Social Work, Criminal Justice, and the Death Penalty 0190937238, 9780190937232

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Social Work, Criminal Justice, and the Death Penalty

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Social Work, Criminal Justice, and the Death Penalty Edited by Lauren A. Ricciardelli, PhD, LMSW With Foreword by Ed Risler, Emeritus Professor

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1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Ricciardelli, Lauren A., editor. | Risler, Ed, 1953–​writer of foreword. Title: Social work, criminal justice, and the death penalty /​ edited by Lauren A. Ricciardelli, PhD, LMSW ; with foreword by Ed Risler, Emeritus Professor. Description: New York, NY : Oxford University Press, [2020] | Includes bibliographical references and index. Identifiers: LCCN 2019052474 (print) | LCCN 2019052475 (ebook) | ISBN 9780190937232 (hardback) | ISBN 9780190937256 (epub)| ISBN 9780190937249 (updf) Subjects: LCSH: Capital punishment—​Moral and ethical aspects—​United States. | Social work with criminals—​United States. Classification: LCC HV8699.U5 S477 2020 (print) | LCC HV8699.U5 (ebook) | DDC 364.660973—​dc23 LC record available at https://​lccn.loc.gov/​2019052474 LC ebook record available at https://​lccn.loc.gov/​2019052475 9 8 7 6 5 4 3 2 1 Printed by Integrated Books International, United States of America

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This book is dedicated to all the professionals, and those who wish to become the professionals, who have devoted their time, thoughts, heart, energy, and expertise to the pursuit of realizing a fairer, more equal, and less arbitrary and retributive criminal justice system—​one that neither functions for the purpose of profit, nor for the purpose of enforcing an oppressive and rigid social hierarchy that excludes individuals and groups from participating in democratic processes by constructing and then criminalizing particular social membership statuses. This book is for everyone who has been touched by the criminal justice system, regardless of reason and outcome. Special dedication and appreciation for this opportunity is owed to friend and mentor, Ed Risler; Andrew Dominello and Dana Bliss with Oxford University Press; Chris S. Parker, the talented artist who rendered this book’s cover art; and all the authors who were gracious enough to share their time, voice, and expertise for this project (alphabetically): Cynthia Adcock, A. Christson Adedoyin, Allison Bantimba, John Barner, Elizabeth Beck (who was also instrumental to the conceptualization process of this textbook), Marc Bookman, Katherine Crawford, Marissa McCall Dodson, Lauryn Fraas, Leon Ginsberg, Brian Kammer, Chris Larrison, Sharon Moore, Larry Nackerud, Robyn Painter, Michael Robinson, Timothy Saviello, Anna Scheyett, Jennifer Schweizer, Cliff Sloan, Russell Stetler, and Richard Dien Winfield. This project is possible because of them. To that end, this book is dedicated to advocates and activists. Lastly and importantly, this book is meant for you, the reader. May your current and future efforts toward criminal justice reform champion a deeper ethical mandate for social justice and the upholding and continued expansion of human and civil rights—​and help society to further realize its eternal dream of equality, which does not die over time, but becomes only stronger and more stirring.

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CONTENTS

Foreword  ix Ed Risler Author Biographies   xi Introduction: The Important Role of Social Work   xxi Lauren A. Ricciardelli Section I. Criminal Justice Considerations 1. Going, Going, Gone: The Death of Capital Punishment in the 21st Century   3 Marc Bookman 2. Methodological and Procedural Considerations   15 John R. Barner 3. Jury Considerations in Capital Cases   25 John R. Barner 4. The History of Mitigation in Death Penalty Cases   34 Russell Stetler 5. Social Workers in Capital Defense Practice: Demystifying Human Frailty/​Empowering Conscience   46 Brian Kammer Section II. Sociopolitical Considerations 6. On Capital Punishment   63 Richard Dien Winfield 7. Structuralism, Neoliberalism, and the U.S. Criminal Justice System   75 Larry Nackerud 8. The Criminalization of Poverty   86 Christopher R. Larrison 9. Mass Incarceration: The Politics of Race, Gender, and U.S. Prison Industry   97 Michael A. Robinson, Sharon E. Moore, and A. Christson Adedoyin

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10. A Public Health Case for the Abolition of the Death Penalty   117 Elizabeth Beck, Cynthia F. Adcock, and Allison Bantimba 11. Affecting Legislative Change From the Judicial Perspective   131 Timothy R. Saviello Section III. Social Work Considerations 12. Linking the Social Services and Criminal Justice Systems   145 Leon Ginsberg 13. Serious Mental Illness, Criminal Justice, and the Death Penalty   159 Anna Scheyett and Katherine J. Crawford 14. Intellectual Disability, Criminal Justice, and the Death Penalty   172 Cliff Sloan and Lauryn Fraas 15. Immigration, Foreign Nationals, and the U.S. Death Penalty   184 Larry Nackerud and John R. Barner 16. The Death Penalty From the Family Perspective   196 Jennifer Schweizer and Elizabeth Beck 17. The Relevance of Trauma and Secondary Trauma to Death Penalty Cases   213 Robyn Painter 18. Advocacy, Activism, and Policy Practice: Social Workers as Advocates for Criminal Legal System Reforms   229 Marissa McCall Dodson Epilogue: Making a Seat at the Table   241 Lauren A. Ricciardelli Glossary  245 Recommended Works and Resources   257 Index  263

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FOREWORD

The first thoughts that came to mind when asked to write the foreword to this book were two quotes by the author of Crime and Punishment, Fyodor Dostoevsky. He wrote, “The degree of a civilization can be judged by those entering its prisons.” I find this statement is somewhat ironic, considering the United States is one of the wealthiest nations in the world but incarcerates more of its citizens than any other by comparison. Equally compelling, Dostoevsky wrote, “Society should be judged not by how it treats its outstanding citizens, but how it treats its criminals.” While many may see wealth as an indicator of the civility of a nation, this statement is paradoxical when considering that, in addition to the incarceration rates, the United States is among the top nations worldwide in the execution of its citizens, following countries such as China, Iran, Pakistan, and Saudi Arabia. For more than 30 years, I have practiced social work and conducted research in the criminal justice system. I was a probation officer and an administrator of a juvenile detention facility before becoming an academic and one-​time appointee to the Board of Juvenile Justice by the governor of Georgia. Throughout my career in social work as a practitioner and social work academic, I have grappled with the criminal justice system’s metaphorical double-​edged sword. In theory, one edge suggests that laws founded on society’s social contract should protect citizens and prevent chaos, and those who violate the laws should be held accountable through retribution. The second edge of the blade holds the value that a civilized society is responsible for all its members including those who violate laws. While the former view sees so-​called criminals as deviant persons, the latter considers law violators to often be the byproduct of failed and biased policies and an unjust legal system. It is true that, throughout history, the sword has changed shape with the evolution of laws reflecting society’s values; in colonial times, during the infancy of the United States, a child could be put to death for a minor act that was considered immoral. However, the constant that has remained through our history is the criminal justice system’s unequal and unjust application of laws to its citizens, which perhaps may explain the paradox of why a developed and wealthy country such as the United States is a

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leading nation in housing its citizens in prisons and having them put to death. I’ve known Dr.  Ricciardelli both professionally and personally for a considerable number of years, and I am very familiar with her significant scholarly study of the intersection of the criminal justice system, the death penalty, and intellectual disability. This seminal book is an important step on her part to address the conundrum of the failed and unjust criminal justice system that is differentially applied to those citizens who are, in particular, marginalized and economically disadvantaged:  the poor, persons with disabilities, and people of color. The evidence is undeniable when one considers that, according to the Death Penalty Information Center, DNA evidence has exonerated 165 inmates who were awaiting the death penalty on death row—​the majority of whom were African American. The timing and importance of this book and its contribution to the criminal justice literature cannot be overstated. Given our country’s current political discourse that promulgates divisive, hateful, and intolerant rhetoric, this book should not only inform but also challenge all those who work and strive for a system that is just—​a system that would truly live up to the founding fathers’ notion of equal justice under the law for all citizens. Ed Risler, Emeritus Professor

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AUTHOR BIOGRAPHIES

Cynthia F. Adcock, JD Cynthia F. Adcock is a freelance writer, law professor, lawyer, and social entrepreneur. Her writing focuses on the death penalty and its collateral consequences. Ms. Adcock has represented numerous inmates on North Carolina’s death row, including five who were executed. Her teaching career began at her alma mater, Duke University School of Law, and has spanned the law school curriculum, from the required doctrinal subjects of criminal procedure and constitutional law to experiential education courses such as a death penalty clinic and full-​time legal residencies. Ms. Adcock is expert at launching new initiatives and projects, a list of which include One World Market, a fair-​trade store in Durham, North Carolina; the Capital Restorative Justice Project; and, most recently, the Residency-​in-​Practice Program at Elon University School of Law. She lives with her husband, her mother, two dogs, and a cat in Charlotte, North Carolina. A. Christson Adedoyin, PhD, MSW A. Christson Adedoyin is currently an Associate Professor of Social Work in the Department of Social Work, School of Public Health at Samford University in Birmingham, Alabama. His research interests include program evaluation, social policy analysis, integrating faith and learning, and faith-​based interventions to address socioeconomic and health disparities among African Americans, African immigrants, and African refugees. He has published and presented extensively on the public health implications of police brutality and shooting of unarmed black males in the United States. He also participated in two successive U.S. Department of Health and Human Services, Office of Minority Health, United States Conferences on African Immigrant and Refugee Health (USCAIH-​3 and USCAIH-​4), both of which focused on the roles of public health and human services professionals in the health and well-​ being of African immigrants and refugees in the United States. Allison Bantimba, Founder of Fulton County Remembrance Coalition Allison Bantimba has a passion for challenging mass incarceration and capital punishment. As a mitigation investigation intern at the Federal Defender

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Program in Atlanta, she worked closely with capital defense teams working on federal appeals for condemned clients. She started the Fulton County Remembrance Coalition (FCRC). FCRC, in partnership with the Equal Justice Initiative, is a diverse group of individuals dedicated to engaging the community in a process of truth and reconciliation by confronting our history of racial terrorism and recognizing the legacy that this history has created. FCRC has curated a permanent exhibit at the Auburn Avenue Research Library on African American History and Culture displaying 35 jars of soil collected from sites in which a racial terror lynching took place in Fulton County. The coalition aims to change the narrative we use to discuss our grievous past. Allison received her master’s in social work from Georgia State University. John R. Barner, PhD, MSW John R. Barner is faculty at the Survey Research and Evaluation Unit (SRE) of the Carl Vinson Institute of Government at the University of Georgia. Barner received a PhD in Social Work from the University of Georgia in 2011, an MSW from the University of Minnesota in 2008, and a BS in Family Social Science from the University of Minnesota in 2006. Barner’s recent scholarly work has focused on forensic and legal aspects of policy and practice including imposition of the death penalty; the theoretical study of crime and deviance in American society; and the history, prevalence, and etiology of intimate partner violence and trafficking of persons. Elizabeth Beck, PhD, MSW Elizabeth Beck is a Professor in the School of Social Work at Andrew Young School of Policy Studies. Her research is in the areas of mass incarceration, forensic social work, community organizing, and restorative justice. Dr. Beck is author of multiple peer review articles, book chapters, and three books. Her relevant books include In the Shadow of Death: Restorative Justice and Death Row Families (Oxford University Press), which received the American Library Association CHOICE award for Outstanding Academic Title of 2007. She also edited a volume entitled Social Work and Restorative Justice: Skills for Dialogue, Peacemaking, and Reconciliation (Oxford University Press). Beck is involved in a number of community-​based and criminal “in”-​justice initiatives. She teaches in Phillips State Prison with the Common Good Atlanta program. She has consulted on numerous capital cases, served as an expert in state and federal cases, and provided training to hundreds of capital defense teams. Marc Bookman, JD Marc Bookman is the co-​ director of the Atlantic Center for Capital Representation. From 1993 to 2010, he was in the Homicide Unit of the Defender Association of Philadelphia, where he started as an attorney in 1983. He received his undergraduate degree from the University of Pennsylvania in 1978 and his law degree from the University of North Carolina at Chapel Hill

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in 1982. Since 1995, he has been on the faculty of many death penalty conferences, including those sponsored by the National Legal Aid and Defender Association, the National Association for Criminal Defense Lawyers, and the NAACP Legal Defense Fund. He has written widely about various criminal justice issues, including the death penalty, juvenile crime, false confessions, and effective lawyering and has published numerous essays in The Atlantic, Mother Jones, VICE, and Slate. Six of these have made the list of Notable Essays in Best American Essays 2010, 2014, 2015, 2016, 2017, and 2018. Katherine J. Crawford, PhD, LCSW Katherine J. Crawford is currently an Assistant Professor at Auburn University in the Sociology, Anthropology, and Social Work Department. She received a BS in Psychology in 2005 from Kennesaw State University, an MSW in 2008 from Kennesaw State University, and a PhD in Social Work in 2016 from University of Georgia. Crawford’s practice experience includes working with individuals with developmental disabilities and their families; grandparents raising grandchildren; case management with individuals experiencing homelessness; and service coordination and mitigation and advocacy efforts for clients represented by the Georgia Public Defender’s Office in Atlanta, Georgia. Crawford is an evaluator for the Justice and Mental Health Collaboration Grant project in Athens–​Clarke County, Georgia, which is funded through the U.S. Department of Justice’s Bureau of Justice Assistance. This is a cross-​ sector collaboration between law enforcement and mental health providers with the overarching goal of diverting individuals with mental health issues from incarceration and connecting them with the appropriate community resources. Marissa McCall Dodson, JD and Policy Director Marissa McCall Dodson is the Public Policy Director at the Southern Center for Human Rights in Atlanta, Georgia. Ms. Dodson, also a lawyer, is responsible for developing and advocating for legislation to end the criminalization of poverty, reform harsh sentence laws, enhance alternatives to incarceration, abolish the death penalty, and strengthen the public defender system in Georgia. Ms. Dodson began her legal career developing the first program in Georgia to address individual and systemic barriers facing people with a criminal history through direct service, education, and legislative advocacy. Ms. Dodson has spent over a decade working with lawyers, social workers, community organizers, formerly incarcerated people, and lawmakers to advance reforms to reduce prison populations and improve the quality, scope, availability, and accessibility of services that address the needs of impacted communities in the South. In 2012, she received the Commitment to Justice Award from the State Bar of Georgia’s Young Lawyer Division for her successful advocacy of improvements to the state’s expungement law. In 2015, Ms. Dodson was the

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recipient of the National Association of Criminal Defense Lawyers Champion of State Criminal Justice Reform Award. Marissa received her bachelor’s degree in political science from Spelman College and her juris doctor degree from the Paul M. Hebert Law Center at Louisiana State University. Lauryn Fraas, JD Lauryn Fraas is a lawyer in Seattle, Washington. She previously practiced law in Washington, DC, and assisted in the representation of Bobby Moore before the United States Supreme Court in the landmark case, Moore v. Texas (2017). She was a co-​recipient of the Catalyst Award for Legal Advocate of the Year from The Arc for her work on the Moore case. Leon Ginsberg, PhD, MSW Leon Ginsberg has been a social work educator and social welfare administrator since 1958. In 1968, he became director of the School of Social Work at West Virginia University, a title that later changed to dean in 1976. His MSW is from Tulane University in 1959 and his doctorate, in political science, from the University of Oklahoma in 1966. For eight years, he was Commissioner of Human Services in West Virginia Governor John D. Rockefeller’s administration, beginning in 1977. Dr. Ginsberg was Chancellor of the West Virginia Board of Regents for Higher Education from 1984 until 1986. He served at the University of South Carolina as Carolina Distinguished Professor from 1986 until his retirement in 2006. From 2006 until 2009 he was chair of the Appalachian State University Department of Social Work and served as interim chair of the Appalachian State Department of Physics and Astronomy from 2009 to 2011. Among his awards and honors are the International Rhoda G.  Sarnat award from the National Association of Social Workers in 1991 and the Significant Life Achievement Award by the Council on Social Work Education in 2011. Brian Kammer, JD Brian Kammer, a West Virginia native, is the Director of the Habeas Project at the Mercer University School of Law in Macon, Georgia. From 2009 to 2018, Brian was the Executive Director of the Georgia Appellate Practice and Educational Resource Center (Georgia Resource Center), a nonprofit law office providing representation to indigent, death-​sentenced Georgia prisoners in state and federal postconviction (habeas corpus) proceedings. From 1996 to 2009, Brian was a staff attorney at the Center. During his time as director, the Center’s work was recognized with the 2012 Indigent Defense Award from the Georgia Association of Criminal Defense Lawyers; the 2013 Legal Legends Award from the Georgia Lawyer Chapter of the American Constitution Society; and the 2013 Deirdre O’Brien Advocacy Award from The Arc of Georgia for the Center’s work representing clients with intellectual disabilities. Brian graduated from Northeastern University School of Law in June 1996.

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Christopher R. Larrison, PhD, MSW Christopher R.  Larrison is Associate Professor at the University of Illinois School of Social Work. His research and teaching focus on the social determinants of, and services for, serious mental illness and health. His work has been shaped by a transdisciplinary approach to research and collecting primary data in rural community-​based settings from people receiving and providing services. He has concentrated on two sets of factors related to community-​based service outcomes: (a) client-​level factors with a particular consideration to socioeconomic status, gender, level of health, and race, culture, and ethnicity and (b) agency-​level factors with a particular consideration to program model, level of innovation, and organizational climate. Several of Dr. Larrison’s peer-​reviewed articles have been placed on suggested reading lists by the U.S. Department of Housing and Urban Development, the U.S. Government Accounting Office, and the World Bank. Sharon E. Moore, PhD, MSW Sharon E. Moore is Professor of Social Work at the Raymond A. Kent School of Social Work at the University of Louisville. She earned her master’s and bachelor’s degrees from the University of Pittsburgh’s School of Social Work. Her clinical social work practice was in the areas of medical social work and substance abuse counseling. She was awarded the Presidential Exemplary Multicultural Teaching Award by the University of Louisville for outstanding work in the area of teaching human diversity. In 2006, she became only the second African American to become a full professor at the Raymond A. Kent School of Social Work since the program began in 1939. Her research articles include “The Benefits, Challenges, and Strategies of African American Faculty Teaching at Predominantly White Institutions,” which was published in a special issue of the Journal of African American Studies (JAAS) that she co-​edited in 2008 that contained the most downloaded manuscripts in the history of the JAAS. Part of her current research is devoted to issues related to African American males and faculty at predominantly White institutions. She co-​edited the textbook, Dilemmas of Black Faculty at Predominantly White Institutions in the United States:  Issues in the Post-​Multicultural Era. Dr.  Moore presented a paper, “The Benefits, Challenges, and Strategies of African American Faculty Teaching at Predominantly White Institutions,” at the Oxford Round Table at Harris Manchester College in the University of Oxford in Oxford, England. Larry Nackerud, PhD, MSW Larry Nackerud teaches social welfare, policy analysis, and research methods courses in the School of Social Work at the University of Georgia. His main area of teaching and research interest is the design and implementation of U.S. immigration and refugee policy. Dr. Nackerud is particularly focused on the applied practice of social work and the intersection between the formulation

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of public policies at all levels of government, federal, state, and local. His teaching and research interests are an outgrowth of his child welfare practice on the Blackfeet Reservation in Northwestern Montana, his clinical practice at the Alaska Psychiatric Institute, and the completion of his dissertation research in the Texas–​Mexico border region. Dr. Nackerud integrates elements of the interpretive inquiry paradigm, different sampling strategies, and both quantitative and qualitative data collection methods into his academic work. Robyn Painter, JD Robyn Painter is an attorney who currently works at the U.S. Department of Education’s Office for Civil Rights. Her first 11 years as an attorney were spent in the field of criminal defense, and most of these were as a habeas corpus capital defense practitioner at the Georgia Resource Center, where she successfully litigated the Center’s challenge to Georgia’s lethal injection secrecy law, resulting in a 10-​month stay of the death penalty in Georgia in 2013–​ 2014. Robyn received her AB in History and Romance Languages from the University of Georgia and her JD from Georgetown University Law Center in Washington, DC. Prior to becoming a lawyer, she served as a Peace Corps volunteer in Madagascar. Robyn was competitively selected to the U.S. Department of Education’s “Pathways to Leadership” program; was named one of the University of Georgia’s “40 Under 40”; and was a staff attorney at the Georgia Resource Center when the Center was awarded the Georgia Association of Criminal Defense Lawyer’s Indigent Defense Award and the American Constitution Society’s Legal Legends Award. Robyn is married to her former law school clinic partner, and together they have a daughter and twin sons. Lauren A. Ricciardelli, PhD, LMSW Lauren A. Ricciardelli is an Assistant Professor of Social Work at Troy University in Phenix City, Alabama, and is a licensed social worker in the state of Georgia. Dr.  Ricciardelli earned a BA in Philosophy in 2006, and her MSW and PhD from the University of Georgia in 2011 and 2017, respectively. In addition to professional social work experience in the areas of healthcare, disabilities, and juvenile justice, Dr. Ricciardelli’s area of research interest focuses on: the criminal justice system, including immigration policy; the sociology of disability and policy implications, including implications for death penalty cases and social service provision; and broadly, the implications of such research and policy for social inclusion efforts and, accordingly, social work education. Ed Risler, Emeritus Professor, PhD, LCSW, LMFT Ed Risler is Emeritus Professor at the University of Georgia School of Social Work. He has over 20 years of practice experience in juvenile justice, and work with families and troubled youth. Dr. Risler maintains his license as a clinical social worker and marriage and family therapist and serves on a variety of state and professional boards. He served for more than a decade on the board

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of the Georgia Department of Juvenile Justice, during which period school programs for incarcerated youth were accredited for the first time by the Southern Association of Colleges and Schools and the Correctional Education Association. While his research interests include poverty and international social work, Dr. Risler also consults with a number of human service organizations on program and practice evaluation in Haiti, Hong Kong, and Canada. Michael A. Robinson, PhD, MSSW Michael A. Robinson is an Associate Professor of Social Work at the University of Georgia. Dr. Robinson obtained his BS in Commerce from DePaul University in Chicago, Illinois. He earned an MSSW and a PhD from the University of Louisville, where he focused on mental health of African American males. Realizing the devastation that drugs and alcohol have on families, Dr. Robinson obtained a clinical substance abuse license so that he could work with people afflicted with substance use disorders. Dr. Robinson then went on to work in academia at the University of Alabama and East Carolina University before taking a position at the University of Georgia’s School of Social Work, where he is currently the Director of the Marriage and Family Therapy Program. Dr. Robinson is the author of over 25 publications in academic journals and academic texts including a 2017 article, “Black Bodies on the Ground: Policing Disparities in the African American Community—​An Analysis of Newsprint From January 1, 2015, Through December 31, 2015,” published in the Journal of Black Studies. This article won the Article of the Year award by the Council on Social Work Education’s Council on Racial, Ethnic, and Cultural Diversity. Dr.  Robinson is also active in the social work profession. He has been appointed to the Commission on Social and Economic Justice by the Council of Social Work Educators and also serves on the editorial board and manuscript reviewers on several academic journals. Timothy R. Saviello, JD Tim Saviello has spent his entire legal career representing indigent defendants in criminal prosecutions across the Deep South. Defending felony cases in the criminal courts, he began as a county public defender in Atlanta. He then spent three years defending men and women (both on trial and on appeal) at the Louisiana Capitol Assistance Center. He spent two years working in the capital habeas unit at the federal public defender in Atlanta, followed by eight years as a trial attorney in that office. In 2010, he established a private practice doing exclusively federal criminal defense and was an Associate Professor of Law at the John Marshall Law School in Atlanta. In 2015, he joined the federal public defender in middle Georgia, defending men and women (both at trial and on appeal) facing federal criminal prosecutions. He has written about the effect on intellectually disabled defendants of a too-​high standard of proof for proving their disability in death penalty cases in Georgia.

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Anna Scheyett, PhD, MSW Anna Scheyett is Dean and Professor at University of Georgia School of Social Work. She received her PhD from Memorial University, MSW from the University of North Carolina (UNC), and Master’s in Science and Philosophy from Yale University. Prior to working in Georgia, she was Dean of the University of South Carolina College of Social Work, and before that, Associate Dean at the UNC School of Social Work. Scheyett’s research examines community integration of vulnerable populations, particularly individuals experiencing mental illnesses or involved in the criminal justice system. Her publications include the book Making the Transition to Managed Behavioral Health Care and over 60 articles in peer-​reviewed publications. Scheyett has served in numerous leadership roles, including the national board of National Association of Social Workers (NASW), the board of the National Association of Deans and Directors of Schools of Social Work, and the board of the St. Louis Group for Social Work Research. She currently serves as editor-​in-​chief for the journal Social Work. Dr. Scheyett was recognized for her work in North Carolina by NASW and awarded Social Worker of the Year in 2007, and by the UNC School of Social Work as a Distinguished Alumna in 2018. Jennifer Schweizer, PhD, LMSW Jennifer Schweizer is a Licensed Social Worker in Virginia. She earned her Master of Social Work at Virginia Commonwealth University and her PhD in Social Work from Norfolk State University. Dr.  Schweizer works as a Sentencing Advocate at the Office of the Federal Public Defender, Eastern District of Virginia. She joined the office in 2015 and conducts social history investigations for indigent clients that face federal prosecution, especially those who suffer from mental health or cognitive impairments. She is also a member of the federal drug court program. Dr.  Schweizer started her mitigation career at the Office of the Capital Defender for the Southeast Region of Virginia. She worked in this office as a mitigation specialist for over 11 years and conducted extensive mitigation investigations on pretrial death penalty cases. Cliff Sloan, JD Cliff Sloan is a lawyer in Washington, DC. He represented Bobby Moore in the United States Supreme Court in Moore v. Texas (2017), a landmark case on intellectual disability and the death penalty. He has received numerous honors, including the Frederick Douglass Human Rights Award from the Southern Center for Human Rights, the Light of Justice Award from the Texas Defender Service, and the Catalyst Award for Legal Advocate of the Year from The Arc. His public interest activities include service as Chair of the Board of the Public Welfare Foundation and Co-​Chair of the Criminal Justice Advisory Panel of

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The Arc. He also serves on the boards of the American Constitution Society, the National Center for State Courts, and the National Security Archive. Russell Stetler Russell Stetler has served as the National Mitigation Coordinator for federal death penalty projects since 2005. He has investigated all aspects of capital cases, both trial and postconviction, since 1980. Focusing on federal habeas corpus cases, he served as chief investigator at the California Appellate Project from 1990 to 1995. From 1995 to 2005, he was the director of investigation and mitigation at the New  York Capital Defender Office. He was the recipient of the National Legal Aid and Defender Association’s Life in the Balance Achievement Award in 2004, a President’s Commendation from the National Association of Criminal Defense Lawyers in 2005, and President’s Awards from California Attorneys for Criminal Justice in 2008 and 2013. Mr. Stetler is the author or coauthor of 10 law review articles, 5 book chapters, and over a dozen other articles in defense bar journals, as well as a practice guide on representing capital clients with mental disorders and impairments. These publications address mitigation evidence, mental health issues, and prevailing norms in capital defense. For more than a quarter century, he has lectured extensively on capital defense issues at various national training conferences and for the capital defense bar of most of the death-​penalty jurisdictions around the country. He has also served as an expert witness on the development and presentation of mitigation evidence in both state and federal court. Richard Dien Winfield, PhD Richard Dien Winfield is Distinguished Research Professor of Philosophy at the University of Georgia, where he has been teaching since 1982. He is the author of Reason and Justice; The Just Economy; Overcoming Foundations: Studies in Systematic Philosophy; Freedom and Modernity; Law in Civil Society; Systematic Aesthetics; Stylistics: Rethinking the Artforms After Hegel; Autonomy and Normativity; The Just State: Rethinking Self-​Government; From Concept to Objectivity; Modernity, Religion, and the War on Terror; Hegel and Mind; The Living Mind; Hegel’s Science of Logic; Hegel’s Phenomenology of Spirit; Hegel and the Future of Systematic Philosophy; The Intelligent Mind; Rethinking Capital; Conceiving Nature After Aristotle, Kant, and Hegel; and Universal Biology after Aristotle, Kant, and Hegel. In 2018, Winfield ran for U.S. Congress in Georgia’s 10th Congressional District, advocating a social rights agenda anchored in a federal job guarantee.

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INTRODUCTION

The Important Role of Social Work L AUREN A . RICCIARDELLI

Justice is indivisible. You can’t decide who gets civil rights and who doesn’t. —​Angela  Davis

In the fall of 2001, the American Bar Association established the Death Penalty Due Process Review Project to conduct research and educate the public and decision-​makers on the operation of capital jurisdictions’ death penalty laws as a means of promoting fairness and accuracy in death penalty systems in the United States and internationally (American Bar Association, 2016). According to the American Bar Association (2016), prior to the founding of the Project, many state jurisdictions possessed only anecdotal data about the functioning of their death penalty systems. In 2006, the Project began a seven-​year study that concluded in 2013 and resulted in the Project development and housing of a comprehensive database on the operation of the death penalty in states that represent 65% of the executions that have taken place in the United States post1976: (1) Alabama, (2) Arizona, (3) Florida, (4) Georgia, (5)  Indiana, (6)  Kentucky, (7)  Missouri, (8)  Ohio, (9)  Pennsylvania, (10) Tennessee, (11) Texas, and (12) Virginia (American Bar Association, 2016). A  majority of states on this list (58.3%) are located in the South region as per the U.S. Census Bureau: Alabama, Florida, Georgia, Kentucky, Tennessee, Texas, and Virginia. This statistic alone points to between-​state differences, and between-​region differences, on rates of execution and raises concern for the application and enforcement of equal justice/​protection of the law across the United States. A  multidimensional grid, geography is inextricably and dynamically linked with history and culture and the social, political, and economic norms that uphold social narratives about status and membership—​ about the inclusion and exclusion of individuals and groups.

