels quite different from the general proceedings common to capital and noncapital trials. During this second stage, the goal of questioning venire people nominally remains the same as the questioning in the first stage: to dismiss those who have conflicts in their ability to uphold the law. But although the first stage revolves around common conflicts, the second stage takes on the more complex questions of “death qualification.” The name of this stage itself is unnerving, and I don’t remember the phrase ever being uttered in front of jurors. In every case I observed, this stage of juror selection involved questioning potential jurors out loud in open court. In some trials jurors were questioned by themselves, and in others while sitting in small groups. Venire people would sit in the witness stand if alone or the jury box if in a small group and would capture the full attention of the lawyers, judge, and legal staff in the courtroom. No longer crowded with the dozens of somewhat

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confused people that I described earlier in the chapter, the smaller numbers meant that the courtrooms became more intimate. Most often few people outside of this small group would watch this stage. I soon found out why: it was repetitive and each time a new juror or small group of jurors was called in, lawyers began their generally prepared short speech before launching into specific questions. Because the questioning began anew each time a new juror or group of jurors was called in, this process was repeated a dozen or more times in a single day. The repetition, though initially stultifying, gave me ample time to analyze the procedures. Across all trials, attorneys appeared to work toward three distinct goals: to introduce the concepts of mitigation and aggravation, to ascertain whether the potential juror was strongly for or against the death penalty, and to work out to what extent each person could stick up for his or her own point of view. These were interwoven in practice but will be described in turn. Lawyers’ attempts to accomplish these goals were not always successful. One bailiff commented to me that she thought some potential jurors were dismissed who in fact should not have been: “Sometimes you lose one because one of the attorneys is getting so confused. The juror doesn’t understand the question, and then the lawyer tries to ask it other ways. They get so tired by the end of the week, after asking the same thing again and again, that even they can’t ask it straight!” I got the feeling that bailiffs in particular—the sheriff ’s employees who staff courthouses across the country—had long since stopped thinking about the law as majestic. In retrospect, I regret not spending more time interviewing these regulars to the court scene. My class position as much as my scholarly bias meant that I probably missed a rich source of information, as I spent my energy attempting to talk with the “experts” I had been taught to respect: lawyers, victims’ family members, and testifying psychologists, for example. Other dynamics are also at work during this phase of jury selection. Attorneys are speaking directly to potential jurors for the first time, introducing themselves and beginning to try to influence the outcome of the case. Selecting a jury that is sympathetic to one side or the other is a common goal of prosecutors and defense teams in capital and noncapital trials alike. In the past few decades, an entire industry has developed, dedicated to helping lawyers choose jurors to their best advantage. The literature, I learned, describes how lawyers should attempt to lay out their versions of

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the facts of the case, introduce factors about mitigation and aggravation that they later reintroduce during the sentencing phase, and begin to shape the identities of the defendant and victim. In capital jury selection, techniques for choosing a “good” jury are the subject of training manuals, professional trade journal articles, and scholarly publications.8 Though I only met one so-called jury consultant actually present in one trial, I came to identify what I thought was their influence. Some lawyers used friendly tactics to recruit jurors, using terms like “visit” and “discuss.” (These were mostly female lawyers, I noticed.) Others spoke seriously to a juror’s perceived expertise on a subject, interviewing the juror about his or her own opinions as if they were legally relevant. I recognized defense counsel referring to the defendant in ways that they thought would best “humanize” him—a term of art from the ABA guidelines, among other sources— while prosecutors did the same with victims. These techniques I guessed were part of general training for both prosecutors and defense. But the dynamics that dominated the action I observed during this stage of jury selection were located elsewhere. One of the main points of concern was the introduction of the concepts of mitigating and aggravating circumstances. Part of the post-Furman Supreme Court jurisprudence that restructured the death penalty in the 1970s required courts to provide some guidance to capital jurors in deciding who deserves the death penalty, usually by enumerating potential mitigating and aggravating factors. Lawyers introduced these concepts for the first time during this phase of jury selection, using projected digital slides or printed poster board exhibits. Some relied on simple definitions, referring to mitigation, for example, as “a fancy way to say explanation” or “a ten-dollar word for ‘reasons.’” These phrases, too, appeared in multiple trials, suggesting coordination across states. Other attorneys were less folksy about it and wrote out long legal definitions. Prosecutors and defense attorneys, and oftentimes judges, attempted to explain to jurors the definition of these two concepts, using examples of many different sorts, and then tried to ascertain whether a particular juror understood the concepts. My observations confirmed what the scholarly literature and the wise sheriff ’s deputy told me: it seemed these concepts were tremendously confusing to explain. While attempting these tasks, lawyers also were trying to explain the differences between the guilt/innocence and sentencing phases of trial.

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This seemed even more difficult. Jurors were meant to learn that there was a set of strict rules of evidence to follow during guilt/innocence but that this shifted during the sentencing decision. Among the puzzling factors here was the necessity of explaining that the defendant hadn’t been convicted yet but that the jurors had to prepare for that eventuality. This in itself seemed difficult for jurors to justify. To differentiate between the tightly structured guilt/innocence phase and the less rule-bound sentencing phase, lawyers sometimes relied on fiscal language, I noticed. As one prosecutor explained, each juror would be able to “buy” or “reject” aggravators and mitigators in their decisionmaking, suggesting a consumerist kind of evaluation. “Just because a mitigating factor exists does not mean you have to apply it,” he said. His examples set a high bar for such application. He introduced the concept of mitigation and at the same time showed potential jurors that they need not believe mitigation factors should sway them to give the defendant a life sentence: Take alcoholism: does it mean life? One person might say yes, he wouldn’t have committed the crime if he was in his right mind. Another person might say, I know plenty of people who drink and do not commit capital murder. I think he’s going to drink and kill again. Or take mental disability. Again, it is up to you. Some people might say, I know lots of people with a mental disability and they don’t commit capital murder. . . . Age can be a mitigating factor. You might say, he’s young, he deserves a second chance. Or you might look at it and say, if he’s already doing this, there’s no telling what he might do in his thirties, forties, and fifties.

This prosecutor has two main goals here, specific to capital sentencing jurisprudence: he explains the concepts of mitigation and aggravation and teaches potential jurors that they have flexibility to decide how to judge the sentencing evidence. But the prosecutor also rhetorically gifts the potential jurors a way to dismiss mitigating factors that they might otherwise give credence to. Because the lawyers’ multiple goals seemed to make for a complex set of questioning strategies, I was surprised at first to find some repetition of specific phrases and examples across trials. After watching several rounds of jury selection across cases, I began to understand part of the complex

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habitus of capital sentencing lawyers. In Texas, for example, a blueprint became apparent after observing only a few cases. This had to do in part, I learned, with the particular method of directing capital jurors required by the Texas capital punishment statute. Many states require that capital jurors weigh mitigating and aggravating factors against one another, but Texas statute requires a more structured consideration. Attorneys explained that Texas capital jurors must answer two questions that direct the judge to levy a sentence of life in prison or death by execution. First, they have to decide the absence or presence of one aggravating factor: the future dangerousness of the defendant. After hearing penalty phase evidence, jurors must ask themselves whether there is a “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” This phrase was written on poster boards in all of the cases I observed in Texas. The second question directs jurors to consider mitigation, asking whether “the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant” warrant a sentence of life rather than death. (Both of these phrases are part of the Texas Code of Criminal Procedure, Article 37.071.9) To impose the death penalty, they must answer yes to the first question of dangerousness; to impose a life sentence, they must answer yes to the second, of mitigation. These guidelines resulted from the Texas statute, designated by a legislative process. But another influence became apparent. Prosecutors in Texas all explained to potential jurors that the concern about future dangerousness had to do with the likelihood that a defendant would commit violence in prison, since he would at least be serving a life sentence as a result of his conviction. This seemed an unnecessary tangent to me, but it went on in every trial I observed in the state. Prosecutors spent time pointing out that jurors must consider whether a defendant would be likely to fight with other prisoners, join a violent gang, or cause other danger. This led them to say things that made them sound sympathetic to the plight of the incarcerated in the United States: “Wouldn’t you agree that even those who serve time in prison deserve protection from undue physical harm?” Or: “Do you think that even prisons are considered societies, and should have rules and regulations, demonstrating the civility of the United States?” Defense attorneys, uninterested in emphasizing future

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dangerousness, downplayed the right of prisoners to expect safety. I asked a Texan prosecutor about this strange reversal that seemed to recur in all the Texas capital cases I observed, and he told me that defense attorneys used to argue in voir dire that future dangerousness should not be much concern to jurors, given that the defendant would spend his life in prison. In this way they undermined the prosecutor’s appeals for public safety as an argument for the death penalty. Prosecutors then “got smart” to this trick, he told me, and developed a method to preclude this line of argument, which I was witnessing. What I thought at first might be an odd quirk of one prosecutor turned out to be an argumentation strategy developed in training for prosecutors in Texas. Outside of Texas, assessing venire persons’ willingness to consider mitigation and aggravation was less obviously patterned. Prosecutors sometimes slyly made fun of mitigating circumstances or chose fictitious mitigating circumstances that were so unlikely that any real ones would pale in comparison. One prosecutor told jurors: You might consider whether he is on drugs at the time of the crime. You might say, I ain’t giving much weight to that, but you’ve got to consider it. Because the issue might be somebody took something—somebody slipped him a Mickey, as my mama used to say. And you know, maybe he was like a zombie. Or maybe he voluntarily took some drugs and got intoxicated. Whatever it is, you’ve got to listen to it. How much weight you give it, I’m not telling you. You can say it to yourself, I ain’t giving it much weight, but I’ll consider it.

The phrase “slipped him a Mickey” might have been something the prosecutor’s mother used to say, or it might have been an example he learned at a training conference. Likewise, defense attorneys tried to discredit prosecutors’ assertions of dangerousness. In one case I saw, the defense lawyer explained future dangerousness to jurors by repeatedly demonstrating his physical prowess over the defendant. The defendant was small in height and stature, and the defense attorney was big and tall. The attorney would ask the defendant to stand up each time a new group of venire people entered, saying that the prosecutor might argue that the defendant had potential for future violence and that jurors who were empaneled were obligated to consider this possibility in order to sit on the case. But as he said this, the

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defense attorney would tower over his client, puff out his chest, and jut out his chin, suggesting that in its consideration the jury might instead find that the defendant was a timid follower, not the big leader the attorney appeared to be. This physical posturing might have been a spontaneous act on the part of the defense attorney, but more likely, I guessed, it had been rehearsed beforehand, because he did not look like he felt comfortable doing it. This was a complex performance and one that was not captured by the transcript the stenographer was making. The gesture, its intention, and its potentially failed impact were aspects of the procedure that I, along with the others in the courtroom, could not help but notice. Yet these do not exist in the historical record. That it was up to each juror to determine how much weight to give each factor was difficult for jurors to appreciate. Independent agency was not what their preconceived notions seemed to suggest. I heard many venire people say that they could “follow the law,” but become more confused when lawyers or judges urged them to affirm the understanding that they could make up their own minds about the relative significance of each factor. Some thought they were being tricked into dismissal from the case. Here a defense attorney asks a venire person to demonstrate his understanding of the obligation to weigh mitigating factors: attorney: So let me ask you, do you think mental illness should be consid-

ered in terms of mitigation? venire person, cocking his head questioningly: What do you mean, do I

think? If that law says it should be considered, then it should be considered. attorney: Okay, let me put it this way. What would you think if I told you

that this defendant had the mental IQ of a fourteen-year-old? venire person: Whatever the law tells me. attorney: No, no. In this stage, you have the right to tell me what that

should mean. venire person, looking suspicious, as if he’s being walked into a trap: Um, listen to the judge’s instructions?

This tension between the strict legal rationality asked of jurors during the guilt/innocence phase of the case and the unusual requirement that capital jurors use subjectivity in sentencing continued throughout selection.

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Potential jurors said that they could use their own judgment to assess mitigating and aggravating factors, but when pressed to demonstrate this independence, they thought they were being tricked or they backed down into the protection of the legal precedent. In many cases lawyers for both sides did not press jurors to demonstrate their understanding of their obligation to make up their own minds about the weight of sentencing factors. In these cases, where venire persons were only asked to respond to the question of whether they could weigh factors independently, I began to suspect that they did not really understand what was being asked of them. This seemed a skill that separated the very dedicated or skilled lawyers from the less so: those who were skilled doggedly tried to ascertain a potential juror’s ability to weigh mitigating and aggravating factors; those who were not, were either unable or uninterested in doing so. The potential jurors’ beliefs about the death penalty was also a topic of inquiry. Each time a new juror was interviewed, lawyers and judges tried to figure out whether he or she would be legally eligible to serve on the jury by considering both sentences offered. The lawyers, of course, were also interested in seating venire persons most sympathetic to their preferred outcome. When prosecutors thought a particular venire person was pro–death penalty but could also consider a life sentence, they would try to keep him or her; and when defense attorneys thought a venire person was more sympathetic to a sentence of life in prison, they made similar attempts. The rhetorical strategies they used were difficult to make sense of at first. Prosecutors, rather than trying to convince possible jurors that voting for the death penalty would be the right course to take, tried to eliminate those who they sensed were less inclined. Likewise, defense attorneys, rather than making arguments against the death penalty, sounded almost like they might support it. In one case a prosecutor asked a venire person about her questionnaire: prosecutor: Ma’am, I see you call yourself a Christian here. Does this affect

your ability to impose the death penalty in any way? For example, I might believe as a good Christian that only God has the right to judge another human being. venire person: No sir, I believe that a person has to be responsible for his

actions. He’s got to answer to his fellow man on earth before he answers to God in heaven too. prosecutor: Okay, good, good.

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Here the prosecutor is convinced that this juror can not only support a sentence of execution; she can also assert herself in the face of disagreement. A defense attorney in a different case used this same technique when questioning a venire person who seemed likely to be sympathetic to the defendant: defense attorney: Suppose the defendant was shown to be a Mexican

national here without papers. How do you feel about illegal immigrants? Do you think they should have the right to take up all of our time here? Or should we just deport them? venire person: I really don’t have a blanket opinion. defense: Well, do you speak Spanish? venire person: I grew up in Texas, so I know all the bad words. [everyone

laughs]

This reverse-questioning technique was common among all of the jury selection procedures I witnessed. It seemed merely a quirk, until I started thinking about it in terms of “empowerment,” referred to by the informant I quoted above. By adopting a confrontational style with potential jurors, lawyers on both sides were trying to find jurors who were comfortable not only enunciating their positions but sticking with them despite opposition. This was confirmed for me when I talked with an assistant defense attorney during one of the many slow periods in one trial, waiting for bailiffs to organize a small group of venire persons. I asked why the lead counsel seemed so confrontational with potential jurors. She answered that he was a proponent of the “Colorado Method” of jury selection. Looking this up later, I learned that the Colorado Method is a technique developed in the late 1990s that teaches defense attorneys how to pick a jury most likely to vote for a life sentence. This method emphasizes ranking jurors according to their pro-death or pro-life sentence opinions, teaching pro-death jurors to respect the decisions of the other jurors, and empowering potential lifegiving jurors to influence the others.10 Being confrontational serves to test prospective jurors for their ability to stand up to others should they engage in contentious deliberations later. In case after case, the more aggressive lawyers dismissed jurors who did not demonstrate a commitment to exercising their own moral judgment. The more lackadaisical lawyers tried to

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do the same, asking pro forma questions like, “Are you gonna stick by that?” or, “Is anyone going to be able to talk you out of that?” It was difficult to tell whether the venire persons’ noncommittal “uh-huhs” were heartfelt. Regardless, the jurors who were eventually empaneled had not only committed to participate in the proceeding but also displayed the willingness to take personal responsibility for their opinions. This method accomplished another task as well. It gave lawyers a reason to dismiss potential jurors who revealed an emotional involvement with the process. After satisfying himself that the venire person above was comfortable with the death penalty in the abstract, the prosecutor moved closer to stand next to her and lowered his voice to a more intimate tone: prosecutor: Now [pointing to a small, washed-out woman sitting off to the side

in one of the rows of audience benches, who looked to be in her sixties], are you going to be able to sit there and look at his family, look at his mother through all this? Are you going to be able to look at his mama and tell her that her son deserves to die? venire person: [hesitating] Uhhh . . . prosecutor: [shaking his head, turning away from the venire person on the

stand, and talking broadly to the jury pool gain] Well, consider that is part of the job here. Part of the job.

Later the prosecutor moved to dismiss this potential juror. I began to notice other jurors who cried or were otherwise demonstrative. In a different trial, a prosecutor seemed to purposely provoke the tears from a potential juror: prosecutor: [striding close to the witness stand where a potential juror sits;

he looks her straight in the eye and pauses emphatically] Let me lay it on the line: I think you are against the death penalty. venire person: [bowing her head and nodding] I struggle with it. . . . It’s a

struggle because it should be. [the juror sniffles and wipes her nose, beginning to cry] prosecutor: [stepping back around to his table, looking down at his desk,

already focusing on the next potential juror’s paperwork] Well, you’ll be asked to make a reasoned moral judgment about whether the defendant deserves death. Are you saying that is too much to ask of you?

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This was a juror whom the prosecution did not want. She did not have a “stick to your guns” attitude, as he later told me. For those lawyers committed to winning, being able to stick to one’s own moral positions seemed to be essential characteristics for capital jury duty. But it was not only jurors’ ability to stand up to conflict that seemed to me at issue. Emotionality itself was a liability. Prosecutors were looking to eliminate people who signaled with language or gesture that the humanity of the situation might impede their ability to act decisively. Above, the desire to “struggle” with the problem of extreme criminal punishment signals what the prosecutor describes as a weakness of purpose: no ability to commit. But from a different perspective, the potential juror was eliminated because of her insistence on the complicated nature of the situation. The law, prosecutors want jurors to believe, is a rational and legitimate tool from which to issue a sentence. The above juror, however, challenged that view by suggesting instead that the sentencing decision should be a struggle. This does not help preserve the authority of the law, on which prosecutors depend. This second phase of jury selection left all courts with fourteen to sixteen people, depending on each judge’s preference. The first twelve were jury members proper, with the remaining acting as “alternates,” who were meant to listen to all of the evidence but not join deliberations unless one of the twelve had to be excused for some reason. After these lengthy proceedings, these fourteen or sixteen were called into the courtroom, told that they were officially “on the case,” and given instructions as to how to proceed. Jurors seemed to meet this news with generally blank expressions, as though already adopting their roles as impartial observers. From this stage on, they would no longer be vocal participants in the trial. If not for witnessing their generally extensive and intimate questioning, I would not know that they had all been picked because of, among other things, their ability to express themselves.

com m i t t i n g t o t h e p u n i t i v e r o l e The third stage in capital jury selection and cultivation comes when jury members are instructed about their official duties as a group. Receiving instructions from the judge is a required procedural element of every trial,

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capital and noncapital. Unlike the more informal voir dire phase, jury instructions from the judge represent the legal word of the court. Some of the instructions given to capital juries are similar to those given to noncapital juries, and I will not focus on these except to note that capital jurors, like other jurors, are formally instructed on their responsibility to stay away from media coverage of the case, avoid discussion with other outsiders, and refrain from talking with other jurors about the trial until deliberations, for example. In addition to these routine rules, capital jurors receive special guidance explaining how they are to decide on the punishment of the defendant, if he is convicted. I observed these instructions to be generally presented three times: before the beginning of the guilt/innocence portion of the trial, at the start of the punishment phase, and then again before deliberations on punishment. As a requirement of the cases decided with Gregg, the Supreme Court required that jurors be provided with guidance on how to decide whether or not a person deserves the death penalty. Termed “guided discretion,” this unusual set of instructions was discussed at length in chapter 1. Rather than following a strict set of legal evidentiary requirements, as when deciding the guilt or innocence of a defendant, capital jurors are expected to use their moral consciousness in order to weigh the evidence. In some states—in my observations most notably in Texas, as described above—state legislatures give stricter guidelines to capital juries. But in the other states where I observed trials, the more nebulous “weighing” of mitigation and aggravating evidence was the norm. This was not only confusing to potential jurors when deciding whether they could serve on the jury; it also seemed complex when empaneling those who made the cut. To illustrate this, I quote at length from a trial transcript of one of the federal trials I observed. Throughout this particular trial, I was impressed by the skill and patience of the judge and lawyers as they explained complex evidence to jurors and rules of conduct to witnesses. But even under these best of circumstances, I found the instructions to jurors about punishment evidence and deliberation confusing. Here the judge tells jurors what they should expect from the sentencing phase: The parties will have more latitude in presenting evidence as to the matter relevant to the sentence at this phase because the rules of evidence are not as restrictive as the rules of evidence were during the guilty phase. . . . The

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government must provide to the satisfaction of the unanimous jury beyond a reasonable doubt before the jury may begin to consider whether the death penalty should be imposed . . . one or more of what will be referred to as statutory aggravating factors. These will have to be proven as to each capital offense to your unanimous satisfaction beyond a reasonable doubt. . . . Next, whether any one of you, there need be no unanimity with respect to this, if any one of you find the existence of a mitigating factor has been presented by the defendant, you will consider that, must consider that, and the defendant has the burden of proving mitigation factors by a preponderance of the evidence, not beyond a reasonable doubt, but by a preponderance of the evidence, which is a lesser standard about which I will instruct you in greater detail. . . . Finally, after weighing all the aggravating factors found to exist, the jury would have to find that they sufficiently outweigh the mitigating factors found to exist so as to make the sentence of death appropriate, or in the absence of mitigating factors, the aggravating factors alone make the death sentence appropriate.

Though this is an excerpt from a lengthier set of instructions, it illustrates the multiple concepts jurors are expected to absorb and abide by during deliberations. Capital jurors are asked to understand what to consider mitigating and what to consider aggravating; which decisions are theirs to make individually and those which must be made unanimously; and which type of evidence must be proved beyond a reasonable doubt, as opposed to that which must be proven by a preponderance. In addition, some judges emphasized the responsibility that each juror has to decide whether mitigating and aggravating factors actually should count toward a sentencing decision. One judge mumbled a pro forma statement to this effect, telling jurors that they must “individually determine for yourself the weight and significance given to any aggravating or mitigating circumstance.” Other judges emphasized this aspect of juror training much more strongly. While standing up and pointing to each juror in turn, one judge said slowly and sternly: “You the jurors, are the ones, in law, to bear the responsibility of deciding the penalty to be received by the defendant.” Jury instructions, too, seemed to mark some lawyers as dedicated to fighting for the best position for their cases or their clients, as opposed to those who were more lackadaisical. As with arguments about jury questionnaires, I heard some attorneys continue arguments to the judge about

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jury instructions, while others seemed to use formulaic instructions provided by the court. Regardless, this third step in providing capital jurors with guidance on their duties served to solidify their roles in the trial. Rather than follow strict rules of legal evidence, capital jurors are asked as a group to partially act as their own moral guides.

makin g s e n s e o f ca p i ta l j u ry s e n t e n c i n g To make sense of these practices, consider them in juxtaposition to the national and state factors reviewed in chapters 1 and 2. Some of the practices can be accounted for by Supreme Court post-Furman jurisprudence and states’ subsequent adaptation to its requirements, as discussed, and others by the ways mitigating and aggravating factors are codified by each state. But there are other dynamics that need accounting for. Attorneys test potential jurors to see not only whether they can follow the multifaceted and often confusing legal requirements, but also whether they can make a pronouncement by exercising a particular type of independent evaluation. Sociologists have shown that race and class matter when interacting with institutional authorities. The demand to demonstrate autonomy in capital decision-making has implications, therefore, for the racial and socioeconomic makeup of capital juries. Children from upper-class homes are taught from an early age how to cultivate autonomy from institutional demands, while those from working-class backgrounds are more likely taught to respect authority and leave it unchallenged.11 The history of police brutality, among other things, makes black and impoverished parents particularly invested in their children’s acquiescence to legal figures.12 In this way, recruiting capital jurors reifies race and class stratification, populating capital juries with people who differ greatly from the disenfranchised populations from which capital defendants are so often drawn. The requirements of capital jurors’ roles are unusual in two other respects. First, unlike noncapital criminal sentencing decisions that are made by a judge, a committee of laypeople makes the capital sentencing decision. In other institutional settings, punishment decisions are routinely decided by experts of one sort or another: religious procedures deciding whether an offending clergy member should be excommuni-

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cated; child custody cases that depend on child welfare workers; elder councils in traditional societies who meet to discuss a community violation. In capital cases, citizens are asked to hear and evaluate evidence in a manner usually reserved for experts. Second, this committee of laypeople must decide between two choices that have no quantitative boundaries. When juries are involved in parsing penalties in US courts, such as in civil torts cases, these are set up to be addressed in quantitative terms, often resulting in monetary penalties. In a typical tort case, a plane has crashed; investigators have found the engine and proved the manufacturer was negligent; and a jury assigns value to the damage done. Death penalty outcomes do not fit into this sort of calculation. The decision whether to sentence someone to a lifetime in prison or death by execution is not economic, nor is it a quantitative question of more or less. In sociological terms, both available choices are nominal, continuous variables. The capital jurors’ duty to give subjective, personal, and moral consideration in capital sentencing is exceptional in a legal system largely committed to finding economic solutions to questions of injury. Interviews with former capital jurors in the 1990s reveal that the difficulty of this type of decision is lost on some jurors but not others. Many scholars interpret former capital jurors’ memories as demonstrating mixed understanding of the complex nature of guided discretion, the difference between testimony from expert and lay witnesses, and the boundaries of what is and is not admissible as evidence, for example.13 Interviews from this time period also show that jurors reflect on their experiences differently. Some minimize their roles after the fact, telling interviewers that they believe the judge or governor has the ultimate responsibility for the defendant’s sentence. Others find their role in deciding about death emotionally traumatic, and some describe being “haunted” years later. They keep in touch with fellow jurors, discuss their decisions long after the appeal has been filed, follow the case through the legal process, and keep clippings.14 My observations suggest that these latter qualities of emotion and empathy, explicitly allowed for in the Gregg decision, might be increasingly winnowed out in the twenty-first century. In the trials I observed, those punitive citizens who were selected for jury selection do not cry at the thought of sentencing another human being to death by execution. The jurors who judge

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capital defendants perform stoicism in the face of another human’s death. To do otherwise would be to challenge the state’s authority. Given these unique aspects of jury participation in capital punishment, how can we make sense of the proceedings used to select them? Noncapital offenders in the contemporary criminal justice system are generally sorted and sentenced from a distance, usually using a standardized, one-size-fitsall style of reasoning; part of the mechanism of mass incarceration is to simultaneously categorize and dehumanize.15 But capital sentencing jurisprudence eschews a distanced, standardized logic, claiming to give the ultimate power to a representative panel of qualified citizens. Rather than rendering human emotion irrelevant to a cold and distant state apparatus, as most disciplinary technologies require, death penalty sentencing is said to bind human subjectivity tightly to the punishment process. The process of capital jury death qualification, especially with its often extensive and intimate oral questioning, creates more personal ties between jurors and the punishment decision than do other arenas of criminal sentencing. As one juror put it during voir dire, just being asked to consider whether she could sentence someone to death left her in a state of “emotional and spiritual turmoil.” Jurors are not instructed to consider “What should I make of this?” but instead “What do I make of this?” Indeed, the Supreme Court has recognized that the decision to sentence a person to death is qualitatively “different” from other decisions. Yet it matters how much a potential juror commits to the matter. My observations suggest that those who perform too much emotional investment are excluded. Those who can commit to a strong and stoic role are preferred. The law depends on rationality for its authority. To turn the decision about death into a deeply personal matter would be to challenge the authority on which it stands. The role of juries in criminal sentencing is an area that deserves more consideration by sociolegal scholars.16 Recent scholarship argues that expanding jury sentencing to noncapital contexts would produce a more humane criminal justice institution.17 But much of this depends on notions of jurors’ work in capital sentencing, without a robust model of capital jury sentencing in practice. This leads to a dangerous teleology. Albert Dzur, for example, suggests that juries are “indispensable: in weighing mitigating and aggravating factors in capital cases,” and argues that reinvigorated sentencing juries might have a capacity for humanity

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above that of criminal judges.18 My model is more circumspect. Juries in capital sentencing are not the independent, engaged public that scholars long for as a salve for most Americans’ hostility toward criminal defendants. Instead, they are fielded actors, bound by the logic of the contemporary criminal justice system and the necessities of social performance. Until these orientations are fundamentally changed, criminal juries are likely to support state narratives in capital settings.

Notes of Dr. Minske’s testimony.

5

Performing Mercy It’s almost monotonous, the background profiles. I mean, the meanness, violence, abuse. Childhood is a very special time, and when the things that make it special are taken away, there are consequences. —Capital defense mitigation specialist

We now move into the heart of the capital sentencing trial: the examination of evidence pertaining to the defendant’s upbringing, past, and his future acts. The jury has found the defendant guilty of capital murder, and legal defenses to guilt such as insanity are no longer on the table. Instead, jurors must decide between the US criminal justice system’s two harshest punishments: death by execution or a life spent imprisoned. The structure of the second part of the capital trial is much like that of the first. Prosecutors and defense present opening statements, followed by the prosecution’s presentation of evidence. The defense then puts up their own evidence, which the prosecution can then rebut using additional evidence. Closing statements follow, at which time the jury deliberates. I present these events out of order here for the sake of clarity. Much of the prosecution’s case, I found, was made by rebutting the defense case for mitigation. This started in jury selection, as I’ve described, and was sometimes present in the guilt phase of the trial as well. I therefore lay out the mitigation case first in this chapter, then follow with the prosecutor’s presentation of future dangerousness in chapter 6, and victim impact evidence in chapter 7.

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Mitigating evidence is defined by its ability to provide proof that a defendant is “less morally culpable” for his crime or has “diminished capacity,” in legal terms.1 Previous scholarship has demonstrated how difficult it is for jurors to make sense of these nuances. In this chapter I draw on two trials that I observed, joining with these scholars to fully illuminate the precarity of jurors’ tasks in this regard. Ben and Leonard (both pseudonyms) were young African American men convicted of murder between 2007 and 2009. One was sentenced to death and the other to life in prison. The juxtaposition of these two cases demonstrates how the production and performance of mitigation evidence impacts the sentencing decision. Extensive scholarship has documented the extreme social marginalization of death penalty defendants long before they arrive in capital courtrooms. As a group, those who wind up on death row are among those who have suffered the most adverse childhood conditions.2 Indeed, one mitigation specialist, as quoted above, told me that defendants’ backgrounds become almost “monotonous” when looked at collectively. I will not focus on the fact of these adverse conditions but on capital defendants’ marginal positions as a necessary circumstance for the dynamic that I document. To effect mercy for members of this marginalized group, I show, defense teams must catalyze a herculean shift in jurors’ perceptions of criminality, performed live under conditions of strict institutional constraint.

two ca s e s : a n i n t r o d u c t i o n Ben and Leonard were both in their twenties when they were arrested for capital murder. At his trial, Ben was accused of committing three murders, attempting three others, committing conspiracy to commit murder, and drug trafficking. The prosecutor emphasized that his acts were egregious enough that he was tried in federal court, under the Racketeer Influenced and Corrupt Organizations Act, an honor shared by notorious gang leaders of the Hells Angels, the Gambino crime family, and the Latin Kings. Days of testimony detailed how as a leader of a violent gang, Ben shot, stabbed, and otherwise endangered the lives of rival gang members and uninvolved bystanders alike. Prosecutors described multiple incidents spanning two years, and the defense disputed little of it.

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In the second trial, Leonard was accused of involvement in a single incident of robbery and murder. This was the result of one night’s activity, when two restaurant workers—a young man and woman—walked to their cars after their evening shifts. In the lot where they had parked, a car pulled up with two men in the front seat. One got out and demanded money, pointing a gun. According to testimony, the two young people complied by emptying their pockets, but they were shot. The young man was killed, and the woman survived. A bystander testified that just before the shots were fired, she heard the person in the car yell, “Shoot them if they don’t!” Leonard confessed to being the driver but said he had no idea that his friend was going to shoot the victims. The police agreed that Leonard was not the shooter, but the prosecutor argued that Leonard provoked the murder by giving an order from the car and therefore should be held responsible. Both Ben and Leonard were convicted of capital murder. At the penalty phase both men’s defense teams offered testimony showing that their clients had suffered abuse and neglect as children. Ben’s defense team crafted one of the lengthiest and most thorough cases for life that I observed. Leonard’s penalty phase, on the other hand—including the defense’s presentations of evidence and the prosecution’s rebuttal—was completed in one day. Ben was given a life sentence, while Leonard was sentenced to death. The two very different sets of performances at trial I describe help to make sense of why the harshest penalties are not given to the defendants who best exemplify the “worst of the worst.”

perf o r m i n g e x p e rt i s e The beginnings of capital penalty phases do not feel like beginnings. They come in the middle of long processes. For days or weeks the jurors and other courtroom actors become accustomed to each other through the procedures involved in jury selection and guilt determination. The “action” is generally not fast-paced. One day I noted to myself: There are several times a day when one of the lawyers says, “May we approach?” and the clerk flips on a white-noise machine. This means that the judge and lawyers can conference at the bench without the jury having

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to leave, but so neither jury nor audience can hear. Sometimes these conferences go on for ten, twenty minutes. It feels like I am trying to walk through wet mud and the bottom of my pants legs are sweeping the ground, being caked with thicker and thicker sludge. These white-noise-filled segments and bathroom breaks take half an hour, with even longer breaks for lunch. It is hard to feel like there is any momentum because so much of the time is spent not listening to evidence. I don’t think we hear testimony for more than an hour and a half each day.

On TV shows about trials, none of these downtimes are featured. But by the time the penalty phase comes, patterns are set and impressions have been well established. Jurors are familiar with the process of filing in and out of their seats in the jury box, and the entrance of the defendant no longer garners hushed stares. The dynamics between the lawyers are collegial, cordial, bitter, or some mix of the three. Judges have shown themselves to be sticklers for rules, prejudiced against one of the lawyers, seemingly disinterested, or obviously inattentive. Testimony about the homicide has been heard, usually in awful detail, and the twelve jurors have deliberated together and come to a verdict. And of course, if a jury is hearing evidence as to capital sentencing, the prosecution has won its case with a verdict of capital murder. I will not detail all the possible variations and dynamics of the first phase of trial, which have much in common with noncapital criminal trials. But one dynamic is considerably different in its impact on the penalty phase. In noncapital trials, defense attorneys have little to lose if they assert their client is innocent, even if they anticipate a guilty verdict. Judges who sentence noncapital defendants generally know that it is attorneys’ duty to vigorously defend their clients, and that they are obligated not to punish a defendant for his or her attorney’s tenaciousness. (Whether that impacts sentencing in practice is a separate question.) But when a jury is involved in sentencing, the extent to which the defense appears to have “lost” their case in the first phase can greatly impact the way jurors accept evidence in the second phase. One capital defense attorney told me that if he makes a strong case that his client is innocent, then a guilty verdict diminishes the chances for a life sentence.3 I saw only one trial in which the defense attorney claimed the defendant was innocent, absolutely uninvolved in the crime. The resulting penalty phase felt

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entirely hopeless for the defense, and the jury returned a death sentence. Fifteen out of the sixteen trials I observed did not take this tack. As an alternative, defense attorneys used two different strategies to protect their standing with the jury. Most made some type of argument that the defendant played a lesser or different part in the crime that the prosecution described. These attorneys put up witnesses that showed that the defendant did not mean to commit murder, was coerced by others, or had another more sympathetic motive. Two others refrained from fighting the accusations entirely. They did little in cross-examination and did not put up any independent evidence. These tactical choices try to create a seamless strategy for the sentencing phase, using what is called a “frontloading” mitigation strategy into the guilt/innocence phase of trial.4 In Ben’s trial, it was apparent to me early on that the defense was not going to dispute much of the prosecution’s evidence but was instead building a case of a young man who had grown up amid so much violence that it was normalized for him. In Leonard’s trial, attorneys were more antagonistic to the prosecution’s version of events. They argued that Leonard was in the car but was otherwise completely uninvolved and did not shout what the witness said he did. Ben’s defense counsel appeared prepared, humble, and eloquent, even noticeably nervous. From my position in the audience, I could see his hands shake while he looked for papers at the defense table. Leonard’s lead defense counsel was difficult to understand, somewhat messy in appearance, and seemed bullied by the prosecutor and judge. In these ways it is likely that the decision about punishment was influenced by dynamics begun in the guilt/innocence phase. Aside from these nonincidental differences, the sentencing cases were relatively similar. Both defense teams foreshadowed penalty phase evidence in jury selection. Both trials were overseen by judges who remained relatively inactive, and both young men were represented by indigent defenders. Both defense teams centered their presentations on the defendant’s childhood and argued that the defendant had a diminished ability to make good choices, given his upbringing. Both defense teams proffered expert and “lay” witnesses. In many ways, both followed the contours of the ABA’s guidelines, evidencing the defense teams’ knowledge of the principles laid out there. But as we will see, the two cases for mitigation varied significantly in their performative qualities. In part, this had to do

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with the dynamics set up in the guilt/innocence phase. But the more important distinction, I think, was that Ben was defended by federal public defenders and Leonard by local attorneys who had only occasionally tried capital cases. This accounted for the differences between their guilt phase presentations, I guessed. Federal defense jobs are more prestigious than local public defense and usually come with more resources and training. It is likely that the difference in their professional locations impacted the ways their cases were prepared. In Bourdieusian terms, Ben’s lawyers were more successful members of the capital defense field, but both teams occupied positions within the field that allowed for such disparate results. Case One: Ben’s Defense Team’s Case for Mitigation During three cold winter weeks, witnesses detailed Ben’s acts as the leader of a violent gang, including his participation in a drive-by shooting where an uninvolved woman was killed; a murder in which Ben shot an enemy gang member in the face in public; and a third where Ben killed a rival drug dealer with an ice pick in his chest. The jury came back with a guilty verdict after only a few hours of deliberation. After the verdict was read, the court broke for the evening. The next morning the court reconvened. After the judge gave brief instructions to the jurors about what they should expect, the prosecution put on witnesses as to the impact of the victims’ deaths. After the state finished its presentation, the defense called the first witness of Ben’s penalty phase, a psychologist whom I will call Dr. Minske, into the courtroom. The following captures the remainder of this day, all drawn from my field notes. When Dr. Minske first enters the courtroom from the door in the back, he is fumbling with a black suitcase on wheels. It has airplane tags attached, signaling his recent arrival or impending departure from an airport. The bailiff tells him to leave the suitcase at the knee wall separating the audience from the front area, and he struggles to fit it in the small space between the benches. After a few seconds of unsuccessfully trying different positions to keep it out of the aisle, he looks questioningly at the bailiff, shrugs his shoulders, and grins sheepishly as if to say he gave it his best shot. The suitcase remains sticking halfway out, and the bailiff motions him impatiently toward the witness seat. The doctor is unre-

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markable looking: fifty-something, medium height, solid, and a few pounds under stocky. He has a full mustache and wears square, unfashionable wire-rim glasses. He looks less like a doctor than a manageriallevel bureaucrat in his gray suit and striped tie, and I am reminded a little bit of Ned Flanders from the TV show The Simpsons. I wonder how much of this is conscious presentation of self, or whether the defense has chosen him because he looks so unthreatening. When he repeats after the judge that he will tell the truth, the whole truth, his affect is gentlemanly and plain, if not a little nerdy. Before his testimony begins, the judge asks that he first be “qualified” as an expert. I expect this request and tune out a little; testifying experts must prove their qualifications before being allowed to analyze evidence from their general knowledge. Whereas “lay” witnesses are only permitted to report on their own experiences, experts are given more leeway to offer generally accepted scientific opinions about the defendant. To be given this role, expert witnesses must prove their qualifications in open court, detailing their training, experience, and skills to the satisfaction of the judge and both legal teams. The defense attorney begins with questions to Dr. Minske about his schooling, prior training, clinical experience, publishing record, and previous courtroom testimony. Minske responds thoroughly to all the questions, naming his high school, university, several graduate schools, and postdoctoral schools. He gives the location of all the offices he has worked in, every journal article he has published, and the number of patients he has seen. When he begins to name all thirty-five states that he has testified in, some jury members begin to look visibly annoyed. They shift in their seats and I see one roll his eyes. Though all of these small details go unrecorded by the court reporter at his steno machine, I note that the jurors’ facial expressions and body movements indicate their feelings about this particular witness even before he begins to testify. As the inquiry continues, the judge looks questioningly at the defense attorney, raising his eyebrows. The attorney pauses and says, “I know we’re going to get these questions from the prosecutor, Your Honor, so I thought I’d just get them out of the way now.” The prosecutor stands up and nods vigorously, saying, “That’s right, Your Honor!” I wonder whether the jury members don’t resent the defense team nonetheless.

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When the defense attorney shifts to ask about Dr. Minske’s finances, the jurors perk up a little: defense attorney: Are you paid to publish? dr. minske: Why, no. defense: Why do you do this research if not for monetary reasons? minske: This is my identity as a scientist, in a nerdy sort of way.

Some people like to play golf . . . [a few jury members chuckle] defense: But you are paid to testify? minske: Oh, yes. defense: And to see patients? minske: Yes, of course. defense: Okay, let’s start with your rates in court. What are you paid

per hour of testimony?

This goes on for the better part of an hour. Finally, and to everyone’s visible relief, the defense attorney asks the witness to tell the jury what his testimony will focus on. Turning to face the jury, Dr. Minske speaks directly to them. He says he will first testify about the general causes of violent behavior and then how Ben’s childhood fits into this. He says that he prepared for his demonstration by doing a review of current literature on the causes of violence and by interviewing the defendant and his family members, including the defendant’s mother, father, sister, and daughters. I think the jury members are beginning to warm up to Dr. Minske as they look vaguely interested in hearing what he has learned from the interviews. One nods his head, as if to agree that he wants this information. When the attorney then asks that a projector be turned on and the familiar sound of a computer booting up is heard, the jury and audience members seem still more engaged. Turning back to the judge, Dr. Minske explains that the first part of his testimony will focus on the causes and preventive measures of violent behaviors. To the jury he says he needs to give them this information so that they can fully understand Ben’s particular childhood and subsequent actions as a young adult. He says his presentation will show that Ben did not have a choice about many of the events leading up to the criminal acts that led to his conviction. He puts

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up the first slide. It is a brightly colored drawing of a boy standing on a wedge, sliding down into what looks like a mud pile labeled “bad act.” Suddenly, bailiffs, audience members, and jurors are all paying attention. People shift in their seats for a better view of the projection screen. The sketch in the opening of this chapter is a replica of my notes as I followed Dr. Minske’s slide presentation to the jurors. It is as if he is teaching schoolchildren, with simple colored shapes and arrows, and I feel him winning them over. He tells them that not everyone has the same level of moral culpability for their actions because we don’t start from a level playing ground. Parents are supposed to build up protective factors that keep their children from reaching that bad act that we all want to avoid. When parents do this, there is a “wall” between the child and any potential bad act. He says that parents can provide good modeling behavior, an intact home, and a good neighborhood with positive peer and adult influences. If they do this, the child will have a stable foundation. If, on the other hand, the parents do not provide these things, children are more likely to slide down the ramp into the morass of bad behavior. There are risk factors that make children more likely to commit bad acts, through no fault of their own. Risk factors include genetic and psychiatric disorders, parental neglect, and negative peer influences, for example. “Mitigation,” Dr. Minske explains, “is the fancy word for the factors that contribute to a child’s foundation,” whether it will be a steep ramp that leads to violent acts, or a wall that will prevent a child from ever getting to those acts. Dr. Minske goes on, “There aren’t any kids who wake up at age ten and say, ‘I think I’ll be a conduct disorder.’ ” Individual factors, family factors, and community factors explain why a child comes to have a conduct disorder. Thus begins two full days of testimony from Dr. Minske. The remainder of the first day consists entirely of a slide presentation focusing on risk and protective factors. For examples, he uses evidence published by the United States Department of Justice, which he emphasizes is not a defense organization but a governmental one. Drawing on the DOJ’s studies of crime prevention, Dr. Minske says much of it focuses on the risk factors and protective factors he just introduced. If we weigh the presence of risk factors against the presence of protective factors, we can predict who is more or less likely to commit violent crime. He says that the most influential individual protective factor is being female; for whatever reason, being a

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girl makes a person much less likely to commit violence. Girls are affected by risk factors, but their consequences are different. Girls tend to enter dangerous relationships, have sex early, and practice unsafe sex. Community factors have been shown to matter, too, but are harder to prove, he says. He explains that social scientists use longitudinal studies and cross-sectional studies to look at the differences between inner-city kids’ and suburban kids’ living environments and their subsequent violent criminal activity. He goes on to explain that the studies cannot establish causality but do point to a strong correlation. To prove causality we would need to conduct experiments that would “make a Nazi blush,” he says. This would involve taking a group of kids, breaking them into two groups, and acting on one group with a series of risk factors and on the others with a series of protective factors to see whether or not they commit violent acts. Given the impossibility of this, Dr. Minske tells the jurors that he can only say, “as an honest scientist,” that there is a correlation between these factors and violent behavior. But correlation, he goes on to say, does hold power in the scientific community. The jurors nod along with him, as if they are happy to be considered smart enough to agree. At one point, Dr. Minske sees the jurors nodding and exclaims, “See, this is good science! It is not just an ‘abuse excuse’!” He continues that of course not every child who is raised with an abundance of risk factors goes on to commit violent crimes. Some kids, he said, have unusual amounts of resilience: “By the grace of God, they get more rebar in their concrete. They are hardier little souls, through no merit of their own.” He said another protective factor that can prevent a child from committing violence despite all the odds is an especially determined adult in their lives. People with whom he’s talked in inner-city communities have their own designation for kids with these types of mothers or other close family member in their homes: “stoop kids.” There are “stoop kids,” and then there are “corner kids”: You know, kids with mothers who let their children run the streets all night, who you find on the corner selling drugs. These mothers might be distracted by abusive relationships, lack of employment, or having to work too many hours to make ends meet. These are corner kids. And then you have those kids whose moms are all over their case, keeping the kids close, making sure they are inside for dinner when the street lights go on. These are stoop kids.

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Dr. Minske describes the mothers who are dedicated to raising their children correctly. “You know them,” he says to the jurors. “You see them in church, touching their babies’ faces, not just baby-sitting, but involved. They are the ones at the PTA meetings, having sleepovers, rooting for their sons at the sports events.” One young woman in the row ahead of me has been sitting with the defendant’s family for days. I think she must be a close family friend. She turns to the woman next to her and whispers, “That doctor knows what he’s talking about!” I think again how much of the dynamic in the courtroom will be lost in the transcription of Dr. Minske’s testimony onto paper. His words will be recorded, but all of the action—the way that the jurors, courtroom staff, and audience members are engaged with his testimony, and his physical responses to them—will never become part of the trial record. The interactions that are transcribed seem almost randomly circumscribed, constricted to the space between the witness stand and the lawyers, rather than a more accurate reflection of the room’s actions as a whole. On the second day, Dr. Minske says he will specify the particular causes of Ben’s tendency toward violent behavior. Again the computer is turned on, and a chart of Ben’s family history, beginning with his greatgrandparents, is projected large onto the screen. It looks like a typical genealogy flowchart, but rather than specifying country of origin or birth dates, the details show mental health, medical problems, and behavioral histories. There are circles for men and squares for women, pink for criminal histories and yellow for noncriminal life problems, such as alcoholism and out-of-wedlock births. Dr. Minske says he put the chart together using data from interviews with Ben and his family. For each person represented on the chart, a corresponding slide details that person’s particular pathologies. It is a stunning display of illness and dysfunction. The men all appear to have been in prison for violent crimes. The women all look to have had children out of wedlock and to have used alcohol and drugs. Premature births are depicted as common, as is heart disease and early death. The jurors look as taken with the presentation as I am. Dr. Minske is creating a strong portrait of the causes of violent criminality that reside outside Ben’s control. At some point I realize that what felt like a tired afternoon in the workplace has turned into a classroom captivated by its teacher. Dr. Minske

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turns out to be more of an educator than a witness: engaging, bookish, and overenthusiastic about his subject, he looks to have succeeded in recruiting his audience into his belief system. The defense lawyer becomes almost invisible during this time. More like an adept assistant than the center of a big legal case, he seems like he has prepared for this witness by memorizing Dr. Minske’s presentation in order to remove himself from the spotlight. Instead of providing information himself, the defense attorney asks the doctor questions along the way that allow the doctor to say, “Yes I did; as this slide shows, . . . ” and to talk directly to the jury. The judge has to remind the defense lawyer several times that the witness should not be giving a narrative or lecturing, but responding to questions. This request seems mostly pro forma. At the end of the second day, the prosecutor has the opportunity to cross-examine Dr. Minske. Unlike the bluster he self-assuredly wielded during the guilt phase, he seems unsure how to approach Dr. Minske’s gentle but assured manner. He asks some clarifying questions about cause and effect generally and about Ben’s childhood in particular, but does little to undermine the general sense of authority I think Dr. Minske has established. Ben’s story was his to tell. After Dr. Minske steps down, Ben’s defense team puts up a series of witnesses that support Minske’s testimony about risk factors. Siblings, neighbors, and family members testify about the abuse in Ben’s household. An expert is called in to talk about the level of violence, poverty, and crime that existed in Ben’s neighborhood during his childhood. Finally, a former teacher of Ben’s testifies about his capacity for kindness, as he organized an appreciation party for her at school. And Ben’s mother testifies about the effect Ben’s execution would have on their family. During closing arguments, both the defense and the prosecution focus on the evidence that Ben’s violent acts were influenced by his background. From the defense: It was a horrible childhood. There’s no way you can put a good face on that childhood . . . the mother is using crack. The father is using crack. The children think crack pipes are toys. They put sugar on a mirror, and they cut up the sugar like people doing cocaine. Their house becomes a crack den. And this is your house. You’re six years old, and you come home and there are strangers in your house smoking crack and poking money through a hole in the floor and getting drugs so that they can use drugs in your living room, and

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Mom has her problems and Dad has his problems and nobody cares about you, and these are the influences. So how do you get to be a right and proper human being? How do you know right from wrong? How do you develop moral character? How do you develop respect for others when Mom is hitting Dad and Dad is hitting Mom and the chaos that’s going on there and you’re left. . . . It’s a recipe for disaster: the violence, the crime, the drug and alcohol abuse, the beatings, the mental illness. I mean, what chance did he have?

The prosecution closes: The defendant grew up with alcoholic, crack-addicted, terrible, terrible parents. You heard that. We never challenged it. There’s no question about it, none. But his childhood, his neighborhood, are those things to blame for murdering three people in less than a year? I’m sorry, ladies and gentlemen, that argument borders on the insulting. . . . It’s a big city, and there is no doubt there are thousands and thousands of kids growing up in this city in rotten families with rotten parents, no parents, no families, no homes; but the overwhelming majority of those little kids, they don’t grow up to kill total strangers for the glory of it. They don’t grow up to kill three of them. They don’t abandon their sense of humanity.