Lauren A. Ricciardelli, IntroductionIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0001

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EQUAL JUSTICE

In addition, and related to geography, race matters significantly within the U.S.  criminal justice system. This is true historically and of present day. Famously, the Baldus Study provided statistical evidence of racial bias in death sentencing. Conducted by Professors David Baldus, George Woodworth, and Charles Pulaski, it involved the empirical analysis of approximately 2,500 Georgia homicide cases in the 1970s. The study findings reported significant disparity in the imposition of death sentences in Georgia based on the race of the murder victim, and to a lesser extent, race of the defendant, with the sentence most likely handed down when the race of the murder victim was White/​American and the race of the defendant was Black (Baldus, Pulaski, & Woodworth, 1983). Despite this statistical evidence, the 11th Circuit Court of Appeals (i.e., Alabama, Georgia, and Florida) concluded that statistics are insufficient to demonstrate discriminatory intent or unconstitutional discrimination (McCleskey v. Kemp, 1987). Michelle Alexander (2010), author of The New Jim Crow, said of the McCleskey decision that it has immunized the criminal justice system from judicial scrutiny for racial bias. It has made it virtually impossible to challenge any aspect, criminal justice process, for racial bias in the absence of proof of intentional discrimination, conscious, deliberate bias. . . . Evidence of conscious intentional bias is almost impossible to come by in the absence of some kind of admission. But the U.S. Supreme Court has said that the courthouse doors are closed to claims of racial bias in the absence of that kind of evidence, which has really immunized the entire criminal justice system from judicial and to a large extent public scrutiny of the severe racial disparities and forms of racial discrimination that go on every day unchecked by our courts and our legal process.

Prior to even McCleskey (1987), equal justice considerations were seemingly the basis for the technical, four-​year federal moratorium on the death penalty from 1972 until 1976. In the 1972 Furman v.  Georgia decision, the U.S. Supreme Court overturned existing death penalty laws on the grounds that, as they were currently being implemented, they violated constitutional safeguards against cruel and unusual punishment and unequal protections. U.S. Supreme Court justices representing the majority opinion wrote that previous death penalty laws resulted in a disproportionate and arbitrary application of the sentence and discriminated along the bases of race and income (Latzer & McCord, 2011). The Furman (1972) decision ostensibly eliminated state death penalty schemes that did not discourage arbitrariness. However, there was immediate pushback from states whose elected officials and constituencies viewed the national moratorium as a gross infringement on

[ xxii ] Introduction

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states’ rights, with Florida re-​enacting its death penalty in 1972 and 12 states, including Georgia, following in 1973. The U.S. Supreme Court reinstated the death penalty in light of Gregg v.  Georgia (1976) when the court determined that, as a penalty for murder, death was not inherently excessive, and therefore not an automatic violation of Eighth and Fourteenth Amendment protections cited in the Furman decision (Feluren, 2013).

FOLDING SOCIAL JUSTICE INTO CRIMINAL JUSTICE REFORM

In Beyond Procedural Justice:  A Dialogic Approach to Legitimacy in Criminal Justice, Anthony Bottoms and Justice Tankebe (2012) explore theoretical conceptions of legitimacy within the criminal justice system framework, specifically, in the context of policing and prisons. They write: The topic of legitimacy is of great theoretical and practical importance within the field of criminal justice, but it remains under-​studied by criminologists and socio-​legal scholars. Unquestionably the dominant theoretical approach to legitimacy within these disciplines is that of “procedural justice,” based especially on the work of Tom Tyler. . . . Tyler began his seminal work by contrasting instrumental and normative modes of obedience to law, and he then subdivided the normative mode into “personal morality” (that is, people’s general set of beliefs as to how they should act) and “legitimacy” (that is, people’s perception as to whether law enforcement officials rightly have authority over them). (p. 120)

Criminal justice is at once described as a system, a psychology, and a process and pursuit. For the sake of argument, let us put forward that criminal justice in its philosophical sense could be defined as the concern for the fair and faithful application of criminal law—​and that this alone speaks to a sort of deontological valuing of rule of law, law itself, regardless of the substance of that law. Law is granted a privileged position within the criminal justice paradigm. Social justice, on the other hand, recognizes a further and ethically problematic dimension of justice: not all laws are just/​ethical/​fair/​moral. Accordingly, social justice asks dangerous questions: What is fairness and equality and inclusion? When laws are not moral, what shall be our response—​and what is the consequence to come? In this way, criminal justice can only be as just as the substance and procedures of the laws within its system are agreed to be socially just. The National Association of Social Workers (2017) defines social justice as one of six ethical principles of the profession: Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social

Introduction  [ xxiii ]

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change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.

To this end, the overarching purpose of this book is to prepare students, and aspiring advocates and activists, to take an active role in the criminal justice and death penalty discourses by providing key insights from professionals who are engaged with the system. In this book, contributing authors write from their own experiences and expertise in death penalty cases and/​or related social policy issues from a critical, social justice, and human and civil rights perspective—​all aimed at better informing the burgeoning advocate, and social work and criminal justice professional.

THE IMPORTANT ROLE OF SOCIAL WORK

Social work has the potential to play a larger role in the professional discourse on criminal justice reform and the death penalty. Examples of the various roles that social work professionals can and do take up include working directly with death-​sentenced persons and their families; participating in mitigation work; contributing to the field of research devoted to the intersections of mental health and the criminal justice system; engaging in the critical discourse that is being had between the psychiatric and psychological professions and the legal profession when death eligibility hinges on a clinical determination; and, using social advocacy and policy practice to take up the death penalty from a social justice framework. At the micro level, social work entails helping people to meet their own needs in a manner consistent with the ethics of the profession; at the macro level, social work entails affecting change through the redistribution of justice by acknowledging the underpinning structures, systems, and institutions that make the stratification of individuals and groups possible in the first place. Social work in the space of the death penalty may rightly take up either approach or some combination therein, and it is arguably most effective if those working at all levels and in all facets are aligned toward the professionally endorsed goal of criminal justice reform—​if not outright abolition of the death penalty itself. In 2002, the National Association of Social Workers issued the following policy statement on Capital Punishment and the Death Penalty, citing the death

[ xxiv ] Introduction

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Table I.1   ARGUMENTS FOR AND AGAINST THE DEATH PENALTY Anti-​Death Penalty Arguments

Pro-​Death Penalty Arguments

Innocence

Families

The criminal justice system has sent innocent

Families of crime victims support the death

people to death row. According to the Death Penalty Information

penalty. “Crime victims’ families respond to the death

Center (2018), data from the National

penalty in a variety of ways. Whereas some

Registry of Exonerations supports two factors

argue for vengeance or atonement, others

as the most significant causes of wrongful

argue against the death penalty because it

convictions in death penalty cases: official

continues the cycle of violence. There are

misconduct and perjury or false accusation.

organizations aimed at healing for crime

As of May 31, 2017, the Registry reports

victims that are congruent with social work

that official misconduct was a contributing

values and ethics. For examples, Murder

factor in 68.3% of homicide exonerations and

Victims’ Families for Reconciliation (MVFR)

often in combination with perjury or false

opposes the death penalty and supports the

accusation, which also was a contributing

redirection of money currently spent on

factor in 68.3% of homicide exonerations.

executions to victim-​assistance programs”

Mistaken witness identification was present

(NASW, 2002).

in 24.3% of homicide exonerations; false or misleading forensic evidence in 23.2%; and false or fabricated confessions in 21.8% (Death Penalty Information Center, 2018). Racial Bias

Cost

The death penalty is applied in a racially

Keeping murders alive costs society more

disparate fashion.

than executing them.

“On the basis of a review of 28 empirical studies, “Under a vigilante system of justice, whereby the U.S. General Accounting Office (1990)

a person is caught and immediately hanged,

reported a pattern of racial disparities at all

this argument would be true. However, in

levels—​in charging, in sentencing, and in

a society based on laws that are concerned

imposing the death penalty. In 82% of the

with fairness, accuracy, equity, and justice,

studies, race of the victim was found to be a

the argument is false. Numerous studies have

factor in how the death penalty was applied,

shown that the criminal justice system would

with those who murdered white people 4.3

be less costly if there were no death penalty

times more likely to be sentenced to death

because the costs are higher in a capital

than those who murdered black people even

murder case in terms of both the initial trial

though people of color are the victims in more

and appeals. The most comprehensive study

than half of all homicides. A study of death

found that the death penalty costs North

penalty sentencing in Philadelphia between

Carolina $2.16 million more per execution

1983 and 1993 found that black defendants

than the costs of non-​death penalty murder

were nearly three times more likely to receive a

case, with a sentence of imprisonment for life

death sentence than were all other defendants.

occurring at the trial level. Thus, even with

Only two of the 20 people on federal death row

limits on appeals, the higher costs at the trial

in 2001 were white” (NASW, 2002).

level would remain” (NASW, 2002). (continued)

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Table I.1  CONTINUED Anti-​Death Penalty Arguments

Pro-​Death Penalty Arguments

Deterrence

Deterrence

There is no statistical evidence of deterrence/​

The death penalty deters violent crime more

decreased murder rates. “Data released by the British Home

effectively than does imprisonment. “Although recognizing that deterrent sanctions

Office reveal that the United States,

may be a valid and a necessary part of our

which retains the death penalty, has a

system of criminal justice, statistics used to

murder rate that is more than three times

argue both sides fail to uphold the notion

that of many of its European allies that

that the death penalty acts as a deterrent

have banned capital punishment. The data

to homicide. In fact, FBI reports show that,

challenge the argument that the death

in general, homicide rates are lower in

penalty is a deterrent to murder. There are

non-​death penalty states. The South, which

more than 110 nations around the world

accounts for 80% of executions, repeatedly

that have banned the death penalty in

has the highest murder rate, and the

law or practice” (NASW, 2002).

Northeast, which accounts for less than one percent of executions, has the lowest murder rate. Although these figures do not disprove that individuals may be deterred from committing murder by the existence of the death penalty, they do suggest that the death penalty is not likely to be a more effective deterrent than an alternative such as life imprisonment” (NASW, 2002).

Retribution

Desert

An eye for an eye leaves everyone blind.

Murderers deserve to die.

“It is the premise of this policy statement,

“Some people who hold this belief express

however, that punitive action by the

a desire for revenge. Although this is an

state can never compensate for such losses

understandable emotion in those who have

and that the death penalty is neither a

suffered, furthering vengeance is not a

sufficient nor an acceptable solution to

responsible role for the state. Social work

the problems caused by violent crime”

values and ethical principles hold that a

(NASW, 2002).

prisoner, regardless of the crime committed, is still a human being. Execution denies the inherent dignity and worth of such individuals by precluding the possibility of rehabilitation” (NASW, 2002).

This table: © 2019 Lauren A. Ricciardelli Text © 2018 Death Penalty Information Center Text adapted from https://​deathpenaltyinfo.org/​causes-​wrongful-​convictions Text © 2002 National Association of Social Workers Text from https://​www.socialworkers.org/​assets/​secured/​documents/​da/​da2010/​referred/​Capital%20 Punishment.pdf

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penalty as a violation of the professional ethical principles, dignity and worth of the person and social justice: The practice of capital punishment, which involves a deliberate act of execution by the state, is therefore at variance with the fundamental values of the social work profession. The death penalty is a violation of human rights that belong to every human being, even those convicted of serious crimes. In the United States, its application is arbitrary, unfair, and prone to racial bias and it targets people who are most vulnerable. (p. 6)

In the same policy statement, the National Association of Social Workers describes the primary arguments for and against the death penalty. Table I.1 displays these arguments with minor modification.

ORGANIZATION OF THIS BOOK

Three general and related topic areas comprise the basic framework of this textbook: (a) criminal justice considerations, (b) sociopolitical considerations, and (c)  social work considerations. Each chapter positions the author/​s to write in a voice that is accessible and compelling by drawing upon experiences and combining this narrative with relevant policy and current, evidence-​based information supported in the scholarly literature. The book also offers an appendix of recommended works and resources in which authors share the names of seminal or unique works intended to be of interest and assistance to the reader.

REFERENCES Alexander, M. (2010, April 2). Bill Moyers journal [Video file]. Retrieved from https://​ www.pbs.org/​moyers/​journal/​04022010/​watch.html American Bar Association. (2016). History of the Death Penalty Due Process Review Project. Retrieved from http://​www.americanbar.org/​groups/​crsj/​projects/​ death_​penalty_​due_​process_​review_​project/​about_​us/​history.html Baldus, D.  C., Pulaski, C., & Woodworth, G.  (1983). Comparative review of death sentences: An empirical study of the Georgia experience. Journal of Criminal Law and Criminology, 74(3), 661–​753. Bottoms, A., & Tankebe, J. (2012). Beyond procedural justice: a dialogic approach to legitimacy in criminal justice. Journal of Criminal Law and Criminology (1973-​), 102(1), 119–​170. Death Penalty Information Center. (2018). DPIC analysis: Causes of wrongful convictions. Retrieved from https://​deathpenaltyinfo.org/​causes-​wrongful-​convictions

Introduction  [ xxvii ]

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Feluren, J. V. (2013). Moving the focus away from the IQ score towards the subjective assessment of adaptive functioning: The effect of the DSM-​5 on the post-​Atkins categorical exemption of offenders with intellectual disability from the death penalty. Nova Law Review, 38, 323. Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976). Latzer, B., & McCord, D. (Eds.). (2011). Death penalty cases: Leading U.S. Supreme Court cases on capital punishment. Amsterdam, The Netherlands: Elsevier. McCleskey v. Kemp, 481 U.S. 279 (1987). National Association of Social Workers. (2017). Ethical principles. Retrieved from https://​www.socialworkers.org/​pubs/​code/​code.asp?print=1& print=1& National Association of Social Workers. (2002).Capital punishment and the death penalty. Washington, DC. Retrieved from https://​www.socialworkers.org/​assets/​ secured/​documents/​da/​da2010/​referred/​Capital%20Punishment.pdf U.S. Census Bureau, Geography Division. (n.d.). Regions and divisions of the United States. Retrieved from https://​www2.census.gov/​geo/​pdfs/​maps-​data/​maps/​ reference/​us_​regdiv.pdf

[ xxviii ] Introduction

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SECTION I

Criminal Justice Considerations

2

3

CHAPTER 1

Going, Going, Gone The Death of Capital Punishment in the 21st Century MARC BOOKMAN

T

he last Beatles concert, on August 29, 1966, at Candlestick Park in San Francisco, did not sell out. No one knew it would turn out to be their last show, and 17,500 tickets went unsold. The concerts had become unpleasant—​ for the Beatles themselves and for a fan base who could no longer hear the music—​but there was no formal announcement that they planned to stop performing live. They simply decided that their time and effort would be better spent producing music in the studio. Nonetheless, the suddenness of the decision took the music world by surprise. More typically, we are able to observe a decline before the disappearance sets in—​the last stagecoach, the last passenger pigeon, the last soldier to die in a war that is winding down. And like a war in its last gasps—​with random casualties and indiscriminate aggressions—​the decline in the death penalty is observable as well. Executions and death sentences have dropped more than 75% from their highs of two decades ago (Death Penalty Information Center, 2018c), and there is no evidence to suggest that such trends will reverse themselves. Still, there is a steady drip–​drip–​drip of state-​sanctioned killing occurring almost entirely in a handful of Southern states (Death Penalty Information Center, 2018c), and many in the criminal justice system, including several members of the U.S. Supreme Court, seem to be wondering when it’s going to end.

Marc Bookman,Going, Going, GoneIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0002

4

During the early 1800s, executions were practically celebrations, with merchants selling souvenirs and alcohol to thousands of onlookers. Such spectacles, which often included cursing at the widow and tearing down the scaffold and cutting the rope, prompted states to require private hangings. By the middle of the century, a majority had determined that executions were bringing out the worst in its citizenry. Despite excessive costs, bad lawyering, discrimination, procedural mistakes, and horrifyingly botched killings, execution in the United States persists—​for now. Although 60% of the states and the federal government continue to maintain the policy, only a small percentage of states are actively pursuing executions.

GETTING IT WRONG: ERRORS IN DEATH PENALTY CASES

There is no single reason for the decline in capital punishment. Certainly, a significant factor is our now-​confirmed ability to simply get it wrong. Deoxyribonucleic acid (DNA) exonerations (i.e., when the conviction for a crime is reversed, for example, due to the demonstration of innocence or flaw in the conviction process) have now established what many in the criminal justice system always suspected but were never able to prove to the satisfaction of zealous guardians of the status quo—​that we at times convict innocent people of even the most serious and scrutinized crimes (Innocence Project, 2017). The hubris of this confidence in the jury system was played out on the pages of the U.S. Supreme Court in the 20th Century and then on the front pages of North Carolina newspapers in the 21st century.

THE STATE OF THE DEATH PENALTY SYSTEM ITSELF

It began with some jousting between Supreme Court justices in 1994. Justice Blackmun, dissenting in the case of Callins v.  Collins (1994), was frustrated by the lack of progress that had been made after years of attempted fixes to a broken capital punishment system: Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all . . . and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness [when rules or procedures are not applied equitably to similar cases, as though to represent bias], discrimination, caprice, and mistake.

[ 4 ]  Criminal Justice Considerations

5

He then announced, in words that would soon adorn antideath penalty posters across the country, his future approach to what he labeled a failed experiment: “From this day forward, I no longer shall tinker with the machinery of death” (Callins v. Collins, 1994). Although the words were as personal as a Supreme Court justice gets in a published opinion, it was Justice Scalia who took offense at them. Specifically, Justice Scalia was offended by the case Justice Blackmun had chosen to make his pronouncement: He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us—​the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-​ by-​injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional—​for example, the case of the 11–​year–​old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93–​7200. How enviable a quiet death by lethal injection compared with that! (Callins v. Collins, 1994).

Fast forward 20  years, and Henry Lee McCollum, of McCollum v.  North Carolina (1994) infamy, is leaving death row a free man after serving 30 years for a crime he didn’t commit. As it turned out, the case typified many of the most pernicious problems with the death penalty—​there was a false confession, a shoddy investigation, and an overly aggressive prosecution against a person with intellectually disability. After confessing falsely, Mr. McCollum explained why he had done so: “I had never been under this much pressure, with a person hollering at me and threatening me. I just made up a story and gave it to them so they would let me go home” (Hasan, 2014). The case itself might never have been prosecuted at all had the state realized that a man named Roscoe Artis committed a very similar murder around the same time and just a block from where the victim’s body had been found (Neff, 2014). Only after a cigarette near the scene of the crime had Artis’s DNA on it did Mr. McCollum go free (Neff, 2014). Justice Blackmun had some aspirational words for prosecutors as well: We hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be

Going, Going, Gone 

[ 5 ]

6

humbled, rather than emboldened, by the awesome authority conferred by the State. (Callins v. Collins, 1994)

But the chasm between hope and reality is often wide, and to prove it Joe Freeman Britt, the trial prosecutor who had put Mr. McCollum on death row and who had been profiled by 60 Minutes as the country’s “Deadliest D.A. [District Attorney],” went on record to say that he still believed Mr. McCollum to be guilty (Neff, 2014).

Inhumane Methods

The very human tendency to make mistakes isn’t the only reason the death penalty is in decline in the 21st century. Another is our seeming inability to carry out the punishment in a humane manner. The search for a civilized method of execution has taken us from the hangings of the 19th century to the electrocutions and asphyxiations of the 20th century to the poisonings of the 21st century, which out of shame we have euphemized as “lethal injection.” We abandoned hangings when ropes snapped but necks didn’t, and electrocutions occasionally ended with the condemned catching on fire. The famously botched suffocation of Jimmie Lee Gray in a Mississippi gas chamber in 1983 resulted in officials clearing the room after eight minutes with Mr. Gray gasping for air and banging his head against a steel pole (Ground Report, 2007). Lethal injections have fared no better. Botched executions occur when there is prolonged suffering on the part of the person being executed, violating the U.S. Constitution’s Eighth Amendment protection against cruel and unusual punishment. The lethal injection protocol, which is the contemporary method of choice, is currently under scrutiny because though painful, the first administered injections prevent the physical demonstration of pain, leaving the injected to suffer silently as they await death. Since states carrying out executions have no legal mandate to make public, maintain, or record state executions, botched executions are typically identified through media reporting. Two men were scheduled for execution in Oklahoma on the night of April 29, 2014, but things did not go according to plan. For starters, the phlebotomist took close to an hour to find a suitable vein for the injection to occur, but after 30 minutes, Clayton Lockett had not yet died; rather, he was writhing in pain on the gurney (Fretland, 2014). The governor who had insisted that the executions proceed—​even in the face of warnings by experts that the state’s drug protocol would not work as advertised—​was finally reached at an Oklahoma City Thunder basketball game, where she called off the execution (Stern, 2015). Her executive decision did not save Lockett, however; he died shortly thereafter of a heart attack (Stern, 2015). The second man scheduled for execution, Charles Warner, was spared, but not for long—​nine months [ 6 ]  Criminal Justice Considerations

7

later, he too was executed. An investigation subsequent to his death revealed that the state of Oklahoma had used the wrong drug, but the governor issued a statement assuring the public that “the two drugs are medically interchangeable” (Stern, 2015). Warner’s last words were “my body is on fire” (Stern, 2015). These botched executions and many others have created what can only be termed a black market for obtaining lethal drugs, as the drugs used in the various state protocols have been harder and harder to legally obtain. But what has caused this shortage is hotly debated. A  year after the Oklahoma disaster, other persons on death row from the same state were at the Supreme Court arguing that the drugs used created an unacceptable risk of severe pain and thus violated the Eighth Amendment’s provision against cruel and unusual punishment. Justice Alito, a staunch supporter of capital punishment, seemed incensed by the entire argument: Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated. (Martelle, 2015)

But blaming the shortage of lethal drugs on a guerilla war fought by opponents of the death penalty brings to mind the old medical aphorism: when you hear hoofbeats, think horses, not zebras. In short, Alito’s conclusion ignored the far more obvious point—​major pharmaceutical companies had no moral or public interest in having its drugs used for killing rather than healing. If executions were to continue, the states would have to look elsewhere. Where they turned was compounding pharmacies. Compounding pharmacies mix pharmaceuticals (i.e., drugs) for the specific needs of specific patients, and are not permitted to replicate U.S. Food and Drug Administration (FDA)-​ approved drugs. Because these pharmacies are usually regulated by the states and not by the FDA, compounding pharmacies have significantly higher failure rates than those of manufactured drugs. The concern with compounding pharmacies creating lethal injection mixtures is that persons who are being executed will be more likely to experience a painful death, thereby violating the U.S. Constitution’s Eighth Amendment protection against cruel and unusual punishment (Shapiro, 2018).

Going, Going, Gone 

[ 7 ]

8

By this time, though, the pharmacies had become camera shy, and the states began to promise them anonymity, aided by legislatures that passed secrecy statutes to protect the drug sources. Such statutes did not always protect the drug supplier, however—​one pharmacy, finding its name posted across the internet, accused the Texas Department of Criminal Justice of violating its promise to keep the transaction on the “down low” (Grissom, 2013). Nonetheless, the turn toward excessive secrecy in the execution process is the culmination of a long trend.

Racial Animus in Society and Impact to the Jury Deliberation Process

Still, some problems with capital punishment have no legislative fix. Discrimination—​in the decision to seek death, in the selection of the jury, in the presentation of the evidence, in the jury deliberations, in the sentence—​ continues to permeate the process. Perhaps this is not surprising, as many scholars believe that the modern death penalty evolved from the societal condemnation of lynching (Innocence Project, 2015). Some connections between the two are obvious:  the great majority of lynchings occurred in the South, as are the great majority of executions today (Innocence Project, 2015). Indeed, 90% of lynchings and 80% of executions (assuming Oklahoma, which was a territory but essentially fought with the Confederacy) occurred there (Death Penalty Information Center, 2018b; Innocence Project, 2015). Bryan Stevenson, the executive director of Alabama’s Equal Justice Initiative, explains the link between the two well: In the 1940s and 1950s when soldiers were returning from World War II, the spectacle of lawlessness in the American South, the reckless way in which we were disregarding the Constitution and the rule of law, exposed America to our international allies. It made us seem like it was just rhetoric when we talked about justice and fairness. So pressure was placed on these communities to eliminate these optics. And what happened was that lynchings moved inside. We still executed mostly black people after proceedings that were unreliable and unfair. We promised “swift justice,” which was intended to be the same thing as lynching without the spectacle, without the optic, without the mob. And in that respect, I do believe that capital punishment is the stepchild of lynching. (Cited in Lee, 2018)

Lynching

While lynching is a horror of the past, the evidence of race discrimination in capital cases continues to fill our law books. The Supreme Court had the [ 8 ]  Criminal Justice Considerations

9

opportunity to address the issue head on in the 1987 case of McCleskey v. Kemp; however, rather than deal with a well-​documented presentation of systemic racism, the Court chose instead to bypass the broader question and focus instead on whether discrimination had been shown in a specific case. Justice Powell, the author of the opinion, later said it was the decision he regretted the most. Justice Brennan, in dissent, faulted the Court for acting out of “fear of recognition that McCleskey’s claim [that the death penalty in Georgia was imposed more often on Black defendants and the killers of White victims than White defendants and the killers of Black victims] would open the door to widespread challenges to all aspects of criminal sentencing” (McCleskey v. Kemp, 1987). He then accused the majority of a “fear of too much justice” (McCleskey v. Kemp, 1987). The next three decades have established that it is a fear we need not have. In 2018, for example, the Supreme Court stopped Georgia from executing Keith Tharpe after it was revealed that a juror in his case had sentenced him to death based on the juror’s racial animus. The juror stated:  “After studying the bible, I  have wondered if black people even have souls” (Stern, 2018). This was quite similar to what a juror had declared in the Kenneth Fults case, also out of Georgia: He’d voted for the death penalty, he said, because it was “what that n. . . deserved” (Bookman, 2015). Yet, only two years earlier, the Court had allowed Fults’s execution (Fults, 2001).

Future Danger

It is not surprising that racist jurors might occasionally sit on capital juries, even after swearing under oath (as the juror did in the Fults case) that they were not prejudiced. Nor is it all that surprising that defense attorneys might be racists, as the cases also document. Again, the Fults case is a good example. His attorney was well known for spending time in the Spalding County Courthouse lawyer’s lounge telling jokes with racial epithets. Of course, telling racist jokes might make you a racist, but introducing actual racist evidence against your own client makes you a shockingly bad attorney—​and that is exactly what happened in the 2017 case of Buck v.  Davis (2017). The jury in Buck had to answer a very specific inquiry:  whether there was a “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (Buck v. Davis, 2017). In death penalty circles, this was known as the Texas “future danger” question: No one could get a death sentence unless a unanimous jury believed the defendant was a future danger to society. Given the centrality of the question, it was all the more shocking when Buck’s lawyer called a psychologist to the stand who had determined the possibility of future danger by a seven-​factor analysis, the fourth of Going, Going, Gone 

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which read: “Race. Black: Increased probability” (Buck v. Davis, 2017). This prompted Chief Justice Roberts to write: [It is clear that] Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. . . . This departure from basic principle was exacerbated because it concerned race. . . . Relying on race to impose a criminal sanction poisons public confidence in the judicial process. (Buck v. Davis, 2017)

CONTEMPORARY PUBLIC OPINION

Indeed, the risk of executing an innocent person, the botched executions, and the persistence of discrimination have brought public confidence in capital punishment to its lowest point in decades. In 2017 two separate national polls showed support for the law at or near 50%, and even this number drops significantly when people are asked if they prefer the death penalty or life without the possibility of parole for those convicted of murder (Jones, 2017; Saad, 2017). Yet the policy lingers on, and it is an open question as to what factor will finally topple it. Some believe it will be the sheer financial cost (Death Penalty Information Center, 2018a).

Financial Cost of the Death Penalty

There is no one thing that drives the expense of a capital case. Rather, the expense associated with litigating capital cases can be attributed to more extensive preparation, lengthier trials, more complex appeals, and greater death row security, all of which make the death penalty significantly more expensive than cases that threaten or impose life imprisonment (Death Penalty Information Center, 2018a). These costs are borne by the states with a limited amount of grumbling (with the exception of the appellate process, which is always on the chopping block for enterprising legislatures), but the one expense that might ultimately save money is often the one least likely to be spent—​improving the quality of defense attorneys (Commonwealth v. McGarrell, 2014). Some years ago, the Rand Corporation did a study to assess the impact of defense attorneys on legal results. Their data base was homicides between 1994 and 2005 in the city of Philadelphia and was chosen because the Defender Association was randomly assigned 20% of the cases, while court-​appointed attorneys handled all other cases in which a lawyer wasn’t retained (Anderson [ 10 ]  Criminal Justice Considerations

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& Heaton, 2012). The results were shocking: defenders reduced their clients’ murder conviction rate by 19% and lowered the probability of getting a life sentence by 62%; overall, defender clients received sentences that were 24% lower than court-​appointed clients (Anderson & Heaton, 2012). While the statistical pool was too small to draw conclusions about capital cases, it is surely not surprising that the Defender Association attorneys did not take a single death verdict during that period (or ever, from the formation of the homicide unit in 1993 to the present time) while the court-​appointed attorneys had dozens. Perhaps the most important aspect of the study was the financial one—​the savings in incarceration costs alone from defender representation was over $200 million (Anderson & Heaton, 2012).

The Important Role of Effective Legal Defense

The Rand study concretely established the reality that everyone knew and that no one wanted to admit—​in our most serious criminal cases, the defense lawyer is a huge factor in the outcome. The anecdotal evidence to support this conclusion had existed before the study, however. In Virginia, the creation of regional offices staffed with competent, experienced, and well-​resourced capital defense attorneys has essentially ended death sentences there; the same can be said for other death belt states like Georgia and North Carolina (Death Penalty Information Center, 2018c). The irony is practically inescapable: spending the money necessary to assure that capital cases are handled as professionally as possible essentially eliminates the death penalty and brings into question the continued viability of the public policy.

DISCUSSION

Perhaps the true assessment of capital punishment’s morality lies buried in The Lion King, a children’s tale produced as a Disney movie at the end of the last century that continues to fascinate audiences in various incarnations to this day. The story centers around a young lion named Simba, whose father Mufasa is murdered by his uncle, Scar. Scar’s crime is quite intentional and heinous, as he commits the act for the self-​aggrandizing purpose of taking over the pride from Mufasa; and he compounds his own villainy by persuading the young Simba that he is responsible for his father’s death. Eventually Simba grows up, shrugs off his guilt, and confronts Scar in what passes for a lion-​like trial in which Simba prevails. With Simba having found Scar guilty of this horrible crime, Scar inquires of his punishment: “What are you going to do now, Simba? Are you going to kill me?” Thus is the moral question squarely presented to children, and Simba’s response is a rebuke to prosecutors everywhere who Going, Going, Gone 

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continue to ask juries to show the convicted the same mercy he showed the victim. “I’m not like you, Scar,” Simba says, and banishes his uncle from the pride for life. Try to imagine the response had Simba said instead:  “You’re going to be executed by the pride some day in the future. When that day comes, you will be tied to a gurney and poison will be injected into your veins until you are dead.” Children would run crying from the theaters, and parents would have the movie banned by the end of the weekend. Ultimately, it is this moral question that must be confronted by adults, not children. The warning signs of the decline and eventual extinction of capital punishment are in our law books and our courtrooms and on the minds of every juror who refuses to go along with a death sentence. The death penalty will not survive the 21st century.