Though both sides agree that Ben’s upbringing was horrendous, they differ in their arguments about the implications. As Dr. Minske did during his testimony, both the prosecutor and the defense use a rhetorical strategy of asking jurors to insert themselves into the narratives they create. The defense attorney tries to persuade the jurors that early life experiences are a strong influence in the later acts of adulthood. He asks jurors to experience the defendant’s childhood as a child themselves. He switches from first person to second person in the middle of his closing, telling jurors: “This is your house. You’re six years old.” The prosecutor, on the other hand, asks the jurors to question whether childhood circumstances necessarily influence adult acts. He situates jurors as educated citizens, encouraging them to survey a population of children from “rotten families” and try to explain why only some of them grow up to be murderers. This is a common division in the trials I observed: when the best, most effective defense and prosecution teams are confronted with indisputable evidence of extreme childhood neglect and abuse, the teams do not disagree about the facts of a defendant’s

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upbringing but rather clash on the question of whether his background should be relevant to his punishment. Both closing statements are striking in the gravity they lend to the proceeding. Audience members, court staff, and jurors appear attentive and even moved during them, all sitting very still and quiet. When the judge adjourns for deliberations, it takes a moment for the bailiff to stir himself to action and usher the jurors out a side door. Again I think how all of these dynamics will be lost to the process of transcription. Ben’s defense team has staged a successful story of tragedy and pain. Case Two: Leonard’s Defense Team’s Case for Mitigation Across the country and months later, in Leonard’s trial, the courthouse is buzzing after the jury returns their verdict of guilty. Audience members and courtroom staff emerge from the courtroom to spread the news in the hallways about the unusual event: an accomplice to murder has been convicted of capital murder. One woman, who a bailiff later told me was a private defense attorney uninvolved in the case, openly and loudly decries the verdict as she talks to a sheriff ’s deputy. She blames the defense lawyers and prosecutors both: “Okay, give the death penalty to the shooter, yes! But this guy?! That is a shame! Those guys should be ashamed of themselves! And the DA? Railroading a man like that.” The deputy nods in sympathy. There is no mystery about the opinion of the courthouse staff about this verdict. When the court reconvenes in the morning, the prosecutor calls witnesses to argue for the death penalty. These consist entirely of family members and friends of the victim, giving victim impact testimony. After lunch the defense counsel begins his case for life. He starts with a line straight from the ABA guidelines, emphasizing the difference between an explanation for the crime and an excuse. He tells the jury: You’re going to hear about Leonard growing up, and you’re going to hear, not an excuse, but what I’m going to offer to you is an explanation for the reasons Leonard has made some very poor decisions in his life.

A series of eight family members follows, giving testimony about the conditions of Leonard’s childhood. Leonard’s grandmother is first. She looks

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young to be a grandmother, not more than fifty or so. She is clearly not eager to testify, as she keeps giving the defense attorney terse answers. The defense attorney asks her to present photographs of Leonard growing up (also recommended by the ABA guidelines) and peppers her with questions as she talks about the setting of the photos. Each photo she describes is then passed to the jurors and entered into evidence. When she finishes showing the photographs, the defense attorney asks whether the pictures of her grandson stop at some time. She says yes. He asks why: grandmother: After he was about six or seven years old, then that’s when

the fighting and drugs started. I didn’t know it at first, but that’s what was admitted to me. . . . I guess, using drugs you know, and having domestic problems and, you know, family problems in the house and whatever? defense attorney: Who was using drugs? grandmother: Both of them . . . Leonard’s mom and dad. defense: When you talk about domestic violence—I know this is

hard—tell me what happened to that household that you know about? grandmother: A lot of time, fighting and sometimes, you know, the police

had to be called or whatever, you know, and fighting, just regular, that just, you know, like that. defense: And that was the household where Leonard was

growing up? grandmother: Yes, that is where he growed up.

In this new courtroom I think again about how little of the interaction is being recorded. This time it is the witness’s discomfort that will be lost for posterity. The grandmother’s obvious unease with the courtroom setting, and the effort necessary to coax the words out of her, strike me as essential to understanding her testimony. The next witness, Leonard’s aunt, is more eager to talk about the things she witnessed in Leonard’s childhood home. When asked whether she had any firsthand knowledge of the violence that took place between Leonard’s mother and father, she responds quickly, nodding vigorously: “I done saw when Leroy [the defendant’s father] jumped on her so bad till blood was skeeting [spraying] all on the wall. And the children was small, growing

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up seeing all that.” She seems fervent to push home the defense lawyer’s point that Leonard and his siblings grew up in the midst of chaos, but her testimony is very short and she seems almost untrustworthy in her eagerness. There is little doubt in my mind that Leonard’s parents fought and perhaps endangered their children, but so far we audience members have not been told what to make of it. The last in the series of family witnesses is a very old woman, who has trouble getting up to the witness stand. She is Leonard’s great-aunt and appears hard of hearing, as she has to be asked some questions several times. She does not testify about the abuses Leonard has witnessed but instead talks about his good qualities, as she performs a function similar to the teacher in Ben’s case. She says that Leonard told her, just before he was arrested for murder, that he wanted to get his life straight and go to church. Her testimony is also very short, but she appears at least heartfelt and trustworthy. In cross-examination the prosecution asks her about her testimony. prosecutor: So, Leonard knew you were a God-fearing woman? aunt: Uh-huh. prosecutor: And he knew the way to ingratiate himself with you was to talk

about going to church? aunt: Uh-huh. prosecutor: Because he knew that’s what you wanted to hear? aunt: [agreeing] That’s what I wanted out of him.

I do not think the aunt knows what “ingratiate” means. She agrees with the prosecutor either because she did not hear him or she did not understand his intention. Without objection or redirect from the defense attorney, the prosecution turns a positive story from a loving elder into a portrait of manipulation. I cannot tell by looking at the jurors whether they understand; the prosecutor is talking and moving so fast that it is difficult to read them. He has, though, turned a witness for the defense into a potential witness for the prosecution. What’s more, this entire dynamic is likely to be lost in transcription; on paper it might look as though the grandmother agreed with the prosecutor! After the family testifies, the defense calls a witness to the stand. She is familiar to me from my work in Louisiana, and I anticipate that she

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will help contextualize the family members’ somewhat disjointed storytelling. After she gives her qualifications as an expert, she describes meetings with the defendant and members of his family. She turns toward the jury and tells them that Leonard’s family all seemed reluctant to talk about the abuses and that it seemed they were trying to protect one another. The defense attorney does not pursue this line of testimony, and I wonder if this witness had been able to gain the family’s trust. Might she not have had time? Instead, the attorney moves quickly on, asking her to tell jurors what witnessing violence might do to a child’s development. The doctor responds: Leonard has grown up around violence used for various things. You know, we don’t like to teach our children that violence is an option. He grew up around people that picked up drugs and alcohol when life got too stressful, and got the message that . . . you did what you had to do to get your money.

I think that she sounds like Dr. Minske, asking the jurors to consider how “we” teach our children, and that she now has the opportunity to explain why Leonard’s childhood is important in this trial. But the defense attorney quickly jumps to a question about the doctor’s examination of Leonard. She looks surprised and a little stricken when the defense attorney turns to yet a third topic, though she follows along. It seems to me that her reaction to the defense attorney does double work. First, the jurors can observe her distrust of the defense attorney, perhaps damaging the attorney’s credibility. In addition, her discomfort will not be evident in the written record, negating its use in any claim an appellate attorney might make about ineffective assistance of counsel. The defense attorney asks the doctor what her examination of Leonard revealed. She says that in her opinion, Leonard’s interview showed that he is very easily influenced, that he is a “follower” rather than a “leader.” She offers that his poor performance in school and on IQ tests confirms this. I again think that this is an opportunity for her to connect the evidence to his childhood on the question of sentencing. She seems to be building a case that Leonard was unlikely to “order” anyone to kill another person, that if he yelled from the car it was more out of support or fear than leadership, and that the jury should not be concerned about his likelihood of committing future acts of violence. But again the defense attorney does

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not follow through. He does not ask the witness to detail her meeting with Leonard, to describe the records that helped her to form her opinion, or to explain the implication of her interview. Instead, he turns her over for cross-examination. I look at the clock and realize that her testimony has lasted no longer than fifteen minutes. In cross-examination the prosecutor begins with a much more aggressive stance. Shaking his head in disbelief, he asks the doctor how many death penalty cases she has testified in. His voice dripping with disapproval, he holds up a piece of paper and reads off a string of defendants’ names, including one I recognize as a nationally known serial killer. He practically shouts out: “Did you testify for Derrick Todd Lee? For Gregory Brown?” After each name she responds in the negative or affirmative, confirming that she had testified in most of the cases but not in all of them. He asks incredulously if she has ever testified for the prosecution in a death penalty case. She says that she has not, but that she has testified for the prosecution in several noncapital cases. Shaking his head again, he changes tack, attacking her testimony directly: prosecutor: You said it’s possible by witnessing domestic abuse that Leonard’s

brain chemistry would not develop properly? doctor: That’s correct. prosecutor: Did you do any testing as a medical doctor in order to determine

whether that was true or false? doctor: No. It’s not really—it wouldn’t be something that I could do a blood

test and say, yeah, that’s what it’s from. prosecutor: But it would be something you could do, an EKG or EEG or what-

ever it’s called, on the brain? doctor: Well, those studies come from doing hundreds and hundreds of

tests on the spinal fluid of children, both growing up in violence and not growing up in violence and general trends. So that’s all I can say about it, it’s a general trend. I did not, you know, look at his spinal fluid to see if the serotonin was the same, but he’s had so many drugs and stuff. I would not be able to say exactly what came from what. prosecutor: Doctor, what I’m hearing you say is that you threw out a concept,

but you don’t have any support for it where there could have been some testing done. Is that fair?

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doctor: No. There really couldn’t have been any testing for it. I’m just say-

ing that this is what the research—this is one of the factors of why being around a lot of violence is bad for kids. This is one of the research products of that. prosecutor: But you have no support, medically, for a medical imprecision in

his brain, correct? doctor: No. No, I did not do lab blood work or anything like that— prosecutor: [interrupting, sighing, posturing] Or an EEG or spinal tap. None

of that was done? doctor: No. No.

Like Dr. Minske, the psychiatrist here was using studies that talk about populations and correlations rather than individuals and causation. But she is never given the chance to explain these concepts, and her testimony feels largely discredited. The prosecutor’s disdain for her expertise is palpable, expressed through a constant sarcastic tone, exaggerated facial expressions, and hand gestures. This too will be written out of the legal record but is obvious to jurors and audience members. The defense attorneys do little to combat the prosecutor’s assault. They do not stand up or object but sit still and silent. When the prosecutor finishes, the defense stands up to redirect. But they do not ask the doctor to explain the concepts that the prosecution disputed. Instead, they ask her to reiterate her position that “as an expert” she can attest that the defendant was most likely damaged by growing up in such a dysfunctional home. With that, the defense rests. The case for mitigation is closed. When the court then breaks in preparation for closing statements, I hear one onlooker comment to another about the exchange between the prosecutor and the psychiatrist: “Damn. He tore her butt up.” At closing later that afternoon, the prosecutor argues that Leonard is a leader, and not a follower. His manipulation of his great-aunt—telling her he was going to church to gain favor with her—is similar to his manipulation of his codefendant, when Leonard encouraged him to shoot the people in the parking lot. The defense’s closing statement does little to contradict this line of argument, other than point out that their doctor said Leonard is a follower and that he had been damaged during childhood. I sense the jurors are left wondering why it should matter that all of those

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people have just testified, other than just to make the jurors feel sorry for Leonard. After deliberations, they return with a death sentence. The reaction is mixed. The victims look relieved and emotional, hugging one another and crying, and a few even yelp in celebration. But there is also a sense of unease from other actors in the courtroom. They have just witnessed something very unusual, and without much of a fight. Accomplices are rarely sentenced to death.

merc y ’s l o g i c In the two trials described above, both defense teams presented cases for mitigation that conformed to the capital field’s standards. They both conducted mitigation investigations prior to trial, interviewing family members and friends. They both used lay and expert witnesses to tell jurors about their findings. Both asked the juries to consider the defendants’ life histories, and introduced witnesses to demonstrate the adverse impact that an execution would have on their clients’ loved ones. In Bourdieusian terms, their shared habitus proves the roots of the field in which they circulate. Yet one case for mitigation felt disjointed and confusing while the other felt grave and convincing. Notably, this does not mean it was the events in Ben’s and Leonard’s lives that differed; rather, it was the defense teams’ relative success at producing and communicating the evidence that described their lives. Many factors might cause such a difference. Though Dr. Minske seemed more thoroughly prepared than the expert in Leonard’s case, I chose to compare these two particular cases in part because I knew the reputation of the doctor in Leonard’s. She could be as effective as Dr. Minske but was not given the opportunity. Instead, she was not able to accomplish what is an enormous shift for those capital jurors who agree to become punitive citizens. Capital jurors hold ideas about criminal defendants embedded in the logic of racialized criminality. Interviews with former capital jurors suggest that they do not understand how mitigation can be used to discount such norms of criminality unless they are clearly guided. Social science evidence is not easy to understand under the best scholastic circumstances, but on top of that, its purpose is especially difficult for jurors

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embedded in the necropolitics of the early twenty-first century. One former juror told an interviewer that she did not understand the bearing of the evidence offered about the defendant’s childhood abuses: The defendant brought all these witnesses in who attested to his character, and what a good person he was and how he had been, you know. And it was all that pretty much not—we didn’t use that too heavily at all. It was interesting, but it had no bearing on the case.5

That the evidence was “interesting” but without “bearing” is not beside the point. It is illustrative of the social norms in which jurors are embedded and which the capital sentencing field fails to wholly interrupt. As Dr. Minske demonstrated, the field makes room for experts to potentially accomplish the task of reorganizing perceptions about crime and punishment, but it also allows for the types of cases that do no such thing, such as that presented on Leonard’s behalf. Death-qualified jurors in the era of mass incarceration are punitive citizens. They have agreed to choose one of two extremes in the name of the state. As such, they have to be taught, and taught well, to find some reason to stray from their purpose. This includes disrupting normative notions of criminal responsibility and the goals of punishment, each of which I describe below. Connecting Mitigating Evidence to Criminal Responsibility When the purpose of mitigation is not framed, capital jurors do not know what to make of the evidence they hear. Some data suggest that mitigating evidence can in fact have a harmful effect on the defendant’s case for life.6 Mitigating evidence about mental illness or extraordinarily harsh childhoods can dehumanize, helping to support the prosecutor’s contention that the defendant is something other than human. Most capital jurors in the contemporary United States come to death penalty trials believing a guiding precept of the US criminal justice system, that the cause of crime is individual rather than social, and immediate rather than proximate.7 The prosecution can therefore offer a familiar narrative of individual responsibility that connects this common idea about crime causation to the death penalty: one person commits a horrible crime, and by killing

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him we are rid of some of the evil in the world. Less familiar to jurors in the United States is the core of the defense argument: that past circumstances affect a person’s choice to commit violence. Research shows that for many capital jurors, a defense case for mitigation is the first time such common narratives of crime causation have been challenged.8 Communicating the idea that there might be catalysts for violence beyond the defendant’s responsibility is no easy task, especially in the confines of the legal setting. Merely providing a “social scientific” view is not enough. Like Camus’s L’ Etranger [Stranger], the defendant might be understood to be an outsider who suffers but with whom nobody can empathize. Such dehumanization is not incidental to the presentation of social scientific evidence in the legal setting. Social scientific theories of crime causation, from the “disease” to the “ecological,” are rooted in the racism of the Progressive era. Interest in eugenics popularized a disease theory of crime that implicated the body’s health in hosting and fostering criminal behavior. This complied with notions of individual responsibility from the Enlightenment ideals of the century before.9 To combat the theory of racialized individual responsibility, the defense must provide an especially convincing alternative. Nothing in the ABA guidelines suggests how defense teams might go about combating capital jurors’ orientation on these points. The ABA guidelines do emphasize that capital attorneys need skills specific to capital trials, that death penalty cases have become “so specialized” that lawyers need “definably different” skills from those of lawyers in “ordinary” criminal cases, by becoming “educated regarding a wide range of mental health issues and scientific technologies.”10 But these do not describe how capital defense attorneys might go about pushing back on decades of scientific racism. My observations show that effectively drawing the link between “diminished capacity” and mitigating evidence to non-experts takes hours or days. Dr. Minske’s testimony was almost entirely geared toward this task. From the beginning of his presentation, Dr. Minske worked to explain how risk factors in childhood influence actions in adulthood. His diagram of the wedge frames his argument, symbolically making the case that individual responsibility is not a given, invariable characteristic but is influenced by the social context in which a child is raised. He provided psychosocial and psychobiological evidence drawn from scientific studies in

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conjunction with the specific life history of the defendant. He constantly reminded jurors that the concept of individual choice must be understood in the context of social factors. For two days he worked to explain diminished capacity. Further, he did so in a manner that was neither pedantic nor threatening. He performed a role that people in the court could relate to: a nerdy enthusiast just doing his job. He also relied on a racial trope, on which the woman in front of me commented. By distinguishing between “corner” and “stoop” kids, Dr. Minske provided jurors with a racialized enemy that explained Ben’s violence. Characteristic of what sociologists call the “postracial” era, Minske did not explicitly mention race, instead speaking in terms of culture.11 Ben did not benefit from parents who enforced the steps to becoming a good adult: dedication to school, a nuclear family, and adult modeling. Instead, Dr. Minske implied that Ben was mothered by someone he depicted as suffering from “abusive relationships” and joblessness. By differentiating Ben’s family from an imagined “good” family, the doctor provided a palatable story for jurors. Rather than blaming Ben, who as a child could not control the circumstances of his upbringing, he supplies Ben’s mother as a focus on blame. This testimony coheres with Patricia Hill Collins’s canonical stereotypes of black womanhood that root white understandings of blackness. Ben did not benefit from the black “mammy,” who is all desexualized domesticity and care. Instead, his criminality is traced to the sexualized and (failed) public ward, the “welfare queen,” who reproduces but fails to care for her children. In providing these distinctions, Dr. Minske does not disrupt the racism inherent in the necropolitics of the era. He instead allows jurors a way to maintain the fiction that their judgment exists outside a racist frame. Connecting Criminal Responsibility to Punishment To argue effectively for a life sentence, capital defense attorneys must also explicitly connect their theory of criminal responsibility to the intended goals of specific punishments. The prosecution’s connection between crime and punishment, as we will see in the next chapter, is most often based on a simplistic retributive theory, performed with the help of a revenge narrative: an evil person committed a homicide, and therefore the state must enact a similar punishment. If the defense offers a theory that

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the homicide was committed not because the defendant is intrinsically evil but because his life history influenced his choices, then it must also connect this to a theory of punishment. In my observations, defense attorneys accomplished this task by rhetorically drawing together expert testimony such as Dr. Minske’s with other references to trusted bodies of knowledge. One of the most effective defense attorneys that I observed on this point explained to jurors that vengeance is not the job of the law. He told them that vengeance belongs to history or to the “streets,” but not to a “civilized society”: Vengeance is not part of your job description. Vengeance is not ours here. Revenge is not what this is about. . . . In a courthouse, in a civilized society, we don’t act like people act on the streets. We don’t go back and forth for some mindless vengeance or retaliation that simply leads to more violence, more death, more victims.

He refers to the law’s authority as emanating from its purpose to civilize, contrasting it with the “mindless vengeance” in cycles of violence of eras past. Another defense attorney invited jurors to couch their decision in a very different source of authority: a system of punishment that eschews the logic of retaliation and instead centers on “doing” life-affirming justice: What is mitigation about? . . . What it is about is punishment. The question is all the mitigation factors: do they pull you back, do they mitigate what the punishment should be, do they mitigate the decision of death and bring us to the decision of life? . . . [The defendant] will be incarcerated for life, and this is a just punishment for what he has done. We are appealing to the better angels of each of your natures. . . . We are asking that we break the cycle of violence that [the defendant] lived in, and we ask that you break it now with us by voting for life. . . . We’re doing justice here. We’re not doing retaliation.

Here the defense attorney stresses that the punishment should recognize the defendant’s childhood circumstances, with the jurors helping to stop the “cycle of violence” that brought the defendant to the violent act in the first place. Jurors can be “angels,” acting just as fairly and with the same degree of logic as if they were following retributive logic. Both have the grace of symmetry, and the majesty of principled thought. Several defense teams contextualized mitigation at trial in this way, making me suspect

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that at least some dedicated capital attorneys receive training on these points. All of this type of argumentation can also be contextualized as part of the “postracial” era. These defense attorneys ask jurors to differentiate themselves not only from the premodern reliance on vengeance and violence but also from people on the “streets” and the defendant’s own “cycle of violence.” Like Dr. Minske’s testimony, these rhetorical strategies reflect “culture of poverty” arguments that situate violence in the bodies of black and brown people, without resorting to recognizably racist logic rooted in eugenic biological thought. This does not necessarily point to experts’ own racism, but rather that death penalty lawyers and social science experts operate in a field inseparable from race logic. They may challenge the tradition of racism in the law to some degree, but they cannot escape it. The Story They Want to Tell Mitigation, like much of capital sentencing, in essence requires excellent rhetorical and performative story-telling skills in order to prevail. Lawyers such as Ben’s—at the “top” of the capital defense hierarchy—are considered “naturally” skilled.12 One of these “best” lawyers told me that he does not believe that such skills are innate or require extraordinary commitment to a cause. Yet the mere introduction of “good” mitigating facts does not suffice. He told me he is trying to train other capital defense attorneys in the art of crafting sentencing narratives, which he learned through decades of practice: The job is not just proving facts in a Humphrey Bogart—the facts ma’am, I just want the facts—way. That’s easy. But getting them [capital defense lawyers] to think really creatively about what story they want to tell and how to create the world in which that story is possible: that is much more difficult.

Creating the “world” in which that story is possible indeed seemed to separate Ben’s and Leonard’s defense teams. And according to that description, the job of capital defense attorneys sounds more like that of a playwright or dramaturge than an attorney. They must search for, select, and present potentially painful and intimate narratives to reach a popular

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audience. They have to find people and documents containing stories that will most easily translate into the courtroom setting, helping family members reveal the most personal and difficult facts about their relatives. They must give witnesses the tools to tell their stories effectively. And they do not only have to create the script; they must stage the production as well. They must consider which aspects of the performance are most likely to captivate and convince their audience. They also have to teach this onetime-only audience how to appreciate the performances they are about to witness and evaluate, accounting for mistakes and real-time eventualities such as a young assistant’s cat-eye glasses. In Ben’s trial, the successful construction of a world with a logic contrary to the contemporary necropolitical formation of criminality meant a life sentence. Leonard was less lucky. These performances, however, are also limited in their creativity. The types of performances not included are as telling as those I observed. Dr. Minske gives an example of a type that is not allowed in court. He says a scientific conclusion about child abuse’s impact would require experimentation that would make a “Nazi blush.” But what keeps lawyers from using other, less problematic evidence of suffering that Ben and Leonard endured as children? As we will see in chapter 7, victims reenact mourning with the help of audio- and videotapes, performative readings, and emotional displays. Why are defendants and their families so much less likely to perform suffering in this way? Why not restage the defendant’s molestation as a child, much like the prosecutor restages the homicide with which the defendant is charged? Trials are performances, but the staging is limited by the types of elite interests that shape all governing institutions. A famous case of excluding evidence in a very different legal setting demonstrates this. During a trial in which an indigenous tribe in Canada was suing for the right to native land, the tribe wanted to enter into the legal record a traditional ceremony, which could only be evidenced by real-time performance. The judge disallowed it, exclaiming, “This is a trial, not a performance!”13 Though legal evidence is thought to be dictated by legal standards, those standards are not outside the boundaries of culture. Anglo-colonial rituals such as rising for the judge, putting on a suit, or prioritizing spoken language over dance are taken-for-granted aspects of legal culture. Capital sentencing is no dif-

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ferent. Capital mitigation is a contest over knowledge production to be sure. But the contest is judged on performances circumscribed by the penal-retributive culture in which they developed. This limitation is especially visible when juxtaposing mitigation with the prosecution’s case, which I detail in the next two chapters. The spectacle of the defendant’s silence exemplifies the power of the state to control not only his potential death but the humiliation of a life contested.

Graffiti outside a criminal courthouse: “Before They Enslave Us.”