Implications for Social Justice, and Human and Civil Rights

The Supreme Court’s decision in McCleskey v.  Kemp (1987) effectively ignored social science research findings that indicated statistically significant differences in the treatment of, and outcomes for, persons involved with the criminal justice system on the basis of race. Subsequent research has identified other problematic dimensions, such as income, mental health, and intellectual disability. Although the Court framed its decision in terms of the merits of the individual cases, the research of the time and subsequent research has been used to bolster the contemporary movement to end mass incarceration (the focus of another chapter in this textbook) and criminal justice reform, including abolition of the death penalty itself. Further, that Justice Powell, author of the McCleskey (1987) decision, later expressed his regret for having done so serves as a reminder to us that with a different composition of the Supreme Court, McCleskey (1987) could, in fact, be overturned in the future. Doing so, in theory, would serve to advance social justice, and human and civil rights (i.e., political and social equality, and economic equity) by taking seriously the disparities that exist—​that have always existed—​in the U.S. criminal justice system.

Implications for Social Work and Criminal Justice Practice

In school we are taught that research, policy, and practice work to mutually inform one another (i.e., evidence-​informed practice/​evidence-​based practice/​best practices). By ignoring the research and effectuating policy that in turn impacts practices, the McCleskey (1987) decision turns this logic on its head, and edges research out of the picture altogether. The U.S. criminal

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justice system represents a social institution. To this end, criminal justice reform should be informed by a multitude of rigorous, systematic social science research studies, including program evaluations (which are used to assess the effectiveness of diversionary programs). Social work and criminal justice students should consider the practical import of research in the context of criminal justice reform. Students may take courses on research designs and methods at the undergraduate and graduate levels, including at the PhD and DSW degree levels. As well, students may consider pairing with academic professionals and credentialed experts in the field to conduct independent studies, and for graduate students, seeking out meaningful graduate research assistantships.

REFERENCES Anderson, J. M., & Heaton, P. (2012). How much difference does the lawyer make: The effect of defense counsel on murder case outcomes. Yale Law Journal, 122, 154. Retrieved from https://​www.yalelawjournal.org/​pdf/​1105_​8izvsf8m.pdf Bookman, M. (2015, March 24). “That’s what that n—​–​deserved”: A prejudiced juror, a racist lawyer, and a death sentence no court is willing to reconsider. Mother Jones. Retrieved from https://​www.motherjones.com/​politics/​2015/​03/​ fults-​death-​penalty-​racism/​ Buck v. Davis, 580 U.S. _​_​_​(2017). Callins v. Collins, 510 U.S. 1141 (1994). Commonwealth v. McGarrell, 624 Pa. 625 (2014). Death Penalty Information Center. (2018a). Costs of the death penalty. Retrieved from https://​deathpenaltyinfo.org/​costs-​death-​penalty Death Penalty Information Center. (2018b). Death sentences in the United States from 1977 by state and by year. Retrieved from https://​deathpenaltyinfo.org/​ death-​sentences-​united-​states-​1977-​present Death Penalty Information Center. (2018c). Facts about the death penalty. Retrieved from https://​deathpenaltyinfo.org/​documents/​FactSheet.pdf Fretland, K. (2014, April 30). Oklahoma execution: Clayton Lockett writhes on gurney in botched procedure. The Guardian. Retrieved from https://​www.theguardian. com/​ world/​2014/​apr/​30/​oklahoma-​execution-​botched-​clayton-​lockett Fults v. State (Ga. 2001). Grissom, B. (2013, October 7). TDCJ refuses to return execution drugs to pharmacist. The Texas Tribune. Retrieved from https://​www.texastribune.org/​2013/​10/​07/​ tdcj-​refuses-​return-​execution-​drugs-​pharmacist/​ Ground Report. (2007). The death penalty and the Constitution. Retrieved from https://​ www.groundreport.com/​the-​death-​penalty-​and-​the-​constitution/​ Hasan, S. (2014, September 5). Found innocent after 30 years in prison and death row: two released. Nonprofit Quarterly. Retrieved from https://​nonprofitquarterly. org/​2014/​09/​05/​found-​innocent-​after-​30-​years-​in-​prison-​and-​death-​row-​ two-​released/​ Innocence Project. (2017). Exonerated by DNA. Retrieved from https://​www. innocenceproject.org/​all-​cases/​#exonerated-​by-​dna

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Innocence Project. (2015). New report: U.S. death penalty is rooted in lynching past. Retrieved from https://​www.innocenceproject.org/​new-​report-​u-​s -​death-​penalty-​is​rooted-​in-​lynching-​past/​ Jones, J. (2017, October 26). U.S. death penalty support lowest since 1972. Gallup News Service. Retrieved from https://​deathpenaltyinfo.org/​national-​polls-​and-​studies Lee, K. (2018, April 26). “Capital punishment is the stepchild of lynching.” Here’s what Bryan Stevenson hopes to address with a memorial honoring black people who were killed. Los Angeles Times. Retrieved from http://​www.latimes.com/​nation/​ la-​na-​bryan-​stevenson-​lynching-​memorial-​20180424-​htmlstory.html Martelle, S.  (2015, May 1). No, Justices Alito and Scalia, death penalty politics aren’t the issue. Los Angeles Times. Retrieved from http://​www.latimes.com/​ opinion/​opinion-​la/​la-​ol-​death-​penalty-​supreme-​court-​midazolam-​alito-​scalia-​ 20150501-​story.html McCleskey v. Kemp, 481 U.S. 279 (1987). McCollum v. North Carolina, 512 U.S. 1254 (1994). Neff, J. (2014, August 30). New DNA evidence could free two men in notorious Robeson County case. The News & Observer. Retrieved from https://​www.newsobserver. com/​ news/​local/​crime/​article10043633.html Saad, L.  (2017, October 26). Gallup Poll social series:  crime, death penalty topline. Gallup News Service. Retrieved from https://​deathpenaltyinfo.org/​national​polls-​and-​studies Shapiro, A.  (2018, February 21). BuzzFeed News uncovers source of Missouri’s lethal drugs. National Public Radio’s All Things Considered. Retrieved from https://​ www.npr.org/​2018/​02/​21/​587731723/​buzzfeed-​news-​uncovers-​source-​of​missouris-​lethal-​drugs Stern, J.  E. (2015, June). The cruel and unusual execution of Clayton Lockett. The Atlantic. Retrieved from https://​www.theatlantic.com/​magazine/​archive/​2015/​ 06/​execution-​clayton-​lockett/​392069/​ Stern, M. J. (2018, January 8). “I have wondered if Black people even have souls”: These shockingly racist juror statements don’t matter to the Supreme Court’s conservatives. Slate. Retrieved from https://​slate.com/​news-​and-​politics/​2018/​ 01/​these- ​shockingly-​racist-​juror-​statements-​dont-​matter- ​to- ​the- ​supreme-​ courts-​conservatives.html

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CHAPTER 2

Methodological and Procedural Considerations JOHN R . BARNER

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hrough a historical and chronological review of legal precedent and procedural changes to capital litigation, this chapter addresses the legacy of change and highlights the era when, due to the Supreme Court decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976), a moratorium on the death penalty was issued and the constitutionality of capital punishment was under direct judicial scrutiny nationwide. Additional attention is paid to post-​ Gregg decisions that have transformed capital procedure; limited or expanded its scope; or changed the legal, social, or clinical criteria upon which capital decisions can be based. The chapter concludes with a discussion on the human rights issues brought up by capital punishment in the United States, as well as implications for social workers and other helping professions working within the capital context. Currently, capital offenses under state law are especially heinous crimes involving the intentional death of another human being, or, in the case of Federal trials, treason or acts of terrorism. Capital offenses are automatically accorded a jury trial (upheld most recently as per Summerlin v. Stewart, 2003), chosen through an elaborate selection process (i.e., voir dire), rendering the jury “death qualified” or “death ready” (Dillehay & Sandys, 1996). Capital trials are conducted in two phases: the guilt phase, which determines the conviction; and the penalty phase, which determines the sentence.

John R. Barner,Methodological and Procedural ConsiderationsIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0003

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CAPITAL METHODS OF DELIBERATION

In most cases, the same jury decides the guilt phase and the penalty phase. Each phase carries with it a set of orally delivered or written instructions, depending on state statute. Moreover, states may determine whether the jury is allowed to ask additional questions (Armstrong & Mills, 2003; Banner, 2002). However, the path to this procedural method has been anything but a linear one, with political dictates, public debate, and legal argument shaping and reshaping virtually every aspect of the death penalty in the American idiom since the very beginnings of the nation. As the philosopher Jacques Derrida (2014) noted, it is often difficult to ascertain with any sizable degree of clarity who is actually making the procedural decisions in capital trials. Decisions regarding evidence, testimony, aggravating and mitigating circumstances, or judicial procedure may, in turn, be the purview of the jury as finders of fact in the case, the judge hearing the case, or the many often-​competing elements of law and precedent that may pertain to the case. It may, in some cases, be one or all of them, or they may seem to “cancel each other out,” with no clear or concise way forward. In the penalty phase of the trial, jurors have special responsibilities that fall outside the typical review of evidence, findings of fact, and testimony, including finding for potential aggravating and mitigating factors in relationship to the crime that the defendant has been convicted (Barron, 2002; Bentele & Bowers, 2001; Crump & Jacobs, 2000). In the current capital sentencing process, the jury is obliged to find an aggravating circumstance (e.g., an attendant or concomitant crime in addition to the capital charge or the extent of injury to the victim) to merit a death penalty verdict and weigh any mitigating evidence (e.g., lack of violent convictions, age, mental capacity, extreme duress, or provocation). If aggravating circumstances are not found or mitigating evidence sways the jury in favor of a lesser sentence (e.g., life imprisonment), then the lesser sentence is often imposed by, or recommended by, the court (Baldus, Pulaski, Woodworth, & Kyle, 1980; Bedau & Radelet, 1987; Cantero & Kline, 2009; Garvey, 1998; Haney & Lynch, 1994; Schroeder, Guin, Pogue, & Bordelon, 2006).

EARLY DEVELOPMENTS

With the birth of the new nation coming at a time of tremendous philosophical, political, and social change throughout the world, the debate over the death penalty as it would be applied was central in forming the new United States. As early as 1779, founding father Thomas Jefferson would advocate for legal reform that greatly diminished the role of capital punishment from its previous ubiquity in the former colonies. Inspired in part by the [ 16 ]  Criminal Justice Considerations

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Enlightenment philosopher Cesare Beccaria, Jefferson (1950) submitted a bill to the Virginia legislature, which stated “cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withhold prosecution, to smother testimony, or to listen to it with bias” (p. 495). While the Virginia bill was not initially adopted, the spirit in which it was written, along with the legal reforms of William Blackstone in England, would later become codified as major tenets of the Eighth Amendment of the United States Constitution. This amendment, barring “cruel and unusual punishment,” was ratified in 1791 as part of the federal Bill of Rights (Nakell & Hardy, 1987; Vila & Morris, 1997), thus inaugurating a legal and philosophical debate over capital punishment that continues to the present day. Between late 1700s until the end of the Civil War, the movement to abolish the death penalty in the United States built considerable momentum and saw considerable legal and penological reforms throughout many states. In 1786, Pennsylvania passed an act greatly delimiting the crimes which could be punished by execution, while throughout the early and mid-​1800s, several states, including Louisiana (1825), Maine (1836), Massachusetts (1836), New Jersey (1841) and New  York (1843) publicly debated the merits of having capital punishment (Vila & Morris, 1997). As Bedau (1997) noted, several major judicial developments occurred on the federal level during the same time period, with trial juries being granted the right to sentencing discretion, public executions being prohibited, and the number of capital crimes being dramatically reduced. These developments lead Michigan (1847), Maine (1876), Rhode Island (1852), and Wisconsin (1853) to either partially or completely abolish the death penalty, and the issue of capital punishment quickly became a matter for United States Supreme Court, beginning with Wilkerson v. Utah in 1879. Foley (2003) noted “from 1878 to 1972, the Supreme Court deferred consistently and willingly to states’ rights concerning both criminal justice and the death penalty” (p.  2). Moreover, early efforts at universal judicial and penal reform regarding the death penalty suffered severe setbacks during the aftermath of the Civil War and the First and Second World Wars. Of the 16 states and jurisdictions that outlawed capital punishment after 1845, only seven (Michigan, Rhode Island, Wisconsin, Maine, North Dakota, Minnesota, and Puerto Rico) had maintained their abolition to the death penalty statute by the beginning of the 1950s. The majority of judicial and constitutional challenges to the death penalty that occurred between 1878 and 1972 were met with a strong interpretation of the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution that supported the legality of capital punishment (Zimring, 2003). Often, in these legal challenges, there was “little opposition to the death penalty and, at times, no opposition at all among the justices” (Foley, 2003, p. 2). M e t h o d ol o g i c a l a n d P r o c e d u r a l C o n s i de r at i o n s  

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By the early 1960s, how the death penalty was applied in America varied greatly from state to state in terms of crimes meriting a capital sentence, means of execution, and trial procedures. This variance, combined with a large number of federal challenges and precipitous decline in executions, brought the issue of the death penalty to the attention of the high court. Steiker and Steiker (1998) noted: The first suggestion that the Court might regulate state death penalty practices appeared not in a Court decision, but in a 1963 Court order announcing the denial of two petitions for certiorari. . . . Justice Goldberg, writing for himself and two other Justices, maintained that the questions raised by the petitions were worthy of the Court’s attention. (p. 92)

The intervention of the Supreme Court in the latter 1960s would lead to both a resurgence of abolition movements throughout the United States and the first salient expressions of public opinion since before the Civil War. Moreover, the constitutional challenges, which arose during the de facto moratorium on executions brought on by the Court, would bring to light the central themes and issues that are still debated among lawyers, advocates, and scholars today. Simply put, over its long history, the legal and practical issues of the death penalty in America became, and remains, a complex constellation, particularly regarding the death penalty’s imposition and application. Paradoxically, the death penalty is both a highly contested and yet deeply ambivalent, aspect of the American legal corpus (Baumgartner, De Boef, & Boydstun, 2008). This seemingly enduring contradiction at the heart of the death penalty debate can be most clearly evinced in the recent constitutional challenges heard by the U.S. Supreme Court from the early 1970s until the present.

Furman v. Georgia

The United States Supreme Court heard the case of Furman v. Georgia in 1972 and, in a five to four decision, issued a per curiam opinion that the death penalty as administered in the United States was in direct violation of the Eighth and Fourteenth Amendments to the Constitution (Arkin, 1980; Banner, 2002; Bedau, 1992; Costanzo & White, 1994; Ehrlich, 1975; Jasper, 1998; Oshinsky, 2010; Zimring & Hawkins, 1985). As Vidmar and Ellsworth (1974) noted, the majority opinion specified that, with regard to the Eighth Amendment ban on “cruel and unusual punishment” and the Due Process clause of the Fourteenth Amendment, the death penalty was unconstitutional primarily because it “was applied in a sporadic, capricious, arbitrary, or unfairly discriminatory way” (p. 1245).

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The Furman (1972) opinion suggested that, through judicial review across the 31 states with sanctioned death penalties, the nationwide moratorium enacted by Furman (1972) could eventually be overturned if significant changes were made to the judicial processes by which a sentence of death was levied. Under the guidelines of the decision, states seeking to lift the moratorium and once more legalize the use of capital punishment would have to apply strict prosecutorial and sentencing standards specifying the conditions under which the death penalty could or could not be imposed. The Court’s decision both coincided with increased public opinion against the death penalty as well as a strong emphasis on cases involving judicial reform.

Gregg v. Georgia

Within four years of the Furman (1972) case, the Supreme Court convened to again hear oral arguments involving the procedural standards in a death penalty case. The overarching thrust of the majority decision (by a vote of seven to two) in Gregg v. Georgia (1976) was that revised capital sentencing procedures were needed. The recommended method included a bifurcated proceeding where the determination of guilt or innocence and sentencing are conducted separately, specific jury findings as to the severity of the crime and the disposition of the defendant, and “guided discretion”—​that is, a comparison of each capital sentences’ circumstances with judicial precedent—​were sufficient to prevent capricious imposition of death (Zimring & Hawkins, 1985). For the public, this was a surprising reversal given the short amount of time that had passed since Furman was handed down in 1972. The decision in Gregg (1976) effectively reaffirmed the constitutionality of the death penalty without explicitly contradicting the 1972 Furman findings, thus demarcating the difference between procedure (the constitutionality of which was upheld in Gregg) and practice (at issue in Furman) with regard to the death penalty in the United States. In other words, ordinarily, a judicial decision about whether a decision-​making process is arbitrary is based on a determination of whether the system lacks necessary procedures. Therefore, the standard constitutional remedy for arbitrariness is simply the erection of procedural safeguards. Confidence in the efficacy of procedure as the instrument for the protection of liberty is a hallmark of . . . due process jurisprudence. Once the procedures are in place, the Court customarily assumes they will work and does not generally inspect their performance. (Nakell & Hardy, 1987, p. 38)

The Furman v. Georgia (1972) and Gregg v. Georgia (1976) decisions were notably different in that, combined, they set the precedent that the death

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penalty had the potential for arbitrary imposition and instituted a set of procedures explicitly designed to prevent that arbitrariness that needed to be inspected in order to adhere to the standard upheld by the Court (Bedau, 1997; Garland, 1990; Greenberg, 1982). Without any mechanism outside the existing appellate process to inspect such procedures, the issue of the potential arbitrariness of the death penalty inaugurated a contentious debate in American jurisprudence that has continued since its resumption in 36 states following the Gregg (1976) decision (now reduced to 31 states). While this debate continued, from 1976 until 2018, there have been 1,485 executions in the United States (Death Penalty Information Center, 2018b). For the 40 or so years since Gregg v.  Georgia (1976), death penalty scholars have argued that potential arbitrariness in capital methods undermine the legal and political structure of capital punishment as practiced in the United States to far outweigh its punitive efficacy and its ability to function as a deterrent to crime. This argument was supported by the death sentence moratorium in Illinois issued in 2003 and exonerations of over 100 condemned individuals nationwide since 1976, either as part of the appeal process or due to postconviction judicial review (Armstrong & Mills, 2003; Leo, 2005). To wit, a statistical study of 4,578 capital cases between 1976 and 1995 found the overall rate of prejudicial error in capital cases was 68%. As Bowers (1995) noted, an emerging “zig-​zag pattern of renouncing, requiring and then relaxing statutory guidance for capital sentencing discretion” (p. 1044) maybe unable to provide that juror with the appropriate tools to render a legally sound and constitutionally just decision. Moreover, an arbitrary or capriciously applied legal method may do this regardless of the facts of the case or any individual juror’s predispositions toward the legal and moral justification for the death penalty. This, perhaps, is potentially the most lasting legacy of the Gregg (1976) decision and may contain within it the seeds for a future overturning the death penalty completely in the United States.

SUBSEQUENT LEGAL DEVELOPMENTS

In the aftermath of the Furman v. Georgia (1972) and Gregg v. Georgia (1976) decisions, several procedural decisions followed that dramatically changed the methodology of the death penalty in the United States. Some changed the statutory requirement for particular crimes, such as forbidding the death penalty for rape (Coker v. Georgia; Kennedy v. Louisiana). Other decisions such as Enmund v. Florida (1982) placed stringent guidelines for imposition of the death penalty in cases of felony murder.

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Procedural and statutory limitations on the accused were frequently the subject of legal arguments throughout the early part of the 21st century. The U.S. Supreme Court made rulings that constitutionally exempted imposition of the death penalty on the basis of cognitive impairment/​development (e.g., Atkins v.  Virginia in 2002 and Roper v.  Simmons in 2005). Not surprisingly, there have been several arguments made in consideration of the Gregg (1976) decision that have addressed the debate over arbitrariness and the procedural role of the jury in death penalty cases. The most notable of these arguments are those that have succeeded in changing the statutory guidance regarding the special role the jury plays in capital cases—​for example, decisions that sought to remove virtually all limitations on the presentation of mitigating evidence (e.g., Lockett v. Ohio, 1978; Holmes v. South Carolina,2006), decisions that established a mandate for precision in the definition of aggravating factors (e.g., Godfrey v. Georgia in 1980 and Walton v. Arizona in 1990), and finally, decisions requiring the jury to decide whether aggravating factors have been proved beyond a reasonable doubt (e.g., Ring v. Arizona in 2002).

DISCUSSION

This chapter has shown that the imposition of the death penalty has been a controversial element throughout history, with significant ties to political and social development. Moreover, in considering the death penalty debate in the context of the United States, it is extremely difficult to view the legal and practical reality of capital punishment as it is imposed in America apart from its philosophical and historical contexts. Two contemporary Supreme Court case decisions, Furman (1972) and Gregg (1976) were highlighted as relevant to the current historical course of capital punishment in America but also provided the framework for the procedural and jurisprudential arguments that have occurred since those decisions were rendered. The procedural apparatuses in place to aid capital jurors, judges, and attorneys with their decision-​making ostensibly have ramifications for overall issues of social justice and the preservation of constitutionally supported human rights within the United States. Organizations like Amnesty International (2018) have continually placed the country’s reliance upon the death penalty as a singular and significant affront to the establishment and sustainability of just and equitable legal frameworks and preservation of the legal rights of U.S. citizens and others. Supporters of the death penalty continue to champion its use as a deterrent for future crimes or acts of violence, but decry the opportunity costs (i.e., money, time, and labor) associated with the current post-​Gregg (1976) capital procedures.

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IMPLICATIONS FOR SOCIAL WORK

Where the debate over capital punishment is founded mainly upon institutional grounds within social work policy, the potential practice implications for social work are large and wide-​ranging in scope (Beck & Jones, 2007–​2008). This is, in part, because placing the debate around capital punishment into a firmly legalistic and procedural framework divorces it from its broader social implications. Whereas this chapter has presented several suggestions of how it is incumbent upon legal precedent to be clear and illuminate (rather than efface) the law and procedures associated with the law, much of what social workers who work with victims, offenders, their families and communities, and those who have been wrongfully accused, sentenced, or imprisoned, are already doing contributes greatly to that effort (King, 2005; Sharp, 2005; Sinclair & Sinclair, 2009; Smykla, 1987; Vandiver, 1998). As Beck, Britto and Andrews (2007) noted, the claim to social justice made by social workers and advocates may help all those harmed by violent crimes . . . [when] experience has shown us that the criminal justice system does not do this on its own and that simply matching harm with a punishment may provide a superficial sense of justice, while the obligations created by the crime still go largely unmet. (p. 235)

The diverse fields that contribute to the contemporary discourse on the death penalty, social work included, are united in a single goal: to assist one another and the general public in developing the judicial system we all deserve.

REFERENCES Amnesty International. (2018). Death penalty facts. Retrieved from https://​www. amnestyusa.org/​issues/​death-​penalty/​ Arkin, S. D. (1980). Discrimination and arbitrariness in capital punishment: An analysis of post-​Furman murder cases in Dade County, Florida, 1973–​1976. Stanford Law Review, 33(1), 75–​102. Armstrong, K., & Mills, S.  (2003). Until I  can be sure:  How the threat of executing the innocent has transformed the death penalty debate. In S.  Garvey (Ed.), Beyond repair? America’s death penalty (pp.  94–​120). Chapel Hill, NC:  Duke University Press. Baldus, D. C., Pulaski, C. A., Jr., Woodworth, G., & Kyle, F. D. (1980). Identifying comparatively excessive sentences of death: A quantitative approach. Stanford Law Review, 33(1),  1–​75. Banner, S.  (2002). The death penalty:  An American history. Cambridge, MA:  Harvard University Press. Barron, D. (2002). “I did not want to kill him but thought I had to”: In light of Penry II’s interpretation of Blystone, why the Constitution requires jury instructions on

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how to give effect to relevant mitigating evidence in capital cases. Journal of Law and Policy, 11(1), 207–​254. Baumgartner, F. R., De Boef, S. L., & Boydstun, A. (2008). The decline of the death penalty and the discovery of innocence. Cambridge, England: Cambridge University Press. Beck, E., Britto, S., & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families. Oxford, England: Oxford University Press. Beck, E., & Jones, S. (2007-​2008). Children of the condemned: Grieving the loss of a father to death row. Omega, 56(2), 191–​215. Bedau, H.  (1997). The death penalty in America: Current controversies. New  York, NY: Oxford University Press. Bedau, H., & Radelet, M. (1987). Miscarriages of justice in potentially capital cases. Stanford Law Review, 41(1),  21–​90. Bentele, U., & Bowers, W. (2001). How jurors decide on death: Guilt is overwhelming; aggravation requires death; and mitigation is no excuse. Brooklyn Law Review, 66(4), 1013–​1079. Bowers, W.  (1995). The Capital Jury Project:  Rationale, design and preview of early findings. Indiana Law Journal, 70(4), 1043–​1091. Cantero, R. G., & Kline, R. M. (2009). Death is different: The need for unanimity in death penalty cases. St. Thomas Law Review, 22(1),  4–​34. Costanzo, M., & White, L.  (1994). An overview of the death penalty and capital trials: History, current status, legal procedures, and cost. Journal of Social Issues, 50(2),  1–​18. Crump, D., & Jacobs, G. (2000). A capital case in America: How today’s justice system handles death penalty cases from crime scene to ultimate execution of sentence. Durham, NC: Carolina Academic Press. Death Penalty Information Center. (2018b). Death sentences in the United States from 1977 by state and by year. Retrieved from https://​deathpenaltyinfo.org/​ death-​sentences-​united-​states-​1977-​present Derrida, J.  (2014). The death penalty, volume one. (G. Bennington, M.  Crépon, & T. Dutoit, Eds., P. Kamuf, Trans.). Chicago, IL: University of Chicago Press. Dillehay, R., & Sandys, M. (1996). Life under Wainwright v. Witt: Juror dispositions and death qualification. Law and Human Behavior, 20(2), 147–​165. Ehrlich, I.  (1975). The deterrent effect of capital punishment:  A question of life or death. American Economic Review, 65(3), 397–​417. Enmund v. Florida, 458 U.S. 782 (1982). Foley, M. A. (2003). Arbitrary and capricious: The Supreme Court, the Constitution, and the death penalty. Westport, CT: Praeger. Furman v. Georgia, 408 U.S. 238 (1972). Garland, D.  (1990). Punishment and modern society:  A study in social theory. Chicago, IL: University of Chicago Press. Garvey, S. (1998). Aggravation and mitigation in capital cases: What do jurors think? Columbia Law Review, 98(6), 1538–​1576. Godfrey v. Georgia, 446 U.S. 420, 442 (1980). Greenberg, J.  (1982). Capital punishment as a system. Yale Law Journal, 91(5), 908–​936. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 (1976). Haney, C., & Lynch, M. (1994). Comprehending life and death matters: A preliminary study of California’s capital penalty instructions. Law and Human Behavior, 18(4), 411–​436. Holmes v. South Carolina, 547 U.S. 319 (2006).

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Jasper, M. (1998). The law of capital punishment. Dobbs Ferry, NY: Oceana. Jefferson, T. (1950). A bill for proportioning crimes and punishments in cases heretofore capital. In J. P. Boyd (Ed.), The Papers of Thomas Jefferson (Vol. 2, pp. 492–​ 495). Princeton, NJ: Princeton University Press. (Original work published 1779) King, R. (2005). Capital consequences: Families of the condemned tell their stories. New Brunswick, NJ: Rutgers University Press. Leo, R.  (2005). Rethinking the study of miscarriages of justice:  Developing a criminology of wrongful conviction. Journal of Contemporary Criminal Justice, 21(3), 201–​223. Lockett v. Ohio, 438 U.S. 586 (1978). Nakell, B., & Hardy, K.  (1987). The arbitrariness of the death penalty. Philadelphia, PA: Temple University Press. Oshinsky, D. (2010). Capital punishment on trial: Furman v. Georgia and the death penalty in modern America. Lawrence, KS: University Press of Kansas. Ring v. Arizona, 536 U.S. 584 (2002). Roper v. Simmons, 543 U.S. 551 (2005). Schroeder, J., Guin, C., Pogue, R., & Bordelon, D. (2006). Mitigating circumstances in death penalty decisions:  Using evidence-​based research to inform social work practice in capital trials. Social Work, 51(4), 355–​364. Sharp, S. (2005). Hidden victims: The effects of the death penalty on families of the accused. New Brunswick, NJ: Rutgers University Press. Sinclair, B. W., & Sinclair, J. (2009). Capital punishment: An indictment by a death-​row survivor. New York, NY: Arcade. Smykla, J. (1987). The human impact of capital punishment: Interviews with families of persons on death row. Journal of Criminal Justice, 15(4), 331–​347. Steiker, C., & Steiker, J. (1998). Defending categorical exemptions to the death penalty: Reflections on the ABA’s resolutions concerning the execution of juveniles and persons with mental retardation. Law and Contemporary Problems, 61(4), 89–​104. Summerlin v. Stewart, 341 F.3d 1082 (2003). Vandiver, M. (1998). The impact of the death penalty on families of homicide victims and of condemned prisoners. In J. R. Acker, R. M. Bohn, & C. S. Lanier (Eds.), America’s experiment with capital punishment:  Reflections on the past, present and future of the ultimate penal sanction (pp.  477–​505). Durham, NC:  Carolina Academic Press. Vidmar, N., & Ellsworth, P. (1974). Public opinion and the death penalty. Stanford Law Review, 26(6), 1245–​1270. Vila, B., & Morris, C. (Eds.). (1997). Capital punishment in the United States: A documentary history. Westport, CT: Greenwood Press. Walton v. Arizona (88-​7351), 497 U.S. 639 (1990). Wilkerson v. Utah, 99 US 130 (1879). Zimring, F.  E. (2003). The contradictions of American capital punishment. New  York, NY: Oxford University Press. Zimring, F.  E., & Hawkins, G.  (1985). Capital punishment and the Eighth Amendment: Furman and Gregg in retrospect. University of California–​Davis Law Review, 18(4), 927–​956.