6

Performing Danger The last thing he did was murder somebody; God knows what he’s going to do next. —Prosecution opening statement

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In the audience, we’re waiting for the day’s session to begin. The prosecutor, judge, and jury have yet to arrive. The defense lawyers are busy pulling papers from boxes, reading and taking notes, and consulting with one another in hushed tones. There aren’t enough bailiffs in the courtroom yet to provide the usual cadre of security officers who stand between the defendant and the audience pews, so the defendant is in the jury box where he is farther away from any “civilian” who might enter. He’s chatting with the guard who has come with him from the prison; they’re talking about a local sports team, I think I hear. Suddenly, the district attorney comes into the courtroom and shouts in a booming voice: “Okay! I’m ready! Where is that bad, bad man? Give me Jimmy Thompson!” He obviously doesn’t see that the defendant is in the courtroom. Everyone stops milling about and kind of stares at the DA. His bluster seems out of place in the quiet of the pretrial morning. Then the DA notices the defendant and does a double-take, startled. He back-pedals a little, clears his throat, and mumbles, “Sorry . . . let’s get going.” The defense lawyer and his client share a look, rolling their eyes at each other. They both shake their heads before going back to what they were 149

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doing, as if to say, Sometimes you just have to put up with these people. The DA, having recovered from his embarrassment, hurries over to the victim’s family. He stands up straighter as he approaches them, looking confident once again. The defendant is a slight young man. When he comes into the courtroom before the day begins, I usually catch a glimpse of what I think of as his prison persona. I know his physical survival in prison depends on a display of masculinity, and he tends to walk in looking relatively big and confident in the morning. But later, when the court session is underway, his survival may depend on a more meek presentation. He seems to grow smaller as the day goes on. His lawyer tells me that they have told him how to act in front of the judge and especially when the jury is present. Every day he changes from a bright orange prison jumpsuit into a pair of khakis and button-down shirt, with either a tie or sweater vest. The lawyer says that he often tells his clients to take notes during the trial. Even if they are writing meaningless stuff, they should write. This keeps them looking down rather than up and accidentally giving one of the jurors the wrong impression that they are confrontational. The days spread out so long that most people’s attention wanders. But if the defendant has a look on his face that doesn’t correspond with the jurors’ emotions at a given moment, he might be read as distracted, callous, or menacing. The lawyer tells me he sometimes suggests that a defendant write a letter to a loved one or family member during trial, to keep a soft, focused look on his face. •

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In the above account, the prosecutor loudly established his role as the feller of “bad men” when he thought the jury was present. The act was quickly dropped when he realized this was not the right audience. Garfinkel long ago argued that a criminal prosecutor must forego his own identity in order to transform the defendant from a member of a community to an evil outsider. This chapter provides a corrective to that account. The defendant need not be transformed; rather, his publicly imagined, racialized and dangerous selfhood need only be protected from interruption. This chapter analyzes the prosecution’s case for death. Austin Sarat described in his own observation of a capital trial in 1986 that the prosecu-

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tion and defense provide competing narratives to the jury. While the defense tries to “contextualize” the defendant’s crime by “focusing on the social conditions that bring it about,” he argued, the prosecution “turns crime and punishment into a simplifying and reassuring story of individual responsibility, of evil people doing evil deeds, and calling upon themselves a just and inevitable punishment.”1 More than thirty years later, this still captures much of what I found in my own observations, with one specification. As a whole, prosecutors’ cases for death do not have to do the difficult work of transforming the defendant from a multidimensional human to an object with only one quality. Rather, the necropolitics of the era and capital jurors’ entrenched position within this era preordain the mostly impoverished young men of color as such. White defendants are not immune from this, as Angela Y. Davis reminds us: criminality imputes blackness, regardless of race.2 Prosecutors do not need to convince jurors that the defendant embodies violence, but rather to provide a “race-neutral” mechanism—to appropriate a legal term—to protect this assumption. Their presentations solidify a classic trope about the forces of good and evil, where the defendant is evil, and the victim is good. Prosecutors protect this position using four key techniques. In this chapter, I describe how prosecutors perform what I call empowered revulsion, a type of racial assembly with roots in slavery. They do this by discrediting defense evidence that would point toward mercy; presenting alternative evidence of the defendant’s evil nature; and making an argument that the defendant will pose a future danger. (It is in contrast to this performance that they deploy victim suffering, described in chapter 7.)

empo w e r e d r e vu l s i o n When in front of jurors, prosecutors enacted a physical revulsion over a person whom, I observed, they entirely disregarded—as in the example of the judge and prosecutor joking about an execution—for days or weeks on end. This display of disgust is potentially a more honest representation of the prosecutor’s feelings about the defendant than his usual detached presentation. The point here is not to suggest that one shouldn’t feel anger or revulsion toward the defendant, but rather that the effectiveness of the prosecutor’s performance of these feelings matters. Like the other groups

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of actors in the courtroom, prosecutors more or less effectively communicate the information they want the jury to have: the defendant is a person to be treated in a way that nobody is to be treated. He is to be killed. Disputing Mitigation and Establishing Evil To protect the notion of an embodied danger, prosecutors were required to a greater or lesser extent, depending on the defense case, to dispute mitigation evidence. In the capital defense community it is axiomatic that mitigating evidence can be read as an “abuse excuse.” Studies have shown that jurors may consider evidence of childhood trauma or mental illness to be disingenuously offered, as a justification for the criminal behavior.3 In the ABA guidelines for death penalty defense counsel, lawyers are instructed to offer mitigation to explain rather than excuse the offense.4 My observations show that this concern is well founded. Prosecutors regularly imply or directly state that jurors should view mitigation evidence as a defendant’s attempt to obfuscate responsibility for his crime. Much of this happens during rebuttal to defense witnesses, but it is key to understanding the presentation of evidence for future dangerousness, so I therefore treat it as part of the prosecution’s strategy. I observed reframing mitigation evidence taking two tacks: disputing the facts of mitigation using competing evidence, and using argumentation to reframe the defense’s evidence. The first of these took two forms. First, prosecutors occasionally put up evidence that directly contradicted mitigation assertions. In one trial, a police officer was asked to testify for the prosecution that a defendant’s neighborhood was not as violent as the defense expert described. He and the defense expert spent a good deal of time testifying back and forth, disputing statistics about crack use and violent crime in a housing project during the late 1980s. Second, and more often than using evidence to rebut empirical claims, prosecutors regularly implied through argumentation that a witness for the defense was exaggerating or remembering childhood details incorrectly. In crossexamining defense witnesses, prosecutors questioned how well witnesses really “knew” the defendant or were capable of seeing their stories objectively. When a defendant’s brother and mother were called as witnesses to childhood abuses at the hands of his father, one prosecutor consistently

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emphasized that their love for the defendant and their fear of the father made them unreliable. At another trial, a defendant’s brother’s past criminal record was used to suggest that he might be inclined to find excuses for his brother’s behavior in order to explain his own misdeeds. A different tack was to allow that some or all of the mitigating evidence had some truth to it but that it should have little bearing on the defendant’s criminal actions. Prosecutors made this argument quite often—when crossexamining defense witnesses, asking their own witnesses for evidence, and in closing arguments. Before beginning deliberations in one sentencing trial, a prosecutor affirmed the defense’s substantive evidence but then questioned what the evidence should have to do with his blameworthiness: [speaking softly] The defendant grew up with crack-addicted, terrible, terrible parents. There’s no question about it. [shaking head, pausing respectfully] But his childhood, his neighborhood?! [louder and faster] Are those things to blame for murdering three people in less than a year?

He demonstrates respect for the “terrible” conditions of the defendant’s childhood while discrediting its association with adult behavior. Another prosecutor asked a state’s witness to comment specifically on the defense psychiatrist’s assertion that emotional trauma could have caused changes in the defendant’s brain. To introduce the witness, the lawyer speaks incredulously: His childhood, his father’s alcoholism, his mother’s mental disorder—this helps explain why he killed total strangers in cold blood? It’s one thing to have sympathy for him but another to sit up on that witness stand and suggest that this caused him to become a murderer!

The doctor then confirmed that “causality” was not something that medicine could confirm. There is a knowledge dispute here about the extent to which the “brain” sciences can account for behavior. Explaining the link between childhood and adult behavior was a central task of Dr. Minske’s testimony in the last chapter. Notably, establishing the contrary—that violent behavior is caused by forces internal to the defendant—was not necessary. Where defense experts strained to explain criminality as an outcome of social depravation, I never saw a state witness called to do the kind of work Dr. Minske and others in his position attempted. Instead, prosecutors

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relied primarily on their own rhetorical and performative authority. They only referenced the idea that criminals are not violent because they were disadvantaged or poorly socialized, assuming that jurors were already familiar with this logic. In this context, bringing up an impoverished past is not explanatory; it is “whining,” as one prosecutor told jurors. The rhetorical establishment of the defendant’s character featured in all of the trials I witnessed. Defendants were referred to throughout trials as having qualities that pointed to their inhumanity. In the tradition of colonial racism and chattel slavery, defendants were referred to as both human and animal. They were called “cold-blooded,” “without conscience,” “heartless,” and “without a shred of empathy,” but also “monsters” and, once, a “dog.” One prosecutor “excused” himself for using a profanity, suggesting his emotion got away with him. He said loudly to the jurors during closing argument: You’re asking yourself what kind of a guy is he? [points to the defendant] Is he the kind of guy who, when asked, Do you have anything to say to the widow and the children? does he say, I am so sorry, I can’t believe I did what I did? Is he that guy? Or is he—and pardon me—in his words, is he the kind of guy that says, fuck ’em? Fuck. Them. Fuck their families.

Prosecutors often juxtaposed the defendant with his inability to see the humanity of the victims whose lives had been lost. Defendants were asking for mercy from the jury, this argument went, but did not show any mercy to the victims of his crime. This contradiction, prosecutors contended, made mercy a quality the defendant did not deserve. This argument was made during opening and closing arguments and occasionally during a cross-examination. One prosecutor mused, as he cross-examined a defense expert: Mercy, mercy. There has been no mercy emanating from that man ever. Now he wants mercy? [loudly, and pointing] When he treated the victim like a damned hog!

Indeed, the victim and victims’ family members played an extended role in contrasting the defendant’s character, as I will detail in the next chapter. To complete this image, prosecutors presented acts from the defendant’s past in fourteen out of the sixteen trials I observed. (In the other two

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trials, the defendant had no prior criminal record; the prosecution did not offer any evidence pertaining to prior criminality, arguing for the death penalty on the basis of the heinousness of the homicide and the pain caused to the victim’s families.) Crimes small and large were detailed for the jury. In some of these, the crimes were severe. In one trial, I counted twenty-two witnesses for the prosecution on this point, each adding details to one of seven violent felonies of which the defendant was previously convicted. These ranged from aggravated assault of a police officer to attempted rape. They indeed painted a picture of a young man who had spent most of his life committing acts of terrible violence. In other trials, prosecutors seemed to have less material to work with. One defendant whom I will call Thomas had never been convicted of a previous felony according to his court record, but the prosecution spent two days presenting evidence about a couple of relatively minor violations the defendant had perpetrated during his time in jail while waiting for trial. Compared to the evidence of past felonies presented in other trials, Thomas seemed relatively well behaved. He had gotten in a fight with an inmate, and guards had found two pieces of contraband in his cell: a razor blade pulled from a disposable shaving razor, and a copy of the book The Art of War by Sun Tzu. After calling on the inmate with whom the defendant fought to detail their fisticuffs, the prosecutor asked the guard who found the book to testify. The prosecutor asked that he read from the first page of The Art of War and then from a highlighted passage. On the first page, the guard read, “The most useful important book ever written for aspiring leaders.” He then flipped to the middle of the book and told the audience what had been highlighted, presumably by the defendant: If you know the enemy and you know yourself, you need not fear the result of a hundred battles. If you know yourself and not the enemy, for every victory gained, you will also suffer defeat. If you know the enemy and not yourself, you will succumb in every battle.

I found the focus on The Art of War strange at first. Surely it would not serve as evidence that Thomas had been violent outside of the homicide he was convicted of during the trial. But the prosecutor then used this passage in his closing argument to illustrate that the defendant was likely to commit future acts of violence. The book and the razor, the prosecutor argued,

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showed that the homicide Thomas committed was part of a pattern that was likely to continue. The book’s message about preparing oneself for battle demonstrated how the defendant was “chomping at the bit” to commit further acts of violence, that he was preparing himself to become a “leader” in the art of war. Indeed, the expertise that was not necessary to explain how violence is caused by forces internal to a given defendant was reserved for another purpose: predicting the defendant’s future. The Future . . . in Prison The concept of “future dangerousness” is one of the most disputed in capital sentencing. Nonetheless, the future violence of defendants was considered in twelve of the sixteen trials I observed. Most states that use the death penalty allow the consideration of future dangerousness as an aggravating factor in the penalty phase. The term “future dangerousness” is shorthand for a variety of state statutes that ask jurors to predict which capital defendants are likely to continue to threaten society by committing future acts of violence. Jurors who find that a defendant is likely to commit violence in the future can use this as a reason to impose the death penalty. Two states—Texas and Oklahoma—explicitly make the question of future dangerousness an issue at sentencing. In these states, jurors are statutorily required to find that the defendant will be a continuing threat to society in order to impose the death penalty.5 In four states, statutes require that jurors be given the option of considering dangerousness. At least two dozen other states and the federal government have allowed (but do not statutorily require) jurors to assess future dangerousness.6 Some of the cases I saw used a lot of evidence to make the case for dangerousness, and others very little. Two cases provide examples: one in Virginia and one in central Texas. In the Virginia trial, a young man was charged with multiple murders in conjunction with his activities as a gang leader. The prosecution called an expert to testify about the defendant’s alleged gang allegiance. The prosecutor emphasized that the defendant was not only a murderer but a murderer who was unpredictable and likely to kill randomly in service to his gang allegiance. That gang, the expert testified, was furthermore active in the prison where the defendant would be housed if he were sentenced to imprisonment:

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Who says he won’t kill someone else for wearing the wrong clothes? For looking at him the wrong way? He is the leader of a vicious gang that held a community hostage. He is depraved, feared, powerful, admired, brazen, seeks glory and status.

Leadership qualities that might be celebrated at an executives’ retreat are here demonized. Among other things, his potential for “power” and “admiration” tied him to a group of imagined prison inmates who awaited him. At the trial in Texas, the case for future danger was more strained. This trial involved an older defendant. Carmine, as I will call him, at age fortyfour was tried for a series of murders that took place over a week, involving several ex-girlfriends. The evidence showed that during this week, Carmine drank and took methamphetamines continuously. His “killing spree” began with his existing girlfriend, who locked him out of their shared house when he became physically abusive. He then drove to a bar where he found an ex-girlfriend, with whom he pleaded to lend him money and give him a place to stay. When she refused, he pulled out his gun and wound up killing a bartender who tried to intervene. Carmine then fled the bar and drove to another ex-girlfriend’s house where he again asked for help. When she refused, he shot and killed everyone in the house, including the ex-girlfriend, her two daughters, and her boyfriend. The defense told a story of a man who had long-standing issues with women; witnesses testified about a dysfunctional mother, sexual abuse by a stepfather, and a series of relationships with dominating older women. At sentencing, the prosecution was obliged to make an argument that Carmine would be a future danger per the reigning statute. The defense argued in its opening statement that Carmine would be housed entirely with men in prison and that his violence was aimed exclusively at women. Forced by law to argue that Carmine would be violent in prison, the prosecution made a strained attempt to claim that Carmine would be dangerous to men as well. Prosecutors presented an incident involving a man who had an encounter with the defendant over two decades previously. As young men they had fought outside a convenience store. It involved BB guns, and the police were eventually called. Nobody was seriously injured. This seemed an odd incident to include to me as an observer before I

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understood the statute’s requirement that the prosecution prove a case for future danger. The focus on future danger is a legal consideration stemming from the Enlightenment concern with deterrence. The future behavior of criminal defendants is a state interest in a host of legal situations, from the civil commitment of the mentally ill to the postjail detention of sexual predators. Quarantining people on the basis of potential future behavior, however, has brought with it a legion of ethical concerns from legal scholars for decades.7 Three types of data are generally used to prove dangerousness in the legal context: anamnestic data, which predict future behavior based on past behavior; actuarial data, which predict future behavior based on the defendant’s race, age, or mental health as compared to group statistics; and clinical data based on a psychiatrist’s or psychologist’s assessment of a given defendant.8 Social scientists and others have found manifold problems with each of these. Even under the best of circumstances, with very good clinical records of a defendant’s past behavior and clinical examination, experts cannot say for sure what the future will bring. The American Psychiatric Association has made this explicit, writing as part of an amicus brief to the Supreme Court that “psychiatrists have no special knowledge or ability with which to predict dangerous behavior.”9 Predicting future behavior based on past behavior is impossible with any degree of certainty, especially given that “acting out” peaks in one’s early twenties. Using actuarial data has led to concerns about generalizing, including generalizing based on race. Such generalizing is not hypothetical but an active concern. These problems are not unknown to the capital sentencing field. In a series of now famous cases in the 1980s and 1990s, the Texas state prison’s chief psychologist testified that a defendant’s ethnic origin could help predict his likelihood to commit future violence. Eight death sentences in Texas were overturned because Walter Quijano argued to jurors that Hispanic defendants had increased potential for future danger when compared to white defendants.10 Quijano was not alone. For forty years in Texas, ending only with his death in 2004, a psychiatrist named James Grigson provided evidence of dangerousness in 167 capital cases, 100 of whom were sentenced to death by execution, and the majority of whom were black and Latino. Nicknamed “Dr. Death,” Grigson was described as

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a “charming” and “down-to-earth” witness who used plain talk to connect with jurors. Among other things, Grigson often testified without examining the defendant, or examined defendants without informing them of his role in the trial. His tactics caused not only his expulsion from the American Psychiatric Association in 1995, but also much litigation in federal courts.11 Like mitigation testimony, predictions of dangerousness have their roots in the “racial sciences.” It is not Grigson and Quijano who are the problem, but rather the tradition in which they work. During the era of social Darwinism, and continuing into the postwar United States, scientists differentiated between psychological “health” and illness largely by racial classification. Galton’s “intelligence” scale, for example, defined the ability to reason as heritable, and found reason primarily among Caucasians.12 Racialized testimony about future dangerousness reflects the mistakes of the eugenics era, which birthed such expertise. The “eugenic legacy” of psychology and psychiatry, as one scholar calls it, is still influential.13 As if future dangerousness isn’t problematic enough from a scientific standpoint, its use in capital trials is problematic for a more practical reason. All states with capital punishment allow the jury to choose a life sentence without parole for the defendant as an alternative to the death penalty. This makes “future dangerousness” irrelevant to a life sentence, at least for the “free” public. Any defendant convicted of capital murder is sentenced to prison for the rest of his life, whether the sentence is to be executed or not. Yet evidence about dangerousness persists. Rather than predict behavior in the “free” world—which is problematic enough—experts are forced to testify and lawyers create argumentation predicting future behavior in prison, statistical models of which are almost nonexistent.14 This concern was not incidental to the larger case for death. In four trials I watched the question of dangerousness in prison play out over several days, complete with witnesses, records, and cross-examinations. These started with defense attorneys “educating” potential jurors during voir dire about their option to sentence the defendant to imprisonment without parole. Prosecutors in turn emphasized that defendants could cause great harm even in prison. Because the population inside the prison does not garner as much sympathy as the “free” public does, prosecutors reminded jurors that there are guards, medical staff, and other prisoners to consider. This

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back-and-forth continued during the evidentiary portion of the sentencing phase. Defense lawyers made their case that a life sentence without parole was a sufficiently harsh punishment. They called experts to introduce evidence about how secure the prisons are and how severe the conditions can be. Then, anticipating the prosecution’s argument that violence could be committed in prison, defense counsel called guards and other prison workers to describe all the safety precautions that enabled them to do their jobs. The prosecution then rebutted this with evidence about how dangerous the prisons can be, introducing their own experts and prison employees who detailed prison riots, violent crimes, and other dangers. These exchanges were among the most surreal in my observations. In addition to the problems with the veracity of the evidence, I was struck by something different: I did not believe that most of the lawyers at these trials cared much at all about what went on in prisons. As scholars have detailed and as my limited interaction with prosecutors confirmed, they tended to believe that prisons were filled with “bad” people. It seemed insincere to suggest that prosecutors, especially, were concerned for their safety. Oftentimes I forgot whether it was the defense or the prosecution that was putting on evidence. The defense deployed testimony to convince jurors that the prison was a cruel but secure environment, while the prosecution tried to make a case that the prison was a lax and dangerous one. I had to strain to remember why each side was making its argument. At one point the prosecutor in Thomas’s trial made the case that sentencing him to life in prison would actually cause him to commit more violence. During his closing argument he told the jury: Life without parole is a relatively new type of sentence. . . . He is a new breed, a new brand of inmate. He has nothing to lose. What is the worst we could possibly do to him when he bounces up to a guard and breaks his arm or his leg? He has nothing to lose. And what’s most frightening about him, folks, is he doesn’t care. And while life without parole may give us on the outside a sense of comfort and safety, I will submit to you from the prison system it created a monster. And how big that monster will get has yet to be seen.

So much of this struck me as illogical. If Thomas were to go to death row, wouldn’t he still be a danger to guards and staff? Was there any empirical

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evidence that suggested a sentence of death by execution as opposed to imprisonment would protect so-called innocent people in prison? More than the presentation of evidence about childhoods, this seemed to me a performance with little substance.

maki n g s e n s e o f t h e p r o s e c u t o r’s ca s e When actors invest unusual focus in a social drama of their own making— such as with the illogical attention paid to future dangerousness in prison—socially substantial issues are likely at play.15 I came to understand this part of the capital trial as not only an evidentiary corollary to the mitigation case but an ethical one. As Garfinkel theorized in 1956, a criminal prosecutor asks for punishment not only because of what the defendant did, but also because of what he is. While this potential for future violent acts establishes a potentially tangible reason to kill the defendant, rather than send him to prison for the rest of his life, it also does the work of solidifying a more basic appeal. Criminal danger has long been situated in the bodies of nonwhite men. Angela Y. Davis describes criminalizing discourse as “one of the masquerades behind which ‘race,’ with all its menacing ideological complexity, mobilizes old public fears and creates new ones.” This is especially true when dangerousness is at issue. There is no end to the instances in which blackness has been used to signal criminality in the public sphere of the twentieth and twenty-first centuries. The image of the “brute” of the nineteenth century gave way to the “thug” of the twentieth, from Ronald Reagan’s presidential election campaign to the scholarly construction of the “super predator” and the continued failure to punish white police who brutalize unarmed black men.16 As a performance, then, the inclusion of an argument about future dangerousness—which makes little sense from a crime-control standpoint since the alternative is a sentence of life imprisonment—makes sense instead as a “dog whistle” to jurors. The bodies of poor, mostly male, mostly nonwhite defendants are painted as inherently dangerous, whether or not they really will act violently again. In one closing argument, a prosecutor situated himself and the jurors as “citizens of the world” against such violence:

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What he does cuts against the whole grain of what we do as citizens of this country, of this world. That is him. That is deeply ingrained in him, and it ain’t coming out of him, never, until he is laid to rest.

In another, the prosecutor tells jurors that he can see who the defendant really is: What kind of man is he? He has no regard for human life! It is a pattern that began in childhood and continued. Don’t get lost in the process. This is about who he is.

To connect with an audience, performances must contain the “trace of other, now-absent performances.”17 Saidiya Hartman’s masterful study of the spectacle of slavery situates prosecutors’ arguments about future violence not only in the history of the contemporary criminal justice system but in the time of slavery in the United States. Hartman details how the display and parading of black slaves was a key mechanism for ensuring servitude and displaying power. Slaves’ silent bodies emphasized their semihumanity: alive but not autonomous, capable of movement but not of freedom.18 In this way, the states’ discussion of capital defendants as dangerous, coupled with defendants’ silence, resembles slave parades. There is a spectacle created by talk reserved for the (usually white) lawyers. Like other sites of “racial assembly,” capital sentencing is a state project that depends on and reproduces the spectacle of already criminalized bodies.19 As in slavery, the value of capital defendants is not in their killing but in being left barely alive. At trial it is their truncated autonomy that solidifies the power of the criminal justice apparatus.20

Bathroom where I washed hands with the victim’s wife.

7

Mourners in the Court

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Prosecuting attorney to heavy, middle-aged man on the witness stand: “I’m going to ask you a few questions now, okay?” witness: Mm-hmm. prosecutor: Did you write a poem to read at your daughter’s funeral? witness: Mm-hmm. prosecutor: Were you too upset to read that poem at the funeral? witness: Mm-hmm. prosecutor: Do you think you can read that poem for us today? witness: Mm-hmm. prosecutor: Go ahead. witness: My darling daughter . . . [witness stifles a sob and stops to compose

himself ]

This witness looks unaccustomed to showing emotion under the best of circumstances. He clutches the paper he is trying to read from, looks down at his hands, and flattens the tie that does not quite cover his belly 165

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rounding over his belt. The prosecuting attorney who elicits his testimony is patient, and after several false starts the man reads through the poem, memorializing his daughter for a room filled with family and strangers. As he stumbles down off the witness stand and returns to his seat in the front row behind the prosecutors’ table, many of the audience members and jurors are crying. •

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This chapter examines the role of victims in death penalty sentencing. Victims’ supporters were present in fourteen out of the sixteen trials that I observed. In two of those fourteen, the co-victims were asked simply, “How do you feel about your loved one’s death?” and answers were general and vague. But in twelve out of sixteen, it is fair to say that victims’ supporters both on and off the stand impacted the emotional tenor of the scene more than any other group of courtroom actors. Recognizing the influence of victims’ supporters prompted me to reflect on my emotional experiences with their testimony. Two things became clear. First, I noticed that the intended emotional content of co-victim testimony did not directly correspond with my, or the audience’s, reaction. Stories that should have been heart-wrenching were often not, while seemingly random details could captivate the room. Second, I noticed that while many parts of the trial were fodder for contention between attorneys, audience members, and judges, victim testimony was different in this respect. Very rarely did an attorney object or cross-examine with the intent to discredit, and victim supporters in the audience were treated with reverence in many cases. “Victim impact testimony,” or VIT, as exemplified in the father’s testimony, has become routine in death penalty trials since 1991, when the United States Supreme Court handed down a controversial opinion allowing family members of the deceased to participate in the sentencing phase of the trial. In Payne v. Tennessee, VIT’s inclusion was intended to give the jury a “quick glimpse” of the victim’s life and the harm co-victims suffered because of the victim’s death, in order to support the state’s case for execution.1 Legal scholars record this as a major shift in death penalty jurispru-

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dence: before VIT’s inclusion in 1991, capital sentencing was generally understood to be limited to interrogating the character, deservingness, and dangerousness of the offender to determine whether he deserved death by execution or life in prison. Scholars have two main questions about the role of victims in capital trials. First, scholars ask whether VIT affects jury outcomes. Most agree that the inclusion of victim impact testimony makes capital jurors more likely to vote for the death penalty, though to different degrees and for different reasons. The second and more complex line of debate involves questions about whether victims should testify in capital trials.2 After observing the father, above, read his poem and dozens of other victims’ family members testify, I began to wonder what made it different from other parts of the sentencing. I eventually realized that the father and others were not just giving testimony; they were mourning in front of an audience. This very human act is usually conducted in private in our culture. But whether they like it or not, co-victims in capital sentencing must perform this intimacy in front of an audience. They simultaneously work through emotions usually dealt with in private, and a set of demands made by a public appearance. It made me wonder: to what end was this almost cruel request?

vict i m s i n u s j u s t i c e Victims’ supporters have not always had a role in death penalty proceedings. But during the last forty years, victims have become integrated into many aspects of the US’s criminal justice system. Prior to the middle of the twentieth century, one important feature of the civil law system— beginning in medieval England and later in the formation of the colonial United States—was to separate crime victims’ influence from the state’s job of condemning criminality. The “impassionate” hand of the state was meant to punish offenders without a personal or emotional agenda, due to the concern over a never-ending cycle of violence and revenge between offender and offended. Rather than foster ongoing feuds between the Hatfields and the McCoys, for example, the criminal justice system was to

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replace the cycle of violence. This separation of the victim’s desires and the justice system’s impartiality was a core component of the US criminal justice system until relatively recently.3 During the second half of the twentieth century, however, victims’ exclusion from the criminal justice system drew protests from across the political spectrum. Beginning in the early 1960s, a shift in penal philosophy was taking place. Criticism of the reigning method of correction reached a breaking point. Individualized sentencing and rehabilitation programs for offenders, dominant during most of the twentieth century, lost their primacy. Advocates for reform of the criminal justice system generally split into two camps: one for a renewed effort at rehabilitation, the other to do less for offenders and more for victims. This second faction succeeded because it found support in multiple political arenas, some more expected than others. Politically conservative groups had long fought to weaken criminal defendant rights. But in this postwar era, two other significant influences emerged. The specter of the Third Reich and the Eichmann trials loomed large, and the world was paying attention to the ways in which victims of violence were integrated into state proceedings. On an international stage, Holocaust victims gave evidence of atrocities on a scale not previously imagined. Famously chronicled by Hannah Arendt in her book Eichmann in Jerusalem, the demonstration of the suffering of Holocaust victims impacted publics well beyond that courtroom. In the United States, this was buttressed by another coalition: the burgeoning second-wave women’s rights movement. Part of the work of this group was to publicize the plight of rape and sexual assault victims, whom they described as doubly victimized: first by offenders, and second by a state that treated them as complicit in their assaults. Bridging these disparate concerns, a victims’ rights coalition emerged as one of the new social movements of the late 1960s. In part because of this coalition, a more punitive model of criminal justice began to replace the rehabilitative. Offender rights were posed as antithetical to the interests of victims, and victims were reintegrated into the criminal justice system. The victims’ rights movement was largely institutionalized during the decades that followed, through local and national legislation. During the 1980s and 1990s, at least thirty-two state legislatures passed laws

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allowing varying degrees of victim participation in a variety of criminal procedures, most commonly allowing victims to write statements to the judges responsible for sentencing.4 Victim participation in death penalty trials holds a peculiar place in this history. Though death penalty trials are few compared to noncapital criminal proceedings, the use of victim impact testimony in capital trials has received a large amount of attention from the judiciary, scholars, and other interested parties. This is because the death penalty is so often a lightning rod in criminal justice debates but also because of the increased protection afforded capital defendants in comparison to noncapital criminal defendants. The capital sentencing procedure is meant to focus on the character, dangerousness, and deservingness of the offender. Because of the “qualitative difference” between a life sentence and a death sentence, the Supreme Court stated that there should be a corresponding difference in the amount of attention given to the appropriateness of the punishment for offenders in capital cases.5 As a result, the consideration of the defendant’s character requires more resources at capital trials than at noncapital trials, making capital sentencing a target for critics who argue that criminal defendants receive too much attention generally. In the late 1980s and early 1990s, the Supreme Court took up the question of whether the inclusion of victim testimony in capital sentencing might correct this perceived imbalance. Some states had incorporated victim testimony into capital trials, generally following the procedures established in noncapital criminal proceedings. There was one large difference, however. The deceased victims themselves could not testify, so friends and family were permitted to speak for them in some jurisdictions. These “covictims,” as they began to be called, were asked to submit written statements to jurors, while others were encouraged to testify in person. In other jurisdictions, co-victims were not allowed to participate at all. Facing pressure from both victims’ advocates who wanted increased access to courts, and defense advocates who argued that victim testimony was inappropriate to the goals of capital sentencing, the US Supreme Court addressed the states’ varied use of victim testimony in 1987. In Booth v. Maryland, the Court reviewed a capital trial in which two men were convicted of robbing and murdering an elderly couple in their home in the middle of the night. In a 5–4 opinion, the majority held that

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VIT was irrelevant to the character of the defendant and the circumstances of the crime and therefore inappropriate at sentencing. The majority concluded, One can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.6

The Court also stated that VIT risked violation of the Eighth Amendment. Death sentences might be imposed arbitrarily, based on the victim’s character. Victims were therefore barred from presenting written or oral statements to the trial court about the harm done to them as a result of the murder. Two years later, the Court also banned the use of VIT to tell jurors about the good personal qualities of the victim, in South Carolina v. Gathers. But this defense victory was short-lived. As victims’ rights were increasingly institutionalized in noncapital criminal proceedings across the country, the call for their inclusion in death penalty trials became louder. Four years after the Booth decision, in 1991, the Supreme Court again accepted a case that addressed the rights of victims during capital sentencing. This time the makeup of the Court had changed. Appointments by presidents Reagan and George H. W. Bush ensured that the justices as a group were more conservative. Accepting the petition of Payne v. Tennessee, the Court heard arguments about a death penalty trial that involved a brutal attack on a woman and two children. In another 5–4 opinion, the majority sided with victims’ advocates. The majority opinion stated in no uncertain terms that co-victim testimony should be admitted during capital sentencing. The decision emphasized that VIT serves to give jurors more information about the “specific harm” caused by the defendant, a type of evidence “long considered by sentencing authorities.” It went on to reason that VIT was appropriate to capital sentencing because it balanced the capital defendants’ right to present character evidence at trial, explicitly overruling the Court’s previous decision in Booth v. Maryland. Consequently, a new era in capital punishment sentencing was ushered in. Victim impact evidence was meant to describe the harm done and bal-

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ance the testimony describing the defendant’s character. In the twenty years since Payne was decided, nearly all states that authorize the death penalty have allowed the use of victim impact testimony at trial. Today twenty-seven out of twenty-nine states with the death penalty explicitly permit victims to give written or oral statements to the jury. The two that do not explicitly allow it (Kansas and Montana) have ambiguous policies.7 As I will show, much of the audience’s focus throughout sentencing turns on the emotions of the surviving victims and their supporters who are present in the courtroom. Victims’ supporters hold the potential to intensify the feeling of capital courtrooms in a way that other groups do not.

mou r n e r s i n t h e c o u rt : s pa c e , a c t i o n, a n d relat i o n s h i p Appellate courts rely on trial transcripts to determine whether trials all over the country violate legal precedent. This reliance on transcribed material systematically erases information that could be used to form a more reliable evaluation of many aspects of death penalty sentencing. I argue that victim participation is especially misrepresented when reduced to transcription. In practice, as I show in the passages below, victim participation in capital trials scarcely resembles the vision penned by the Supreme Court. For one, the emotional content of victim testimony is drastically tamped down through the process of legal transcription. VIT is rendered almost lifeless when separated from the tone, facial expressions, and body language of a grieving witness, as well as the audience members’ and jurors’ responses to that witness. Second, victim testimony focuses attention entirely on the co-victims’ time on the witness stand, but their presence in the courtroom during the trial can be far more expansive. Co-victim attendance often dominates the audience dynamic and permeates other areas of trial testimony. Ethnographic observations of capital trials reveal dynamics that render the Supreme Court’s decisions in Payne and Booth uninformed. To demonstrate the difference between appellate record and the live courtroom, I begin by describing how VIT reads after it has been transcribed, drawing on the transcripts I acquired from five cases I observed. I then detail how victim participation in death penalty sentencing works from an observational perspective.

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VIT Transcribed In the five transcripts I obtained, the prosecutor’s case for death began by calling between two and six co-victims to testify about the victim’s character and the impact their loss has had. The examples below capture the essence of this testimony. By and large, VIT features three types of testimony, in which common narratives are shaped with details specific to the victim. First, there is a positive, even “angelic” portrait of the character of the victim. Here the best friend of a murdered university student described the victim: He was an angel. Really. I know that people say that about lots of people, but he was really the nicest person I knew. He would do anything for me. And he loved his nephews. They were always talking about him.

Second, a loved one describes the last time he or she heard from the victim. At another trial, the mother of a victim described the last time she spoke to her daughter on the phone: She called me a couple of days before she got killed; she said, Mommy—the phone rang, must have been about 11:30—that was unusual. I started not to answer it, but when I heard her voice on the answering machine, Mommy, I pick up the phone. She says, I just called you to tell you I love you. . . . Next thing I knew, the detectives was at the door and they was telling me she was shot.

Finally, co-victims testify about the effect of the loss on their family. Here another mother testified about how her family’s life was affected by the murder of her oldest son: My family is just crushed. My younger son has said none of us look the same, none of us sound the same. I know it’s only been just a little over a year, but we’re just not the same family. We’ll recover. We know he’s with the Lord and we’re going to see him. It’s not that. It’s just that for now, it’s a very hard recovery. It was so sudden and tragic. He had just recovered from cancer. Spent a year fighting cancer. And after all the struggles he had, and he just was about to realize some of the benefits of all that he had worked for and then he—it was all over.

These are typical of VIT, though they are considerably abridged; the above paragraphs are embedded in forty, fifty, and seventy-odd pages of transcribed victim impact testimony, respectively.

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After co-victims testify, prosecutors typically revisit their testimony during closing arguments. Prosecutors commonly ask jurors to take into account the suffering that the defendant has caused the friends and family of the victim, evoking specifics of victim impact testimony. In the case of the murdered daughter, above, the prosecutor told jurors, Focus on the unspeakable hell that he [the defendant] put those families through . . . because of that man, because he decided to go hunting on the streets of this city, those people’s families have nothing left to hug but memories, and we’re asking you to remember them.

Thus, from the trial transcripts, readers are most likely to conclude that the victim of the murder was a good or even exceptional person, that the family and friends of the victim have suffered greatly, and that the jury should consider these survivors’ pain in their decision about the defendant’s sentence. Together, these elements reflect a potentially moving account of loss and suffering, as the Supreme Court might have intended.8 VIT in the Courtroom Legal transcription captures little, however, of the totality of co-victim participation in death penalty sentencing. Co-victims and victims’ supporters are involved in multiple relationships in the courtroom, visible to anyone in attendance. They testify, but they do much more. It is worth mentioning that one relationship that was surprisingly absent from the majority of victim interactions was one between the co-victims and the defendant himself. From fictional accounts of criminal trials, one might expect a confrontation between these two parties. And though I did see two defendants read statements of remorse, at times addressing the victim’s family directly, I did not witness any dramatic interaction between these two groups beyond this. For the most part, expressions of anger and sorrow were mediated through other relationships. I did observe, however, testifying co-victims relating with lawyers, audience members, and jurors in ways that were not recorded in transcripts. To the best of my memory, in all but one trial I observed, co-victim witnesses cried on the stand. In at least two, they sobbed and had to take breaks to compose themselves. Tissues were routinely handed to them, as

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were glasses of water. Their pain was not just described but reenacted in front of jurors, judge, and audience members. These performances were met with almost universal empathy from the people in the courtroom and were not transcribed. Audience members cried, passed tissues, held hands, and comforted one another. I saw jurors weep. Indeed, I was also impacted. I cried. I questioned my ethical position vis-à-vis criminal punishment and the research I was conducting. But on reflection, I noticed that the content of the testimony did not affect me as much as the co-victims’ performances. One witness, a grandmother, described how her two grandchildren lost their mother and how difficult their adjustment had been as they came to understand what had happened. Her testimony, I am ashamed to say, did not move me at all. Another witness—a neighbor who had been close to the murder victim— described how her everyday routine had shifted, and I welled up within seconds. I was moved to tears on more than one occasion for reasons I did not expect. Though I have never experienced a violent attack on a loved one, I found myself flooded with memories of lost loves and lost opportunities while listening to other peoples’ stories of loss. In the case above in which the father read a poem about his dead daughter, a defense attorney even called attention to his own crying. After the father read the poem, the lead defense attorney stood up and asked the judge for a mistrial. He said that “people in the courtroom, most notably at the defense table, most notably myself,” were visibly moved by the testimony and the jurors might have been affected by seeing them cry. He said he thought his crying might have even been “de facto” (in itself ) ineffectiveness of counsel. The judge told him to sit down, muttering that the defense counsel was a “fool.” This could have been a defense tactic, taught to the lawyer at a capital trial training seminar, but I did not see it repeated in any other trials, and I too found the father incredibly moving. Regardless of whether it was a tactic, it called attention to the phenomenon that was never captured by legal transcription: victim impact testimony was often heart-wrenching for everyone in the courtroom, including audience members, attorneys, and jurors. Sometimes we audience members witnessed performances that hit their mark. We felt for the witnesses. Other performances were less effective, and I could not see any quality having to do with relative harm that separated one from the other.

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Two performances that were especially effective stand out. In two trials, audio/video recordings were used to describe, or as one prosecutor put it, “memorialize” the victims as part of the victim impact testimony. I had heard about this when I worked in Louisiana but never experienced it. With a co-victim on the stand, the prosecutor dimmed the lights and lowered a screen. From a projector, montages of the victim in various settings played. One featured the victim singing in church, at a birthday party, and finally at home with his children. Music played over the top, and jurors were riveted. In one of these trials, sniffles began to be audible in the audience and the attention in the courtroom divided. I watched jurors’ eyes move back and forth between the video and the victim’s supporters in the courtroom as they wiped their eyes, whispered to one another, and pressed close together in their pews. When the video concluded, all eyes turned to them, asking for cues from the victim’s supporters rather than from the judge’s instructions as to how they should react. There was little question that they deserved the respect of the room, as mourners do. Co-victim impact did not stop there. Victim supporters’ participation in capital trials extended beyond giving formal testimony. The presence of co-victims influenced the courtroom dynamic constantly—even when they were off the stand. Co-victim presence structured interactions between audience members, legal teams, court staff, and media, even judges. Consider the spatial layout of criminal courts. Activity is organized by the material and symbolic demarcation of the “front stage,” where the action takes place, and the audience pews, where onlookers reside. This division is generally marked by a knee wall outfitted with a swinging door to allow access between the two arenas. Front stage actors include the judge, who sits front and center on a generally raised bench, with court reporter and clerk desks beside it; defense team, with defendant, and prosecution team seated at identical tables on either side; and the jury typically seated in a cordoned-off box or other enclosure. Presence on the front stage commands not only the audience’s attention but also the law’s. Court stenographers capture only those verbal exchanges that take place on this front stage, except in the unusual event that front stage actors bring attention elsewhere. Though the audience is an active force in the courtroom, its dynamics are entirely absent from the activity as recorded in transcripts. Co-victim participation is therefore only considered by

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appellate courts when victim supporters enter the front stage to sit in a witness seat. In my observations, though, victims’ supporters in capital trial courtrooms were almost as dominant a force off the stand as they were on. To be sure, they were not the only group to command attention apart from officially recognized activity. I regularly made note of action driven by the judge, attorneys, jury members, defendant, or courtroom staff. But time and again I also found myself drawn to the dynamics of audience members, composed mainly of the victim’s friends and family. During capital trials, audience members are normally seated on wooden benches arranged in divided rows like church pews. This space was divided formally or informally, whether by implicit agreement, ragged pieces of paper taped on the ends of rows of benches, or by professionally produced signs standing at the courtroom entrance indicating seats reserved for “Media” and “Victim’s Family.” Even in courtrooms without formally marked divisions, audience members divided themselves. The victim’s family and friends sat in the pews nearest the prosecutor; the media, if any, gathered in a less prominent area toward the back; and the rows closest to the defendant held defense supporters, if any were present. In all of the trials I observed save for one, victims’ supporters greatly outnumbered defense supporters. This setup was not incidental. The division of the sides structured an unspoken dynamic in the courtroom that was felt by anyone who entered. In one trial, I noted how the conduct of visitors who were alien to the courtroom setup revealed the strength of its invisible orchestration. On entering, unfamiliar visitors were likely to sit down in the first available row. After sitting for a few moments, they would glance around and examine the room. Visitors became visibly discomforted when they discovered themselves to have unwittingly taken a wrong position in the space. One man found himself sitting in the defense section when he meant to support the prosecution. He caught the eye of the victim’s advocate—a professional from the prosecutor’s office—and quickly realized that she was keeping charge of the victim’s family. He fidgeted, waiting to reposition himself during a break, and then finally snuck over to the appropriate row, nodding at the advocate like a child eager to be acknowledged for his good behavior. As an observer I also experienced a difference in attitude toward me, depending on where I sat in the courtroom. Though I would always intro-

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duce myself to audience members and legal actors as a “graduate student writing about murder trials,” my position was perceived differently depending on where I was seated. In one trial, I sat with the defense supporters, who were mostly young legal clerks. Though I shared the courtroom, lobby, elevators, and cafeteria with the co-victims and victims’ advocate for several weeks, none of these people ever made eye contact with me. They acknowledged my presence only with hostility. When we came upon one another, they averted their eyes, changed topics of conversation, fell silent, or walked away. It never felt appropriate to introduce myself, and I remained vigilantly formal and distant. In other trials, when I sat with victims’ supporters, I was usually able to have conversations with family members and friends of the victim. This was easier when victims’ supporters were in smaller groups of two or three and not accompanied by a representative from the DA’s office. One conversation made especially clear to me how much anger simmered under the surface between the two groups. During an afternoon break, I found myself washing my hands next to the wife of the victim in the bathroom nearest the courtroom. We could not help but interact as we both reached for the paper towel dispenser, and I said, “I’m so sorry for your loss . . . I can’t understand what it must be like going through this.” Having wet her face from the faucet and in the process of mopping her eyes with a paper towel, she shook her head violently and replied in a voice that felt too loud for the space: “What I don’t understand is how anybody could represent that slimeball!” I was not surprised by this burst of anger, as I could see it smoldering in her gestures and expressions in the courtroom as I sat nearby. But I was surprised that her anger was directed at the defense team and not the defendant himself. The hostility I had experienced as part of the courtroom was fostered by an aspect of the legal procedure itself.9 Victim and defense supporters were not only spatially separate. Groups also formed separate internal patterns of behavior. In most courtrooms there were far more victim supporters than defense supporters. Victims’ supporters also tended to look more organized and better prepared for their appearances. Here, for example, in a trial where supporters of the victim and supporters of the defendant filled the courtroom, I made notes about the audience members settling in one morning at the beginning of the penalty phase:

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The scene in the courtroom is more chaotic and noisy today. Attorneys and staff are searching through document boxes and the audience seems more crowded and talkative than they did during the guilt phase of trial. Then the judge enters suddenly and a bailiff calls the court to order. Everyone quiets down, stands up, and sits back down when the judge gestures. There is a short pause while attorneys and courtroom staff finish shuffling their papers. The judge looks like he is polishing his glasses. I hear the courtroom door open behind me, and turn around to see a slight teenage boy wearing a huge red T-shirt down to his knees and black shorts almost touching his ankles framed in the doorway. He pauses for a moment, surveying the scene with a scowl, and then walks a slow, deliberate lope down the center aisle of the audience. He doesn’t stop until he comes almost to the knee wall separating the audience from the front stage. He turns to face the packed front row and then waits, arms folded, standing next to a sign marked “Defendant’s Family.” The women at the end of the row gather their bags and jackets into their laps to make room for him. They squeeze together, and he sits down. I then notice that a skinny and tense-jawed young woman carrying a sleeping infant is behind him. She is blatantly glaring at the judge and jury. She looks like she wants to kill them, and I assume she is a family member or friend of the defendant who is angry at the conviction. The people in the row squeeze together more to make room for her. The courtroom door slams shut. Many eyes follow these actions. On the other side of the courtroom, already seated in a section of the audience marked “Victim’s Family,” is a group of several dozen professionally dressed people. A few have been in the audience all along, but most are new. Also new today is their attire: they look more formally dressed and each has a pin about six inches in diameter fastened to the left side of his or her shirt. On every pin is the face of a smiling young man: the victim. Collectively this group appears solemn; anticipatory but also nervous. The prosecutor offers his opening statement and calls his first witness— one of many co-victims to testify. As the morning progresses, defense supporters are agitated and fidgety. Groups of two or three of them walk in and out of the courtroom with some frequency, banging the door each time. Victim supporters alternately laugh, cry, and nod along with the victim impact testimony. They put their arms around each other and enter and exit the courtroom en masse, only during breaks. By midmorning, several jurors look to be crying as victims’ family members continue to testify. At some point the prosecutor puts a box of tissues on the knee wall in front of the jury, and the victim supporters are passing around tissues of their own. Just before noon, as his last piece of evidence, the prosecutor plays a recording of the victim’s last call to 911. Upon hearing the victim’s voice, two women sitting in the “Victim’s Family” section begin sobbing loudly. Jury members’

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heads jerk toward them, looking wide-eyed like deer caught in headlights. A few women in the defense family section jump up. The judge instructs the jury to disregard the sobs and to exit quickly for lunch as the state rests its case.

Several things are evident from this scene. First, audience dynamics play a central part in the courtroom action. People entering and exiting the court, moving in their seats, or (of course) crying all draw the attention of others in the room. Second, defense and victim supporters form separate and contrasting groups. In this trial, the defendant’s family and friends gave off the impression of being angry with and defiant toward the court and the jury. While some of the older women who sat in the front rows dressed and acted respectfully toward the court, the younger defense supporters made their angry feelings apparent. In contrast, the victim’s family and friends were uniform in their presentation. They appeared organized and established, almost at home in their individual and group expressions of anguish. These dynamics were noticeable to everyone in the courtroom but did not make it into the legal record. And because their actions were not preserved as issues on the record, they subsequently become institutionally invisible, unavailable for review by appellate courts or scholars. In fact, the use of VIT organized a show of compassion for co-victims by many groups of actors in the courtroom. Not only were audience members and jurors openly emotive when co-victims testified, but courtroom staff and judges visibly supported victims. This went beyond discreet looks of empathy, glasses of water, and pats on the arm, which were plentiful and understandable. In many trials, the court as an institution seemed to grant legitimacy to the victims’ position. A victims’ support person, employed by the prosecution’s office, was present in the courtroom in about half of the trials I observed. Like mitigation specialists who work with capital defense attorneys, victims’ advocates appeared to play a supportive but subservient role to prosecutors. In all cases female, these women functioned not only to comfort and organize victims’ supporters but also to legitimize the group’s position in relation to the judge. The group’s institutional legitimacy became apparent by watching victims’ advocates move through the courtrooms. The barrier between audience and front stage marks the division between the legal players and the public. In larger courtrooms or where

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there is extensive publicity surrounding a particular case, I saw this barrier guarded by bailiffs or uniformed sheriffs. Court reporters, judge’s clerks, bailiffs, and attorneys working the case have ongoing permission to enter and exit, whereas witnesses are admitted only when they are called to testify. All others respect the division. Those who are admitted appear to have privileges granted by the court, marked in space in a way that the audience and the jury can observe. In some cases, victims’ assistants were privileged in this aspect, free to walk into and out of the front stage area like one of the clerks or judge’s clerks. This reinforced the co-victims’ legitimate position in the courtroom in a manner that I never saw legitimized for mitigation witnesses. The notes I made about one of these women brings to mind an intimidating schoolteacher from my youth. I remember the victim advocate as entirely in control, firm, and confident in the space that I found more difficult to negotiate: A woman with the efficient air of a schoolmarm accompanies members of the victim’s family at all times, sitting with them in the audience in the courtroom, and talking with them when court is not in session. During the state’s case for death, she holds a witness list and walks between the prosecution table and the audience. She silently and verbally organizes family members and their supporters, gesturing for them to sit, and whispering quietly when something is confusing. The judge sees her entering the front stage area and does not scold her as he did when an unauthorized witness stepped in before. The victims’ assistant is not reprimanded for talking while the court is in session, or for walking in and out of the courtroom at will. There is no equivalent on the defense’s side.