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CHAPTER 3

Jury Considerations in Capital Cases JOHN R . BARNER

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his chapter examines the types of special consideration that jurors provide in capital cases. This includes not only the instructions provided by the court, but also the weight given to aggravating and mitigating circumstances as mandated by the decision in Gregg v.  Georgia (1976). It also explores the issues around juror consideration from a multifaceted lens and examines whether instructions to jurors in capital cases are appropriately effective given their legal, historical, and empirical context. Particular attention is paid to the context in which jurors consider evidence, testimony, and argument in the bifurcated trial proceedings mandated by Gregg, as well as varied application of the procedural mandates from state to state and the influence of different legal frameworks. The chapter concludes with a lengthy discussion of the possible human rights and social work implications of juror instructions and provides a brief review of the literature on advocacy for procedural justice reform. For 42 years since Gregg v. Georgia (1976), death penalty scholars have argued that potential arbitrariness in instructions given to the jury undermines the legal and political structure of capital punishment as practiced in the United States. If jurors are not instructed in how to provide a fair and equitable verdict in a capital case, the punitive efficacy of the death penalty and its ability to function as a deterrent to crime are completely undermined. This argument is supported by the death sentence moratorium in Illinois issued in the year 2000 and exonerations of over 100 condemned individuals nationwide since 1976, either as part of the appeal process or due to postconviction judicial review (Armstrong & Mills, 2003; Leo, 2005). Moreover, a statistical study of 4,578 capital cases between 1976 and 1995 found the overall rate of prejudicial error in capital cases was 68%. In other words, courts found serious, reversible John R. Barner,Jury Considerations in Capital CasesIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0004

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error in nearly seven out of every ten capital sentences (Gross, 1996; Liebman, Fagan, & West, 2000; Leo, 2005). As Bowers (1995) noted, an emerging “zig-​ zag pattern of renouncing, requiring and then relaxing statutory guidance for capital sentencing discretion” (p. 1044) may, regardless of the facts of the case or any individual juror’s predispositions toward the legal and moral justification for the death penalty, be unable to provide that juror with the appropriate tools to render a legally sound and constitutionally just decision.

DEFINING CONSIDERATION

The problem that this chapter aims to address is whether instructions to jurors in capital cases are appropriately effective, given their legal, historical, and empirical context. Black’s Law Dictionary defines jury instruction as “direction or guideline[s]‌that a judge gives a jury concerning the law of the case” (Garner, 2014, p.  861). Jury instructions represent a significant portion of statutory guidance jurors receive when deciding on capital sentencing, as per the decision handed down in Gregg (1976). Given the special circumstances of capital trials, instructions are considered wholly separate from the charge of the jury found at the conclusion of closing arguments and immediately prior to the jury deliberations resulting in the rendering of a verdict of guilt or innocence. Both of the bifurcated phases (the verdict phase, sometimes called the “guilt/​innocence phase” and the penalty phase) are comprised of applicable legal guidelines, descriptive materials, and procedural mandates regarding weighing evidence and testimony. Figure 3.1 is a graphic representation of the bifurcated capital trial procedure. Capital instructions are generally given immediately following the reading of the guilt phase verdict, and inaugurate the penalty phase of the capital trial. As the arbiter of fact when they serve in a capital trial, jurors are reliant upon court instructions to provide a clear, demonstrable legal rubric to aid the decision-​making process and provide a summative assessment of legal precedents. Jury instructions lead jurors through the statutory code to the sentencing verdict that should be delivered based on what the jury determines to be true in the penalty phase of a capital trial. In the penalty phase of the trial, jurors have special responsibilities that fall outside typical review of evidence, findings of fact, and testimony, including finding for potential aggravating and mitigating factors in relationship to the crime that the defendant has been convicted (Barron, 2002; Bentele & Bowers, 2001; Crump & Jacobs, 2000). In the current capital sentencing process, the jury is obliged to find an aggravating circumstance (e.g., an attendant or concomitant crime in addition to the capital charge or the extent of injury to the victim) to merit a death penalty verdict and weigh any mitigating evidence (e.g., lack of violent convictions, age, mental capacity, extreme duress, or [ 26 ]  Criminal Justice Considerations

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GUILT PHASE Jury Selection (voir dire) A preliminary examination of prospective jurors by a judge or lawyer to decide if the prospects are qualified and suitable to serve on a jury. In a capital case, prospective jurors must be “death qualified,” i.e., questioned about their ability to consider both aggravating and mitigating evidence and to render a death sentence in an appropriate case.

Opening Statements The statements, at the outset of a trial, in which the lawyer for each side gives the fact-finder (i.e., the jury) a preview of the case and of the evidence that will be submitted.

Prosecution’s Case The government, which has the burden of proving the defendant’s guilt beyond a reasonable doubt, offers evidence in an effort to convince the jury that the defendant committed the offense.

Defendant’s Case The defendant offers evidence to rebut the prosecution’s evidence. Although the defendant has no burden of proof, and is presumed to be innocent until proven otherwise, he or she may introduce evidence either to weaken the prosecution’s case or to help establish innocence.

Closing Statements The final statements to the judge or jury before they begin their deliberations to decide the case, in which the lawyer for each side asks the jury, or judge, to consider the evidence and apply the law in his or her client’s favor. The judge then charges the jury to weigh the evidence in accordance with applicable law and produce a verdict of either guilt or innovence. Verdict The jury’s unianimous finding or decision on whether the defendant’s guilt on the charges has been proved beyond a reasonable doubt. Jury Instructions The direction or guidelines that the judge gives the jury concerning the law and special capital procedures (of aggravation and mitigation) that are applicable to the case.

PENALTY PHASE

Aggravating Circumstances Facts that make a crime worse or more serious (i.e., torture) are considered by the jury

Mitigating Circumstances Facts that do not excuse the offense, but may reduce culpability and thereby reduce the penalty (i.e., mental impairment).

Victim Impact Statements Statements to inform the jury of the financial, physical, and/or psychological impact of the crime on the victim and the victim’s family.

Sentence The jury considers the aggravating and mitigating circumstances In a death penalty case, the jury chooses between a death sentence and a lesser sentence of life without parole

Figure 3.1. Bifurcated capital trial procedure. Credit: Michigan State University and Death Penalty Information Center. (2000). Bifurcated capital trial procedure. Retrieved from https://​deathpenaltycurriculum.org/​node/​3

provocation). If aggravating circumstances are not found or mitigating factors are weighed more heavily by the jury in favor of a lesser sentence (e.g., life imprisonment), then the lesser sentence is often imposed by, or recommended by, the court (Baldus, Pulaski, Woodworth, & Kyle, 1980; Bedau & Radelet, 1987; Cantero & Kline, 2009; Garvey, 1998; Haney & Lynch, 1994; Schroeder, Guin, Pogue, & Bordelon, 2006). This process of introduction of opposing evidence and argument is parallel to that found in the prosecution and defense arguments during the guilt phase of the trial itself. However, as Bowers, Foglia, Giles, and Antonio (2006) noted, sentencing in capital trials differs

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from the rendering of a verdict in the guilt phase, as two death penalty states (Alabama and Florida) continue to litigate the constitutionality of whether a judge may instruct jurors that the court may ignore or override the sentence found by the jury (Richardson, 2004). This is compounded with the fact that, throughout the states that actively impose the death penalty, the criteria that constitute what aggravating and mitigating circumstances are specifically outlined in the jury instructions are often challenged as to their relevance to the individual cases, or the constitutionality of whether providing any specificity at all promotes jury bias (Sondheimer, 1990). As a result of these disputes, there are no uniform standards governing the application of jury instructions currently in the United States. A growing body of literature has pointed to the strong need for empirical assessment of the role that jury instructions have in influencing jury decision-​making, particularly in the areas of instruction clarity and comprehension (Barner, 2014; Cho, 1994; Diamond & Levi, 1996; Dumas, 2002; Eisenberg & Wells, 1992; Hall & Brace, 1994; Haney, Sontag, & Costanzo, 1994; Otto, Applegate, & Davis, 2007). While some jurisdictions have made efforts at jury instruction reform, further research is needed to articulate the extent and scope of influence (or, conversely, the arbitrariness) of jury instructions and areas in need of legal scrutiny and reform.

THE CONTEXT OF CONSIDERATION

The context in which instructions are given to juries, including the clarity and comprehension of the instructions, the weight given to legal precedent, findings of fact, and explication of the weight given to aggravating and mitigating circumstances are crucial to determining the real impact of the instructions chosen by the court. As there are, at present, no clear judicial or constitutional mandates for jury instruction content, this study provides empirical evidence to enable jurisdictions and reviewing courts to better ascertain the impact of jury instruction content and explore key areas that require consideration when developing future instructions or implementing jury reform efforts. The central point of contention among critics of capital punishment lies with how fluctuations and/​or arbitrariness in clarity and comprehensibility of jury instructions alter the final verdict in a capital trial (Barner, 2014). A second area of concern is the possible reciprocal relationship between differing conceptions of justice inherent in jury instruction content and predispositions toward imposition of the death penalty, in an effort to answer the question:  does increased attention to a strict “rule of law” in jury instructions foster increased jury imposition of the death penalty? The theoretical underpinnings of this question address the lack of uniformity in the instructions and disputatious nature of their application:  namely, procedural efforts to avoid arbitrariness [ 28 ]  Criminal Justice Considerations

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in jury instruction may bias juries away from consideration of aggravating or mitigating circumstances in capital trials and obscure key variables that play a significant role in jury sentencing decision (Blankenship, Luginbuhl, Cullen, & Redick, 1997; Haney & Lynch, 1997; Weiner, Prichard, & Weston, 1995) and is an extension and outgrowth of pioneering work of social workers and attorneys who have explored how important underestimated variables overlooked in jury instructions have cast a “long shadow of death” (Beck, Britto, & Andrews, 2007, p. 8) on families, communities and society-​at-​large (Beck, Blackwell, Leonard, & Mears, 2003; Bowers, 1995).

DISCUSSION

When considering the potential influences on the jury, one must consider the potential role of possible intervening variables, such as gender, race, religion, the media, and the impact on families of the victim and accused. These variables are often supplemental to the legal and procedural context, which may include arguments over due process, potential jury nullification, and possible mitigating variables to jury decision-​making. Moreover, the debate over jury instructions is very often cast in light of the theoretical differences in the conception of justice in “rule of law” and interpretivist legal perspectives. As such, there are a plethora of arguments happening, often simultaneously, during both the verdict and penalty phases of a capital trial. Jurors must be aware of all of them to render a fair and equitable decision. Thus, the standard for consideration is extremely high in a post-​Gregg (1976) capital framework. The variables of instruction clarity and comprehensibility and the procedural apparatuses in place to aid capital jurors with their decision-​making were introduced as possible predictors of sentencing. But very often, the confusion that results from their application leads to potentially arbitrary and capricious sentencing (Foley, 2003). As attorney Peter Goodrich (1987) noted, the law is “assumed to be a coherent system of meaning and texts, a coded unity accessible to legal experts, though to no-​one else” (p. 55). As such, analysis of capital jury instructions exposes a key point of practical contradiction. Namely, that instructions and sentencing guidelines are beholden to the rule of law embodied in Furman v.  Georgia (1972) while also adapting to a continually changing regime of procedural requirements supplemental to the Gregg decision as formal judicial standards. Furthermore, these standards are imposed directly on the citizenry, as opposed to experts who are assumed to have assimilated the complex codes. As Kelman (1987) noted, it is hard to look at the Supreme Court‘s attempts . . . to elucidate the occasions when the death penalty may be applied constitutionally as anything more than a particularly dramatic lesson in the instability of both the rule and the

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standard form, with each pole rapidly and completely undercutting the other. The Court eliminates a death penalty grounded in unguided jury discretion [i.e., Furman], forcing the legislatures to write statutes establishing ostensibly rulelike [instructions] . . .as long as they are not applied in a rigid, rulelike, mandatory, nondiscretionary fashion [i.e., Gregg].  .  .  .  Rules will surely be imprecise, for it is obviously impossible to capture categorically all meaningful distinctions  .  .  .  [and] standards will be enforced in an arbitrary way. (pp. 27–​28)

Jurors may, and sometimes do, improperly weigh mitigating factors on the side of aggravation, altering the proper balance between aggravating and mitigating factors in a particular case and depriving defendants of what the U.S. Supreme Court has declared to be their constitutional right to have each mitigating factor considered as a mitigating factor. Holterman (2002) recognized the similarity between the debates over arbitrariness in legal discourse and the tenets of social science research, attending specifically to the need for internal consistency in the application of procedures and the definitional equivalence (i.e., comprehensible, parsimonious, agreed-​ upon definitions) of the terms of argumentation. This last point can be evidenced in recent case law regarding the clarity of definitions of aggravating and mitigating circumstances (Bowers, Sandys, & Steiner, 1998; Costanzo & Costanzo, 1992; Frank & Applegate, 1998; Garvey, 1998; Sarat, 1995; Taylor Thompson, 2000).

IMPLICATIONS FOR SOCIAL WORK

Social workers are a growing professional presence in the criminal justice system, providing a myriad of services for incarcerated clients and families of victims and defendants. Moreover, social workers have been instrumental in developing a platform of advocacy for persons on death row, including leading the call for better legal defense and equal trial rights for ethnic and cultural minorities. Legal and forensic social workers play an active role in consulting with clients’ legal representation, advocating for strengthening of support services for families of victims and the accused, and supporting the development of public policy that bolsters reform of due process and equal protection under the law (Beck et al., 2007; Betancourt, Dolmage, Johnson, Leach, Menchaca, Montero, & Wood, 2006; Lane, 1993). In the area of capital adjudication, social workers serve as members of mitigation teams, consulting with counsel and providing expert testimony and evidence to assist with juror decision-​making regarding mitigation (Guin, Noble, & Merrill, 2003; Schroeder et al., 2006; Swenson, 1997; Weisberg, 2005). The National

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Association of Social Workers (2009) has taken a strong stand supporting efforts at capital sentence reform The death penalty has always been and continues to be differentially applied to people who are poor, disadvantaged, of limited mental or intellectual capacity, or from ethnic or racial minority groups, execution goes against the social worker’s Code of Ethics, which holds them responsible for preventing discrimination and eliminating exploitation of any group or class of people. (p. 38)

The assistance, advocacy, and support provided by social workers and other helping professions directly impact the didactic element of capital adjudication and may well provide needed education to jurors weighing multiple variables in their consideration of the case. The debate over jury instructions necessitates an exploration of the current capital framework in light of social justice as it is viewed in the profession of social work. Consideration of these elements of jury instructions also necessitates investigation into the role of possible intervening variables, such as gender, race, religion, the media, and the impact on families of the victim and accused.

REFERENCES Armstrong, K., & Mills, S. (2003). “Until I can be sure”: How the threat of executing the innocent has transformed the death penalty debate. In S. Garvey (Ed.), Beyond repair? America’s death penalty (pp. 94–​120). Durham, NC: Duke University Press. Baldus, D. C., Pulaski, C. A., Jr., Woodworth, G., & Kyle, F. D. (1980). Identifying comparatively excessive sentences of death: A quantitative approach. Stanford Law Review, 33(1),  1–​75. Barner, J. R. (2014). Life or death decision making: Qualitative analysis of death penalty jurors. Qualitative Social Work, 13(6), 842–​858. Barron, D. (2002). “I did not want to kill him but thought I had to:” In light of Penry II‘s interpretation of Blystone, why the Constitution requires jury instructions on how to give effect to relevant mitigating evidence in capital cases. Journal of Law and Policy, 11(1), 207–​254. Beck, E., Blackwell, B., Leonard, P., & Mears, M. (2003). Seeking sanctuary: Interviews with family members of capital defendants. Cornell Law Review, 88(2), 382–​418. Beck, E., Britto, S., & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families. New York, NY: Oxford University Press. Bedau, H., & Radelet, M. (1987). Miscarriages of justice in potentially capital cases. Stanford Law Review, 41(1),  21–​90. Bentele, U., & Bowers, W. (2001). How jurors decide on death: Guilt is overwhelming; aggravation requires death; and mitigation is no excuse. Brooklyn Law Review, 66(4), 1013–​1079. Betancourt, B., Dolmage, K., Johnson, C., Leach, T., Menchaca, J., Montero, D., & Wood, T. (2006). Social workers’ roles in the criminal justice system. International Social Work, 49(5), 615–​627.

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Blankenship, M., Luginbuhl, J., Cullen, F., & Redick, W. (1997). Jurors’ comprehension of sentencing instructions:  A test of the death penalty process in Tennessee. Justice Quarterly, 14(2), 325–​352. Bowers, W.  (1995). The Capital Jury Project:  Rationale, design and preview of early findings. Indiana Law Journal, 70(4), 1043–​1091. Bowers, W., Foglia, W., Giles, J., & Antonio, M. (2006). The decision maker matters: An empirical examination of the way the role of the judge and the jury influence death penalty decision-​making. Washington and Lee Law Review, 63(3), 931–​1010. Bowers, W., Sandys, M., & Steiner, B.  (1998). Foreclosing impartiality in capital sentencing: Juror‘s predispositions, attitudes and premature decision-​making. Cornell Law Review, 83(6), 1476–​1556. Cantero, R. G., & Kline, R. M. (2009). Death is different: The need for unanimity in death penalty cases. St. Thomas Law Review, 22(1),  4–​34. Cho, S. (1994). Capital confusion: The effect of jury instructions on the decision to impose death. Journal of Criminal Law and Criminology, 85(2), 532–​561. Costanzo, M., & Costanzo, S.  (1992). Jury decision making in the capital penalty phase: Legal assumptions, empirical findings, and a research agenda. Law and Human Behavior, 16(2), 185–​201. Crump, D., & Jacobs, G. (2000). A capital case in America: How today’s justice system handles death penalty cases from crime scene to ultimate execution of sentence. Durham, NC: Carolina Academic Press. Diamond, S., & Levi, J. (1996). Improving decisions on death by revising and testing jury instructions. Judicature, 79(5), 224–​232. Dumas, B. (2002). Reasonable doubt about reasonable doubt: Assessing jury instruction adequacy in a capital case. In J. Cotteril (Ed.), Language in the legal process (pp. 246–​259). London, England: Palgrave Macmillan. Eisenberg, T., & Wells, M. (1992). Deadly confusion: Juror instructions in capital cases. Cornell Law Review, 79(1),  1–​17. Foley, M. A. (2003). Arbitrary and capricious: The Supreme Court, the Constitution, and the death penalty. Westport, CT: Praeger. Frank, J., & Applegate, B. (1998). Assessing juror understanding of capital sentencing. Crime and Delinquency, 44(3), 412–​433. Furman v. Georgia, 408 U.S. 238 (1972). Garner, B. A. (Ed.). (2014). Black’s law dictionary (10th ed.). Eagan, MN: Thomson West. Garvey, S. (1998). Aggravation and mitigation in capital cases: What do jurors think? Columbia Law Review, 98(6), 1538–​1576. Goodrich, P.  (1987). Legal discourse:  Studies in linguistics, rhetoric, and legal analysis. New York: St. Martin’s Press. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 (1976). Gross, S. (1996). Why erroneous convictions are common in capital cases. Buffalo Law Review, 44(2), 469–​500. Guin, C., Noble, D., & Merrill, T.  (2003). From misery to mission:  Forensic social workers on multidisciplinary mitigation teams. Social Work, 48(3), 362–​371. Hall, M., & Brace, P.  (1994). The vicissitudes of death by decree:  Forces influencing capital punishment decision making in state supreme courts. Social Science Quarterly, 75(1), 136–​151. Haney, C., & Lynch, M. (1994). Comprehending life and death matters: A preliminary study of California’s capital penalty instructions. Law and Human Behavior, 18(4), 411–​436.

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Haney, C., & Lynch, M.  (1997). Clarifying life and death matters:  An analysis of instructional comprehension and penalty phase closing arguments. Law and Human Behavior, 21(6), 575–​595. Haney, C., Sontag, L., & Costanzo, S.  (1994). Deciding to take a life:  Capital juries, sentencing instructions, and the jurisprudence of death. Journal of Social Issues, 50(2), 149–​176. Holterman, T. (2002). Argumentative arbitrariness and legal discourse. Contemporary Justice Review, 5(1),  47–​52. Kelman, M.  (1987). A guide to critical legal studies. Cambridge, MA:  Harvard University Press. Lane, J. M. (1993). Is there life without parole? A capital defendant‘s right to a meaningful alternative sentence. Loyola of Los Angeles Law Review, 26(2), 327–​367. Leo, R.  (2005). Rethinking the study of miscarriages of justice:  Developing a criminology of wrongful conviction. Journal of Contemporary Criminal Justice, 21(3), 201–​223. Liebman, J., Fagan, J., & West, V. (2000). A broken system: Error rates in capital cases, 1973–​1995. Columbia Law School, Public Law Research Paper No. 15. National Association of Social Workers. (2009). Social work speaks:  NASW policy statements 2009–​2012 (8th ed.). Washington, DC: NASW Press. Otto, C., Applegate, B., & Davis, R.  (2007). Improving comprehension of capital sentencing instructions:  Debunking juror misconceptions. Crime and Delinquency, 53(3), 502–​517. Richardson, J.  (2004). Reforming the jury override:  Protecting capital defendants’ rights by returning to the system’s original purpose. Journal of Criminal Law and Criminology, 94(2), 455–​480. Sarat, A. (1995). Violence, representation and responsibility in capital trials: The view from the jury. Indiana Law Journal, 70(4), 1103–​1136. Schroeder, J., Guin, C., Pogue, R., & Bordelon, D. (2006). Mitigating circumstances in death penalty decisions:  Using evidence-​based research to inform social work practice in capital trials. Social Work, 51(4), 355–​364. Sondheimer, J. N. (1990). A continuing source of aggravation: The improper consideration of mitigating factors in death penalty sentencing. Hastings Law Review, 49(2), 409–​446. Swenson, L.  (1997). Psychology and law for the helping professions (2nd ed.). Pacific Grove, CA: Brooks/​Cole. Taylor-​Thompson, K. (2000). Empty voices in jury deliberations. Harvard Law Review, 113(6), 1261–​1320. Weiner, R., Prichard, C., & Weston, M.  (1995). Comprehensibility of approved jury instructions in capital murder cases. Journal of Applied Psychology, 80(4), 455–​467. Weisberg, R. (2005). The death penalty meets social science: Deterrence and jury behavior under new scrutiny. Annual Review of Law and Social Science, 1, 151–​170.

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CHAPTER 4

The History of Mitigation in Death Penalty Cases RUSSELL STETLER

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rior to 1976, juries generally made death penalty decisions in a unitary proceeding; they had unfettered discretion to impose death sentences, and the results were so arbitrary that, in 1972, the U.S. Supreme Court struck down all the existing death penalty statutes. In 1976, the Court approved new statutes that guided jurors’ discretion. The Court required individualized sentencing in which jurors could consider mitigating factors based on the diverse frailties of humankind. This broad definition of what might inspire juries to reject death was elaborated in succeeding decades in a series of decisions relying on the Sixth and Eighth Amendments. Social workers and other nonlawyers became critical members of multidisciplinary capital defense teams. In the middle of the 20th century, the Western democracies one by one began to abolish the death penalty (Zimring, 2003). Each country had its own reasons, but abolition usually came about through political change. Abolition in Italy followed the fall of Benito Mussolini in 1944. In Portugal (1976) and Spain (1978), it came with the transition from the dictatorships of António Salazar and Francisco Franco. The new constitution brought abolition to West Germany in 1949, and a left coalition in Austria ended the death penalty in 1950. Great Britain, under a newly elected Labour government, suspended executions in 1965 and then abolished the death penalty altogether in 1969. France continued to use the guillotine through 1977, but abolished capital punishment when the socialist government of President François Mitterand came to power in 1981. Russell Stetler,The History of Mitigation in Death Penalty CasesIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0005

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The United States was different. Although use of the death penalty had declined starkly (as it also had in Western Europe)—​U.S. executions dropped from over 1,500 in the 1930s to just under 200 in the 1960s—​American politics was headed in a different direction. There was a brief moment in 1972 when the U.S. Supreme Court declared that all the existing death penalty statutes as applied violated the Eighth Amendment prohibition of cruel and unusual punishment (Furman v.  Georgia, 1972). The legislative backlash, however, was immediate. Thirty-​five states simply enacted new laws aimed at eliminating the arbitrary results that troubled the High Court under their previous statutes (Gregg v. Georgia, 1976; Mandery, 2013). One legislative strategy was to narrow the category of crimes eligible for the death penalty, but make it mandatory if the jury convicted a defendant of an offense in that category. Murder of a child or a police officer, for example, might merit an automatic death sentence. The Supreme Court struck down those laws (Woodson v.  North Carolina, 1976; Roberts v.  Louisiana, 1976), holding that the Constitution required individualized sentencing based on compassionate or “mitigating” factors arising from the “diverse frailties of humankind.” However, new statutes that permitted consideration of mitigation were deemed constitutional (Gregg v.  Georgia, 1976; Proffitt v. Florida, 1976; Jurek v. Texas, 1976). Capital trials were thereafter bifurcated proceedings—​divided into a first phase to determine guilt or innocence and a second phase to determine punishment. Ever since, mitigation has defined the era of the modern American death penalty (Blume & Stetler, 2017).

THEORY OF MITIGATION: EVOLVING EIGHTH AMENDMENT DEFINITIONS

The statutes approved by the Supreme Court in 1976 generally followed the guidance of the Model Penal Code developed by a legal think tank (American Law Institute, 1962; § 210.6). The Model Penal Code outlined factors that reduced or extenuated culpability, but did not rise to the level of an affirmative defense to a first-​degree murder charge. These factors included extreme emotional or mental disturbance, duress, victim participation in the criminal conduct, or a defendant’s relatively minor role in the crime. They were factors connected directly to the crime itself. In a series of cases brought before the Supreme Court over the next three decades, lawyers clarified that the breadth of mitigation was much greater than these statutory factors. (Figure 4.1 is a graphic representation of evolving mitigation standards). In fact, statutes could not prevent judges or juries from considering relevant evidence about the background and record of the defendant, or the circumstances of the offense (Lockett v. Ohio, 1978). T h e H i s t or y of M i t i g at i o n i n De at h P e n a lt y  C a s e s  

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NLADA DP Appointment Standards

ABA Criminal Justice Standards (the Defense Function)

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Williams

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Rompilla, Wiggins Roper

DP Guideline Revision

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Credit: Maria McLaughlin, National Mitigation Project, and Alex Roberts, National Litigation Support Center, Oakland, California.

ABA DP Guidelines

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Skipper

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Figure 4.1. Evolution of mitigation standards.

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Supplementary Mitigation Guidelines

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Porter Sears

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Youth, as mitigation, was “more than a chronological fact”: it was the developmental period when a person was vulnerable to peer pressure and other negative influences (Eddings v. Oklahoma, 1982). A defendant’s good adjustment in jail prior to a capital trial should be admitted as mitigation, even though it had nothing to do with his culpability at the time of the offense. It was still a reason why a juror might choose life over death (Skipper v. South Carolina, 1986). For mitigation evidence to be relevant, the threshold is low: it need only tend to prove or disprove some fact or circumstance that a fact-​ finder might reasonably deem to have mitigating value, regardless of whether the fact-​finder accepts or rejects it (McKoy v.  North Carolina, 1990). Justice Anthony Kennedy even referred to “potentially infinite” mitigators (Ayers v. Belmontes, 2006). Jurors need not be unanimous about mitigation, which must be proved only by a preponderance of the evidence (not beyond a reasonable doubt; Mills v. Maryland, 1988). The Supreme Court has viewed mitigation not only through the lens of the defendant’s right to present evidence that might evoke mercy, but also as evidence that jurors need to make reasoned moral decisions in matters of life and death. (Penry v. Lynaugh, 1989). The Court has never held that there must be a connection between mitigation and the crime (Tennard v. Dretke, 2004). Intellectual impairment, for example, is inherently mitigating, a disability that intrinsically might inspire a juror to reject the ultimate punishment. Explanatory mitigation may resonate more profoundly, but the law never requires a nexus. People with intellectual disability (Atkins v.  Virginia, 2002)  or whose capital offenses were committed before their eighteenth birthday (Roper v.  Simmons, 2005)  have been categorically protected from execution. However, the Court’s reasoning in those cases applies to many capital clients who are outside the specified categories. The Atkins (2002), Court pointed to disabilities in reasoning, judgment, and impulse control that are hardly unique to people with intellectual disability. The Roper (2005) Court cited vulnerability to negative influences and a lack of true depravity based on a juvenile’s capacity to change, but these qualities also apply to many other capital defendants. In sum, according to the Supreme Court, the death penalty is to be reserved for “the worst of the worst” (Kansas v. Marsh, 2006, p. 206). The culpability of the “average murderer” is not sufficient for the death penalty. Capital punishment must “be limited to those offenders who ‘commit a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution’ ” (Kennedy v. Louisiana, 2008, p. 2650). The challenge of mitigation in each case is to discover persuasive evidence that the individual and his crime do not fit within those extremely narrow criteria.

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PRACTICE OF MITIGATION: HOW SOCIAL WORKERS AND OTHER NONLAWYERS Became Essential to Capital Defense Teams

Capital defense lawyers quickly discovered that the skills that were needed to discover mitigating evidence were not taught in law school. In fact, even before the Supreme Court had elaborated on the breadth of mitigation evidence, some lawyers had embraced a multidisciplinary approach (Goodpaster, 1983). One lawyer hired a journalism professor from the University of California–​ Berkeley who had written a best seller about a murder case she covered when she was a reporter for the New York Times. She subsequently summarized the role she had played as a member of this capital defense team: A significant legal blind spot existed between the roles played by the private investigator and the psychiatrist, the two standard information-​getters in the trial process. Neither one was suited to the task at hand here—​namely discovering and then communicating the complex human reality of the defendant’s personality in a sympathetic way. . . . Significantly, the defendant’s personal history and family life, his obsessions, aspirations, hopes, and flaws, are rarely a matter of physical evidence. Instead they are both discovered and portrayed through narrative, incident, scene, memory, language, style, and even a whole array of intangibles like eye contact, body movement, patterns of speech—​things that to a jury convey as much information, if not more, as any set of facts. But all of this is hard to recognize or develop, understand or systematize without someone on the defense team having it as his specific function. This person should have nothing else to do but work with the defendant, his family, friends, enemies, business associates and casual acquaintances, perhaps even duplicating some of what the private detective does, but going beyond that and looking for more. This takes a lot of time and patience. (Fosburgh,1982, p. 32)

Many of the pioneers in mitigation work were social workers working in capital trial teams. Carmeta Albarus, Arlene Andrews, Cessie Alfonso, Lori James-​Townes, Jill Miller, Hans Selvog, Jan Vogelsang, and many other social workers were actively involved in the first decades of capital trials. They often taught at capital defense programs, and some wrote about their work (Stetler, 2018). Others began working on mitigation at the opposite end of the process, investigating evidence that might overturn death sentence in post-​conviction litigation or clemency proceedings appealing to the governor. The late Scharlette Holdman and the late Marie Deans worked initially in Florida and Virginia respectively, as executions resumed in those states (Stetler, 2018). They discovered powerful mitigating evidence that had been overlooked at trial and developed the systematic multigenerational approach that became the standard at all stages of practice. Trauma specialists Lee [ 38 ]  Criminal Justice Considerations

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Norton and Kathy Wayland were among the first practitioners to demonstrate the ubiquity of trauma in the capital client population. The interaction between postconviction and trial work expanded the dimensions of mitigation investigation, particularly in the importance of the understanding of trauma and mental health evidence. The era of the modern death penalty has also been a period of immense scientific advance in the domains relevant to mental health, including neurobiology and psychiatric epidemiology. Imaging technologies have made it possible to examine the structure and functioning of the brain in real time and have advanced our understanding of brain and behavior relationships. The decoding of the human genome, twin studies, and adoption studies have resulted in an understanding of genetic predispositions or vulnerabilities to mental disorders, just as there are such vulnerabilities to common medical problems. The multigenerational social history that forms the core of mitigation work product has also served as the foundation of reliable mental health assessments in capital cases (Stetler, 2014). There has been a concomitant expectation that a member of the core capital defense team, usually the mitigation specialist, should have the training and experience to screen for mental disorders and impairments (American Bar Association [ABA], 2003; “Supplementary Guidelines,” 2008).

PREVAILING NORMS: EVOLVING SIXTH AMENDMENT CONSTITUTIONAL REQUIREMENTS

Capital defense has always been a subspecies of indigent defense. Capital defendants and condemned prisoners seeking to overturn their sentences have always been represented by public defenders, court-​appointed lawyers, pro bono volunteers, and nonprofit organizations specializing in capital representations. The importance of multidisciplinary teamwork was acknowledged early in the modern death penalty era. When public defenders formulated their first Standards for the Appointment of Defense Counsel in Death Penalty Cases in 1985, investigators and mitigation specialists were both mentioned in connection with all the obligations that were required of a capital defense team (National Legal Aid and Defender Association [NLADA], 1985). Three Ohio social workers wrote that “attorneys across the nation are recognizing” that mitigation specialists were professionals who were “primary to the defense team” in capital cases (Hudson et al., 1987, p. 36). The NLADA standards were submitted to the ABA and then vetted by numerous committees (including prosecutors, judges, and others beyond the domain of criminal defense practitioners) before being adopted as the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (ABA, 1989). Once again the nonlawyers—​investigators and mitigation T h e H i s t or y of M i t i g at i o n i n De at h P e n a lt y  C a s e s  

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specialists—​were mentioned as members of the team who could help to fulfill counsel’s unique obligations in capital representation. The U.S. Supreme Court soon recognized the investigation of mitigation evidence as an obligation required as an element of the effective representation guaranteed by the Sixth Amendment (Williams v. Taylor, 2000; Wiggins v. Smith, 2003; Rompilla v. Beard, 2005; Porter v. McCollum, 2009; Sears v. Upton, 2010). The Wiggins (2003) case in particular gave the High Court an opportunity to embrace the broad set of practices articulated by the ABA (1989) guidelines and the predecessor NLADA standards. Writing for the Court’s majority, Justice Sandra Day O’Connor provided this thorough summary: The ABA Guidelines provide that investigations into mitigating evidence “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Despite these well-​defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. [Guideline] 11.8.6, (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences). (Wiggins, 2003, p. 524; emphases in original; citations are omitted.)

The Court also quoted the 1980 ABA Standards for Criminal Justice to emphasize the importance of mitigation not only for sentencing purposes, but in presentations to the prosecutor initially when there is the possibility that the death penalty will not be pursued or the case may be resolved to avoid a death sentence through a negotiated disposition (Wiggins, 2003, pp. 524–​ 525, quoting the ABA standards, 1980; Stetler, 2003). In the same year as the Wiggins (2003) opinion, the ABA published its revised guidelines, outlining in more detail the importance of mitigation specialists as core members of the minimum capital defense team (ABA, 2003). The extensive commentary to the revised guidelines cited (in 357 footnotes) the publications of practitioners who had effectively represented capital clients, research studies, practice standards of professional legal organizations, and case law (Stetler & Tabuteau, 2015, pp. 745–​747 and notes 84–​134 analyzing the notes to the commentary). Five years after the revision of the ABA guidelines, the Supplementary Guidelines for the Mitigation Function of Defense Teams in Capital Cases elaborated in even greater detail practice standards focused solely on the mitigation function (“Supplementary Guidelines,” 2008). The long process of drafting these supplementary guidelines and vetting the drafts at national

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training programs was described by Sean D. O’Brien (2008), one of the principal coordinators of the project. Meanwhile, extensive empirical research had examined how jurors who had actually served in capital cases responded to mitigation evidence. Beginning in 1991, a consortium of university-​based researchers with support from the National Science Foundation interviewed nearly 1,200 jurors from over 350 capital trials in 14 states, using structured interviews of three to four hours in duration. The interviews used both predetermined response options to structured questions and narrative accounts in jurors’ own words in response to open-​ended questions. The findings after two decades of research were published in more than 50 articles addressing the kinds of mitigating evidence jurors found effective, the most effective manner of presentation, and the importance of all stages of capital proceedings (including voir dire and the guilt/​ innocence phase of bifurcated proceedings) because of the well-​documented conclusion that nearly half of the jurors believed they knew what the punishment should be before the sentencing phase of the trial began (Stetler & Wendel, 2013, pp. 640–​641 and notes 28–​34). There is no national database summarizing the outcomes of all the cases that were eligible for the death penalty at any point or even all the cases that proceeded to the second phase of a capital trial in which jurors decided whether to impose the death penalty. However, a review of the jurisdictional snapshots that are available indicates that death sentences have always been rare; they are vanishingly rare in the jurisdictions where dedicated capital defense systems (with robust mitigation capacity) are in place, and jurors have rejected the death penalty even in a large number of the most highly aggravated cases (such as those involving child victims, killings of law enforcement officers, or multiple victims; Stetler, 2018, Appendices 1–​4, pp. 1213–​1256).

THE IRONY OF MITIGATION?

Two scholars of the contemporary death penalty (law professors at Harvard and the University of Texas) have noted how mitigation has recreated the very arbitrariness that prompted the Supreme Court to find the earlier statutes unconstitutional as applied: The irony, of course, was that the Court seemed to be protecting as a matter of constitutional law the very discretion Furman had identified as constitutionally problematic. But according to the Court, the discretion to withhold the death penalty based on mitigating factors is categorically different from the discretion to impose the death penalty based on amorphous perceptions of the aggravating aspects of the offense. So was born the central tension in American death penalty

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law: its simultaneous command that states cabin discretion of who shall die while facilitating discretion of who shall live. (Steiker & Steiker, 2016, p. 165)

Thus, the work of investigating and presenting mitigation in individual cases not only discovers and reveals the humanizing evidence that may help to avoid a death sentence or execution, but it also may have a longer-​term effect in undermining confidence in the capacity of our criminal justice system to avoid arbitrary results, which invariably also increase the risk of discriminatory outcomes. Many factors contribute to arbitrary results—​where the crime took place (in the 30 states which retain capital punishment, or the 20 that abolished it, or in the two percent of counties that account for most death sentences and executions in retentionist states), budgetary resources, and the politics of elected prosecutors and judges, to name but a few (Garrett, 2017). However, the invidious and toxic influence of race is ever-​present as a factor that turns arbitrary patterns into inevitably biased outcomes at every point of death-​penalty decision-​making.

DISCUSSION

America’s post-​Furman death penalty experiment came in the era of mass incarceration, when the rate of incarceration soared in the United States compared to its peer nations and “three strikes” laws in many jurisdictions resulted in life without parole sentences even for nonviolent felony convictions (Travis, Western, & Redburn, 2014). If such draconian sentences could be imposed for stealing golf clubs or video games, it is not surprising that an even harsher sentence—​ death—​ might seem appropriate for murder. However, both trends—​toward longer prison sentences for more and more defendants and an ever-​expanding death-​row population—​peaked around the dawn of the new millennium, and have reversed ever since. The power of mitigation in death penalty cases has been undeniable as the number of annual death sentences has dropped from over 300 in the 1990s to a few dozen in the second decade of the 21st century (Stetler, 2018). There has been expanded use of mitigation specialists in noncapital cases as public defender offices have begun to embrace holistic approaches to defense representation, and there is a critical need for the services of mitigation specialists to assist in the cases of roughly 2,000 prisoners sentenced to life without parole for crimes committed prior to age eighteen (Cook, Fine, & Adjoian, 2017).

Implications for Social Work

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the human rights issues that are at the heart of mitigation: dignity, equality, and fairness. As Shami Charkrabarti (2014) has noted, arcing over all three of these is empathy, the very definition of mitigation. Only the courts can enforce equality and fairness, but respect for the dignity and humanity of all defendants is the foundation of mitigation, regardless of the outcome of the case. Respect for the dignity and humanity of all people resonates with the professional social work value, dignity and worth of the person, which holds social workers treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity. Social workers promote clients’ socially responsible self-​determination. Social workers seek to enhance clients’ capacity and opportunity to change and to address their own needs. Social workers are cognizant of their dual responsibility to clients and to the broader society. They seek to resolve conflicts between clients’ interests and the broader society’s interests in a socially responsible manner consistent with the values, ethical principles, and ethical standards of the profession. (National Association of Social Workers, 2017, core ethical principles; emphasis added)

The tension inherent in the dual responsibility to individual and society brings to light an ethical dilemma for social workers: Is mitigation, as a form of participation, complicity in a criminal justice system that results in, and perpetuates, great injustices? And what are the implications for a profession that embraces a do-​no-​harm ethic? Setting aside for the moment these ideals for a more pragmatic approach, when mitigation succeeds in evoking empathy on the part of decision makers in capital cases, we avoid an undeserved execution. And is this not an instance of justice—​or rather, the staving off of a gross miscarriage of justice? I have long believed that mitigation in death penalty cases serves a threefold purpose. It provides the potential humanizing, life-​saving evidence to which every capitally charged defendant is entitled under the Sixth Amendment. It provides the evidence that jurors need to make the reasoned moral decision they are asked to render in capital cases, thereby ensuring more reliable results. And it is an archive for succeeding generations—​the collective compilation of individual stories that help us to understand a seemingly senseless and horrific murder. When the social scientists of the next century look back on this one, the mitigation archives will be a robust treasure trove for those examining homicide through the lenses of public health and social policy aiming to reduce and even to prevent the level of violence that has set our country apart from its peer nations. With or without the death penalty, the work of mitigation will continue, serving all these purposes and, one can hope, making empathy and human dignity central elements of a more enlightened criminal justice system.

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REFERENCES American Bar Association. (1980). The defense function. In Standards for criminal justice (2nd ed.). Boston: Little, Brown. American Bar Association. (1989). Guidelines for the appointment and performance of counsel in death penalty cases. Retrieved from https://​www.americanbar.org/​ content/​dam/​aba/​uncategorized/​Death_​Penalty_​Representation/​Standards/​ National/​1989Guidelines.pdf American Bar Association. (2003). Guidelines for the appointment and performance of defense counsel in death penalty cases. Hofstra Law Review, 31, 913–​1090. American Law Institute, Model Penal Code (1962). Atkins v. Virginia, 536 U.S. 304 (2002). Ayers v. Belmontes, 549 U.S. 7 (2006). Blume, J., & Stetler, R. (2017), Mitigation matters. In E. Monahan & J. Clark (Eds.), Tell the client’s story: Mitigation in criminal and death penalty cases (pp. 19–​42). Chicago, IL: American Bar Association. Chakrabarti, S. (2014). On liberty. London, England: Allen Lane/​Penguin Books. Cook, D., Fine, L., & Adjoian, J.  V. (2017). Miller, Montgomery, and mitigation: incorporating life history investigations and reentry planning into effective representation for “juvenile lifers.” The Champion, 41(3), 44–​46, 48–​50, 52, 54–​55,  58. Eddings v. Oklahoma, 455 U.S. 104 (1982). Fosburgh, L.  (1982). The Nelson case:  A model for a new approach to capital trials. Forum, 9(5),  31–​36. Furman v. Georgia, 408 U.S. 238 (1972). Garrett, B. L. (2017). End of its rope: How killing the death penalty can revive criminal justice. Cambridge, MA: Harvard University Press. Gregg v. Georgia, 428 U.S. 153 (1976). Goodpaster, G. (1983). The trial for life: Effective assistance of counsel in death penalty cases. New York University Law Review, 58, 299–​362. Hudson, J., Core, J., & Schorr, S. (1987, June). Using the mitigation specialist and the team approach, The Champion, 11(5),  33–​36. Jurek v. Texas, 428 U.S. 262 (1976). Kansas v. Marsh, 548 U.S. 163 (2006). Kennedy v. Louisiana, 554 U.S. 407 (2008). Lockett v. Ohio, 438 U.S. 586 (1978). Mandery, E. J. (2013). A wild justice: The death and resurrection of capital punishment in America. New York, NY: W. W. Norton. Mills v. Maryland, 486 U.S. 367 (1988). McKoy v. North Carolina, 494 U.S. 433 (1990). National Association of Social Workers. (2017, August 4). Code of ethics: Ethical principles. Retrieved from https://​www.socialworkers.org/​About/​Ethics/​Code-​of-​ Ethics/​Code-​of-​Ethics-​English National Legal Aid and Defender Association. (1985). Standards for the appointment of defense counsel in death penalty cases. https://​www.americanbar.org/​content/ ​ d am/​ a ba/​ u ncategorized/​ Death_​ Penalty_​ R epresentation/​ S tandards/​ National/​NLADA_​Counsel_​Standards_​1985.pdf O’Brien, S. D. (2008). When life depends on it: Supplementary guidelines for the mitigation function of defense teams in death penalty cases. Hofstra Law Review, 36, 693–​762.

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Penry v. Lynaugh, 492 U.S. 302 (1989). Porter v. McCollum, 558 U.S. 30 (2009). Proffitt v. Florida, 428 U.S. 242 (1976). Roberts v. Louisiana, 428 U.S. 325 (1976). Rompilla v. Beard, 545 U.S. 374 (2005). Roper v. Simmons, 543 U.S. 551 (2005). Sears v. Upton, 561 U.S. 945 (2010). Skipper v. South Carolina, 476 U.S. 1 (1986). Steiker, C. S., & Steiker, J. M. (2016). Courting death: The Supreme Court and capital punishment. Cambridge, MA: Harvard University Press. Stetler, R. (2003). Commentary on counsel’s duty to seek and negotiate a disposition in capital cases (ABA Guideline 10.9.1). Hofstra Law Review, 31, 1157–​1165. Stetler, R. (2014). Mental health evidence and the capital defense function: Prevailing norms. University of Missouri Kansas City Law Review, 82, 407–​428. Stetler, R. (2018). The past, present, and future of the mitigation profession: Fulfilling the constitutional requirement of individualized sentencing in capital cases. Hofstra Law Review, 46, 1161–​1256. Stetler, R., & Tabuteau, A. (2015). The ABA guidelines: A historical perspective. Hofstra Law Review, 43, 731–​749. Stetler, R., & Wendel, W. B. (2013). The ABA guidelines and the norms of capital defense representation. Hofstra Law Review, 43, 635–​695. Supplementary guidelines for the mitigation function of defense teams in death penalty cases (2008), Hofstra Law Review, 36, 677–​692. Tennard v. Dretke, 542 U.S. 274 (2004). Travis, J., Western, B., & Redburn, S.  (Eds.). 2014. The growth of incarceration in the United States:  Exploring causes and consequences. Washington, DC:  National Research Council. Wiggins v. Smith, 539 U.S. 510 (2003). Williams v. Taylor, 529 U.S. 362 (2000). Woodson v. North Carolina, 428 U.S. 280 (1976). Zimring, F.  E., (2003). Contradictions of American capital punishment. New  York, NY: Oxford University Press.

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CHAPTER 5

Social Workers in Capital Defense Practice Demystifying Human Frailty/​Empowering Conscience BRIAN KAMMER

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ocial workers are uniquely suited to the essential task of crafting mitigating social histories for capital defendants that can penetrate the fog of misconceptions, disinformation, and demonization/​dehumanization endemic to the capital punishment process. Rooted in traditions of antiracism and community education, welfare, and empowerment—​and whose fundamental aspirations have been to identify and remedy systemic impediments to human welfare and to encourage human mutuality—​the 150-​year history of American social work places it in natural opposition to capital punishment. Mitigating narratives created by social workers recover defendants’ humanity and empower judicial decision-​makers to act mercifully. Decades of social worker participation in capital defense have seen a sharp decline in death sentencing. The death penalty has been described as a model of bad faith. It is founded upon several basic myths. . . . The first myth, what might be called the myth of demonic agency, serves to deny the humanity of the persons who commit capital murder, substituting the heinousness of their crimes for the reality of their personhood. (Haney, 1994a, p. 547)

This description paints a stark contrast to the Code of Ethics promulgated by the National Association of Social Workers (NASW). The demonization/​ Brian Kammer,Social Workers in Capital Defense PracticeIn: Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0006

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dehumanization processes inherent in capital punishment are especially antithetical to the core social work value of social justice: Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people. (NASW, 2017)

This value may also arguably be said to capture the current mood of the American public, which has come to view U.S. criminal justice policy and procedure as overly punitive and rife with racial and economic bias (Drakulich & Kirk, 2015). In a parallel way, the national trend in utilization of the death penalty apparatus is, and has been, on the decline since the 1990s (Death Penalty Information Center, 2015). For example, Georgia juries are regularly asked to decide whether a defendant deserves to be executed or spend life in prison, but at the time of writing this chapter, they have not returned a death sentence in the last five years in counseled cases (Bluestein, 2019). (The only case in the last five years in which a jury has opted for death involved a mentally ill defendant who refused counsel and mounted no defense at either phase of her capital trial; Jackson, 2019). This statistic tends to astonish those whose exposure to capital punishment in Georgia is limited to news reports of executions which continue to be carried out here despite the dramatic, historic downturn in death sentencing. But this downturn is real, and it is happening in significant part because 14 years ago, Georgia finally established an excellent capital case trial defender service—​the Georgia Capital Defender. Prior to the establishment of the state-​funded Georgia Capital Defender in 2005, representation of capital murder defendants in Georgia (virtually all indigent) was often accomplished through an ad hoc process in which trial courts would appoint private attorneys who frequently had insufficient capital defense experience. At the same time, judges protective of county coffers made it difficult to obtain adequate funds for expert and investigative assistance and routinely cut defense attorneys’ compensation requests. The Georgia Capital Defender employs social workers to investigate the personal, family, and community histories of its clients so that the defense can present detailed mitigation narratives hoping to incline sentencing juries toward mercy. Per the U.S. Supreme Court’s endorsement of bifurcated trial schemes like Georgia’s (Gregg v.  Georgia, 1976), capital trials involve, first, a jury trial as to the accused’s factual guilt, and, assuming a guilty verdict, a second jury trial as to the appropriate punishment, i.e., life, life without S o c i a l W or k e r s i n C a p i ta l De f e n s e P r ac t i c e  

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parole, or death. At the penalty phase trial, it behooves defense counsel to present, and the jury must be permitted to consider, a broad range of mitigating evidence relating to the defendant’s history of, for example, having demonstrated positive character traits or having suffered trauma, neglect, or mental health impairments, if any, which may have the effect of humanizing the defendant and/​or providing context for the defendant’s violent behavior (see Lockett v. Ohio, 1978, p. 604). In Gregg v. Georgia (1976), the U.S. Supreme Court specifically endorsed Georgia’s guided discretion scheme wherein, at the penalty phase, jurors are instructed that they must find at least one statutorily defined “aggravating circumstance” to authorize imposition of the death penalty, but may opt for a life sentence for any reason. This bifurcated, guided discretion system is what brought modern death penalty statutes into compliance with the Eighth Amendment, as opposed to the now outlawed mandatory schemes decried in such cases as (Woodson v. North Carolina, 1976). Long before a trial is even scheduled, when a prosecutor is presented with what Georgia Capital Defender social workers have uncovered about an accused’s past or mental health status, the necessity of submitting the defendant’s fate to a jury at all can be thrown into doubt. By cutting through pervasive stereotypes and myths about those accused of murder, and by excavating and revealing to judicial decision-​makers “the diverse frailties of humankind” (Woodson v.  North Carolina, 1976, p.  304) as manifested in their clients, social workers are helping to wind down the death penalty on a case-​by-​case  basis. Similarly, the office in which the author practiced for over two decades, the Atlanta-​based Georgia Resource Center, has long employed investigators and attorneys who have training in social work and/​or are licensed clinical social workers. The Resource Center specializes in postconviction stages of capital case review that occur after a defendant has been sentenced to death and completed an initial direct appeal. In most cases, the Center continues to represent the client through to final resolution of her case. Having highly trained social workers in-​house has made it possible for a small, nonprofit postconviction defender like the Center to conduct, on an ongoing basis, the kind of thorough and multifaceted client social history investigations that have been critical to obtaining stays of execution, overturning death sentences, and obtaining grants of clemency. In fact, social workers have long been seen as essential personnel at all stages of competent capital defense practice because they possess skills and theoretical training that make them experts in developing comprehensive client social histories in preparation for sentencing: “The use of social workers and psychologists as part of the defense team for mitigation in a capital case is a necessity—​not a luxury” (Stebbins & Kenney, 1986, p. 18). Those skills have been honed within a 150-​year ethical tradition that respects the inherent dignity and worth of the person and seeks to challenge social injustice [ 48 ]  Criminal Justice Considerations

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by highlighting systemic social problems which contribute to individuals’ disadvantaged status (NASW, 2017). Social workers’ compassionate, holistic approach to understanding the social context in which individuals on society’s margins experience their lives and perceive the choices available to them has proven to be among the most potent countermeasures in the defense of persons facing capital punishment (Haney, 1994a). The American Bar Association (2008) standards for capital defense practice mandate that defense teams incorporate mitigation specialists, usually social workers, who have the ability to obtain, understand and analyze all documentary and anecdotal information relevant to the client’s life history. Life history includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-​ generational family history, genetic disorders and vulnerabilities, as well as multi-​generational patterns of behavior; prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socio-​economic, historical, and political factors. (p. 682)

This chapter discusses how social workers have been uniquely impactful in demystifying the causes of violent behavior, rehumanizing capital defendants, and empowering judicial decision-​makers’ consciences in favorem vitae.

CAPITAL PUNISHMENT DEMONIZES DEFENDANTS AND WEAPONIZES MORAL DISTANCING TO OVERCOME CONSCIENTIOUS OBJECTION TO KILLING

Because human beings are inherently disinclined to kill one another (e.g., Grossman, 1995), capital punishment as an institution must actively undermine this reluctance. Like military boot camp, systematic dehumanization of the enemy—​here, capital defendants—​is part and parcel of the death penalty apparatus: Rituals of killing, whether sanctioned by the state (as in executions or war) or at an individual level, almost always involve the systematic dehumanization of the victim-​the stripping of human qualities from the target of the lethal act. Preparations for war almost always seem to include some form of dehumanization of the enemy. . . . Because ‘capital punishment is warfare writ small’ (Burt, 1987), it is not surprising to find this mechanism of moral disengagement at work in the death-​sentencing process. (Haney, 1997, p. 1452)

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Thus, while capital sentencing procedures purport to comply with the Eighth Amendment in mandating consideration of mitigating factors—​“any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” (Lockett v. Ohio, 1978, p. 604), in practice, the overall trial process relentlessly focuses juror attention on crime facts and the supposed perfidiousness and non-​humanity of the defendant, while distancing jurors from consideration of potentially sympathetic aspects of the defendant’s background. All of this functions to prevent, in jurors, “ ‘the shuddering recognition of a kinship [with defendants]: here but for the grace of God drop I (Koestler, 1956)’ ” (Haney, 1997, p. 1451). Moral distancing is abetted by media rhetoric that trains the public to see those accused of murder as non-​persons (i.e., monsters) who deserve death. Craig Haney (1994a) lays out the pernicious effects of media portrayals of criminals as uniformly without context, life connections, social relationships, basic human needs, wants, or hardships . . . no personal history, no human relationships, and no social context, there was no explanation for what they did except for their own personal evil” (p. 550). Haney (1994a) also recounts the observation of a television historian that television drama, “rarely invited the viewer to look for problems within himself. Problems came from the evil of other people, and were solved . . . by confining or killing them. (p. 550).

Moreover, Because the background of the perpetrators and the social contextual forces that may have contributed to the criminal acts in question are unknown at the time most reporting occurs, newspaper coverage typically omits any analysis of them. Even after persons have been apprehended and charged with a crime, the press typically has little or no direct access to them and rarely shows any significant interest in their background and social history. (p. 551).

In a criminal justice system pervaded by racially discriminatory effects including disproportionately White juries, African American and other ethnic and racial minority defendants are most susceptible to being marked as nonhuman: This mechanism of moral disengagement—​ creating, highlighting, and exaggerating difference and transforming it into defect and deficiency—​ stands at the core of the chronic racism that has plagued our criminal justice

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system throughout its history, including the legacy of discriminatory death sentencing. . . . Yet the structure of capital trials facilitates and even encourages race-​based otherness. (Haney, 1997, p. 1463)

The “othering” of defendants of color is part of the still-​pervasive legacy of slavery, which trained the body politic to accept as a mundane fact of life the routine dehumanization, torture, and murder of Black people (Haney, 1997, p.  1453). (After slavery, the widespread practice of racial terror lynchings constituted a transition phase which culminated in seemingly less chaotic, more legalistic capital trials (Goodman, 2018).) Additionally, capital defendants with certain mental impairments, such as an intellectual disability, are especially vulnerable to being demonized and sentenced to death “in spite of factors which may call for a less severe penalty” (Lockett v. Ohio, 1978, p. 320) because their “demeanor may create an unwarranted impression of lack of remorse for their crimes” (Atkins v. Virginia, 2002, p. 321). The very structure of capital trials promotes further moral distancing from defendants’ humanity and from jurors’ own responsibility in deciding the ultimate life or death question. Jury selection techniques for “death-​qualifying” jurors select for service only those with a professed ability to overcome any moral qualms about imposing death (Howarth, 1994, p. 1357). According to Butler and Moran (2007), the process of death qualification results in the selection of differentially partial jurors. Although death qualified and excludable jurors are able to realize when incorrect scientific procedures are being used, death-​qualified jurors are less likely to take this into consideration when evaluating the importance of the evidence. As a result, capital defendants “are having their fate determined by a homogenous, unrepresentative subgroup of the population that is prone to basing life and death decisions on flawed science” (p. 568). The delay of weeks or even months, until the latter part of the capital trial (the postguilty verdict sentencing phase), in informing the jury about specific mitigating details of the defendant’s background and the social context for the behavior allows psychological barriers to empathy to arise well before the demystification process can begin and reasons to exercise mercy can be articulated (Haney, 1997). This “undermine[s]‌and limit[s] the effect of mitigating testimony  .  .  .  and simultaneously facilitate[s] and intensif[ies] the human punitive response” (Haney, 1997, p. 1450). Finally, confusing, crime-​focused instructions by the trial court at the conclusion of the sentencing phase obscure the legal effect jurors are supposed to give mitigating factors and generate uncertainty as to their ultimate responsibility for deciding whether the defendant will live or die (Haney, 1994b, pp.  1225, 1230; 1994c, p.  1150; 1997, p. 1457). Thus, capital sentencing “is a whiplashed process that bounces

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between distance and connection.” (Howarth, 1994, p. 1352). Haney (1994b) speculates that “if the legal machinery of death failed to perform these many rituals of bad faith, it would have a difficult time indeed finding normal, healthy volunteers for the task of condemning their fellow citizens to die” (p. 1232). These condemnatory “othering” rituals have “further institutionalize[d]‌ what social psychologists have termed the ‘fundamental attribution error’—​ systematically discounting the important social, historical, and situational determinants of behavior (in this case, criminal behavior) and correspondingly exaggerating the causal role of dispositional or individual characteristics” (Lynch & Haney, 2011, p. 590). This error is profoundly concerning not only in the sense that it prevents a meaningful reckoning with the “diverse frailties of humankind” and biases sentencing toward a death sentence in any given case. As Haney points out, capital punishment’s “many rituals of bad faith” (1994b, p. 1232) have corrosive and disempowering psychological effects on jurors and the wider community: Failing to assist jurors in understanding the causes of the crime in question can compromise not just the reliability of their verdict, but—​especially in highly publicized cases—​decisions of the public at large. Absent a meaningful discussion of motivation that includes context and history, jurors are left with a sense that crime is random, unpredictable, and unpreventable. Confronted with inexplicable violence, capital jurors are more likely to impose the death penalty. And a society confronted with similarly incomplete narratives is more likely to become paranoid and punitive. (p. 1457)

Although defendants’ ability to break through these layers of moral distancing in order to convey their humanity to the jury is always in doubt, capital trials “are one of the very few forums available in which to directly confront . . . stereotypes” about persons accused of murder (Haney, 1994a, p. 559). As capital defenders know, and as the wider community is coming to learn, there really are no monsters among the perpetrators of capital murder—​ just the brutalized products of a society that does too little to provide for the well-​being of its people: There is increased recognition that the roots of violent behavior extend beyond the personality or character structure of those people who perform it, and connect historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which violence transpires. Capital penalty trials, then, have become unique legal forums in which it is possible to tell the truth about the lives of capital defendants. These are stories that are being told almost nowhere else in the United States. (Haney, 1994a, p. 561) [ 52 ]  Criminal Justice Considerations

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As discussed further later, bringing to bear social workers’ expertise in illuminating defendants’ social histories in granular detail is the most effective way to take advantage of the unique opportunities for story-​telling in capital sentencing: Despite these widespread media mystifications about ‘natural born killers’ and epidemics of the “disease” of murder, any meaningful explanation for capital violence must begin with an examination of the structure of the lives of those who commit it. This examination leads us to conclusions about the causes of crime and the culpability of capital offenders that are very much at odds with the stereotypes created and nourished by the system of capital punishment that prevails in our society. (Haney, 1994a, p. 559)

DISCUSSION

Robert Burt (1987) has written, “Of all social practices, inflicting death on a transgressor is the most definitive and vivid affirmation that social conflict in the particular case is irreconcilable. Capital punishment is warfare writ small” (p. 1764). To extend the metaphor, social workers are warriors perfectly suited to the battlefield of capital sentencing because their theoretical training and ethical mission has always been fundamentally about reducing the psychological and moral distance between societally disadvantaged, despised, or othered persons and those who might have the power and inclination to help them or at least shield them from undue harm. Indeed, the ethical orientation and history of social work place it in natural opposition to the dehumanizing rituals of capital punishment and connect it, in particular, to the long struggle to remediate the effects of slavery. For example, social work in its modern form began to emerge in the United States during Reconstruction when the federal Freedman’s Bureau undertook what amounted to the first national social welfare program to meet the needs of millions of freed former slaves (Huff, 2019). The Bureau’s protosocial workers attended to the needs of millions of emancipated former slaves and created a historical record that, by “describ[ing] the problems, trials, and tribulations of individuals and their families,” revealed “the human face . . . [of] slavery and emancipation” (Everly, 1997). The role of social welfare workers became more professionalized as part of the Settlement House movement of the late 19th and early 20th centuries (Wade, 2005). This movement sought to reduce the distance—​physical, cultural, and moral—​between affluent and poor citizens by having them live together in large buildings such as Hull House in Chicago, founded by Jane Addams in 1889. The progenitors of this movement sought to engage in more scientific methods of understanding systemic causes of poverty and improving the circumstances of the poor in a rapidly industrializing society S o c i a l W or k e r s i n C a p i ta l De f e n s e P r ac t i c e  

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(Wade, 2005). In the 20th century, influential scholars like Barbara Solomon described disadvantaged racial and ethnic minority communities in particular as suffering primarily from systematic disempowerment and urged the social work profession to focus on refuting racially discriminatory negative valuations of such social groups and to use their skills “in the service of empowerment” of individuals and communities of color (Solomon, 1976, p. 26). Today, in the capital sentencing context, social workers as a profession are uniquely prepared to delve into the complexities of the abuse, neglect, maltreatment, and institutional failure that have marked the lives of capital defendants and to generate master narratives that cast violent behavior as the predictable and understandable fallout from a lifetime of trauma: The nexus between poverty, childhood abuse and neglect, social and emotional dysfunction, alcohol and drug abuse, and crime is so tight in the lives of many capital defendants as to form a kind of social historical ‘profile.’ The social ecology of crime is shaped by the neighborhoods in which its perpetrators are raised. The demographic mix of these communities determines the nature of the class and race conflict to which participants become accustomed. Criminal opportunities and social and economic pressures to succumb vary by neighborhood and family. Indeed, recently published autobiographical and ethnographic accounts of the structural disadvantages of race and class underscore many of the difficulties capital defendants have confronted. . . . The emphasis is on something lost sight of in most legal analyses of criminal behavior: context. (Haney, 1994a, p. 580)

The mitigating stories social workers craft offer a human-​scale context for defendants’ behavior and are “the only way to prevent the ‘otherness’ of capital defendants, which is intensified by initial inferences about the internal causes of their criminality, from facilitating the jury’s moral disengagement” (Haney, 1997, p.  1463). For example, a 2003 article describing how a capital jury arrived at a life verdict emphasized the defense team’s use of social workers to portray the defendant’s life history, which in turn helped the jury understand how he came to the point of committing a murder. The story of the defendant’s deprived upbringing allowed jurors to see themselves or their own children in the defendant, providing “ ‘not . . . an excuse for what happened, but . . . an understanding of his torment” (Kotlowitz, 2003). In the author’s area of capital defense practice (postconviction), the work involves changing the picture (or the narrative; Olive, 2009) of the defendant established at the trial stage, where there has typically been a lack of meaningful background investigation and therefore a paucity of mitigating detail about the defendant presented to the sentencing jury. In cases litigated by the author, social workers have crafted “ ‘narrative[s]‌of mitigation’ [which] made judges ‘use

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their imagination to represent the suffering of the defendant’ ” (Olive, 2009, p. 990). In one case, the author employed a social worker to investigate the background of a death-​sentenced client whose crime was the culmination of decades of substance addiction whose origin lay in a childhood marked by poverty, severe abuse and neglect, and a family plagued by substance abuse and mental illness. As part of the mitigation narrative, the social worker created what is known as a genogram to illustrate the way these issues pervaded the family structure. An example of a genogram is featured in Figure 5.1. Using these methods, the litigation team was able to convince the post-​conviction judge that the original trial attorneys had failed to uncover and present a compelling narrative that would have altered the verdict by helping the jury recognize the client as a human being and understand the crime as stemming from the complex interaction among multiple developmental insults and institutional failures over time. Importantly, the client, now serving a life sentence, found the telling of his story to be extremely cathartic as he, too, came to see himself as a whole human being who had survived trauma and whose identity was not bounded by the facts of his crime.