Even the judge seemed cowed by this woman, I remember. Her presence, and those of other victims’ assistants in capital sentencing, elevates the status of co-victims and their supporters in the courtroom. Observers see not only victims’ assistants’ gestures and intentions, but also that they are condoned by the trial judge. This gives victims’ families an institutionally supported role in the proceedings, regardless of whether they testify. In contrast, I never saw defense advocates given these type of privileges. Sometimes defense attorneys or mitigation specialists sat with defendants’ families. They too would explain what was happening and organize those who were called to testify. Rather than receive support from the judge or court staff, however, I only saw these figures repri-

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manded for talking during session. In one trial a defense lawyer brought attention to what he perceived to be an injustice. The trial involved a murdered policeman, and the first day brought an audience of dozens of police, some in uniform and some not. The defense attorney objected to the presence of so many uniformed officers, who occupied both sides of the courtroom, on the grounds that the “sea of blue” would intimidate the jury. The defense supporters, who were few in number, were lost among this “sea.” The prosecution argued that the audience was “diverse” and that the blue uniforms did not stand out and could not therefore prejudice the jury. The judge allowed the audience members to stay as they were, and they remained majority “blue.” Not only did the judge rule against the defense, but his ruling added to an especially combative atmosphere during the remainder of the trial. Rather than sympathizing with the plight of the few defense supporters, victim supporters in the audience seemed angry that their presence was questioned. On reflection, I realized that I myself had been fearful of co-victims’ anger when I worked as a defense mitigation investigator. Whether investigating the defendant’s background in a small town or facing victims’ supporters in a courtroom, I can remember a sense of defensiveness and even shame. I wanted to make sure that co-victims knew that my advocacy for a defendant did not negate my ability to empathize with them.

disc u ss i o n Victim participation in practice involves a greater number of more complex relationships than are apparent in trial transcripts. In the trials I observed, it shaped interactions among audience members, jurors, defense supporters, and nontestifying victim supporters. This has consequences not addressed in the Supreme Court’s decisions or in academic discussion of victim impact testimony.10 My observations demonstrate that the institutionalization of victim participation creates a social rite of mourning in the courtroom. In almost all of the trials I observed, the focus is not so much on the character of the deceased but on the emotions of the surviving family members and their supporters. Though the deceased victim’s character is praised during

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portions of victim impact testimonies, more time and attention is focused on the well-being of the victim supporters who sit in court. In the most emotionally powerful trials, the victim is memorialized in a way that provides catharsis for friends and family. Their grief, in turn, becomes part of and in some cases the dominant tone in the courtroom. The mourners, rather than the judge, lawyers, or defendant, provide emotional cues that command much of the courtroom’s focus. This attention paid to victims’ supporters is not surprising given the cultural role of mourning. Expressing sorrow in reaction to a loved one’s death is an old and universal ritual, and mourners are given a special status and dispensation across cultures. From the Aboriginal Australian tribes described by foundational sociologist Emile Durkheim in 1915, to mothers mourning their dead infants in twentieth-century Brazil as reported by Nancy Scheper-Hughes, mourners do more than express spontaneous emotion. They hold a powerful potential to organize community sentiments. As Durkheim would have it, the ritual congregation of mourners and those who support them affirms their unity: When someone dies, the family group to which he belongs feels itself lessened and, to react against this loss, it assembles. . . . Not only do the relatives, who are affected the most directly, bring their own personal sorrow to the assembly, but the society exercises a moral pressure over its members, to put their sentiments in harmony with the situation. . . . A family which allows one of its members to die without being wept for shows by that very fact that it lacks moral unity and cohesion: it abdicates; it renounces its existence.11

Thus, victims’ family members, their supporters, and even those who do not know the family but who witness their mourning might be said to be under an obligation to support the rituals. Whether at a funeral or at a capital sentencing hearing, witnesses to grief are socially compelled to show empathy with the mourners. This show of unity affirms a core element of Western culture, and to do otherwise is to allow the hurt family to feel lessened. Those who do not display empathy are judged to be cold or inadequate, so it is little wonder that an entire courtroom shows respect to those who have lost a loved one. As such, institutionally sanctioned acts of public mourning during death penalty trials have the potential to culturally compel spectators to

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support victims’ family members. When a successful performance of mourning is coupled with a prosecutor’s argument to honor the victim’s family, the appeal for execution is equated with an entreaty for a strong community. The institutionalization of these rites has other consequences. For one, victim impact testimony reifies the privilege (or lack thereof ) that covictims carry with them outside of capital courtrooms, rewarding those co-victims who have the resources to perform a “successful” mourning ritual. The Payne court reasoned that VIT balances mitigation evidence, that the uniqueness of the victim should be introduced in a way similar to that of the defendant. But decisions such as these imagine crime victims to be a homogenous bunch. Not all victims of crime have families who can successfully perform mourning in front of a room full of strangers. Crime victims have become idealized subjects of the law in contemporary justice politics, imagined to be white, suburban, and middle class. Thus judicial and legislative benefits for survivors of crime are crafted to support such imagined victims.12 But grieving the loss of a loved one takes all kinds of forms, from celebration to seclusion to public parading.13 These are not rewarded in court. The victims whom I observed as most successful in their performance of mourning conform to heterosexual, middle-class, Western norms. They display minimum anger; they cry in a controlled manner; and they associate with a family group who is similarly situated. In Booth v. Maryland, the Court is concerned that institutionalizing VIT creates a risk that some victims will receive more sympathy than others. It asks whether victims’ ability to articulate their feelings should have bearing on the defendant’s sentence. My observations suggest that this concern is warranted. Empirical studies show that jurors differentiate between victims who are “worthy” or “unworthy” of sympathy, because of victims’ race, gender, and social status.14 Experiments confirm that mock juries share the tendency to sentence more harshly if they can personally relate to victims, but this is far from conclusive.15 Regardless of how worthy of sympathy any one capital victim or their family may be, the way worthiness is judged here is in staging and performance. It is difficult to see any way that fits with the constitutional imperative of equal protection.

Conclusion

Criminal punishment is meant to distinguish between those who have acted in illegal ways and those who have not. But it is impossible to pretend, in the twenty-first century, that this is what the US criminal justice system accomplishes. Increasingly, the American public is becoming aware of the ways justice is instead curtailed at every step of the process. Anyone who recognizes the routine news stories of police violence, has read Michelle Alexander’s The New Jim Crow, watched the Netflix documentary 13th, or listened to the podcast Serial cannot avoid concluding that the system fails in that regard. Capital punishment, though not nearly as common as the everyday criminal justice inequities that are catastrophic for millions of Americans every year, is held to be one of the areas in the US criminal justice system where punishment is done right. From the nightly news to Supreme Court opinions, capital punishment is a symbol of justice accomplished. Our database of capital trials includes hundreds of media sources in which prosecutors tout capital convictions as just—something they cannot do very easily when 90-plus percent of criminal convictions are reached without a jury or significant legal review. In the words of Justice Sandra Day O’Connor, modern capital sentencing takes “extraordinary measures” 185

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to ensure that the country’s most extraordinary punishment is not used for “whim, passion, prejudice, or mistake.”1 This is a tall order and one that cannot be accomplished within the current system. Despite its stated intention to rid capital sentencing of its historical biases, the institutionalization of modern capital sentencing does not target the worst of the worst but rather those few whose extreme punishment serves elite ideals of criminality. In the first part of the book, I documented the long and complicated method by which capital defendants arrive at trial. Despite its lack of criminological rationality, that method does have an identifiable logic. When looked at as a whole, the capital narrowing process works to demonstrate the colonial belief that criminal violence is found in people who fall outside white, capitalist norms. This includes facilitating states to define the classes of defendants who are eligible to face capital punishment, as well as victims who are worthy of enhanced penalties on their behalf. It also includes states’ freedom to structure (or not structure) indigent legal representation, in juxtaposition to prosecutors’ near-absolute autonomy. The result is the positioning of poor people, especially poor young men of color in particularly punitive, economically and racially stratified states, to be tried capitally. This has been demonstrated by critical legal and social scientific scholars repeatedly throughout the late twentieth and early twenty-first centuries. But because these problems are not limited to the capital punishment system, because they would necessitate the wholesale reorganization of criminal sentencing in the United States, laying bare the system’s logic has failed to catalyze major change. In the second part of the book, I showed how these “structuring structures,” as Bourdieu would have it, are rendered invisible by a process that simultaneously reifies capital defendants’ systematic disadvantage and obscures it. The institutionalization of lay jurors as the ultimate arbiters of capital defendants’ sentences does not solve the problem of inequality. Rather, the Supreme Court decisions in the 1970s generated a field that requires legal–social scientific evidence to be performed for evaluation by an audience that agrees to ignore its biases. Four of the most common repertoires of practice in capital courtrooms—recruiting “punitive citizens” as jurors, narrating defendants’ childhoods, predicting their future acts, and witnessing the mourning of victims’ families and friends—hold little

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value for separating the “worst” defendants from those who deserve mercy. Instead, the centrality of such practices is explained by the penalretributive necropolitics of the twentieth century. Courtrooms are white spaces, suffuse with expectations of white supremacy.2 The jury’s perception of dangerous criminality can be tempered—as some of the best capital defense cases demonstrate—with middle-class, heteronormative performances. But the expectation of capital sentencing is to kill. Impoverished men of color especially do not need to be proven worthy of this fate, and especially not to “death qualified” jurors. In the words of Orlando Patterson, this aspect of the carceral system, like many others, “officially solidifies the centuries-old association of blackness with criminality and devious violence.”3 Even for those capital defendants who identify as “white,” the label of criminality affixed at trial imputes them with blackness.4 Capital sentencing determines one of two methods to dispose of already dehumanized humans: a life in prison or death by execution. But assigning one of these two punishments—regardless of whether it is a life imprisoned or death by execution—functions not only as a tool to dispose of individual offenders. Capital sentencing trials are also tools for solidifying collective cultural meaning. An orderliness of the world is established by putting people and events into categories, and blame activates a distinction between a worthy “us” and an unworthy “them.”5 The process of assigning one of two extreme punishments to the “worst” violent offenders suggests that death penalty sentencing trials, taken as a whole, provide a process by which society, when doing such an extreme act, is establishing that it has the categories right. The categories, however, are flawed. Built on the economic, scientific, political, and social logics of racism, capital sentencing cannot be separated from its heritage. Heaping more knowledge, more performance, more expertise on such problematic logics does not correct them. After all, the principles of racialized criminality also constructed the liberal principles of punishment on which the procedures rest. At the end of my time as a capital defense investigator, I found myself huddled on the edge of a bare metal bunk bed in a prison cell at the Louisiana State Penitentiary. “Angola” prison, as it is called, was originally incorporated as a slave plantation and retains its name for the country where the majority of the plantation’s slaves originated. It is the largest

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maximum-security prison in the United States.6 The rooms usually reserved for legal visits were all occupied, so Albert and I were put in an empty cell to talk. We were slightly hunched, I remember, facing out side by side, with not enough distance between the top and bottom bunk for either of us to sit up straight. Albert, whose case I outlined in the book’s introduction, told me it was the “suicide-watch” cell, which the guards normally use to observe any death row inmate they think might be in danger of killing himself. Preventing death in a system designed to ensure death is absurd, of course. But it also illustrates the necropolitical power of the state, not just to kill but to orchestrate every detail of the lives under its punitive control, up to and including death.7 Though I was only an investigator, a lawyer’s helper at age twenty-five, that day it was my job to convince Albert that he should give up his legal appeals and accept a plea offer from the district attorney. In exchange for never again challenging his conviction for capital murder, Albert would be removed from death row and given a life sentence without parole. This was what the people in our office had worked hard for: Albert would get a sentence that was equal to his parraine’s. Yet I was distressed, but not only because I was in a suicide-watch cell on death row. My job was unbearable—to advise a man only a few years older than me, with a wife, parents, and children, to sign away any hope of ever leaving prison. There is no escaping that Albert fired a gun that ended another person’s life. It created the kind of pain that I would not wish on anyone. Yet I was able to experience his humanity, and saw that killing him—or sentencing him to a life confined to imprisonment—made little emotional sense. Sitting in a small space with someone who has done a terrible thing leads to a fundamentally different judgment of that person from that of a capital sentencing procedure. This leads to two conclusions, one that is more academic and the other less. First, a core concern of sociologists has been the ways in which institutionalized interactions suffer from a lack of humanity. The study reported here should reinvigorate courtroom ethnographers who are concerned with the institutionalization of criminal punishment procedures, even and perhaps especially those procedures purported to correct the most egregiously biased legal practices. Capital sentencing is not the only scene where performative, social science expertise and complicated crimi-

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nal statutes interact. Interest in and funding for new “problem solving” courts are growing: mental health courts, drug courts, teen courts, homeless courts, fathering courts, and others are taking hold across the country.8 These are cognizant attempts to move away from the sort of mass dispensation that still dominates criminal processing in the twenty-first century. Like capital sentencing, they involve attempts to look behind criminal acts to address “root causes.” Yet while these new organizational forms might disrupt some of the most egregious staples of racism and classism in criminal justice processing, they are no panacea. Rather than evaluate these in comparison to the worst the system has to offer, as so much of the literature does, performance theory can force into relief the callousness of even these arenas of criminal justice “reform.” Ethnographers should ask, What are the best ways that the causes and effects of violence might be communicated? How do people hope to best conduct themselves when they must confront someone who has hurt them? How are human frailties explained in nonlegal performative settings? How do artists move audiences to feel empathy for flawed, even criminal characters? And what can we learn by comparing these potentialities with the restrained communicative acts allowed in court settings? The second conclusion is that there is no repairing or reforming a capital sentencing process in the United States. The solution is abolition. I can do no better than to quote Angela Y. Davis in her classic work on prison abolition. Professor Davis wonders why it is “difficult” to imagine what the United States might do with the more than two million people imprisoned today, or the millions of others under additional types of criminal justice control. In keeping this group subjugated, whether waiting execution or spending decades incarcerated, we ignore that race and class are the primary determinants of punishment. To instead take seriously the project of pulling apart the “symbiotic relationship among correctional communities, transnational corporations, media conglomerates, guards’ unions, and legislative and court agendas” that sustains this condition, we would not be looking for prisonlike substitutes for the prison, such as house arrest safeguarded by electronic surveillance bracelets. Rather . . . we would try to envision a continuum of alternatives . . . a justice system based on reparation and reconciliation rather than retribution and vengeance.9

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To envision a justice system that excises these too-old and too-failed arrangements, I join others who call for an “emotionally intelligent” justice.10 The criminal justice system is meant to mark off those who cause cruelty. But in recognizing only some types of suffering, it also erases the ways cruelty and misrecognition are written into Anglo-colonial law rather than incidental to it.11 Advocates for a humane system should not take lessons from the “super due process” of capital punishment, in which jury involvement or increased judicial oversight is meant to cure the system’s ills. While I admire scholarship about reinvolving “publics” as a way to restore some humanity to criminal justice, I do not think scholars should look to capital trials as models.12 Instead, we must look to organizations that are working today to reimagine the system from the ground up. Groups such as RJOY, INCITE, and the Center for Community Alternatives create positive rather than destructive relationships in justice settings. And as prison abolitionists point out, there are many ways to create the conditions under which mass incarceration becomes unnecessary. Disrupting the school-to-prison pipeline; strengthening healthcare— including mental healthcare; creating opportunities for young people to have voice in their communities: all of these should be the types of solutions posed to criminal justice processing as usual.13 Strangely, after the mostly brutal experience of observing capital sentencing, I cannot help but finish with a little bit of faith in human kindness. I do not think it is our nature to be cruel; rather, our liberal democratic justice arrangements facilitate the worst that humans have to offer. Outside the courtrooms where I sat, I often marveled at how quickly participants in an inhumane legal process showed evidence of their many other social roles and commitments. Sometimes I was frankly disgusted at their seemingly easy ability to disregard the gravity of the incidents they had just been a part of. Clerks laughed with one another, lawyers gossiped, and witnesses complained about the difficulties of their travel. But one day when I was sitting just outside a courtroom during a break, I took note of a different sort of forgetting: There are only women sitting on these benches. Two young women—one who looks about seventeen, and the other in her twenties—smile at one another. The younger one is the victim’s sister, the older a friend of the defendant’s. They both have babies on their laps, their hands full with bot-

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tles and toys and bags. One says, “I like your shoes.” The other asks what kind of bottle the baby is using. I sit as they compare brands, chatting about the accessories of motherhood like old friends. I am momentarily stunned.

Capital punishment depends on the exacerbation of pain and exaggeration of conflict. Watching these two women shed the straightjackets of the courtroom’s expectations was a revelation. I did not imagine that they forgot the different types of pain they had each experienced, but instead that they could not help themselves from also experiencing their similarities. The criminal justice system can require a coming together of people into a room, after all. What if such rooms actually facilitated understandings of commonality rather than exploitations of difference?

appendix a

Methodology

I have conducted research for this book, on and off, for the better part of ten years. During that period, I also completed a PhD, moved across the country, got married, began a tenure-track job, had two children, and launched a new research project. Needless to say, I’ve been doing other things as well. This book is the result of a number of different types of research conducted between 2007 and 2017, as well as my experience as a capital defense investigator in the years before. In 2006, as a graduate student in sociology at New York University, I was the recipient of a doctoral dissertation improvement grant from the National Science Foundation Law and Social Science Program, with David Garland as my coinvestigator. I proposed to observe a “representative sample” of capital trials across the country, twenty in all. My goal was to achieve a theoretically informed sample of trials that would allow me to draw conclusions, not about a particular type of capital trial but about capital sentencing generally. In the tradition of multi-sited ethnography (Burawoy 2000; Falzon 2012), I would treat each trial as a site in a collective social world, bound not by space but by institutional logic. The literature suggested that capital trials vary in six meaningful ways, each with its own implication for my planned observations: 1.

By location. I planned to observe trials in some of the “big” capital trial states, such as Texas, California, or Pennsylvania; and to observe trials in states other than these, where the apparatus might not be as developed.

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2.

By crime circumstance. This meant the inclusion of capital trials with a variety of types of crime narratives, such as those in which multiple people are killed, the defendant is charged with rape or abduction, there is a home burglary, a police officer is killed, or others.

3.

By defendant characteristics. Defendants should be mostly if not all young men and vary according to race.

4.

By the race of the victim. Studies suggest that cases involving white victims are more likely to draw death sentences than those that involve nonwhite victims.

5.

By the type of defense counsel. Both “professional,” full-time capital defenders and part-time contract attorneys are hired to work in capital trials. Advocates for the defense argue that the different quality of work between these two groups accounts for differences in sentencing outcomes.

6.

By the setting of the trial. Observe some trials in urban and suburban areas, which produce the most death sentences, and others in rural settings.

This was an ideal, although I realized that I could not cover all combinations of these variations. It turned out that variation was not the biggest problem in beginning this research, for nobody knew when or where capital trials were to take place around the country. I confirmed this with others in the field, including representatives from the Death Penalty Information Center and the Bureau of Justice Statistics at the United States Department of Justice. National data on capital trials are sparse. There are multiple sources of information about murders, death rows, and executions but no systematic record of the death penalty trials that sit in between. Researchers do not have accurate percentages of death penalty cases that result in life sentences at trial, nor how the race of the victim affects jury sentencing nationally, for example. The Bureau of Justice Statistics collects extensive data on homicides, arrests, and prison sentences for convicted murderers; advocacy organizations such as the Death Penalty Information Center and Human Rights Watch amass extensive information on the people on death row and state execution processes; and the National Center for State Courts records all types of criminal sentences: but no national organization tracks when or where death penalty trials are happening around the country, nor their results. A few states and localities have begun to require such information, but there is no national compendium of information about death penalty trials in the United States. Without such detailed information, capital trial practices are empirically disconnected from the larger role of capital punishment; there is an absence of the data necessary to tie local trial practices into national trends. Informants I spoke with suggested that capital trials are difficult

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Figure 7. Calendar page.

to gather data on because each county in the United States conducts them differently. But this makes little sense: both the National Center for State Courts and the Bureau of Justice Statistics compile mass amounts of county-level data. For me this meant that gathering and tracking capital trial data would be part of my project. I created a calendar (a month of which appears in figure 7), set up an alert system through our campus’s news service and then later through Google, and used newspaper accounts from all over the country to keep track of trials. This meant paying attention to dozens of cases at once. First, I would identify a trial according to the defendant’s name and record its county and the trial stage on which the newspaper was reporting. Some were in progress and would be impossible to observe, while others were predicted to begin. I would then try to get in touch by phone with someone involved in the case, beginning with a court clerk or a judge’s assistant, hoping eventually to find what ethnographers call “key informants” to provide insider information as a way into the field. I assumed that people in the courthouse would have the most up-to-date information, but this depended a lot on the case, I learned. Some clerks, underpaid and disempowered, do little else than the minimum. I wound up contacting prosecutors, victim support offices, judges, capital defenders, and their staffs for assistance. In every case, one or more person provided invaluable guidance in this regard.

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For the first year, I conducted research from my base on the East Coast, staying with friends and family when the commute from Brooklyn was too long. Of the first trials I watched, one was a short drive up the coast to Connecticut and the second and third were a subway ride away. Though New York had already abolished the death penalty, the federal administration during that period was pursuing capital trials when the state would not. Today Connecticut too has abolished the death penalty. I also stayed in Washington, DC, to observe a case in Virginia; with my parents in New Jersey to travel to trials in Pennsylvania; and with friends in Chicago for a trial in a nearby Illinois town. During year two, I relocated to New Orleans and then to Austin. I drove from New Orleans to attend three trials in Louisiana and from Austin to observe five cases. From Austin I also flew out to Colorado in pursuit of a case scheduled to begin, only to find that the trial had settled once I arrived. All in all, it was a tremendously inefficient process. In all, between 2007 and 2009, I observed fourteen cases under the NSF grant, spending about eight hundred hours in courtrooms in Pennsylvania, New York, Connecticut, Virginia, Louisiana, Texas, and Illinois. I added two more to these in 2014, with the help of a summer research grant from Trinity University, and an undergraduate anthropology major named Erin Drake, who gamely took field notes, talked with experts, and kept me up-to-date on trial happenings when I could not be there. Jacob Metz-Lerman helpfully joined us for some of this. As listed in table 4, the trials I observed captured much of the diversity I had aimed for. One case involved an abduction and rape; five involved multiple murders (two of which were referred to as “cross-country killing sprees”); two victims were police officers; two defendants were charged in drug conspiracy cases; one defendant was an accomplice rather than the killer; seven crimes took place in the victim’s home; two involved shootings in public spaces; and three cases involved former girlfriends. Just over half resulted in a death sentence. The trials took place in the southern, midwestern, and northeastern United States. This mixture ensured that the practices I observed were not attributable to any one particular characteristic; they were not “southern,” or the work of “poor” capital defenders, or single-race victims. Instead, they represent the types of capital trials that take place all over the United States, in many different settings. This is not to suggest that my observations were exhaustive or ideal. The data and analyses culled from this research are the first ethnographic data compiled from multiple capital trials across the country. They are preliminary in this sense and are meant to open doors for further exploration. I think of the results as a starting place rather than an ending, and I welcome future scholarship that specifies or indeed challenges the ways I have interpreted the trials I observed. While at trial, I interviewed everyone I could: prosecutors, defense attorneys and mitigation investigators, victims’ supporters, courtroom staff, defendants’

appendix a. methodology

Table 4

Trials Observed Location

1 2

12

Northeast, rural Northeast, small town Northeast, small town Northeast, urban Northeast, urban South, suburban South, urban South, rural Midwest, urban Southwest, urban Southwest, small town Southwest, urban

13 14 15 16

Southwest, urban Southwest, urban Southwest, urban Southwest, urban

3 4 5 6 7 8 9 10 11

197

Defendant

Victim

Sentencing Outcome

Black male, 21 White male, 25

Black man White man

Death Life

Black male, 26

Black woman and child Multiple, black Two police officers White woman White man White woman White woman Two white men Multiple, white

Death

Black male, 19 Black male, 24 Black male, 20 Black male, 22 White male, 27 White male, 58 Black male, 19 White male, 23

Hispanic male, 32 Black male police officer White male, 44 Two white women Hispanic male, 35 White man Black male, 21 Two white men Hispanic male, 41 White police officer

Life Death Death Death Death Life Death Life Life Death Life Death Death

family members, expert witnesses, and members of the media. To compare my observations with the information available to appellate courts, I also obtained trial transcripts whenever possible. My ability to do so depended on the goodwill of the court reporters in each trial; transcripts are not generally made available to the public until the “official” record is filed, often months after trials conclude, and they can be prohibitively expensive. I was lucky to meet five court reporters who shared their electronic copies with me soon after I completed my observations. I used these to compare the official court record with the records I made as an ethnographic observer. Scholars of courts as organizations detail a host of factors that might influence criminal courts, ranging from external social and political forces to the particular dynamics of plea bargaining related to the internal goals of prosecutors’ offices. To capture the movement of people and ideas into the courtrooms, I was influenced by the “extended case method,” as envisioned by Max Gluckman and the Manchester School (see Evens and Handelman 2006). The extended case method emphasizes

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how all the various possible parties are mobilized to the case, and conceptualizes the event as a nexus of social relationships. In this sense my observations focused on the internal workings of the trial action but also on the multiple figures mobilized to action through social relationships, both personal and material. Part of the work of this project was to specify all the parties that come to the courtroom, along with the bunches of norms, rules, and procedures that they bring. I learned that this project’s scope was so vast that I would have to settle for an always partial view. I paid attention to the different frames and rhetoric that were being mobilized, the networks that produced the arguments that defense and prosecution drew from, and the bodies of norms shared by expert and lay witnesses alike, and I share with readers those that cohered the most clearly. By using this method, the study accomplishes two goals: first, to lay out how the practices of death penalty sentencing trials look; second, to theorize why they look that way. The study connects actors to situational contexts, and practices to institutional forms. But any ethnography must allow for the complicated and unpredictable reality of real-time action. People are not only defined by their “roles” or the norms of institutions; even if capital penalty trials look somewhat alike the country over, they always depend on the particularities of the defendant, jury, judge, and arguments as they are made. To capture these, I took copious notes and made drawings of the people and places I encountered. I transcribed these nightly and analyzed them along the way, engaged in the inevitable back-and-forth detailed by grounded theorists. In addition to this ethnographic research, I analyzed documentary media sources from three time periods. I read, coded, and inductively analyzed all available newspaper articles about capital trials during three separate time periods: 2005, 2012, and 2016. I chose these three time periods in part because of the resources available to me at those times, but also to track the decline of the use of capital punishment. During the first time period, I benefited from the goodwill of David McCord, who shared his data with me. David is at the helm of the AJS Capital Case, and his data are available at www.ajs.org/jc/death//jc_death.asp. In addition, he provided me by e-mail with data on life sentences handed down to capital defendants by jury in 2005. To collect data on 2012 and 2016, I depended on help from several talented undergraduate students, including Faith Deckard, Erin Drake, Frannie Kennedy-Long, Jacob Metz-Lerman, Michael Paniagua, and Lily Sorrentino, as well as the expertise of librarian Alexandra Gallin-Parisi at Trinity University. Together we scoured public records, including those available from death rows, nonprofits, and newspapers, and we triangulated these with information from public defenders and court offices across the country. The data were entered into SPSS and are being analyzed on an ongoing basis. In this area of the project, I benefited from colleagues Kathleen Denny and Ben Sosnaud. Readers can find the data, and are encouraged to make their own use of it, by visiting www.sarahbethkaufman.com.