IMPLICATIONS FOR SOCIAL WORK: EMPOWERING CONSCIENCE AND MAKING SPACE FOR JUSTICE

Mitigating narratives work. Empirical studies demonstrate that the pressure to impose death in capital sentencing can be and is being overcome as juries are confronted with stories that are the product of social workers’ unique training and mission: Successfully humanizing the defendant through the mitigating evidence, for example, leads jurors to believe that the crime was not as heinous. It also makes jurors less likely to view the defendant as dangerous, and less likely to see him as remorseless. A comprehensive, consistent, coherent, and credible presentation of mitigation evidence can—​and often does—​influence a juror’s determination on all three issues. (Blume, 2008, p. 1038)

Haney (1994a) also points out that mitigating narratives can have salutary effects on the wider community which would arguably fulfill the community-​ empowerment priorities for social work articulated by (Solomon, 1976): These stories—​and what they tell us about the roots of violence—​can assist in our understanding of capital murder, provide a framework for comprehending a single, violent social history, and serve as the basis for the development of a responsible social policy of violence prevention in lieu of the mindless punitiveness. (Haney, 1994a, p. 561)

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Figure 5.1. Social worker’s genogram used as part of the mitigation narrative in a death penalty case.

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By revealing that the defendant is a human being who struggled to survive repeated traumas, perhaps along the way showing glimpses of a capacity to thrive and show concern for others were circumstances different, a detailed social history helps dissipate the fog of stereotype and fear and bring into focus the reality of the defendant as a person—​not a monster—​subject to recognizable human frailties. By the same token, it restores among decision-​ makers a sense of humility as they “represent . . . to themselves what it would be like to be in [the defendant’s] place, to ‘tremble and shudder’ at what he must feel” (Brooks, 1996, p. 242). As Bryan Stevenson (2014), founder and executive director of the Equal Justice Initiative, so eloquently explains, this may be because “there is a strength, a power even, in understanding brokenness, because embracing our brokenness creates a need and desire for mercy, and perhaps a corresponding need to show mercy” (p. 290). Social workers are critical to restoring a recognizable human dignity to the defendant and empowering a jury to act on its impulse to respond empathetically, despite the hyperbolic exhortations of the prosecutor and the byzantine, deadening instructions from the trial judge. The recognition of human commonality can thus liberate decision makers to act in favor of life. To paraphrase legendary American author Toni Morrison (2019) writing about the process of reconstructing the self in the aftermath of slavery’s trauma, capital sentencing is “a pitched battle between remembering and forgetting,” and “memory versus memorylessness. Rememory as in recollecting and remembering as in reassembling the members of the body, the family, the population of the past” (p. 324). The “central preoccupation” of the social worker as capital defender must be “that of reconstituting and recollecting an usable past,” to “remember what  .  .  .  construct[ed] [the defendant’s] self” (p.  324). The success of that “narrative strategy . . . turns on . . . the chances for liberation that lie within the process” (p. 324). In the end, closing the distance between ourselves and those we are taught to fear or despise—​getting “proximate” to suffering and injustice (e.g., Stevenson, 2014, p. 17)—​is the only meaningful way to prepare the ground for justice to emerge.

REFERENCES American Bar Association. (2008). Supplementary guidelines for the mitigation function of defense teams in death penalty cases. Hofstra Law Review, 36, 677–​692. Atkins v. Virginia, 536 U.S. 304 (2002). Bluestein, G. (2019, March 29). Bipartisan lawmakers aim to end Georgia death penalty. Atlanta Journal-​Constitution. Retrieved from https://​www.ajc.com Blume, J.  (2008). Competent capital representation:  The necessity of knowing and heeding what jurors tell us about mitigation. Hofstra Law Review, 36, 1035–​1066. Brooks, P. (1996). Illicit Stories. In C. B. Strozier & M. Flynn (Eds.), Trauma and self (pp. 231–​245). Lanham, MD: Rowman & Littlefield.

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Burt, R.  (1987). Disorder in the court:  The death penalty and the Constitution. Michigan Law Review, 85, 1741–​1819. Butler, B., & Moran, G. (2007). The role of death qualification and need for cognition in venirepersons’ evaluations of expert scientific testimony in capital trials. Behavioral Sciences & the Law, 25(4), 561–​571. Death Penalty Information Center. (2015). The death penalty in 2015: Year end report. Retrieved from https://​deathpenaltyinfo.org/​documents/​2015YrEnd.pdf Drakulich, K.  M., & Kirk, E.M. (2015). Public opinion and criminal justice reform. Criminology & Public Policy, 15 (1), 1–​7. Everly, E.  (1997). Freedmen’s Bureau records:  An overview. Retrieved from https://​ www.archives.gov Goodman, A.  (2018). “Death penalty is lynching’s stepson”:  Bryan Stevenson on slavery, White supremacy, prisons & more. Democracy Now. Retrieved from https://​www.democracynow.org Gregg v. Georgia, 428 U.S. 153 (1976). Grossman, D. (1995). On killing: The psychological cost of learning to kill in war and society. New York, NY: Little, Brown. Haney, C. (1994a). Social context of capital murder: Social histories and the logic of mitigation. Santa Clara Law Review, 35, 547–​509. Haney, C.  (1994b). Taking capital jurors seriously. Indiana Law Journal, 70(4), 1223–​1232. Haney, C. (1994c). Where’s the buck? Juror misperception of sentencing responsibility in death penalty cases. Indiana Law Journal, 70(4), 1137–​1160. Haney, C. (1997). Violence and the capital jury: Mechanisms of moral disengagement and the impulse to condemn to death. Stanford Law Review, 49, 1447–​1486. Howarth, J. (1994). Deciding to kill: Revealing the gender in the task handed to capital jurors. Wisconsin Law Review, 1994, 1345–​1424. Huff, D. (2019). From charity to reform: Social work’s formative years. Global Institute of Social Work. Retrieved from http://​www.thegisw.org Jackson, A.  (2019). Courts and Georgians should be concerned about trial, and resulting death sentence where defendant offered no defense. Atlantic Journal-​ Constitution. Retrieved from https://​www.ajc.com Koestler, A. (1956). Reflections on hanging. New York, NY: Harcourt, Brace. Kotlowitz, A. (2003, July 6). In the face of death. New York Times Magazine. Retrieved from https://​www.nytimes.com/​2003/​07/​06/​magazine/​in-​the-​face-​of-​death. html Lockett v. Ohio, 438 U.S. 586 (1978). Lynch, M., & Haney, C. (2011). Looking across the empathic divide: Racialized decision making on the capital jury. Michigan State Law Review, 2011(573), 573–​607. Retrieved from https://​socialecology.uci.edu/​sites/​socialecology.uci.edu/​files/​ users/​lynchm/​lynch_​and_​haney_​msulr_​final.pdf Morrison, T. (2019). The source of self-​regard. New York, NY: Alfred A. Knopf. National Association of Social Workers. (2017). Code of ethics:  Ethical principles. Retrieved from https://​www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​ Code-​of-​Ethics-​English Olive, M. (2009). Narrative works. UMKC Law Review, 77, 989–​1019. Solomon, B. (1976). Black empowerment: Social work in oppressed communities. New York, NY: Columbia University Press.

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Stebbins, D. C., & Kenney, S. P. (1986, Aug). Zen and the art of mitigation presentation, or, the use of psycho-​social experts in the penalty phase of a capital trial. The Champion, pp. 14–​18. Stevenson, B. (2014). Just mercy. New York, NY: Spiegel & Grau. Wade, L.  (2005). Settlement houses. Encyclopedia of Chicago. Retrieved from http://​ www.encyclopedia.chicagohistory.org Woodson v. North Carolina, 428 U.S. 280 (1976).

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SECTION II

Sociopolitical Considerations

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CHAPTER 6

On Capital Punishment RICHARD DIEN WINFIELD

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any have questioned the legitimacy of capital punishment in a legal system that fails to provide every legal subject with equal treatment. Whereas we can suspend imprisonment if justice has been miscarried, execution deprives its victim of any remedy in life. This chapter presents three basic grounds in the Western philosophical tradition for supporting capital punishment: (a) only a death sentence can save our community from incorrigibly evil perpetrators, as well as save them from themselves; (b) people who commit crimes are outlaws in the radical sense of the term, placing themselves outside the legal order as enemies of the state, which must defend itself by making war upon them; and (c) the only penalty appropriate for the crime of murder is capital punishment. On nearly all accounts, capital punishment is the most irrevocable retribution to be had. Although Plato’s (1997) Laws suggests that death “is not an extreme and final penalty” for “the sufferings said to be in store . . . in the world to come are much more extreme than that” (p. 1540), here on earth, no other penalty achieves such implacable closure. Whereas we can suspend imprisonment if justice proves to have been miscarried, execution deprives its victim of any remedy in this life.

PRUDENCE AND CAPITAL PUNISHMENT

Although the Sixth Amendment to the U.S. Constitution guarantees any criminal defendant “the Assistance of Counsel for his defense,” individuals living

Richard Dien Winfield,On Capital PunishmentIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0007

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at or below the poverty threshold, who are disproportionately people of color, notoriously receive inferior legal representation compared to the dream teams of the financially privileged. No matter how committed and talented legal aid attorneys may be, they have far larger caseloads and far smaller resources to defend their clients than the lawyers that affluent defendants can hire. The fees paid to court-​appointed attorneys are also considerably smaller than what private lawyers receive from their clients, leaving the former with less incentive and less funds to hire investigators and expert witnesses and pay for other measures to help defend their clients. Compounding these inequalities are the abiding taints of racial prejudice that still weigh upon jury decisions and sentencing. Under these conditions of systemic legal inequality, how can we permit the victims of judicial inequity to suffer the irremediable punishment of a death sentence? Further misgivings arise from the inherent imperfection of the legal process. Innocents may be put to death even if all racial prejudice is successfully countered and equal legal representation is ensured by a legal care for a system that guarantees defendants access to any lawyer of their choosing with full payment provided by a public legal insurance program, funded by fair taxation. Despite unimpeachable due process, juries and judges may still impose the death penalty on guiltless suspects due to evidence resting on veiled lies, nonmalicious mistakes, or self-​deceptions. Are we ignoring the value of innocent human life when we accept capital punishment, knowing that it may extinguish the lives of individuals who have not committed the crime for which we send them to the gallows? Admittedly, the imperfection of a legal system applies to all cases, and this cannot put a halt to court proceedings. Justice demands that the legal process tackle crimes and not let them pass with impunity. Judicial authority must mete out punishment if right is to have any actuality. Nonetheless, penalties other than capital punishment can always be redressed after imperfections in the carriage of justice come to light. Important as these considerations are, might they all be beside the point if capital punishment is unjust under any circumstances? When we consider the justice of capital punishment in its own right, we leave behind prudential concerns and enter a field where the final say lies in the hands of the tribunal of reason.

THE UNANIMOUS VERDICT ON CAPITAL PUNISHMENT OF THE GREAT PHILOSOPHERS OF THE WESTERN TRADITION

When we turn to gain counsel from the greatest philosophers of the Western tradition, we find unanimous approval of capital punishment. They offer various reasons for this endorsement, each of which can be countered by other arguments from one or more of these pioneers in the conception of justice. If [ 64 ]  Sociopolitical Considerations

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we examine their arguments pro and con, we arrive at a final verdict on the justice of capital punishment that would surprise them all. In surveying the likes of Plato, Aristotle, Hobbes, Locke, Rousseau, Kant, and Hegel, we find three basic grounds for supporting capital punishment. First, there is the argument that only a death sentence can save our community from incorrigibly evil perpetrators, as well as save them from themselves. Second, there is the argument that people who commit crimes are outlaws in the radical sense of the term, placing themselves outside the legal order as enemies of the state, which must defend itself by making war upon them. Third, there is the argument that the only penalty that can fit the crime of murder is capital punishment (i.e., the death penalty).

CAPITAL PUNISHMENT AS A NECESSARY PURGE OF THE INCORRIGIBLY EVIL

In Book III of Plato’s (1997) Republic, Socrates advises that those “whose souls are incurably evil” should be put to death, for “that seems to be best both for the ones who suffer such treatment and for the city” (p. 1046). In the Laws, Plato’s Athenian reiterates this purgative use of capital punishment, maintaining that when the lawgiver “finds a man who’s beyond cure . . . he will recognize that the best thing for all such people is to cease to live—​best even for themselves” (p. 1520). Anyone who is “unalterably fixed” (p. 1606) upon the path of injustice cannot live a life worth living. Moreover, “by passing on they will help others, too: first, they will constitute a warning against injustice, and secondly, they will leave the state free of scoundrels” (p. 1520). Significantly, the Athenian adds an important restriction. Although these considerations are “why the lawgiver should prescribe the death penalty in such cases, by way of punishment for their crimes . . . in no other case whatever” should he apply capital punishment (p.  1520). Plato’s Athenian transgresses this constraint numerous times elsewhere in the Laws, prescribing capital punishment for killing with premeditation (Book IX, 871d), obstructing legal proceedings (Book XII, 958c), robbing temples (Book IX, 860b), harboring an exile (Book XII, 955b), wounding or killing in anger one’s parents or master (Book IX, 877b, 868b,c), and, more generally, perpetrating “some great and unspeakable offense against the gods or his parents or the state” (Book IX, 854e). Whether or not these or any other grounds might support capital punishment, can we admissibly apply the death penalty to purge our community of incurably unjust individuals? Clearly, executing unalterably evil individuals can hardly serve as a deterrent against law breaking. Those who punishment can deter cannot be incurably unjust, for if deterrence is to have any reality, they must have the capacity to obey, as well as disobey the law. On the other hand, those who are beyond cure cannot exhaust the ranks of the accused, O n C a p i ta l P u n i s h m e n t  

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which must include individuals who can be deterred, if any are to be subject to punishment. As Socrates points out in the Apology, defending himself against the charge of corrupting the youth, suspects do not warrant punishment unless they are able to know that what they do is wrong and be responsible for their actions (Plato, 1997, pp. 26–​27). If they lack such knowledge, they need instruction rather than punishment, whereas if they are pathologically unable to control themselves, they need treatment, not criminal penalty. Imposing the death sentence on individuals who cannot act in accord with the law is neither just nor a deterrent, for it destroys people who are not truly responsible for what they do, whereas crime and deterrence concern those who can act otherwise. Who could these incurably evil, unalterably vicious individuals be whose lives have no redeemable value and whose very existence is a threat to the body politic? Two millennia after Plato, Rousseau (1997) would agree that “one only has the right to put to death, even as an example, someone who cannot be preserved without danger,” but Rousseau steadfastly maintains that “there is not a single wicked man who could not be made good for something” (p. 65). Evil, vice, wickedness all depend upon intentional malice and responsibility for acting against right. As Rousseau duly recognizes, these entail sufficient autonomy to resist the desire to do wrong, as difficult as circumstances and habitual behavior make it be. For this reason, it makes no sense to conceive punishment as an instrument of rehabilitation, as if the accused were in need of transformation to make them able to do right. Instead, they must already have that ability to be competent to stand trial and to be guilty of a crime. Anyone who is a danger beyond redemption, a perpetual sociopath or so-​called superpredator, is simply undeserving of punishment proper. Capital punishment cannot be their desert. Treatment and, if need be, institutionalization, are what they need and what we should employ to protect our community.

CAPITAL PUNISHMENT AS WAR ON THE OUTLAW

The two other arguments for capital punishment invoked by our philosopher pioneers duly acknowledge criminal responsibility. The first bases its endorsement of capital punishment on a fundamental move that applies to all crimes. By willing with malice against the law, those who perpetrate crime allegedly become veritable outlaws, whose open contempt for legality expels them from the community of legal subjects and renders them enemies of the body politic, opposing it in a state of war. Just as states are entitled to use violence to defend themselves against foreign enemies, so the legal order has the right to take the life of outlaws to protect itself against perpetrators who threaten legality. By intentionally opposing the law, individuals who commit crime forfeit all claim to rights of their own that might restrict their treatment by the state. [ 66 ]  Sociopolitical Considerations

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This line of thought underlies the infamous Section I  of the Thirteenth Amendment to the U.S. Constitution that bans slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” By identifying punishment with slavery and involuntary servitude, Section I casts individuals who have committed crimes outside the domain of rights by subjecting them to the utter deprivation of freedom that enslavement represents. Following this injunction, we have deviated from many other nations by taking away the inalienable right to vote from citizens of a purported democracy who stand accused of felony crimes and by tolerating capital punishment, against which incarcerated people can hardly object.

Social Contract Theory

The classic pioneers of social contract theory are the principal advocates of the argument for treating persons who perpetrate crime as enemies of the state, who have forfeited their legal rights and become subject to capital punishment. John Locke sets the stage by implying that an individual who perpetrates a crime, through unjust use of force, becomes subject to capital punishment by entering a state of war, no different than that plaguing the state of nature, where the legal protections of civil government have yet to be instituted. This applies not just to murder, but to any use of malicious violence. We see this broad extension in Locke’s depiction of the predicament of individuals before they have made a social contract to establish legitimate political authority. As Locke (1952) writes, He that, in the state of nature, would take away the freedom that belongs to any one in that state must necessarily be supported to have a design to take away everything else, that freedom being the foundation of all the rest. This makes it lawful for a man to kill a thief who has not in the least hurt him, nor declared any design upon his life any farther than, by the use of force, so to get him in his power as to take away his money. . . . Therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can. (p. 12)

The individual who maliciously violates the rights of legal subjects reinstates that same situation, Locke suggests, for “it is the unjust use of force . . . [that] puts a man into the state of war with another, and thereby he that is guilty of it makes a forfeiture of his life” (Locke, 1952, p.  103). Rousseau (1997) presents this line of thought explicitly, writing in The Social Contract: Every evil-​doer who attacks social right becomes a rebel and a traitor to the fatherland by his crimes, by violating its laws he ceases to be a member of it, and even enters into war with it. Then the preservation of the State is incompatible

O n C a p i ta l P u n i s h m e n t  

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with his own, one of the two has to perish, and when the guilty man is put to death, it is less as a Citizen than as an enemy . . . and in that case killing the vanquished is by right of war. (pp. 64–​65)

In The Metaphysics of Morals, Kant (1996) reiterates the crucial claim that those who commit crimes forfeit their membership in the state. Kant does so by identifying crime as none other than “a transgression of public law that makes someone who commits it unfit to be a citizen” (p.  472). This allows Kant to foreshadow Section I of the Thirteenth Amendment by describing the convicted person as someone “reduced to the status of a slave for a certain time, or permanently if the state sees fit,” as well as to insist that “if, however, he has committed murder he must die” (p. 474). Contrary to all these pillars of social contract theory, Cesare Beccaria (1995) famously argued that the social contract cannot possibly authorize civil government to impose capital punishment. Since individuals in the state of nature contract with one another to institute legal authority for no other sake than to protect their life and liberty, Beccaria reasons, they could not thereby consent to capital punishment without contradicting the whole point of their participation in the social covenant. Hobbes (1991) concurs with an important part of such an argument, but does not accept the conclusion. Admittedly, Hobbes would agree, individuals can never forfeit their right to defend themselves and this applies to persons facing capital punishment, who have no obligation to drink the hemlock, as Socrates did in acquiescence to his death sentence. According to Hobbes, no man is supposed bound by Covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a Common-​wealth, every man giveth away the right of defending another; but not of defending himself. (p. 214)

This inalienable right of self-​defense, however, does not prohibit the representatives of the sovereign from using lethal force against the person found guilty of crime. Whenever the sovereign, or its agents, exacts punishments including death, the person who has perpetrated crime “is author of his own punishment, as being by the Institution, Author of all his Sovereign shall do” (Hobbes, 1991, p.  122). Moreover, life and liberty ultimately depend upon “the maintenance of Civil Society, depending on Justice; and Justice on the power of Life and Death, and other lesser Rewards and Punishments, residing in them that have the Sovereignty of the Commonwealth” (Hobbes, 1991, p. 306). As Rousseau (1997) would later write, [although] the social treaty has the preservation of the contracting parties as its end. . . . Whoever wills the end, also wills the means. . . . Whoever wants to

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preserve his life at the expense of others ought also to give it up for them when necessary. . . . It is in order not to become the victim of an assassin that one consents to die if one becomes an assassin oneself. (p. 64)

Hobbes may intend to refute those who would prohibit capital punishment as a violation of the social contract, but he does not share with Rousseau and Kant the view that those who commit crime are outlaws who have forfeited their rights and become enemies at war with the state. Hobbes recognizes that if we regard persons who commit crimes as enemies, rather than members, of the body politic, any harm we direct at them is hostility rather than punishment. As Hobbes (1991) emphasizes, “the Punishments set down in the Law, are to Subjects, not to Enemies” (p. 216). Hobbes is willing to admit punishment that “is the Infliction of Death,” but this is not an act of war (p. 217). Capital punishment only applies to legal subjects, whose membership in the state remains intact, as is confirmed by their participation in the legal process resulting in their death sentence.

The Choosing Will

Punishment, in distinction from private revenge, is a public administration of justice that acknowledges the rights of the accused in several fundamental respects. First, to qualify to stand trial and be judged the perpetrator of a crime and accountable for punishment, an individual must be recognized by the court to be a responsible legal subject, who has the autonomy to choose to act with malicious intent. Second, in charging an individual with a crime, the court thereby recognizes the accused to have the right to due process, including the ability to know what the law is as well as proper legal representation. Third, as subject to a judicial process leading to conviction as perpetrator of a crime, the individual is recognized by the court to warrant punishment that is directed at nothing other than countering that individual’s arbitrary willing against right. Punishment is not directed at the body of the perpetrator, so as to inflict pain or mutilation. Nor is punishment directed at rehabilitation, as if individuals are incapable of exercising rights and respecting the rights of others and need some treatment that somehow confers such autonomy upon them. Because criminal wrong resides in the willing against right, it is that willing that must be made null. Whereas individuals are liable for providing compensation whenever they cause damage to the person and property of individuals, punishment is not a matter of giving something of equivalent value to rebalance a harm that a private individual suffers. Whereas compensation is due whether or not the harm results from an act done with malice, a crime can occur without causing any private harm. This is true of any attempted crime, O n C a p i ta l P u n i s h m e n t  

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where no one suffers injury, but the perpetrator commits the wrong of expressly willing to violate what the law prescribes to be right. It is this malicious willing against right that is the distinguishing wrong constitutive of crime and that willing must be nullified if wrong is to be righted and the law is to be upheld. Punishment does not deprive the individual of any rights, but rather only counteracts the arbitrary willing that violates the exercise of rights in which self-​determination consists. The choosing will is a necessary component of self-​determination, but by itself, it cannot achieve genuine freedom. The choosing will may have the capacity to decide upon any option at its disposal, but the exercise of this capacity does not itself determine the content of those options nor does it determine the character of its agency. That agency is given by the species being and physical and psychological maturation of the individual, and it provides the capacity on which every chosen action depends. The choosing will thus exists as a formality, for it neither has any intrinsic connection to any particular end it wills, nor does it will its agency into being. It is instead a natural will, which chooses among the options that are given to it by outer circumstances and given desires and, in doing so, wields an unvarying faculty of choice that underlies all decisions. By contrast, a genuinely free will is self-​determining, determining both what it wills and who it is. Accordingly, the free will is not natural, but artificial, for it is a product of the willing in which it consists, an agency that is what it wills itself to be. Self-​determination cannot be exercised by an individual in isolation from others. As Socrates pointed out in Book IV of the Republic, a single agent cannot be both agent and patient at once, as self-​determination requires (Plato, 1997, p. 1062). The single individual is always acting with a capacity of choice that must already be at hand before any action can be chosen. An agent can will its own agency as well as what it wills only by willing in relation to other agents who participate in the conventional practice of exercising rights. In that historical context, individuals can coordinate their choices, made possible by possessing the natural capacity to choose, and give themselves conventional agencies tied to the exercise of different rights. In this way, individuals are able to determine themselves as owners, co-​determining spouses, free yet interdependent market participants, and self-​governing citizens, wielding specific prerogatives that do not conflict with those of their counterparts, but jointly constitute the practices of rights in which these freedoms have an objective reality.

The Exercise of Rights as Objective Freedom

Whereas individual choice is a subjective license that may always be obstructed by the arbitrary choices of others, the exercise of rights is an objective freedom [ 70 ]  Sociopolitical Considerations

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that not only does not interfere with the exercise of rights of others but is also upheld by their correlative self-​determinations. In disposing of their own property, owners do not intrude on what belongs to others, just as citizens in exercising their political rights do not thereby prevent their counterparts from voting or running for office. Rather, their respective freedoms are in harmony with one another, while constituting the conventions of ownership and self-​government, which consist in nothing but the exercise of freedom of their participants. Nonetheless, since individuals cannot exercise rights without possessing a choosing will, they always may choose to ignore the limited prerogatives to which they are entitled and violate the rights of others. Individuals may commit wrong with or without malice. When individuals do so inadvertently without malice, they are liable for compensation to remedy whatever damage and/​or injury they cause. When, however, they violate the rights of others with malice, they knowingly commit wrong and therefore deserve punishment. Nonetheless, they do not thereby forfeit any of their rights. Rather, it is only insofar as they remain recognized as right holders that individuals can qualify for judicial punishment, which constrains not their exercise of rights, but their willing against right. Once we recognize that perpetrators of crime remain autonomous legal subjects, instead of enemies or slaves of the state who forfeit their rights, we can no longer ground the death penalty on the rules of war. This leaves one remaining argument in play: that the death penalty is the only punishment fitting the most egregious crimes.

CAPITAL PUNISHMENT AS THE ONLY PUNISHMENT FITTING THE CRIME

Although punishment is not reducible to compensation, there is general agreement that the punishment should fit the crime. The malicious wrong of crime has both a quantitative and qualitative character reflecting how the willing against right violates a specific kind of right and does so with a particular magnitude (Hegel, 1991). For example, a crime may be a theft of a certain amount of property or a murder of a certain number of victims. In every case, a fit punishment should somehow match the scale and type of infraction at stake. The match between crime and punishment has long been understood to reside in an equality of reciprocity, which, literally interpreted, makes retribution take an eye for an eye and a tooth for a tooth. On this model, the crime of murder would call for capital punishment, with the qualification that a perpetrator of multiple murders could receive fit punishment for only one. Kant (1996) defends the death penalty on this basis, maintaining that, since the measure of punishment is: O n C a p i ta l P u n i s h m e n t  

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None other than the principle of equality . . . whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself. (p. 473)

Aristotle early on pointed out the absurdity of identifying the relation of crime and punishment with any literal reciprocity. In the Nicomachean Ethics, Aristotle (1984) points out that “if an official has inflicted a wound, he should not be wounded in return, and if someone has wounded an official, he ought not to be wounded only but punished in addition” (p. 1787). And how can one reciprocate perjury or treason? Or, as Gandhi is cinematically reputed to have said, an eye for an eye only ends up making the whole world blind. We can relieve the due match between crime and punishment of all such absurdity, if, following Hegel (1991), we measure retribution not by “an equality in the specific character of the infringement, but in its character in itself—​i.e. in terms of its value” (p. 127). What, then, is the value of murder, and how is it to be translated into a fitting punishment? Hegel (1991), among all historical philosophers, most clearly understands that crime is defined by malicious willing against right, the reality of freedom, and that punishment accordingly resides in a retribution that is concerned with nullifying the willing against right in which criminal wrong consists. Hegel also recognizes that, as much as the warrant for punishment lies in the malicious violation of right, we should not determine the punishment solely by the quality and magnitude of its violation. In addition to those aspects of retribution, punishment should also take into account how much danger a crime poses to society. Although this may broaden the magnitude of the crime, the power of society “reduces the external importance of the injury and so leads to greater leniency in its punishment” (p. 250). Despite these qualifications, Hegel joins Plato’s Athenian and Kant in regarding capital punishment as the only penalty fitting the crime of murder, writing. Although retribution cannot aim to achieve specific equality, this is not the case with murder which necessarily incurs the death penalty. For since life is the entire compass of existence [Dasein], the punishment [for murder] cannot consist [bestehen] in a value—​since none is equivalent to life –​but only in the taking of another life. (pp. 129–​130)

DISCUSSION

What Hegel’s (1991) verdict on capital punishment ignores is the governing aim that he correctly attributes to retribution:  the nullification of [ 72 ]  Sociopolitical Considerations

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the individual’s arbitrary malicious willing against right. That nullification operates in recognition of the perpetrator as a free individual, whose rights should remain respected. The basic means of curtailing the malicious volition of the person who has committed a crime is to confine that individual and thereby restrict the individual’s arbitrary willing, without rendering the individual devoid of rights. Hegel himself acknowledges that the proper instrument of punishment is imprisonment. It does not attack the body of those who stand convicted, as if they were an animal, but only restricts their license, without eliminating their ability to exercise their rights as property owners, moral subjects, spouses and parents, members of civil society, and citizens. Imprisonment does not of itself deprive convicts of their property, annul their marriages, eliminate their parental rights and responsibilities, or take away their right to vote. These rights should remain in place to whatever extent that they can be exercised under conditions of confinement. By contrast, a death sentence destroys the entire individual, nullifying not only the malicious volition of wrong, but every self-​determined reality of the accused, as embodied in the exercise of rights. The death penalty thereby commits a radical violation of right of its own. This is true even when the crime is murder, which itself destroys the entire freedom of its victim. Although that freedom does not have a price, murder does have a distinctive value no other wrong can match, and imprisonment can comparably constrain the malicious volition of the convicted murderer without annulling a convict’s rights. We can adjust imprisonment to fit the value of any crime by varying its length and conditions, such as levels of security. Moreover, unlike capital punishment, imprisonment can be regulated to accommodate the variable power of society and the relative danger a crime presents to it. Given the unparalleled violation of right that murder intentionally commits, we should make the sentence fit its crime by imposing the longest and highest security imprisonment. Although this can involve a life sentence, the fortitude of society may allow for a shorter term under less restrictive conditions.

IMPLICATIONS FOR SOCIAL WORK

Arguably, recourse to imprisonment rather than capital punishment respects the right of convicted individuals to have their case retried or dismissed if new evidence and/​or procedural violations are exposed that call their conviction into question. This is important, but social workers and other human rights professionals need not invoke systemic inequities in a legal system or the imperfection of legal process to reject capital punishment. The very nature of judicial punishment invalidates the death penalty and it is high time that we comply with the tribunal of reason. O n C a p i ta l P u n i s h m e n t  

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REFERENCES Aristotle. (1984). Nicomachean ethics. In J. Barnes (Ed.), The complete works of Aristotle (Vol. 2). Princeton, NJ: Princeton University Press. Beccaria, C.  (1995). On crimes and punishment and other writings (R. Davies, Trans.). Washington, DC: Carnegie Institute. Hegel, G. W. F. (1991). Elements of the philosophy of right. Cambridge, England: Cambridge University Press. Hobbes, T. (1991). Leviathan (R. Tuck, Ed.). New York, NY: Cambridge University Press. Kant, I. (1996). The metaphysics of morals. In M. J. Gregor (Ed.), Practical philosophy. Cambridge, England: Cambridge University Press. Locke, J.  (1952). The second treatise of government (T. P.  Peardon, Ed.). Indianapolis, IN: Bobbs-​Merrill. Plato. (1997). Plato: Complete works (J. M. Cooper & D. S. Hutchinson, Eds.). Cambridge, MA: Hackett. Rousseau, J.  J. (1997). The social contract. In V.  Gourevitch (Ed.), The social contract and other later political writings (pp. 39–​152). Cambridge, England: Cambridge University Press.

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CHAPTER 7

Structuralism, Neoliberalism, and the U.S. Criminal Justice System L ARRY NACKERUD

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tructuralism can be a useful lens through which to view social issues and, specifically, for viewing neoliberalism in the United States and its seeming natural predecessors, privatization, and deregulation. Such efforts within the criminal justice system may present as, for example, private prison industry and mass incarceration. There are three goals of this chapter:  (a) to convince the reader of the value of structural theory as a means of examining helping systems, (b) to convince the reader to be wary of neoliberal prescriptive practices, and (c) to suggest to the reader a consideration for how social work can affect criminal justice reform from the macro social work perspective. With regard to the latter, this chapter also addresses the role of radical social work and critical criminology. Social work is a helping profession that has a rich history of embracing social justice as its fundamental value and concern. This long-​standing commitment to social justice, represented by the profession’s embracement of the core elements of economic justice, human rights, and peace, permeates just about everything social workers do (Lundy, 2011). Over more than 40 years of social work practice and education, a commitment to social justice—​and a belief that social work is a good tool in working toward its attainment—​has helped me maintain a focus on the idea of creating a better environment for all persons. It is easy to see the value of both the relational focus in the therapeutic milieu of social workers conducting individual and group therapy and the extraordinary work done by social workers focused on case management as they assist individuals and families in winding their way through the maze Larry Nackerud,Structuralism, Neoliberalism, and the U.S. Criminal Justice SystemIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0008

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of bureaucracy. However, while there may be great value in both micro and macro social work practice, a macro focus drives my social work. While working as a child welfare worker on the Blackfeet Reservation in northern Montana in the mid-​to late 1970s, the author witnessed firsthand how social workers contributed to the well-​being of individual children and families. However, the sweeping impact of the Indian Child Welfare Act passed by Congress in 1978 and then interpreted and implemented quite quickly was stunning. Child welfare practice was changed forever with the emphasis in the Indian Child Welfare Act on ensuring the livelihood of tribal life, the well-​ being of American Indian children, and the placement mandates of American Indian children who historically had been removed from their families and placed with non-​American Indian families or residential settings. The major, philosophical innovation of the Indian Child Welfare Act was, however, the clear recognition that American Indian children were not just an asset of their extended family, but were also an asset of the collective, the tribe. No doubt, a bit of social justice had been achieved with that innovation and with the passage of the Indian Child Welfare Act. But not every child welfare worker thought so. A  number of social workers in the child welfare field fought against the social justice tenets of the Indian Child Welfare Act. These social workers struggled with setting aside their unconscious, and sometimes conscious, beliefs that American Indian children were better off raised by White Americans. During the early to mid-​1980s, as a clinical social worker on the admissions unit of the state’s only inpatient psychiatric setting, the Alaska Psychiatric Institute, the torment that serious mental illness could affect in the lives of individuals and the people close to them was vividly apparent. But questions arose. What was the structure of a mental health treatment system and policy foundation for involuntarily commitment of a person to a psychiatric hospital? And further yet, what was the applied moral reasoning, the ethics of giving medication to a person against their will? An antecedent to these questions was witnessing for the first time a psychiatric patient wrestled to the floor and given an injection of Thorazine® against their will. Was social justice served by these practices? As long as harm to self or others was not imminent, was it not a person’s right to be psychotic, to be out of touch with reality? Was it not a persons’ right to be gravely disabled, to be unable to care for one’s self as a function of a mental illness, and not desire treatment? And was it the right/​the duty of the state to intervene—​sometimes quite forcibly—​in these instances? Looking more deeply at the structural elements of the so-​ called helping professions was the answer. A  PhD in human service studies later, the author became a social work educator in the early 1990s and has taught social welfare policy and immigration and refugee policy for the last two and a half decades. Through the years a commitment to social justice and a belief that social work is a tool that can be used to reach for its attainment [ 76 ]  Sociopolitical Considerations

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has been maintained. Is macro policy level social work more valuable in that quest than micro, therapeutic, case management work? Yes. But clearly both have their place. The passage of the Refugee Act in 1980, the Americans with Disabilities Act in 1990, the Violence against Women Act in 1994, and the Obergefell v. Hodges Supreme Court decision in 2015 that made same-​sex marriage the law of the land all signaled for macro policy–​focused social workers structural changes and significant movement toward the goal of social justice. In 2019, the attainment of the goal of social justice via the practice of any form of normative social work practice is clearly on the ropes. The two and a half years of the Trump administration have been characterized by a rise in White nationalism, neo-​Nazism, a resurgence of the Klu Klux Klan, and the use of hateful and bigoted speech to describe a number of populations characterized as the other, including, but not limited to, persons of the Muslim faith, immigrants, and persons seeking political asylum. In some small way and in an attempt to push back against these dark developments, I hope in this chapter to accomplish three goals:  (a) convince the reader of the value of structural theory as a means of examination of helping systems, (b) convince the reader to be wary of the preachings of neoliberalism, and (c) to suggest to the reader a consideration of the use of radical social work theory as a means to examine helping systems, such as the social welfare and criminal justice systems. As well, my overall message intimates strongly that efforts to reform helping systems may not be enough. Quite possibly complete systemic overhaul or replacement is the only way to get us closer, in this seeming uncaring time of bigotry, to the goal of social justice. Social workers may need to advocate for powerful steps of change, such as not just the abolishment of private prisons, but the abolition of prisons altogether if the criminal justice system can ever be described as socially just. The sequence of presentation in the chapter is first, a bit of structural theory, then an examination of neoliberalism, a brief consideration of radical social work theory/​practice, and then ending with implications for social work practice and education.

STRUCTURAL THEORY

Structural theory is a valuable tool for looking beyond the usual reporting of the failings of individuals as related to societal ills, such as poverty and crime. Structural theory can help focus the view of social work practitioners and educators beyond the surface level call for reform in any helping system. Structural theory highlights, not the failings of individuals and a call for reform, but a deeper questioning of the systemic nature of societal ills and a challenge to how developed helping systems are structured. The emphasis on individual failings is misplaced and misdirects social work practitioners, educators, and researchers away from structural conditions that work mightily S t r u c t u r a l i s m a n d N e ol i b e r a l i s m 

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in the creation and sustainment of societal inequalities. When we as applied social science theorists and researchers focus on those individuals who have lost out in the economic, political, and social games and then try to casually explain these circumstances by merely looking at their population-​based demographic characteristics (e.g., race, ethnicity, gender, socioeconomic status, educational attainment), we fail to address the question of why do the economic, political, social systems of the United States produce so many persons who lose out in the first place. People do not come to rest in positions of societal disadvantage by chance: the structure of the world around them—​ economically, politically, and socially—​plays a major and powerful determinant role (Rank, Yoon, & Hirschl, 2003). For example, substantial empirical evidence gathered years ago demonstrates how poverty in the United States is ultimately the result of failings of the economic, political, and social structures of the country. The evidence supports the theoretical and practical notion that these structural failings include: the lack of sufficient jobs in the U.S. economy to raise individuals and families out of poverty or near poverty, the ineffectiveness of the social safety net, and the systemic nature of poverty as indicated by the life course risk of impoverishment experienced by a large number of people in the United States. Survey research, time again, has confirmed the mistaken belief by many Americans that poverty is an individual failing caused by individual characteristics, such as laziness, lack of effort, and low ability. Mistakenly, structural failings, like unemployment or the presence of discrimination in hiring and workplace practices, are viewed as significantly less important. Research comparing the attitudes and motivation of the poor versus the non-​poor has found relatively few differences between the two groups and little in the way of identifying these value and motivational factors as casual ones leading to poverty (Rank, Yoon, & Hirschl, 2003). In a practical sense, it is like telling your grandparents or great grandparents that it was their laziness, rather than the collapse of an economic structure, the stock market, in 1929 that caused them to lose their farm. Or it was the failings of thousands of individuals who lost everything in the collapse of the American economy in 2008, rather than laying the blame at the feet of investment bankers, turned loose by the lack of regulation, who demonstrated a thirst for risk and greed. In a similar way, structural theory can help us look at the criminal justice system of the United States and see how its focus on individual failings as the precursor to crime has also taken our eye, as practitioners, educators, and researchers, away from looking at structural issues as causal. Structural theory helps us look more deeply at how the criminal justice system itself is the culprit. For example, as a point of international shame, the United States leads the world in incarceration, with 25% of the world’s prison population, with a count of well over two million persons incarcerated (Cox & Augustine, 2018). And, as important, while the criminal justice system of the United States [ 78 ]  Sociopolitical Considerations

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certainly includes a very large population of people incarcerated in prisons (both public and private) and jails, but as well, a massive number of people in the criminal justice system are under community supervision via the probation and parole systems. This is not just the result of massive individual failings. Rather this shameful set of circumstances is the combined function of structural inequities, including but not limited to extraordinarily long sentences, systemic racial bias, and discrimination against low-​income persons. Additional structural flaws in the current criminal justice system of the United States include the placement of incarcerated persons in private facilities, the imprisonment of more than 6,000 youth in adult prisons, and the absolutely confusing structure and combination of federal and state criminal justice jurisdictions with multiple, locally controlled jurisdictional levels, such as cities, counties, and juvenile systems. These structural flaws sorrowfully preclude the United States from making any claims about human rights, social advocacy, and/​or democracy (Cox & Augustine, 2018). It is the exception rather than the rule when a person in the United States, even social work practitioners and/​or social work educators who claim the criminal justice system as their field of practice, can fully understand and explain the criminal justice system and all its complexity. I believe this lack of understanding and subsequent confusion is a major intended outcome and represents a major structural flaw of the criminal justice system of the United States. As structural theory has gained a stronger explanatory foothold in the social sciences, social work, an applied area of the social sciences, has embraced more and more a structural approach to practice—​particularly as it relates to the link between social justice and the achievement of human rights for all persons (Lundy, 2011). Social workers take pride in their overt recognition of the link between social justice and economic justice, peace, and human rights and the related inequalities when structural forces work against the well-​being of people. At a time when economic globalization, armed conflict, and ecological degradation continue to undermine the possibilities for social justice, the need for linking a structural analysis to social work practice seems wise (Lundy, 2011).

Neoliberalism

And now to the second goal of the chapter—​convincing the reader to be wary of the preachings of neoliberalism. The development of the neoliberal economic perspective over the past three to four decades has been pervasive, both in the United State and in the world. This development has had worldwide impacts resulting in political, economic, and cultural change. Neoliberalism has transformed communities and countries, including the United States. One of the favorite and powerful missives of neoliberalism to be wary of is the implementation of less regulated models of capitalism. The neoliberal S t r u c t u r a l i s m a n d N e ol i b e r a l i s m 

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economic approach is in direct opposition to the policy doctrine and concern for the collective/​community good central to the New Deal of the 1930s and, not to be forgotten, the early structure of the social welfare system in the United States. Neoliberalism includes the ideas of reducing the size and influence of the state, increasing deregulation and promoting private enterprise resulting in less financial responsibility of the state, lower taxation rates, economic growth, and supposed economic benefits that trickle down to the poor and reduce inequality (Spolander et al., 2014). Neoliberalism is a foundational expression of 21st-​century capitalism and its reliance on the belief that the marketplace will take care of all (Caplan & Ricciardelli, 2016). But even as a society structured by free-​market economics may generate enormous material wealth and technical innovation, at the same time, this neoliberalist approach is known to break down traditional forms of social cohesion and the belief in the attainment of well-​being for all, creating a kind of dislocation or poverty of the spirit (Lundy, 2011). Neoliberal influences on the social welfare and criminal justice helping systems in the United States have been dramatic over the past decades and quite pronounced over the past five years. Neoliberal principles working against the strength of the collective, the community good as promoted by social workers as key to the attainment of social justice include: individualism, freedom of choice, rationality, self-​interest, utilization of market mechanisms, and nonintervention of the state. The neoliberal principles put into practice have given rise to a number of mechanisms toxic to the pursuit of social justice, and they include (a) welfare capitalism, (b) privatization, (c) contract service delivery, (d) individual savings strategies, (e) voucher systems, (f) consumer-​directed spending, and (g) labor market activation (Caplan & Ricciardelli, 2016). Core neoliberal principles such as individualism, choice, rationality, self-​ interest, and trust in the market to solve social problems have shaped contemporary helping systems in the United States. The past 40  years and the ever-​creeping spread of neoliberalism has resulted in an ever more privatized social welfare and criminal justice system. This is highly problematic considering that historically, social welfare provision via helping systems was intended to shield people from the negative effects of the market emphasis inherent in capitalism. The unemployed, older persons, persons with disabilities, and others who do not or cannot work as a wage laborer are made even more vulnerable via the implementation of the market-​based tenets of neoliberalism (Caplan & Ricciardelli, 2016).

Private Prison Industry

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such as neoliberalism (Lundy & Van Wormer, 2007). We need look no further than the criminal justice system to see the negative impact of neoliberalism. The major overall neoliberal impact on the U.S.  criminal justice system has been the creation of a monstrous prison industry, including the growth of a private prison industry, and the operationalization of mass incarceration—​ the cost of which is estimated in the billons, maybe even a trillion, dollars annually. But as social workers, we recognize the abhorrent associated costs of mass incarceration to the lives of people: family disruption, divorce, increased criminality of children of those incarcerated, decreased property values; adverse health effects, costs of re-​entry, and the costs of families and individuals being forced into poverty (Cox & Augustine, 2018). The move to privatization has become a major influence in the immigration and political asylum crisis manufactured by the Trump administration. In August of 2016, toward the very end of the second Obama presidency, the U.S. Department of Justice announced it would stop contracting with private prisons to house persons serving federal sentences. The market share of private prison building and operating companies tanked. The share price of Corrections Corporation of America, the world’s largest private prison company plummeted. By no coincidence, though, that share price recovered more than 40% of the loss the day President Trump was elected. The GEO Group, another major private prison/​detention center company, saw their stock rise 30% that same day. With a name change to CoreCivic, GEO Group came to oversee a number of detention centers housing thousands of immigrant detainees. Yes, President Obama pursued the same population via the activities of the Department of Homeland Security and ICE, but President Trump and his administration have pursued the use of private detention centers with remarkable and insidious zest (Stroud & Mider, 2016). The result has been a complete abandonment of the United States as a world leader in the realm of humanitarianism (Gelles, 2019).

Radical Social Work and the Criminal Justice System

In comes as no surprise to advocates of abolitionism that the use of the death penalty sets the United States apart from other countries described as Western and keeps the United States in the top seven countries with the most executions. Racism, classism, xenophobia, and extreme hostility toward immigrants (documented or otherwise), as well as intolerance for difference have been magnified with the inception of the neoliberal-​dominated system. The year 2017 marshalled in a dramatic acceleration of neoliberalism (or to borrow from contemporary American philosopher, Cornel West, neofascism) in the economic, political, and social policies of the United States during the early months of the Trump presidency. The consequences have been dramatic S t r u c t u r a l i s m a n d N e ol i b e r a l i s m 

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and far-​reaching. Environmental protection programs, social welfare programs (including public health and public education), and civil rights protection programs have all suffered under the glare of neoliberalism. Strength in programming has been experienced in draconian areas, exemplified by increased military spending, vilification of immigrants and asylum seekers, stacking of the courts, and the diminishment of the rights of the members of the LGBTQ community (Cox & Augustine, 2018). Radical social work theory helps us look beyond the surface of the criminal justice system and see a number of critical explanatory features worthy of attention: (a) the way in which certain behaviors and actions are sanctioned or created as crimes by the powerful and wealthy class in societies in their own interests; (b) the failure of the criminal justice system to take seriously corporate crimes, green crimes, or crimes of the state; (c)  the role of crime definitions in targeting oppressed populations and strengthening class, racial, gender, and religious divisions; (d) the major role of culture, as expressed via the media, in the creation of and support for selected values and beliefs concerning crime and punishment in society; and (e) the racialized and bigoted nature of the criminal justice system as it pertains to women, LGBTQ persons, immigrants, older persons, persons with disabilities, and other targeted populations (Cox & Augustine, 2018). Radical social work and its adherents recognize the misfit between the current power structure, and its accompanying values and goals, and a new political, economic, and cultural system that is focused on meeting environmental and human needs. Radical social work can help us see clearly how reform of the criminal justice system may be an admirable goal, but better see how dramatic change is necessary if social justice is to be achieved. Radical social work embraces the abolitionist movement, a movement that seeks not only to change prisons and how they operate but also to envision and possibly create a new criminal justice system where there will be no need for the carceral setting in the first place (Cox & Augustine, 2018). Critical criminology, a contemporary concept of radical social work, highlights how market principles shape key mechanisms of social control. For example, why is it that the general populace rarely challenges such corrosive and coercive mechanisms as prisons? One major reason for the lack of challenge is the fraudulent governmental insistence that tough on crime initiatives are necessary to maintain public safety. Less clear to the general populace is how the prison system, both public and private, and the mass incarceration policies create financial windfalls for these companies. A policy that pretends to fight violence by locking up mostly nonviolent offenders is an inefficient use of taxpayer resources. Whereas critical criminology continues to inspire criminal justice and social work professionals to resist the government’s reliance on prisons, rarely have the social structural foundations that perpetuate inequality undergone in-​depth analysis (Welch, 2003). [ 82 ]  Sociopolitical Considerations

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A radical/​critical viewpoint also helps highlight three main strategies for how crime is portrayed in the media: (a) crime is selected from among many available social issues (such as poverty, unemployment, absence of national health insurance) and is advanced as the serious policy issue; (b)  the crime problem is narrowed to street crime, neglecting other types of lawlessness and harm, such as corporate violence; and (c) crime is defined as a problem that can be remedied solely by expanding/​investing more in the criminal justice system. As a result, the United States has increasingly become a society of prisons. Most incarcerated persons are serving time for nonviolent offenses as well as crimes that are not particularly serious. Tough-​on-​crime advocates believe that the booming prison population is a small price to pay for public safety. The major dangers of crime in modern societies are not the crimes, but that the fight against them may lead societies toward totalitarian developments (Welch, 2003). The production of prisoners and their commodification in a capitalist society has become big business. Although the claim of cost savings serves as the centerpiece of the privatization movement, there remains little evidence of significant cost-​effectiveness (Welch, 2003). Prisons fail on just about every front. They fail to rehabilitate. They are expensive. They undermine family life. They suppress growth and freedom of people. They help create crime. They fail on every positive human indicator scale. The rise in incarceration rates in recent years and the strength of the prison industry is clearly a structural failing. If prison, in its philosophical origin, was meant as a humane alternative to beatings or torture or death, it has transformed into a fixed feature of modern life and one that is not known for its humanity (Perán, 2017).

DISCUSSION

Stopping new prison construction and closing prisons and jails one facility at a time are admirable goals from the radical/​critical perspective (Kushner, 2019). The urgency of the task is even greater as the impact of neoliberalism and economic globalization increasingly undermines human rights and the possibilities for social justice (Lundy, 2011). Social workers professionally nestled in today’s neoliberal economic approach to capitalism now more than ever occupy a contradictory role in society. While the social worker is trying their best to assist people, society at large seems to be experiencing a weakening in the commitment to the well-​being of all people. The political and economic context in this scenario is based not on the attainment of social justice but on exploitation and inequality. Social workers have often found themselves torn between the values instilled in them in schools of social work and the realities of trying to help people who are pushing up against increasingly lean and mean helping systems. Although we hope that social justice S t r u c t u r a l i s m a n d N e ol i b e r a l i s m 

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and social work are integrally linked, caution is advised since it appears the relationship between the two is decidedly uneasy. If social work continues to participate in the embracement of neoliberalism, the social work profession will be burdened with tension, contradiction and conflict at the ideological, conceptual, and theoretical levels as well as at the levels of policy and practice (Lundy & Van Wormer, 2007).

IMPLICATIONS FOR SOCIAL WORK

Social workers, like many others, are often persuaded that radical change, radical politics is futile. The trend is thus toward compromise, resignation, and indifference. Ideally, social work should not be politically neutral. Actually, the pursuit of social justice should not be considered radical at all by social workers. Managerialism, consumerism, and the privatization of social work—​ that is, the three pillars of neoliberalism—​cannot ever deliver on social work’s commitment to social justice (Fraser, Beddoe, & Ballantyne, 2017). For sure, neoliberal institutionalization of the health and human services is antithetical to the goals of a modern welfare system and quality of life and instead creates punitive and restrictive programs and policies. The recommended action is therefore a more thorough critique and empirical examination of how market mechanisms have negatively influenced the social services sector, with particular regard for the intermediary role of the government-​funded, private sector service provision. Such would be a well-​suited role for macro social workers wishing to affect sweeping, structural reform of the criminal justice system—​including to death penalty practice—​via policy practice.

REFERENCES Caplan, M. A., & Ricciardelli, L. (2016). Institutionalizing neoliberalism: 21st-​century capitalism, market sprawl, and social policy in the United States. Poverty & Public Policy, 8(1),  20–​38. Cox, E. O., & Augustine, J. (2018). The US criminal justice system: A role for radical social work. Journal of Progressive Human Services, 29(3), 157–​184. Fraser, H., Beddoe, L., & Ballantyne, N. (2017). Is there a renaissance of radical social work? Aotearoa New Zealand Social Work, 29(2),  1–​5. Gelles, D. (2019, April 18). David Miliband of the International Rescue Committee: “The devil can’t have the best tunes.” New York Times. Kushner, R. (2019, April 21). Is prison necessary? In three decades of advocating for prison abolition, Ruth Wilson Gilmer has helped transform how activists think about criminal justice. New York Times Magazine. Lundy, C. (2011). Social work, social justice & human rights: A structural approach to practice (2nd ed). North York, ON: University of Toronto Press, Higher Education Division.

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Lundy, C., & Van Wormer, K. (2007). Social and economic justice, human rights and peace: The challenge for social work in Canada and the USA. International Social Work, 50(6), 727–​739. Perán, J.  O. (2017). Pragmatic abolitionism? Defining the complex relationship between restorative justice and prisons. Restorative Justice, 5(2), 178–​197. Rank, M.  R., Yoon, H.  S., & Hirschl, T.  A. (2003). American poverty as a structural failing:  Evidence and arguments. Journal of Sociology & Social Welfare, 30(4), art. 3. Spolander, G., Engelbrecht, L., Martin, L., Strydom, M., Pervova, I., Marjanen, P.,  .  .  .  Adaikalam, F.  (2014). The implications of neoliberalism for social work:  Reflections from a six-​ country international research collaboration. International Social Work, 4, 301. Stroud, M., & Mider, Z.  R. (2016, November 16). Private prisons get a boost from Trump. Bloomberg Businessweek. Retrieved from https://​www.bloomberg.com/​ news/​articles/​2016-​11-​18/​private-​prisons-​get-​a-​boost-​from-​trump Welch, M. (2003). Force and fraud: A radically coherent criticism of corrections as industry. Contemporary Justice Review, 6(3), 227–​240.

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CHAPTER 8

The Criminalization of Poverty CHRISTOPHER R . L ARRISON

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he disportionally high rate of incarceration among people living in poverty is a factor in creating intergenerational poverty. The intermingled of poverty with criminalization is rooted in the United States (U.S.) idealism associated with individual level responsibility and limited sympathy for those perceived (rightly or wrongly) who have broken the law (Shepherd & Fretwell, 2018). To wit, the smallest of court ordered fees and fines can become cumulative over time and create substantial financial burdens for people living in poverty. Unpaid fines and fees, readily affordable to middle class individuals, result in the increased likelihood of prison time for minor infractions of the law, loss of a vehicle used to maintain employment, and denial of access to federal and state programs ranging from federally supported education loans to access to the Supplemental Nutrition Assistant Program for people living in poverty (Foster, 2017). Moreover, the increasing trend toward work requirements attached to government based poverty assistance programs stunts individuals’ and families’ opportunity for upward social mobility and results in exacerbating social stratification. The evidence suggests that social workers should advance reformation efforts using a structuralist approach to changing the systems of policies and services intended to help people out of poverty and crime. From the earliest writings, the relationship between poverty and crime has been a focus of research, literature, policy, and philosophy (Fox-​Piven & Cloward, 1971). The criminalization of poverty in particular is an aspect of this relationship that poses some of the most ethically challenging questions. Policy manifestations of criminalizing poverty range from federal laws to

Christopher R. Larrison,The Criminalization of PovertyIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0009

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local administrative rules. In recent U.S. history, the Violent Crime Control and Law Enforcement Act of 1994, which received bipartisan support and was signed by President Clinton, greatly increased the number of people convicted of crimes, predominately who were poor and from racial minority groups. The Brookings Institution (2018) used data from the Internal Revenue Service’s Parents Earning Reports, linking it to people incarcerated between 2009 and 2011. The analysis identified that “boys who grew up in families in the bottom 10% of the income distribution—​families earning less than about $14,000—​ are 20 times more likely to be in prison on a given day in their early 30s than children born to the wealthiest families—​those earning more than $143,000” (Looney & Turner, 2018). Criminalizing poverty also includes issues related to race and gender, which intersect with socioeconomic status (SES) (Michandani & Chan, 2007). African American people make up a disproportionate percentage of the U.S. prison population (Foster, 2017). They represent about 13% of the general population and 33% of the prison population. In contrast, White Americans represent about 64% of the general population and 30% of the prison population (Gramlich, 2019). This high rate of incarceration has a causal effect on the disproportionately high rate of poverty among people who are African American: 21% as compared to 11% among White Americans in 2017 (Fontenot, Semega, & Kollar, 2018). The intersection of race, gender, and SES played an important role in the tragic shooting of Michael Brown in Ferguson, Missouri by a police officer. Only 18, Mr. Brown was an African American youth who had recently graduated from an alternative high school and was about to begin class at a technical school for heating and cooling systems repairs. Mr. Brown had grown up in a neighborhood that reflected the precarious line between poverty and working class that many people find themselves living. A search of home prices for the neighborhood using Zillow in 2019 found numerous houses in the $20,000 to $35,000 range. The median U.S. home price in 2019 was 10 times that cost ($226,800). The initial call to the police concerning Mr. Brown was in regards to the theft of cheap cigars, a package of which cost approximately three dollars. The video recording of his shooting and death helped to spark a criminal justice reform movement called Black Lives Matter (BLM). Black Lives Matter’s focus is substantially on the race-​related aspects of social justice, but issues of poverty are also part of the movement’s platform. It is hard to ignore the now extensively documented police shootings of African American men; less discussed is that most of these men are also struggling with poverty. Mr. Brown’s tragic death at the hands of a local police officer is a formative example of how poverty, race, and gender intersect to create an environment in which minor criminal activities are over policed in ways that criminalize poverty and race.