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Finally, I integrated scholarship on performance and performance studies. The influence of this body of work began as an undergraduate at Wesleyan University, where Susan F. Lourie and others in the dance department taught me about the inspiring Judson School. At NYU as a graduate student, Rayna Rapp and Emily Martin introduced me to anthropology’s engagement with performance theory proper. Later at Trinity University, I was able to explore how my study of capital sentencing would benefit from a full engagement with this scholarship. Working with Stacey Connelly, Bill Christ, and Habiba Noor on a performance of our own, I understood the antiracist potential in artistic performance and couldn’t help compare ours to those much more racially problematic performances at capital trials. When Peggy Phelan came to Trinity and Rachel Joseph did me the favor of talking about performance, my analysis deepened. My editor at UC Press, Maura Rossener, then brought Patrick Anderson on to the project. He took the time to think seriously about my work as performance scholarship, helping me to shift my frame of analysis one last time. All of this resulted in a multimethod, interdisciplinary book.

appendix b

Court Cases Cited

Atkins v. Virginia, 536 U.S. 304 (2002) Batson v. Kentucky, 476 U.S. 79 (1986) Bobby v. Van Hook, 558 U.S. 4 (2009) Booth v. Maryland, 482 U.S. 496 (1987) Furman v. Georgia, 408 U.S. 238 (1972) Gideon v. Wainwright, 372 U.S. 335 (1963) Gregg v. Georgia, 428 U.S. 153 (1976) J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994) Jurek v. Texas, 428 U.S. 262 (1976) Kennedy v. Louisiana, 554 U.S. 407 (2008) Lockhart v. McCree, 476 U.S. 162 (1986) Morgan v. Illinois, 504 U.S. 719 (1992) Panetti v. Quarterman, 55 U.S. 930 (2007) Payne v. Tennessee, 501 U.S. 808 (1991) Penry v. Johnson, 532 U.S. 782 (2001) Powell v. Alabama, 287 U.S. 45 (1932) Proffitt v. Florida, 428 U.S. 242 (1976) Roper v. Simmons, 543 U.S. 551 (2005) South Carolina v. Gathers, 490 U.S. 805 (1989) 201

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Strickland v. Washington, 466 U.S. 668 (1984) Terry v. Ohio, 392 U.S. 1 (1968) Wiggins v. Smith, 539 U.S. 510 (2003) Witherspoon v. Illinois, 391 U.S. 510 (1968) Woodson v. North Carolina, 428 U.S. 280 (1976)

Notes

introduction 1. For a recent overview on racism in the imposition of the death penalty, see Brown and Barganier (2018: ch. 10). For racism’s impact on capital trials, see Beardsley et al. (2014), Bowers et al. (1998, 2003), Brewer (2004), Doyle (2007), Eisenberg et al. (2003), Fleury-Steiner (2004), Haney (2004), Lynch and Haney (2015), Ogletree (2002), Paternoster and Brame (2008), Petersen (2017), Phillips (2008, 2012), Radalet and Pierce (2006), Sarat and Ogletree (2006), Songer and Unah (2006), Stevenson and Friedman (1994), Thaxton (2018), and Unah (2009). 2. Sarat (1999, 2014) calls attention to the problems with “law’s archive,” echoing Taylor (2003). 3. For a few major examples of this discussion, see Adler and Adler (1987) or Hammersley and Atkinson (2007). 4. The quote is from Adler and Adler (1987). On ethnography, see Luhrmann (1989), Smith (1974), Clifford and Marcus (1986), and the introduction to Ulysse (2007). For recent discussion of the role that emotions should play in social scientific research, see Hubbard et al. (2001) and Dickson-Swift et al. (2009). 5. Smith (1999: 5–6). 6. Adler and Adler (1987: 36–49) discuss how “potential similarities” to ethnographers’ subjects “leaves them vulnerable to recruitment.” 7. Readers can learn more about this transition in appendix A , “Methodology.” 203

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8. This is from Sarat’s (2001: 250) conclusion to When the State Kills. I take inspiration from this foundational work, though Sarat’s appeal to those who “love America and its political and legal institutions” seems antiquated now. As I detail in the conclusion, I do not love these institutions, as they were built on and depend on racism. 9. I am indebted to Crenshaw’s (1990) foundational work for this and many other instances in this book that depend on her insight about intersections of marginalized gender, sexuality, race, ethnicity, and class identities. For a discussion of criminology and intersectionality, see Potter (2015). 10. Though they are thanked, too, in the acknowledgments, it is worth emphasizing three exceptionally generous and brilliant mentors—David Garland, Craig Calhoun, and Rayna Rapp—who shaped this insight.

chapter 1. constructing capital homicide 1. For a more complex account of this transition, see Walker (1980), Kadri (2005), or Laurence (1960). 2. Kant ([1798] 1996: 100). 3. On their own these three ideals have given philosophers of punishment plenty of grist for argumentation. To make matters more complicated, missing in these eighteenth-century principles is the concept of morality. As one contemporary legal scholar says, criminal punishment should also “remind us of the majesty of the moral order that is embodied in our law and the terrible consequences of its breach.” Punishment should cleave to something more important than respect for individual rights or social good, he argues, a “dignity far beyond that possessed by mere statutory enactment or utilitarian and self-interested calculations.” Criminal law should “remind us of the moral order by which alone we can live” (Berns 1979: 172–73). Much scholarship is dedicated to figuring out just how all this can be achieved in the modern United States. So-called mixed theories of criminal punishment are popular today. These theories attempt to construct an ideal that accounts for social utility, respect for individuals, and the notion that punishment should contain an aspect of shared moral condemnation of our society. 4. See Garland’s (1990) book Punishment and Modern Society for Marxist conceptions of the state, the law, and criminal punishment. Pashukanis is particularly relevant. See Dusza (1989) on Weber. 5. From Foucault (1977). Quote from p. 275. 6. See the first several chapters of Childs (2015). Also Davis (2000, and 2003: ch. 2) and Gilmore (2000). 7. See Murakawa (2014) on the mid-twentieth century, and Wacquant (2001) on shifting twentieth-century institutional forms controlling black Americans.

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8. See the Prison Policy initiative at www.prisonpolicy.org/ for more detail. 9. On “cr-immigration,” as it is called among scholars, see, for example, the work of Mary Romero (2008), Julia Stumpf (2006), and Cecilia Menjivar (2016). See Nell Bernstein’s (2016) book for a devastating account of US juvenile prisons, or Feld (2017) for the historical criminalization of children. 10. See, for example, Brown (2010) and Stemen (2017). 11. According to Blumstein and Cohen (1973). 12. Sociologists disagree on the extent to which this should be described as a “sharp” or “slow” change, but it is a change nonetheless. See, for example, Beckett and Sasson (2004), Garland (2001), or Simon (2007). 13. Garland (1985, 2001) first provided these terms to describe not only the US but also the British criminal justice system. 14. Monique Morris is an EdD, but her work is so sociologically important on this topic that I could not exclude her on a technicality. 15. There is a large literature on the impact of felony convictions and incarceration in the penal-retributive era. See, for classic examples, Pager (2003) and Western (2006). For a recent study on the impact of prisoner reentry, see Harding et al. (2018). 16. Waquant (2001) first conceptualized this “symbiosis,” as he termed it, which was later popularized by Michelle Alexander’s New Jim Crow. 17. See “The Sentencing Project’s” excellent graphic representation of these numbers, at www.sentencingproject.org/criminal-justice-facts/. 18. Drug use and its consequences demonstrate a specific case. Black and white Americans consistently use marijuana at roughly equal rates, according to surveys; in 2013, 9.5 percent of white Americans and 10.5 percent of black Americans twelve years and older reported having used an illegal drug in the past month. In college, black students are less likely to use drugs than white students; 25 percent of white and 20 percent of black students reported use in 2013. Yet black teenagers are two and a half times more likely to be arrested for drug possession than white teenagers (Rothwell 2015). This is due to a number of factors. For one, US policing during the last several decades has targeted inner-city neighborhoods, while suburban neighborhoods and (especially private) university communities have little or no police presence. This means that black and Latino young people, who are disproportionately represented in inner-city neighborhoods, are arrested at rates far higher than their white counterparts, despite the similar rates of drug use. A procedure called “stop and frisk” has become emblematic of this problem. Since the 1990s, police departments have encouraged their ranks to stop anyone they suspect of having an illegal substance, even if they have no evidence to arrest them. Called “Terry stops,” in reference to the 1968 Supreme Court case Terry v. Ohio, which made it legal for police officers to stop and frisk suspects without a warrant, if they thought they were in danger, the New York City police department began an aggressive

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campaign to “stop and frisk” in the late 1980s, leading to numerous legal challenges and, eventually, a decreased use of the controversial practice. For further discussion, see Meares (2014). 19. See Reiman and Leighton (2016) for a general theory. 20. There is a well-developed literature in sociology on the “fear of crime” in the United States. See Lane et al. (2014) for a recent overview. 21. See Russell-Brown (1995) on “criminalblackman,” Stumpf (2006) on “crimmigration,” and Kaufman (2019) on “crIslamization.” 22. Angela Davis (2003) quotes Frederick Douglass on “imbuing crime to color.” 23. For the 2005 data I am indebted to David McCord. See McCord (2006) for details. I completed this data collection with the help of undergraduate researchers Erin Drake, Jacob Metz-Lerman, Faith Deckard, Michael Paniagua, and Lily Sorrentino, who along with me benefited from Dr. Kathleen Denny’s expertise. 24. Sudnow (1965), among others, wrote about “normal” penalties for crimes as autonomous from legal categorization. 25. See Aijmer and Abbink (2000), Archer and Jones (2003), Stanko (2003), and Žižek (2008), for example, on violence. 26. Mbembe (2003). Byatrizi (2008) provides an interesting history of the “ordering” of modern deaths as “natural,” “premature,” “unjust,” etc. 27. See Razack (2014), Price (2015), and Jackson (2013) for particularly harrowing examples. 28. Such is the meaning of the speech act in Austin’s (1975) terms.

chapter 2. governing capital sentencing 1. See Garland (2010) for an expanded version of this theory of the American death penalty. 2. This is not to say that the United States is unique in employing what is now called multilevel governance. The global economy and the creation of the European Union especially make for complicated governing matrices (Nicolaïdis and Howse 2001). But the US Constitution was unique in its time. 3. See Carson’s (2018) “Prisoners in 2016,” at www.bjs.gov/content/pub/pdf /p16.pdf. 4. See Barker (2006, 2009). 5. The Sentencing Project’s excellent interactive map on state incarceration rates and felony disenfranchisement is at www.sentencingproject.org/thefacts/. 6. There is much written on the development and adoption of the MPC. See, for example, Reitz (1998), or “The 25th Anniversary of the Model Penal Code: A Symposium” (1988). The code is available at the American Law Institute’s (ALI’s)

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website at http://ali.org/. Interestingly, the ALI withdrew Section 210.6 of the Model Penal Code in October 2009, retracting its former tacit approval of capital punishment. The amendment to the code states that the institute took this action “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” http://ali.org/index.cfm?fuseaction=publications.ppage&node_id=92 7. For a description of the events leading up to this and of the complexity of the Furman argument, see Bedau (1997), Garland (2010), or Meltsner (1973). 8. Roberts v. Louisiana and Woodson v. North Carolina were also invalidated by the Court’s decision known as Furman. 9. Weisberg (1983: 315). 10. Garvey (1996: 996) says, “Individuation and consistency form the twin stars around which the Court’s modern death penalty jurisprudence orbits.” 11. The cases known collectively as Gregg also include Jurek v. Texas and Proffitt v. Florida. 12. From Woodson v. North Carolina (1976: 304–5). 13. “Two tack” is from Barkow (2009). 14. This reasoning began with Justice Brennan’s concurring opinion in Furman v. Georgia (1972). See Acker et al. (2003: Introduction) for a list of cases using this phrase, and Steiker and Steiker (2016) for a more recent update. The Death Penalty Information Center also keeps a summary list of such cases at https://deathpenaltyinfo.org/news-us-supreme-court/. 15. See Conrad and Clements (2018) on the “vanishing” jury trial, and Nancy King’s research on those states that still use juries for sentencing. 16. Weisberg (1983: 289). 17. See, for example, Bentele and Bowers (2002), Bowers et. al. (2003), Diamond (1993), Eisenberg and Wells (1993), Foglia (2003), Lynch and Haney (2000), Morgan and Mannheimer (2009), and Sarat and Clark (2008). 18. Berman (2008), Liebman (2007), Steiker and Steiker (2016), Weisberg (1983). 19. Supra note 14. 20. See the Bureau of Justice Statistics publication on correctional facilities at www.bjs.gov/content/pub/pdf/cpus14.pdf. 21. For a sample of studies, see Beardsley et al. (2014), Lynch and Haney (2015), Paternoster and Brame (2008), Petersen (2017), Phillips (2012), Radalet and Pierce (2006), Songer and Unah (2006), Thaxton (2018), and Unah (2009). 22. Alaska, Hawaii, Vermont, Iowa, West Virginia, and North Dakota abolished capital punishment between 1957 and 1973. See Galliher et al. (2002) and Wark et al. (2012) for detailed discussions of states’ abolition processes. 23. The military and federal governments also use capital punishment, though very infrequently. Combined, they have executed three people since 1976. I will not discuss these in detail. For discussion, see https://deathpenaltyinfo

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.org/us-military-death-penalty and https://deathpenaltyinfo.org/federaldeath-penalty. 24. I borrow this term from Steiker and Steiker (2006). 25. See Lofquist (2002) or Wark et al. (2012) for a discussion of criminal and capital variation among states. 26. See Jacobs and Carmichael (2001, 2002) for racial threat and punitivity. 27. This is a rough estimate, informed by Phillips’s (2008, 2012) methodology. I first calculated the total number of homicides in death penalty states. I then created a ratio of total national homicides to aggravated homicides according to FBI data, using the FBI’s expanded homicide report, at https://ucr.fbi.gov/crimein-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/expanded-homicide, which I applied to the death penalty state number. 28. On the impact of the MPC, see Reitz (1998). The code is available at the American Law Institute’s website, at http://ali.org/. Interestingly, the ALI withdrew its former tacit approval of capital punishment in 2009, “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” www.sentencingproject .org/the-facts 29. For further reading on this expansion, see Givelber (1994), Kirchmeier (1998, 2004, 2006), Sharon (2011), and Simon and Spaulding (1998). 30. Baumgartner et al. (2017) provide a detailed statistical portrait of homicides and homicide rates in comparison to state executions. For a collection of the latest research on deterrence and the death penalty, see https://deathpenaltyinfo .org/facts-about-deterrence-and-death-penalty. 31. The statute is available in full at www.leg.state.fl.us/statutes/index.cfm?App_ mode=Display_Statute&URL=0900-0999/0921/Sections/0921.141.html. 32. See Horder (2007). 33. See, for example, Mawby and Walklate (1994), Spencer and Walklate (2016), or Walklate (2006). 34. See Simon and Spaulding (1998). 35. See the third section of Coughlin and Venkatesh (2003). 36. Liem et al. (2018) provide international data. 37. Liem et al. (2018) give a good overview of the types of factors that have been studied. There is a large literature trying to unpack the effects of this package of factors, much of which is published in the journal Homicide Studies. For an example of this research, see Keel et al. (2009). 38. For some recent work in this area, see Borg and Parker (2001), Davies (2007), Hawk and Dabney (2014), Mancik and Parker (2018), and Petersen (2017). 39. See Gross and Mann (2017) on the “Ferguson effect.” 40. See Rousey (1996) for the origins of organized policing in the early nineteenth century. As he says, “Inspired principally but not exclusively by a desire to

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control the large local slave population, the military-style police in the Crescent City [New Orleans] was similar to those in Charleston, Savannah, Mobile, and Richmond” (13). 41. Victor Rios’s (2011) study of black and Latino boys documents the simultaneous “hypercriminalization” by and alienation from police, parole, and other criminal justice authorities. Wacquant (2009) and others situate this, in turn, as part of the neoliberal withdrawal of welfare care for the poor, in favor of punitive control. 42. On factors inf luencing prosecutorial discretion, see Bell (2002), Davis (2007), Goelzhauser (2013), Gottfredson and Gottfredson (2013: ch. 5), Frohmann (1991, 1997), and Mellon et al. (1981). 43. Richard Deiter’s 2013 report for the Death Penalty Information Center shows that only 2 percent of US counties have been responsible for most executions and defendants on death row. https://files.deathpenaltyinfo.org/legacy /documents/TwoPercentReport.pdf 44. See Gershowitz (2010: 314–18) for a historical summary of Texas’s death row practices, and Olsen (2018) for the latest about Harris County. For information on other states, see Welsh-Huggins (2009) on Ohio, Paternoster and Brame (2008) on Maryland, and Poveda (2006) on Virginia. The American Bar Association has also published studies of the use of death sentencing in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee, at www .abanet.org/moratorium/assessmentproject/home.html. 45. This is part of what is referred to as the “racial threat hypothesis.” On neighborhood and racial victimization, see Green, Strolovitch, and Wong (1998). For recent studies of race and local variation in death sentencing, see Baldus and Woodworth (2003), summarizing post-McClesky evidence; Radelet and Pierce (2006); Paternoster and Brame (2008); Songer and Unah (2006); and Unah (2009). 46. Research method is described in this book’s introduction and in appendix A. 47. This will be discussed at length in chapter 3. 48. Ninety-five percent of Alabama’s death row inmates, for example, could not pay for counsel at trial. See www.aclu.org/FilesPDFs/broken_justice.pdf. 49. Social scientists have adopted this frame of “agnotology” to demonstrate how ignorance is maintained in areas where knowledge is potentially discoverable. In pharmaceutical regulation (McGoey 2012), environmental planning and toxicity (Gross 2010; Frickel and Vincent 2007), and the shale gas industry (Wagner 2015), for example, knowledge is theoretically discoverable but left unexplored. See Croissant (2014), Gross and McGoey (2015), and Kempner et al. (2011) for its influence on sociology. Agnotology’s influence has yet to make significant inroads in criminology, however, though its potential has been noted in studies of prostitution (Crowhurst 2017), the environment (Wyatt and Brisman 2017), and security (Aradu 2017).

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chapter 3. the capital sentencing field 1. See Sarat (2001) and Kaplan (2012). Sarat has continued to interrogate capital punishment, including in Ogletree and Sarat (2006), Sarat and Clarke (2008), and Sarat and Shoemaker (2011). 2. Haney’s book, Death by Design, is the most comprehensive study of this type, and ch. 7 lays out the elements of capital trials that create juror alienation. See also work by Mona Lynch, Mary Rose, and Shari Diamond, along with much of the scholarship resulting from the Capital Jury Project. 3. See Ragin and Becker (1992) for “small N” comparative case methodology research. 4. In Bourdieusian terms, this is a contest over symbolic capital. See Bourdieu (1979). 5. It is especially easy to see the difference between the two fields when juxtaposed. The everyday court processes exposed by Van Cleve (2017) and KohlerHaussman (2018), for example, bear so little resemblance to capital sentencing that one might think they are the product of a completely separate system of governance. 6. Conrad and Clements (2018) show this “vanishing” over time. Offit (2019: 1075) estimates this. See Fisher (2003) on the rise of plea bargaining and the role of prosecutors and judges it empowered. 7. See the Death Penalty Information Center’s “Smart on Crime” report from 2009, at https://files.deathpenaltyinfo.org/legacy/documents/CostsRptFinal.pdf. 8. On art, see Bourdieu (1984); on behavioral genetics, Panofsky (2014); and on humanitarianism, Krause (2014). 9. Thanks to Bryant Garth for helping me work through this. Richard Terdiman’s (1987) introduction to Bourdieu’s (1987) “Force of Law” brings Bourdieu’s longer works on state power to bear on his theory of the juridical field. 10. Bourdieu’s (1987) substantive analysis of twentieth-century FrancoGerman law is of limited use in a study of the twenty-first century United States, but I agree with Dezalay and Madsen (2012) that some key concepts do transfer. 11. The map is not based on the kind of quantitative geometric modeling Bourdieu used but is only representational, though quantitative modeling would be instructive in future inquiry. See Labaron (2009) for a discussion of Bourdieu’s use of multiple correspondence analysis. 12. For more developed theories of US law employing Bourdieu’s concept of the field, see Dezalay and Madsen (2012), Leader (2007), Tomlins (2000), and Van Krieken (2006). 13. These are all relative rather than absolute; a single actor might occupy more than one position at a time. Among readers there may be activist-academics who testify as expert witnesses! But each role within the legal field would still carry its own set of relative norms and rules.

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14. See Prahbat (2016), for example, as compared to Tomlins (2000), or Dezalay and Garth (1996, 2017). 15. As in art worlds, Bourdieu argues that symbolic capital conflicts with the pursuit of economic capital; actors gain in one by losing in the other. This does not mean any one actor strives only for money or only for prestige but rather that different types of actors tend to be oriented more toward one pursuit or another, in relation to other groups of actors in their field. 16. Wacquant (2004: 393) describes this ethnographic imperative in more detail. 17. As Dezalay and Madsen (2012) suggest, this may be why Bourdieu’s theory of the field has been used only in limited studies in sociology of law and criminology (Shamas and Sandberg 2015). Bourdieusian ethnographers have analyzed offenders on the street—a traditional site for ethnographers (see Sandberg 2008; Sandberg and Pedersen 2011)—but not the technical spaces that are less traveled by action-oriented criminologists. Notable exceptions include Chan’s (2004) study of police culture in the United Kingdom and McNeill et al.’s (2009) analysis of Scottish sentencing courts. 18. See Meltsner (1973) for a firsthand account of this period. 19. See Dezalay and Garth (2017: 144), citing their unpublished manuscript, on “public interest” law and the legal field’s rearrangement during the 1970s. 20. I adopt part of this schema from Weisberg (1983: 313). See Steiker and Steiker (2016) for the authoritative history of modern capital jurisprudence. 21. Austin (1975). 22. See Foucault’s I, Pierre Riviere . . . (1975), as well as his more famous Discipline and Punish (1977). 23. For a recent example, see Moran (2010). And see Tomlins (2000) on the continuously ambivalent relationship of the legal field with the social science “disciplines” during the twentieth century. 24. For example, there is interesting work about the role of social science expertise in the relatively new drug courts, mental illness courts, and other “special” courts. 25. From Oral History Interview (Fowlkes) of Millard C. Farmer, April 6, 2012, p. 43. Social Change Collection, Digital Collections, Georgia State University Library at https://digitalcollections.library.gsu.edu/digital/api/collection /schange/id/6/page/0/inline/schange_6_0. 26. See Stevenson (2002) for more about these centers. 27. See Bright (1994, 1995), Costanzo and Petersen (1994), Haney (1995), Mello and Perkins (2003), Tabak (1994), Vick (1995), Weisberg (1995), and especially White (2006). 28. See Holdman and Seeds (2008) on the integration of “cultural competency,” for example. Holdman, as mentioned below, was considered one of the founders of capital mitigation.

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29. Ohio’s enumeration of mitigating factors is one example of a capital statute that followed (Wilhelm and Culshaw 2002). See Kirchmeier (1998) and Kirchmeier (2006: 11–14) for detailed descriptions of states’ expansion of capital punishment statutes. 30. A collection of state standards can be found at www.americanbar .org/advocacy/other_aba_initiatives/death_penalty_representation/resources /guidelines.html. 31. These are available from the American Bar Association at www.abanet. org/legalservices/downloads/sclaid/deathpenaltyguidelines2003.pdf. 32. Though the ABA had issued guidelines for capital defenders in the past, this set of guidelines was significantly more extensive, both in the way that it was compiled and in its breadth and length of consideration. The drafting process took two years and included the establishment of a core committee and outside expert advisors, who took part in extensive meetings and draft revisions. The courts and the defense community have accepted these revised guidelines as the closest thing to a defense standard for capital practice. In Bobby v. Van Hook, the United States Supreme Court opened a discussion that asked to what extent the 2003 guidelines should be relied upon nationally. Though it did not resolve the question, its attention signals that these guidelines are the most likely standards by which a defense counsel’s performance at the penalty phase might be measured. Since their publication, capital defense experts have published numerous discussions of the guidelines, all of which suggests that their contours are generally accepted. See, for example, Freedman (2004), Stetler (2007), and Hofstra Law Review (2008) vol. 36, no. 3. 33. See American Bar Association (2003: 104–12). 34. Steiker and Steiker (2016) provide the most thorough chronology of the way the Court has attempted to standardize capital sentencing. 35. See www.capstandards.org/conf-mats-list/ for a list of defense conferences and trainings. 36. Craig Haney has been especially influential, as discussed in this chapter. Others include Cunningham, Reidy, and Sorensen (2008), and Edens and Cox (2012). Medical professionals have a more complicated relationship to the prosecution’s case for death, because the American Medical Association, among other professional associations, has deemed members’ participation in execution unethical. Activity potentially leading to execution is not explicitly forbidden but remains a source of controversy. Weinstock et al. (2017), for example, provide a discussion of the legal and medical scope of psychiatric participation in capital cases. 37. See Sarat and Scheingold (1998) on “cause lawyers”; Kaplan (2010), Cheng (2009), and White (2006) on dedicated capital defense lawyers. 38. For the history of the growth of the capital defense community from Furman on, see Cheng (2009, 2010), Haines (1996), Kaplan (2010), Melsner (1973),

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O’Brien (2008), and White (2006). For public press featuring this community, see Chammah (2017), Toobin (2011), and Ricker (2018), for example. 39. The concept of the kind of “boundary work” inherent in professional fields originated with Gieryn (1999). He conceptualized boundary work as shifting markers that professional scientists employ to demarcate their fields of expertise. 40. See Levine and Wright’s (2017) study of lawyers’ use of metaphor and illusion, drawn from interviews with 267 local prosecutors, as well as Wright et al. (2017). 41. Earlier data are from Pokorak (1998). See https://wholeads.us/justice/ for the 2014 study. 42. See Postlewait and Davis (2003) for an extended discussion of theatricality. 43. I take both of these insights from Doyle (1996: 422). See also Kenneth Nunn (1995) on myth and public defenders at trial, and Flower (2018) on performing loyalty. 44. Austin’s (1975) argument that language is constative has been influential to both legal humanists and performance studies scholars. 45. This phrase is from Phelan (1993: 148). 46. It is worth noting here that this might even include the material objects that actor network theorists (ANT) include in their accounts of complex activities—such as Latour (2010) himself in his study of a French legal setting. In my own study, the transcript in particular has remarkable power, as do some of the architectural features of the courtroom. I do not use ANT in any pure sense, but Levi and Valverde (2008) describe ANT’s role in law and society scholarship to be a methodological imperative as much as a theoretical one. In this sense ANT no doubt influences my study. As an ethnographer, I too aim to document the “knowledge processes through which the practices of legal reasoning, textualism, and decision making assemble the world” of capital sentencing (Levi and Valverde 2008). I am also drawn to Tomlin’s (2012) use of Benjamin’s constellations. See Cole and Berthenhal (2017) for a review of science and technology studies’ intersection with law and society more generally. 47. From Umphrey, Sarat, and Douglas (2018: 4). 48. Phelan (1993: 148). Phelan’s book describes generally the importance of performance, defined by an institutionalized audience-spectator relationship, which is different from the sociological concept of performativity found in all aspects of social life, as Erving Goffman and Judith Butler theorize. Alexander’s (2004, 2006) work on social performance in particular influenced my thinking on performance at trial. 49. See Bourdieu (1987: 822–23) on the difference between Anglo-Americans and “Romano-Germanic” legal systems. 50. Of particular interest on a potential third axis, differentiating those concerned with the particular vs. theory, would be appellate and postconviction

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lawyers who concern themselves with abolition, such as those who brought Furman to the Supreme Court. 51. Importantly, a range of lawyers participate in capital sentencing trials, complicating the divide between these two groups. Assistant district attorneys, appointed defense counsel, and public defenders might be arranged on a spectrum rather than grouped into two absolute categories. A full discussion of these variations is beyond the scope of this project. The maps should be considered symbolic and provocative rather than mathematic and comprehensive. 52. For proponents of criminal jury sentencing, see Dzur (2012), Hoffman (2003), and Lannai (1999). 53. See Fukurai and Krooth (2003: ch. 6) for a review of the systematic exclusion of racial minorities. 54. This notion of jurors as community representatives is stated, for example, in the case Panetti v. Quarterman 55 U.S. 930 (2007). 55. From the title of Phelan (2003).

part ii. the social logic of death penalty trials 1. See Rose, Diamond, and Baker (2010). 2. See, for example, Amsterdam and Bruner (2000), Atkinson and Drew (1979), Carlen (1976), Conley and O’Barr (1990, 1998), Danet (1980), Dingwall (2000), Feeley (1979), Garfinkel (1956), Maynard (1984, 1990), Merry (1990, 2000), O’Barr (1982), Rock (1993), Sudnow (1965), Travers (2006), and Travers and Manzo (1997). 3. Garfinkel (1956). 4. Travers and Manzo (1997) are credited as the innovators of “law in action.” Among recent examples of courtroom “law in action” ethnography are Van Cleve (2017) and Paik (2011). See Paik and Harris (2015) for a review of courtroom ethnographies. 5. See, for example, Brooks (2014), Levenson (2008), Levinson and Balkin (1991), Manderson (2013), Ramshaw (2013), and Sarat, Douglas, and Umphrey (2018), who focus on the perception of defendant demeanor in criminal trials.

chapter 4. performing punitive citizenship 1. Stygall (1994) points out that all jurors become socialized as “temporary members of the legal discourse community.” 2. For a recent study, see O’Brien and Grosso (2019). 3. See Kadri’s (2005) history of the trial, among other sources.

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4. See Fukurai and Krooth (2003: ch. 6) for a review of the systematic exclusion of racial minorities. 5. See Bowers et al. (2003), Butler and Morgan (2002), Haney (2005), and Sandys and McClelland (2003). 6. See Bornstein and Green (2012) for recent research on US juries. 7. “Pretrial” proceedings would be an interesting topic for a separate study, as some of the trial is shaped by their outcomes, yet they take place before the jury is seated. I expect the performances of court actors during this litigation would put into relief those that I detail when the jury is present. 8. For an example of professional trainings, three sessions of a recent prosecutors’ conference on capital prosecution feature jury selection issues. See www .cailaw.org/Brochures_2011/ILS-CapTrialPros-April.pdf. For a professional trade journal, see defense attorney Rubenstein’s (2010) article in The Champion, the official publication of the National Association of Criminal Defense Lawyers. And for scholarly articles, see Blume et al. (2008). The American Society of Trial Consultants’ website on jury selection demonstrates an extensive compilation of work on voir dire; see www.thejuryexpert.com/category/voire-dire-and-jury-selection/. 9. The explicit two-part structure was enacted as an amendment to Texas’s death penalty statute in 2005 (Acts 2005, 79th Legislature, ch. 787, Sec. 7, Effective Sept. 1, 2005). 10. Further research revealed that the Colorado Method has become the accepted standard for defense attorney training on voir dire. There is even a documentary about the development of the Colorado Method, available at www .thelifepenalty.com/index.htm. See Rubenstein (2010) for a full description. 11. See Lareau (2003) on childhoods, and Khan (2010) on elite educational institutions, for example. 12. Ta-Nehisi Coates’s (2015) narrative painfully recounts his own parents’ use of violence as a means to dissuade their children from risking the much worse consequences of disobedience out in the world of white, legal authority. 13. Studies from the Capital Jury Project offer some examples. www.albany .edu/scj/13189.php 14. On the emotional impact on jurors, see Bowers and Foglia (2003). On involvement after the verdict, see Bienen (1993) and Antonio (2006). 15. This line of research stems from the work of Feeley and Simon (1992) and others. 16. As such, this study joins legal scholars who study noncapital sentencing juries, such as King and Noble (2004) and King et al. (2005); and social psychological studies of mock jury sentencing, such as Diamond and Rose (2005). 17. Dzur (2012), Hoffman (2003), and Lannai (1999) support the expansion of jury sentencing, while Roberts and de Keijser (2014) and Robinson and Spellman (2005) argue against it. 18. Dzur (2012: 138).

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chapter 5. performing mercy 1. See Steiker and Steiker (2016) for an extended discussion of the Supreme Court’s jurisprudence regarding diminished capacity. 2. See, for example, Heide and Solomon (2006), one of the many studies linking adverse childhood conditions to violent acts later in life. 3. Indeed, the ABA guidelines urge defense counsel to consider how to anticipate a guilty verdict. See American Bar Association (2003: 106–7, 2008). 4. Defense advocates have written about how to integrate mitigation into the first phase of trial (Blume et al. 2008; Brewer 2005; Dudley and Leonard 2008; Fabian 2009; Haney 1995, 2003, 2005; Leonard 2003; O’Brien 2008; Stetler 2007). White (2006) provides the most extended discussion of variations on capital defense strategies on this point, and Cheng (2010) discusses front-loading mitigation. 5. Excerpted from Haney (2003: 175). 6. See Haney (2003). 7. This narrative of individual responsibility from criminal behavior has a long history and comes in many forms, from classical and neoclassical theories of crime causation during the eighteenth and nineteenth centuries, which stressed physiological roots, to more recent strains in the American media and politicians (Haney 2005: esp. ch. 2; Becket 1997). 8. See Craig Haney’s extensive work on this. 9. See Downes and Rock (2011: ch. 3), and Ghatak (2011: chs. 2 and 3). 10. American Bar Association (2003: 56). 11. Eduardo Bonilla-Silva (2003) is credited with this term. 12. See Meltsner (1973), Sarat (1998, 2001), and White (2006). 13. See Hartigan’s (2018) analysis of this remarkable trial.

chapter 6. performing danger 1. Excerpted from Sarat (2001: 88). 2. Davis (2003), ch. 2. 3. See Bentele and Bowers (2002), Blume et al. (2008), Haney (2005), Litton (2005), and Sundby (1997). 4. American Bar Association (2003: 114). 5. Interestingly, these two states, as Shapiro (2008: 152) points out, are also two of the three to execute the highest number of people in the United States since Gregg, along with Virginia. 6. According to Shapiro (2008: fn2). 7. See, for example, Edens et al. (2005), Reginer (2004), Shah (1978), or Shapiro (2008).

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8. See Cunningham and Sorensen (2010). 9. In an amicus brief for Barefoot v. Estelle (1983). See Shapiro (2008: fn6). 10. The United States Supreme Court reversed the first sentence in Saldano v. Texas (2000). The attorney general of Texas then granted new sentencing hearings to seven other defendants in whose cases Quijano testified. 11. See, for example, Edens et al. (2005), Ewing (1983), and Stone (1984). 12. See Richards (1997: ch. 2) and Fox et al. (2009) for a more expansive set of postcolonial reflections on the development of psychology. 13. Pilgrim (2008). 14. According to Edens et al. (2005). 15. Evans and Handelman (2003) discuss this insight emerging from the Manchester School of anthropology. 16. Smiley and Fakunle (2016) demonstrate this. 17. This is from Diamond (2015: 3). 18. This juxtaposition is especially apparent when considering rape. While a slave woman could not consent to sex, much less refuse it—she had no personhood in this sense—she could be held personally responsible for killing the man who forced sex upon her. See the story of Celia, in Hartman (1997: ch. 3). 19. See Weheliye (2014) on racial assembly. Ehlers’s (2012) investigation of the Rhinelander case of 1925 sets out the intersection of racialization and performance in defining blackness, for example. 20. This is not to say that the execution is not also a site of power. See Conquergood (2002) on the still-violent spectacle of modern execution, contra Foucault.

chapter 7. mourners in the court 1. “Co-victim” is sometimes used to describe surviving family members of homicide victims (Reed and Blackwell 2006). In this chapter, I will describe this group using “victim supporters” and “co-victim” interchangeably. 2. Legal scholars argue whether VIT makes evidentiary sense. Some stress that the harm done to the victim is factored into the charge of capital homicide and that the participation of co-victims in sentencing has no place in the contemporary criminal justice system. Others, like the ruling jurisprudence, reason that the harm done to victims should be used to “balance” the character testimony presented to mitigate the defendant’s guilt. For a detailed discussion of the evidentiary role of VIT, see Engle (2000) or Logan (1999, 2000). Another set of argumentation revolves around the benefit VIT can bring to those mourning the victims. Some argue that the ability to testify provides co-victims with much needed closure, whereas others have found that involvement in capital trials can overly burden or retraumatize them. See Nadler and Rose (2003). Acker and

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Karp’s (2006) first-person accounts from victims in capital trials provide the best evidence of victims’ varied experiences in capital trials. 3. For a full history, see Acker and Mastrocinque (2006), Hosteler (2006, 2009), or Langbein (2003). 4. See Acker and Mastrocinque (2006), Barker (2007), Garland (2001), and Weed (1995) on the development of the victims’ rights movement. Barker (2007) points out that some victims’ rights movements were in fact part of a more restorative model of justice in some jurisdictions in the United States and abroad. 5. Booth v. Maryland (1987: 508–9). 6. See Woodson v. North Carolina. This jurisprudence is described in fuller detail in the second half of chapter 1. 7. According to the Death Penalty Information Center. See a report by Dean Sanderford of the Colorado Capital Habeas Unit at https://files.deathpenaltyinfo .org/legacy/documents/VictimImpactByState.pdf. 8. Logan (2000, 2006) writes that victims are also likely to be asked by prosecutors to give their opinion on the stand that the offender should be sentenced to death. I did not record this in my field notes, though looking back, I believe it may have occurred in one or two cases. 9. Interestingly, when anthropologist Robin Conley (2016) observed death penalty trials in Texas, she too mentions seeing a victim’s family member in the bathroom. Because she was embedded with the defense team, she describes only awkwardness. This is a reminder of the power of the adversarial trial system; it literally follows us into the bathroom. 10. There is, however, a body of literature that looks at the ways victims’ interactions with the criminal justice system are traumatic in themselves. Reed and Blackwell (2006) provide a review of recent literature, and part 1 of Acker and Karp (2006) provides first-person accounts from capital co-victims. I have not found any research, however, that looks specifically at the relationships between victims and other trial actors during capital sentencing. 11. Durkheim ([1915] 1965): 445–46. 12. See Simon (2007: ch. 3) on the production of middle-class crime victims as a means of “governing through crime.” 13. See, for example, Hockey et al. (2001) or Rosenblatt et al. (1976). 14. See Sundby (2003) on worthiness; Phillips (2009) on status; and Haney (2004) and William et al. (2007) on race and gender, respectively. See also Eisenberg et al. (2003), Johnson (2003), Logan (2000, 2006), Luginbuhl and Burkhead (1995), and Phillips (1997) on victim worthiness generally. 15. See Myers and Arbuthnot (1999) and Nadler and Rose (2003). In reviewing relevant past studies, Karp and Warshaw (2006) find that VIT makes a slight but statistically insignificant difference to jurors’ decisions, regardless of whether they empathize with the victims or not.

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conclusion 1. This is from her concurring opinion in Eddings v. Oklahoma 455 U.S. 104, 118 (1982). 2. Carlin (2016) draws together performance and critical race theory to argue that whiteness is required for the performance of credibility in legal courtrooms. 3. Patterson (1985: 61). 4. Angela Davis (2003: ch. 2). 5. See Charles Tilly’s (2009) short book on the power of blame. 6. Among other sources documenting this history, a film called The Farm: Angola, USA was made during the time I worked in Louisiana. It is available at www.kanopy.com/product/farm-angola-prison-usa. 7. Patrick Anderson’s (2010) brilliant book So Much Wasted calls attention to the ways in which control over the end of life can be used to assert not only state power but resistance to power as well. 8. The National Center for State Courts website has descriptions and research on such courts, at www.ncsc.org/Topics/Alternative-Dockets/Problem-SolvingCourts/Home.aspx. 9. See Davis’s (2003) chapter “Abolitionist Alternatives.” Quotes are from pp. 108–9. 10. See Arrigo and Williams (2003), Bandes (1999, 2008), Goodrum (2013), and Sherman (2003). 11. In this, I write not only with Angela Y. Davis and others in the prison abolitionist movement but also with Lauren Berlant (2005) and Elizabeth Povinelli (2003), who problematize the very notions of cruelty and recognition as already depoliticized. 12. See, for example, Dzur (2012), Hoffman (2003), and Lannai (1999), as discussed in chapter 4. Nancy King’s research on jury sentencing (King and Noble 2004; King et al. 2005), on the other hand, provides more robust empirical evidence for thinking through the consequences of expanding jury sentencing in the contemporary criminal context. See also Diamond and Rose (2018) for a recent review of jury research, and Offit (2019) for interesting new research showing that juries impact prosecutorial charging well before, or even without, jury empanelment. 13. Find these organizations at https://rjoyoakland.org/, https://incitenational.org/, and www.communityalternatives.org/index.html. Others include www.nacrj.org/, https://restorativejusticeontherise.org/, https://impactjustice .org/, www.rjca-inc.org/, www.seedscrc.org/, www.restorativeresponse.org/, and www.therestorativecenter.org/. The last chapter of Angela Davis’s Are Prisons Obsolete? lays out the vast opportunity available to those who want to interrupt the logic of mass imprisonment.

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Index

9/11: defendant, 2; impact on court architecture, 20 abolition: death penalty in the United States, 12, 14, 30, 39, 46–49, 67–68, 71–72, 77, 189–90; slavery in the United States, 30 actor network theory, 213n46 aggravators, statutory, 49–53; and dangerousness, 107–8, 149–62 agnotology, 45, 57, 209n49 appeal, capital, 13, 41–46, 77, 89, 97, 117, 137, 171, 176, 179, 197 Alexander, Jeffrey, 213n48 American Bar Association, capital mitigation guidelines, 70, 105, 125, 134–35, 142, 152 Amsterdam, Anthony, 71 Anderson, Patrick, ix, 199 Arendt, Hannah, 168 Atkins v. Virginia, 45 attorneys. See lawyers Batson v. Kentucky, 97, 100 Beccaria, Cesare, 27–29 Becker, Howard, 80 Bentham, Jeremy, 27–29 Black Codes, 30 Bobby v. Van Hook, 212n32

Booth v. Maryland, 169–71, 183 Bourdieu, Pierre: 12, 59–66, 77, 186 Butler, Judith, 213n48 capital defense: ABA guidelines, 70, 105, 125, 134–35, 142, 152; and dangerousness, 159–60, 187; history of, 41–46, 56–57, 67–72; mitigation arguments at trial, 22, 85–87, 95, 121–47, 149, 157, 198; my involvement in, 1–4, 6–10, 187–89; part of capital sentencing field, 14, 60–81, 175; prosecutors disputing, 151–55; supporters at trial, 176–81; and victim participation, 170, 174, 176–81; voir dire, 97–113, 159 capital jury. See jury, capital capital punishment, United States, 2, 3fig.; abolition, 12, 14, 39–40, 46–49; of children, 45; data on, 2, 3fig., 85–86, 194; in Europe, 39; examples of state statutes, 49–53; impact, 132–33, 140, 166–67, 183; and racial threat, 49; versus life sentence, 25–26, 37, 75, 88, 96, 99, 107, 111, 117–18, 121, 161, 187–89 Calhoun, Craig, viii, ix, 204n10 capital sentencing: cost, 62; as a field, 56, 59–81; four features of, 90fig.; history of modern, 41–46, 56–57, 67–72; jury

245

246

index

capital sentencing (continued) selection, 93–119; outcomes, 56; racism in, 97–100, 116–18, 143–45, 151, 158–59, 161–62, 183; social psychological influence on, 60, 68–71 carceral system ,29, 187 Childs, Dennis, 30 chivalry bias, 14 cite black women: Bell, 209n42; Crenshaw, 204n9; Collins, 143; Davis, Angela Y., 151, 161, 189; Harris, 32; Hartman, 162; Meares, 206n19; Potter, 204n9; RussellBrown, 206n21 Conquergood, Dwight, 217n20 Constitution, United States, 30, 41–44, 52, 67–69, 183, 206n2 court reporter, 2, 85–86, 127, 175, 180, 197 courthouses: architecture, 19, 94; security, 20–21 co-victims. See victim supporters criminalization, 30–34, 161–62 critical race theory, 14n9, 186–87, 219n2 critical victimology, 52 culture and law, 60 dangerousness, 107–8, 149–62 Davis, Angela Y., 151, 161, 189 death qualification, 13, 79, 99–100, 103–13, 118, 141, 187 death penalty. See capital punishment death row, 1–2, 4, 14, 19, 48, 55, 122, 160, 188, 194, 198, 209nn43,44,48 defense, criminal. See public defenders deterrence, 27–29, 158 diminished capacity, 122, 142–43 discretion, guided. See guided discretion discrimination, racial. See racial discrimination disinvestment in the poor, 20 dramaturgy, 8, 88, 145 Durkheim, Emile, 182 Dzur, Albert, 118, 214n52, 219n12 effective assistance, 68–70 Enlightenment, historical period, 27–29, 142, 158 ethics, in research methods: 6–10, 14, 174 ethnography, 4–10, 15, 60–66, 87–88, 171, 188–89, 193, 195–98 executions: of children, 45; data on, 2, 3fig., 85–86, 194; in Europe, 39; as humane, 39; impact, 132–33, 140, 166– 67, 183; versus life sentence, 25–26, 37,

75, 88, 96, 99, 107, 111, 117–18, 121, 161, 187–89 federal death penalty, 5, 20, 40–41, 69, 114, 122, 126–34 field analysis, 12, 56, 59–81, 86–91, 126, 140– 47, 161–62, 186–91 field notes: defined, 6, 23, 126; excerpts, 19–23, 85–86, 93–96, 105–13, 120, 123–24 Foucault, Michel, 29, 36, 68, 217n20 frontloading mitigation, 125 Furman v. Georgia, 11, 41–45, 52, 57, 67, 72–73, 98–99, 105, 116 gang, criminals, 51–53, 107, 122, 126, 156–57 Garfinkel, Harold, 87–88, 150, 161 Garland, David, vii, 29, 39, 193 gender: bias on death row, 14; pronouns, use of in the book, 14 Gideon v. Wainwright, 68 Goffman, Erving, 8, 88–89 Gregg v. Georgia, 11, 42–45, 49–50, 57, 62, 67–69, 73, 100, 114, 117, 207n11 guided discretion, 44–45, 114–19 Haney, Craig, 60 Hartman, Saidiya, 162 heteronormativity, 26, 187 Holdman, Scharlette, 71 homicide: annually in the US, 2, 12fig., 26; clearance rates, 53–54; data on, 4–5, 39, 194, 208nn27,30; percent committed by women, 14; social construction of: 10–12, 25–37, 53–54 incarceration, 29–31, 32fig., 40, 46–47, 49, 54, 60, 90, 99, 118, 141, 190 indigent defense, 47, 54–58, 125, 186. See also mitigation, capital inequality, 3, 30–34, 49, 186 innocence: as a defense tactic, 124–25; guilt/ innocence phase, 45, 105–6, 109, 114, 125–26 intersectionality, 204n9, 143 Islam, 34 J. E. B. v. Alabama, 100 judges: and capital defenders, 72, 125, 132, 174; in the capital sentencing field, 7, 22, 70, 77–81, 87, 123–24; criminal sentencing, 44, 62; disallowing performance, 146; instructions to jurors, 95–96, 113–16, 126;

index joking with prosecutor, 85–87, 89–90; and victim advocate, 179–80; and victim supporters, 175–82; qualifying an expert, 127–28 Jurek v. Texas, 207n11 juries: capital, 4, 11, 44–45, 77–81, 87; criminal, 44; interviews with capital, 140–42; and racism, 151; “vanishing,” 62 jury selection: capital: 2, 45, 94–119; procedure, 101–16; questionnaires, 102; race and class bias, 97, 100, 116; religious exceptions, 99; ruling jurisprudence, 97–100. See also voir dire Kant, Immanuel, 27–29 Kaplan, Paul, 60 Kennedy v. Louisiana, 46 knowledge: agnotology and missing, 5–6, 13, 57, 209n49; legal, 61, 63, 65–68, 70, 101, 144, 147, 187; sociology, vii, 3, 27; theory of, 26–27 Latour, Bruno, 213n46 lawyers. See prosecutors, capital; public defenders lay judges. See juries legal drama. See performance legal field, 61–66 legislators, United States, 12, 42, 49–53 liberal democracy, 27–29 Lockhart v. McCree, 100 Marx, Karl, 29 Mbembe, Achille, 36 mass imprisonment. See incarceration McCord, David, 5, 198 media: analysis of capital defendants, 34–36; depictions of criminality, 33–34; reporters at trial, 21–23 mental illness, 13, 41–42, 45, 69, 106, 109, 131, 133, 141–42, 152–53, 158, 189 methodology. See research methods Mill, John Stuart, 36 missing knowledge. See agnotology mitigation, capital, 60, 68–72, 77–79, 104–9, 114–19, 121–47, 152, 159, 161, 179–81, 183, 197 model penal code, 41, 49–50, 206n6, 208n28 Morgan v. Illinois, 100 mourning, 78, 90fig., 146, 167, 171–75, 181–83, 186 Moussaoui, Zacarias: 2

247

narrowing death eligibility: 11–12, 12fig., 26, 46–47, 55, 80, 186 necropolitics, 11, 13, 36–37, 40, 54, 57, 80, 91, 141, 143, 146, 151, 187–88 nonnegligent death, 11 Panetti v. Quarterman, 214n54 Payne v. Tennessee, 166, 169–71, 183 Penry v. Johnson, 69 performance: and dangerousness, 107–8, 149–62; jurors as punitive citizens, 109– 19; lawyers as dramaturgs, 145–47; and mitigation, 121–47; theory of, 8–9, 13, 75–76, 78–81, 88–90, 199; victims mourning, 165–67, 170–83 Phelan, Peggy, 199, 213n45, 213n48, 214n55 plea bargaining, 44, 55–56, 62, 88, 188, 197, 210n6 police, 11, 14, 53–55, 116, 123, 135, 152, 155, 161, 181, 185, 194, 196, 197fig. Powell v. Alabama, 68 Proffitt v. Florida, 207n11 prosecutorial discretion, 73 prosecutors, capital: advantage at trial, 59; arguments about dangerousness, 107–8, 149–62; in capital sentencing field, 60–81; development, 73–74; statements to capital juries, 25–26, 61 psychiatry, 13; expertise in capital cases, 61, 71, 73, 77–78, 80, 136–39, 153, 158–59; legacy of eugenics, 159 psychology, 13; expertise in capital mitigation, 60, 68–71, 78, 104, 120, 126–36, 139; expertise on dangerousness, 158–59; legacy of eugenics, 142, 145, 159; structuring capital sentencing, 60, 68, 71, 78, 107–8 public defenders, 55–57, 94, 125. See also capital defense punitive citizenship, 13, 97, 100, 117, 140–41, 186 racial assembly, 151,162 racial discrimination: constructing criminality and punishment, 29–34, 189–90; in capital jury selection, 97–100, 116–18; in capital mitigation, 143–45; in criminal sentencing, 1–3, 40–41, 49–53; and dangerousness, 151, 158–59, 161–62; prosecutorial, 74; and victim testimony, 183 racial threat, 49 Racketeer Influenced and Corrupt Organizations Act (RICO), 122 rape, 50, 95, 155, 168, 194, 196, 217

248

index

rehabilitation, 31–33, 168 retribution, 31–32, 61; and capital defense, 77–78, 144–47; prosecutors’ case for, 143– 44, 154, 161–62 research methods: 5–10, 60–61, 86–89, 193–99 Ridgway, Gary, 2 Roper v. Simmons, 45 roulette, 10–11 Sarat, Austin, 10, 60, 150, 204n8 separation of state and federal powers, 40–41 Scheper-Hughes, Nancy, 182 sexual deviance, 35–36 slavery, 29–30, 151, 154, 162, 187, 217n18; in relationship to policing, 54, 208n40 Smith, Dorothy, 6 social control, 29–30, 33, 36 sociological research. See research methods South Carolina v. Gathers, 170 spectacle, 147, 162 statutory aggravators. See aggravators, statutory statutory mitigators. See mitigation, capital Strickland v. Washington, 68–69 super due process, 10, 12, 43–46, 57, 80, 90, 190

super predator, 161 Supreme Court, United States, 10–14, 41–46, 49, 62, 67–71, 79–80, 97–100, 105, 114, 116–18, 158, 166, 169–71, 173, 185–86 Taylor, Diana, 6 Terry v. Ohio, 205n19 theatricality, 7–8, 59, 75–76, 88–90 transcription, legal, 6, 13, 86–87, 131, 134, 136, 171, 173–74 victim devaluation, 54 victims: assistance staff, 180; capital, 22, 35, 50–52, 54, 73; impact testimony, 13, 75, 151, 154, 165–83; methodological considerations, 194, 197; structuring capital sentencing, 78–9; supporters at trial, 165–83 victimology, critical, 52 voir dire, 98, 108, 114, 118, 159, 215nn8,10. See also jury selection war on drugs, 31 Wiggins v. Smith, 69–70 Witherspoon v. Illinois, 99–100 Woodson v. North Carolina, 207n8

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