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U.S. CULTURE OF CRIMINALIZING POVERTY

Poverty as a crime, in some ways, is built into the DNA of the rugged individualism that is idealized by U.S. culture. In its most positive form, this ideal encourages individual responsibility to care for one’s self and family. In its most negative form, it encourages policies that structure assistance from the government as a scarlet letter of shame rather than a helping hand. Sometimes the criminalizing of poverty in policies is intentional and at other times the relationship is a little fuzzy or unintentional and unexamined. One of the earliest instances of placing greater restrictions on people who were poor was the use of indentured servitude, which was an essential part of the 13 colonies that would later become the United States. The first indentured servants arrive as early as 1607 and, at their height before the U.S. Revolution, represented nearly 50% of the population. The terms of relationship were between four to seven years of labor in exchange for housing, food, freedom at the end of the contract, and occasionally an asset (i.e. property or money). Signing a contract meant a person was severally restricted in their actions, including, for example, the ability to marry and the freedom of movement. These restrictions were enforced by the courts and penalties were issued to individuals who broke their contracts. The indentured servitude system, which was a precursor to full scale slavery, banked on people convicted of crimes and/​or who were considered poor and who desired an opportunity to thrive in the colonies. An even blunter form of criminializing poverty was debtor laws, which typically favored the person holding the debt. Early in U.S.  history there were a fairly extensive number of debtor prisons, where a person could be held for owing money. In 1833, the federal government outlawed debtor prisons and a 1983 U.S. Supreme Court Ruling affirmed that imprisoning people for debt and homelessness is unconstitutional. Modern day civil court actions involving bankruptcy similarly have aspects that are less than favorable for debtors. In 2005, the U.S. Congress reworked the bankruptcy laws to make it harder for individuals to file for Chapter 7 bankruptcy, which clears most debt and pushes more people to Chapter 13 bankruptcy, which requires the repayment of some portion of a person’s debt.

THE U.S. CRIMINAL JUSTICE SYSTEM’S ROLE IN CRIMINALIZING POVERTY

There are policies within the criminal justice system that disproportionally impact people who are poor. Much like debtors’ laws, criminal and civil laws seemingly tend to target people who are poor (whether intentionally or not) and to have the most negative consequences for them in terms of convictions, [ 88 ]  Sociopolitical Considerations

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fines, fees, and long-​term quality of life outcomes. In the next sections, several of the most impactful policies in modern times are discussed in the context of how they contributed to criminalizing poverty in the United States.

Broken Windows

You have probably heard of the phrase stop and frisk, which is a policing intervention thought to decrease criminal activities within a neighborhood. It is part of a larger theoretical model to preventing criminal behavior called, broken windows. The term and theory were developed by James Wilson and George Kelling (1982) from Harvard in a paper for the Manhattan Institute (that later appeared in the Atlantic), discussing how communities and neighborhoods fall into disorder and heightened criminal behavior among residents through the multistep process of small problems that build and escalate over time. Broken windows appears to not take into account the environmental factor of poverty and to rely heavily on the arresting and fining of people who often cannot afford to pay the fines and fees associated with minor criminal activity. Anyone who has received a parking ticket and not paid it on time has experienced increasing fees and penalties. In my town of Champaign, Illinois, not paying a parking ticket within seven days results in a 50% increase in the penalty ($10 to $15), and appeals are only possible after paying the ticket. Although $5 seems like a small amount of money, for someone living in poverty it could impact the amount of food available to them during any given day. New  York City Police Chief William J.  Bratton was hired by Mayor Rudy Giuliani after being elected in 1993. Chief Bratton and Mayor Giuliani attributed the significant decrease in crime across the city beginning the late 1990s and continuing through the late 2010s to the logic of broken windows. The touted success of a declining crime rate led to a number of other metropolitan areas to adopt the broken windows theory. The theory also attracted researchers who questioned its effectiveness. Several different studies using a variety of methods and samples found a mixed set of results. The theory was also associated with increased racial profiling and disruptive gentrification of neighborhood communities. A  meta-​analysis from 2015 by Anthony Braga, Brandon Welsh, and Cory Schnell give a tepid positive finding about some aspects of policing suggested by broken windows theory: 30 randomized experimental and quasi-​experimental tests of disorder policing. Our meta-​analysis suggests that policing disorder strategies are associated with an overall statistically significant, modest crime reduction effect. The strongest program effect sizes were generated by community and problem-​ solving interventions designed to change social and physical disorder conditions

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at particular places. Conversely, aggressive order maintenance strategies that target individual disorderly behaviors do not generate significant crime reductions.

Violent Crime Control and Law Enforcement Act of 1994

The U.S. Department of Justice (1994) fact sheet about the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) states: Represents the bipartisan product of six years of hard work. It is the largest crime bill in the history of the country and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and $6.1 billion in funding for prevention programs, which were designed with significant input from experienced police officers. The Act also significantly expands the government’s ability to deal with problems caused by criminal aliens. The Crime Bill provides $2.6 billion in additional funding for the FBI, DEA, INS, United States Attorneys, and other Justice Department components, as well as the Federal courts and the Treasury Department.

The language in the Justice Department fact sheet was reflected in the popular press at the time of the VCCLEA’s passage and President Bill Clinton signing the act into law. In 2015, approximately 20 years after the VCCLEA’s heralded acclaim, the act became a contentious issue in the Democratic presidential primaries as Secretary of State Hillary Clinton sought the presidency. With 20  years of data, VCCLEA was now viewed as a bill that increased aggressive policing tactics that negatively impact racial minority and impoverished communities in general and African American men in particular.

“Nickle and Dimed”: Administrative Fees and Fines

In the aforementioned parking ticket example, there is a 50% late fee attached to any ticket paid in seven days. There have been a growing number of administrative fees that are added to fines and intentionally shift some of the cost of the legal system onto the people convicted of crimes. A common example of such administrative fees is associated with speeding tickets. The fees for a speeding ticket range by who is issuing the ticket (e.g. state police, county police, city police). Some examples of how high these fees can be include Travis County, Texas, which lists its fees at $107.10 for speeding tickets. The fine is $10 per mile an hour over the speed limit. Beyond the immediate court related administrative fees, there are also administrative fees associated

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with regaining licensure after a suspension. The common administrative fee for return of a suspended license is $70—​this is beyond the fines and fees the person has already paid in association with the traffic violation(s). These types of fees and fines can become cumulative over time and create substantial financial burdens that increase the likelihood of prison time for minor infractions of the law, loss of a vehicle used to maintain employment, and denial of access to federal and state programs ranging from federally supported education loans to food stamps. In 2019, Illinois state law broke down the distribution of administrative fees: 47 % shall be disbursed to the entity authorized by law to receive the fine imposed in the case; 12 % shall be disbursed to the State Treasurer; and 41 % shall be disbursed to the county’s general corporate fund. Of the 12 % disbursed to the State Treasurer, 1/​6 shall be deposited by the State Treasurer into the Violent Crime Victims Assistance Fund, 1/​2 shall be deposited into the Traffic and Criminal Conviction Surcharge Fund, and 1/​3 shall be deposited into the Drivers Education Fund.

A San Diego Union-​Tribune newspaper article from 2016 by Brandon Lawery highlighted these types of fees through the lens of a $35 fine for speeding. The final cost of the ticket was $235. The additional fees included a “State Penalty Assessment” ($40), “Court Penalty Assessment ($36), “State Court Construction” ($20), “State Surcharge” ($8), “DNA Identification” ($16), “Criminal Conviction Fee” ($35), “Court Operations Assessment” ($40), “Emergency Medical Air Transportation Penalty” ($4), and “Night Court Assessment” ($1). From these examples, it is easy to see how a minor traffic violation can result in a snowball effect—​incurring additional financial burdens for those who stand accused and increasing the probability of further criminal infractions.

Substance Use

How substance use policies and laws are developed, interpreted, and enforced is often linked to issues of poverty and race. Most famously, was the sentencing difference for crack versus powder cocaine that disproportionally impacted African American men from poor communities. In contrast, the recent large-​scale opioid epidemic, which has had a significant impact on White Americans and rural communities, has received a largely empathetic response from federal and state government policies. The final unraveling of the 1994 Clinton Bill and recognition of its impact on African American men from impovished backgrounds seems to have emerged only after the opioid

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epidemic was utilized to justify shifting governmental policies regarding substance use disorders from criminalization to treatment and intervention.

Social Welfare Programs

In 1976 then-​presidential candidate Ronald Reagan gave his infamous Welfare Queen speech (Levin, 2019). The story outlined the fraudulent behavior of a woman named Linda Taylor, who Reagan claimed scammed $150,000 a year from the Illinois welfare system (Levin, 2019). The speech is considered instrumental in President Reagan’s election and the resulting significant changes to the U.S.  welfare system under his presidency. One of the most dramatic changes post the Welfare Queen speech was the development of special units in Illinois and many other states to specifically investigate and press criminal charges for welfare fraud (Gustafson, 2009). Given the nature of the speech, fraud enforcement was often racialized (Mirchandi & Chan, 2007). Across the nation, welfare fraud became a focus of welfare bureaucracies rather than the long standing theory that cash relief provided a safety net and hand-​up for people living in poverty (Levin, 2019). Interestingly, Ms. Taylor committed numerous serious crimes before and after her conviction for welfare fraud in Illinois including kidnapping and possibly murder. These more serious criminal activities did not receive the same public attention as her welfare fraud. In fact, after leaving prison, she changed her name, moved to Florida, and continued criminal activities until her passing in 2002 (Levin, 2019). Beyond how to interpret the meaning of individual policies, this cultural zeitgeist has led to a unique approach to social safety net services. Outside public education, there are no universal safety net programs. Most social policies in the United States are structured by social insurance or means-​ tested approaches. Those programs that arise out of social insurance—​Social Security Retirement and Disability, for example—​are relatively free of stigma because people pay into the system to receive benefits. In contrast, means tested programs, in particular those that are based on income, tend to have various levels of stigma. The Earned Income Tax Credit (EITC) is seen as assisting people who are already contributing to their own welfare via formal labor. In contrast, Temporary Assistance for Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP), which are available to nonworking families, tend to carry much higher levels of stigma. The Welfare Queen campaign speech by President Regan foreshadowed the termination of the social contract implied in the New Deal and Great Society programs developed under Presidents Franklin Roosevelt and Lyndon Johnson, respectively. These social welfare programs, meant to help people in poverty, were racialized and became targets of anti–​big government politicians (Levin, 2019; Mirchandani & Chan, 2007). The result was the beginning of [ 92 ]  Sociopolitical Considerations

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the end for Aid to Families with Dependent Children (AFDC), with President Regan instituting large cuts to the program. By 1996, President Clinton signed into law Temporary Assistance for Needy Families (TANF) as a replacement for AFDC. The institutionalizing of TANF’s significant limitations on the amount of time a family could receive cash benefits left many heads of households vulnerable to the aforementioned cascading fines and late fees as they juggled the costs of not paying them with the costs of living (e.g. food, housing, transportation). The policy also precluded certain forms of assistance on the basis of criminal infraction, as well as placed single mothers in the precarious of position of reporting on the criminal activities of the biological father—​with little concern for safety issues (Gustafson, 2009; Larrison, Nackerud, & Risler, 2001).

Child Welfare and Juvenile Justice Systems

One of the natural occurring tensions in the profession of social work is between being advocates for clients and enforcing rules meant to help clients achieve positive growth that results in enhanced life outcomes. The child welfare and juvenile justice system have been considered by some of the public as criminalizing families living in poverty (Alexander, 2010; Gustafson, 2009). From the perspective of most families involved in the child welfare or juvenile justice systems, the government is interfering with one of the most private and personal aspects of life: raising children (Alexander, 2010; Gustafson, 2009).

Laws Directed at People Who Are Homeless

Surprisingly in many metropolitan areas, the activities of people who do not have the resources to acquire and maintain housing are criminalized. The rise of antinuisance laws that limit the use of public spaces in cities often target behaviors stereotypical to people who do not have housing. A 2002 survey of municipal codes and police practices in U.S. cities found the universal presence of anti-​nuisance laws coupled with not enough shelter and transitional housing beds to serve the local homeless population (Saelinger, 2006).

The Future

The BLM movement has shone a light on police shootings. This movement like other social movements is focusing the public on issues of poverty, crime, and race in ways that foretell a changing approach to poverty. One of the most radical discussions coming out of BLM and other social movements is the discussion of a universal income to help decrease poverty and crime. T h e C r i m i n a l i z at i o n of P o v e r t y  

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Legalization of recreational marijuana is being linked to social justice issue in some states. There is significant concerns that African American men from low SES communities who were jailed at high rates for marijuana possession will not profit from legalization, but instead wealthy, White American entrepreneurs will take the lion’s share of the business and profits in the future. This may underscore a needed movement away from legalization and toward decriminalization. The opioid crisis has opened another unpredicted front on the criminalization of poverty. The crisis has spread throughout low SES, rural, majority White American communities to an extent that has decreased the overall life expectancy. This phenomenon has created a call for treatment rather than criminal punishment. As recognition spreads that not only were low SES, rural, White American communities impacted by the widespread availability of opioids, so too does the movement away from criminalization of substance use disorder and toward treatment. This is a promising sign in regards to imprisoning people experiencing poverty and health related issues that are commonly co-​occurring (Larrison et al., 2001).

DISCUSSION

The fifth longest-​running musical on Broadway is Les Miserables, which had nearly 6,700 performances. The musical captures some of the tragedy of criminalizing poverty. It is based on a 1862 novel by Victor Hugo. The musical and book follow the life of Jean Valjean who spends 19 years in jail for stealing a loaf of bread to save his niece from starving. The compelling tale highlights the problems with criminalizing acts that are driven by self-​preservation, particularly in the face of significant poverty. Nobody cheers on the antihero Javert, a police officer charged with enforcing the law, but instead see the humanity of Valjean and the injustice of his punishment for stealing a loaf of bread. Unfortunately, the realization of this injustice on Broadway does not translate into the same empathy for people living in poverty every day in the United States. Javert understands this finally at the end—​when it is too late to benefit from the knowledge. Similarly, policy decisions in the United States that have been enacted to encourage self-​sufficiency and individualism and/​or discourage criminal behavior result in long-​term, negative consequences for people who are experiencing poverty.

IMPLICATIONS FOR SOCIAL WORK

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Medicaid, and food assistance. Such employment requirements are contraindicative to the reasons a person may need such assistance in the first place and effectively stunt individuals’ and families’ opportunities for upward social mobility and further the so-​called class divide by exacerbating social stratification. Because of this link between criminalization, poverty, race, and gender, social workers should advance justice reformation efforts using a structuralist approach, which arguably also lessens the risk of stigma by focusing at the level of systems, institutions, and policies therein. As well, social workers can work to educate the public and key stakeholders, including policymakers, about the deleterious effects of institutional bias, stigma, and negative stereotypes, and the extent to which poverty and race determine outcomes in the modern U.S. criminal justice system.

REFERENCES Alexander, R.  J. (2010). The impact of poverty on African American children in the child welfare and juvenile justice systems. Forum on Public Policy Online, 2010(4). https://​files.eric.ed.gov/​fulltext/​EJ913052.pdf Braga, A. A., Welsh, B. C., & Schnell, C. (2015). Can policing disorder reduce crime? A  systematic review and meta-​ analysis. Journal of Research in Crime and Delinquency, 52(4), 567–​588. Fontenot, K., Semega, J., & Kollar, M.  (2018). Income and Poverty in the United States: 2017. U.S. Census Bureau (Report no. P60-​26). Retrieved from https://​ www.census.gov/​library/​publications/​2018/​demo/​p60-​263.html Foster, L. (2017). Injustice under law: Perpetuating and criminalizing poverty through the courts. Georgia State University Law Review, 33(3), 695–​722. Fox-​Piven, F., & Cloward, R. A. (1971). Regulating the poor: The functions of public welfare. New York, NY: Vintage Books. Gramlich, J. (2019, April 30). The gap between the number of blacks and whites in prison is shrinking. Pew Research Center. Retrieved from https://​www.pewresearch. org/​fact- ​tank/​2019/​04/​30/​shrinking-​gap-​between-​number-​of-​blacks-​and-​ whites-​in-​prison/​ Gustafson, K. (2009). The criminalization of poverty. Journal of Crime and Criminology, 99(3), 643–​716. Larrison, C. R., Nackerud, L., & Risler, E. (2001). A new perspective on families that receive Temporary Assistance for Needy Families. Journal of Sociology and Social Welfare, 28(3),  49–​69. Levin, J.  (2019). The queen:  The forgotten life behind an American myth. New  York, NY: Little, Brown. Looney, A., & Turner, N.  (2018, March 14). Work and opportunity before and after incarceration. Brooking Institute. Retrieved from https://​www.brookings.edu/​research/​work-​and-​opportunity-​before-​and-​after-​incarceration/​ Lowery, B.  (September 4, 2016). Courts:  How your $35 speeding ticket becomes a $235 fine. San Diego Union Tribune. https://​www.sandiegouniontribune.com/​ sdut-​courts-​how-​your-​35-​speeding-​ticket-​becomes-​a-​235-​2012aug18-​story. html

T h e C r i m i n a l i z at i o n of P o v e r t y  

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Mirchandani, K., & Chan, W. (2007). Criminalizing race, criminalizing poverty: Welfare fraud enforcement in Canada. Winnipeg, ON: Fernwood. Saelinger, D.  (2006). Nowhere to go:  The impacts of city ordinances criminalizing homelessness. Georgetown Journal on Poverty Law & Policy, 13(3), 545–​566. Shepherd, L., & Fretwell Wilson, R. (2018). Introduction: The medicalization of poverty. Journal of Law, Medicine, & Ethics, 46(3), 563–​566. U.S. Department of Justice (October 24, 1994). Violent Crime Control and Law Enforcement Act of 1994: Fact Sheet. Department of Justice, NJC FS000067. https://​www.ncjrs.gov/​txtfiles/​billfs.txt Wilson, J. Q., & Kelling, G. L. (1982, March). Broken windows: The police and neighborhood safety. The Atlantic. Retrieved from https://​www.theatlantic.com/​magazine/​archive/​ 1982/​03/​broken-​windows/​304465/​

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CHAPTER 9

Mass Incarceration The Politics of Race, Gender, and U.S. Prison Industry MICHAEL A . ROBINSON, SHARON E . MOORE , AND A . CHRISTSON ADEDOYIN

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his chapter provides an overview of the growth of the prison population from the end of the Civil War to the Obama administration. The terms Black and African American are used interchangeably. Using U.S. Census data, the authors present a chronology of prison population trends from the early 1900s through the first quarter of the 21st century. The chapter opens with a brief history of how slavery’s extension into the criminal justice system allowed free Black people to be farmed out for labor. The authors discuss punitive policies that directly caused the groundswell of disproportionate Black male representation in prisons all across America (i.e., mass incarceration). The authors also describe some of the structural inequalities African Americans faced that stymied their economic and social growth as a people and subsequently led to the mass incarceration of Black men. The authors discuss the historical underpinnings of the factors that lead to mass incarceration and how these factors ultimately fueled the prison-​industrial complex (PIC).

OVERVIEW OF THE GROWTH OF THE U.S. PRISON POPULATION POST CIVIL WAR

At the end of the Civil War, there were approximately five million people categorized as colored in the United States. According to the U.S. Census of

Michael A. Robinson, Sharon E. Moore, and A. Christson Adedoyin,Mass IncarcerationIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0010

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1870, 8,056 of the people in the penal system were categorized as both native and colored (U.S. Bureau of the Census, 1870). Undoubtedly, there were more people of color in the penal system who were foreign, but the foreign population was not separated into discrete racial or ethnic categories. Prior to the 1870s, the behaviors of the Black population in the United States were regulated by slavery and Black codes (Robinson, 2017; Alexander, 2010). Immediately following the Civil War, many southern states passed Jim Crow laws, which perpetuated the oppression of Black individuals living in the South. Furthermore, southern states passed vagrancy laws and the punishment for vagrancy was disproportionately experienced by Black people. These vagrancy laws often forced newly freed people of color to enter into disadvantageous labor contracts to ensure they were employed. Moreover, these same states had convict laws that allowed for the leasing out of prisoners instead of relying on a paid workforce. While many have the understanding that slavery was ended when the Civil War ended, the U.S. Supreme Court case, Ruffin v. Commonwealth (1871) ruled that convicts were, essentially, slaves of the state. These trends continued for the next few decades. As of 1880, 16,978 prisoners, not including inmates of reformatories, were categorized as colored, which is more than double the prison population in 1870 (U.S. Bureau of the Census, 1880). In 1890, disproportionality continued to exist in the penal system. Of the 25,010 individuals in the penal system who were categorized as colored, the majority were Black people who at the time were categorized as negroes (U.S. Bureau of the Census, 1890). The remaining population consisted of prisoners of Asian backgrounds or those labeled as Indian. On average, Black prisoners were serving sentences that were a year longer than other people of color. The sentence served by a Black prisoner in the 1890s was three times longer than the sentences served by White prisoners (Callahan, 1986). Therefore, Black individuals were staying in the correctional population significantly longer than prisoners of other racial or ethnic backgrounds. The data from the 1890s also provided information about prisoners by gender. There were 22,305 Black men in prison and 1,972 Black women in prison (U.S. Bureau of the Census, 1890).

Prison Population trends from 1900 to the 1940s

The 1900 census of the correctional population was not completed until 1904, given that any census of special classes could not occur until after a census of manufacturing and agriculture was complete. At this time, there were 26,661 total prisoners who were labeled as colored. Of this number, 26,087 were negro with the remaining population being prisoners who were categorized as Mongolian or Indian (U.S. Bureau of the Census, 1904). The breakdown of [ 98 ]  Sociopolitical Considerations

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the prison population by gender was much the same as it was the previous decade with 24,426 Black men being in prison at the time of the census and 1,661 Black women being in prison. Jim Crow laws and Black codes continued to affect the daily lives of people of color in the United States. “By the turn of the twentieth century, every state in the South had laws on the books that disenfranchised Blacks and discriminated against them in virtually every sphere of life” (Alexander, 2010, p. 35). Meanwhile in New York, the National Association for the Advancement of Colored People (NAACP) was founded at the end of the decade. In 1910, the prison population of people of color was 42,631 (U.S. Bureau of the Census, 1913). This population was further divided into the 38,701 people who were in prisons, penitentiaries, jails, or workhouses, and the 3,930 young people who were in institutions for juvenile delinquents (U.S. Bureau of the Census, 1913). While the 1910 census provided information about gender of the people in the prison population, the numbers that were provided were aggregate numbers and provided no information about how many women of color and how many men of color were in the penal system. Furthermore, many people of color were committed in 1910. To be exact, 110,319 people were committed to adult facilities whereas 2,117 were committed to juvenile facilities (U.S. Bureau of the Census, 1913). These numbers may represent individuals who spent time in the penal system at some point during the year but their sentence was not such that they were there for a year or more. Data from 1910 suggest that juvenile facilities were used more frequently for White youth than Black youth. Sixty-​nine percent of White youth were committed to juvenile correctional facilities versus 31% of White youth committed to prisons and jails (Callahan, 1986). The opposite was found to be true for Black youth, with 29% of Black youth committed to juvenile correctional facilities and 71% being committed to prisons and jails (Callahan, 1986). While various oppressive laws were still in place, this discrepancy could also be explained by the frequent adultification of Black children. As recently as 2017, research by the Georgetown Law Center on Poverty and Inequality has shown that Black girls are viewed as less innocent and more adult-​like than White girls of the same age (Epstein, Blake, & Gonzalez, 2017) and so this perception of Black youth may have influenced whether they were sent to facilities for juveniles or sent to jails and prisons with adults. In 1923, 24% of prisoners received into the penal system were labeled as negro but by 1926, this percentage had decreased to 21.4%. This percentage amounted to 9,274 prisoners with 8,476 being male and 798 being female (U.S. Bureau of the Census, 1926). Many of these individuals were being kept in state prisons and reformatories as opposed to federal prisons and reformatories. The decline in percentage from 1923 to 1926 could also be attributed to the fact that the publication from which these numbers were obtained indicates that the data from 1926 does not include information M a s s I n c a r c e r at i o n  

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from all states. Five of the seven states that did not have sufficiently detailed statistics were southern states with a presumably high population of Black prisoners. There was no data provided about the number of people who were currently in the penal system as opposed to being received during the year. The number of Black men and women in the penal system was similar in 1930 and 1940. There were 66,013 total admissions to state and federal prisons in 1930. Of that number, 22% were Black individuals, which is approximately 14,522 people (Langan, 1991). Once again, the majority of these admissions was to state prisons (56,213) as opposed to federal prisons (9,800). There was a larger percentage of Black individuals in state prisons (24%) as opposed to federal prisons (12%) as well. In 1940, 62,692 people were admitted to state and federal prisons with 28%, or 17,553, of that number being Black individuals (Langan, 1991). While there were still more individuals admitted to state prisons (47,462) than federal prisons (12,621) in 1940, the percentage of Black people in state prisons and the percentage of Black people in federal prisons was about more similar than in previous years. Twenty-​nine percent of those admitted to state prisons were Black, whereas 23% of those admitted to federal prisons were Black. Additionally, the data for federal prisons in 1940 only include information for males, so the percentage of Black people in federal prisons may be higher if females in the federal prisons were accounted for in the data.

Prison Population trends from the 1950s to the 1990s

In 1950, there were 57,988 total admissions to state and federal prisons and 30% (~17,396) of those admissions were Black individuals (Langan, 1991). Approximately 13,948 Black individuals were admitted to state prisons while approximately 3,217 Black individuals were admitted to federal prisons. Jim Crow laws were coming to an end around the 1950s and 1960s. However, the effect of these laws and the history of slavery in the United States continued to be felt by the Black community in subsequent decades. During the 1950s, law-​ and-​order rhetoric became popular with southern governors and southern law enforcement. This position was often used to justify opposition to the civil rights movement and civil rights legislation. For example, southern policy makers argued that Dr. Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime. By the 1960s, there were 84,068 total admissions to state and federal prisons and approximately 26,901 of these admissions were Black people (Langan, 1991). As expected, more Black people were in state prison (~23,539) than federal prisons (~3,708). The Civil Rights Act was passed in 1964. However, some public figures began to support more power for law enforcement in response to rising crime rates (Alexander, 2010). While crime rates did increase [ 100 ]  Sociopolitical Considerations

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in the 1960s, academics theorize that this was because of the size of the baby boomer generation and an overall increase in the number of men aged 15 to 24 of all races and ethnicities. President Johnson expanded federal support for crime policy and the War on Crime began in 1968 (Alexander, 2010). Many public figures were likely concerned about crime in their communities, but many may have been supporting an increase in law enforcement in response to the Black population demanding their rights. Overall, incarceration rates began to increase in the 1960s and 1970s. There were 48,497 admissions to the state and federal penal systems in 1970 and 39% (~18,913) of that total number of admissions was Black individuals (Langan, 1991). There were ~16,097 (43%) people of color admitted to state prisons and jails and 11,060 (27%) people of color admitted to federal prisons and jails. During these years, prison time was given for lesser offenses. In addition to more people getting prison time, the length of sentences was increased for those who committed violent crimes or who were repeat offenders (Alexander, 2010). Drug crimes were more severely policed and punished, especially in urban communities with a heterogenous population. In New York, the Rockefeller drug laws were passed and set a precedent for more severe sentences for drug offenses. People from poor neighborhoods with predominately Black or Latino populations were arrested and sent to prison under these new laws. President Nixon addressed congress in 1971 and spoke about drug abuse prevention and the so-​called War on Drugs. Since the 1970s, drug arrests rates have been higher for Black individuals than White individuals. However, the Monitoring the Future surveys have found that self-​reported drug use among Black youth is consistently lower than self-​reported drug use among White youth (Alexander, 2010). The same pattern of drug use is evident in adults as well based on data derived from the National Survey on Drug Abuse (Alexander, 2010). Therefore, the increase in relative arrest rates among Black individuals is unrelated to the population’s rates of drug use and drug dealing. Langan (1991) reports admissions to state and federal prisons in 1980 that indicate that there were 134,634 total admissions to state and federal prisons in this year and almost half of that number (41%) were Black individuals. Approximately 49,245 Black individuals were admitted to the state penal system whereas 4,693 Black individuals were admitted to the federal penal system. Another source states that in 1980 there were 150,249 total Black individuals in both the state and federal levels with the majority of these being Black men (143,700) and a minority being Black women (6,549) (Bureau of Justice Statistics, 1982). The sociopolitical events of the 1980s were similar to those of the 1970s. There was a continued trend toward more severe sentencing, meaning more people were serving prison time and increased prison sentences for violent crimes and drug offenses. Black individuals are often disproportionately arrested for drug offenses. While the War on Drugs M a s s I n c a r c e r at i o n  

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effort had been spearheaded by more conservative politicians, some democratic politicians began supporting this effort (Alexander, 2010). Private prisons also became more popular in the 1980s. The number of prisoners in private prison would increase exponentially over the next three decades and the PIC continues today (Alexander, 2010). Like his predecessors, Ronald Reagan supported the War on Drugs. He officially announced his administration’s support of this “war” in 1982. As a result, the Justice Department halved its number of white-​collar crime specialists and focused on street crimes such as drug-​law enforcement instead. As a result of the priorities of the Reagan administration, federal law enforcement agencies experienced a budget increase. Perhaps in an attempt to give credibility to the War on Drugs, the media gave attention to the crack epidemic, which primarily affected low-​income communities in major cities. The media coverage of this drug problem reinforced harmful stereotypes about the Black community and other people of color living in poverty. The prison population increased from 1980 to 1990. One source indicates that 47% of the total correctional population of 403,019 was Black people, but a more precise estimate of those percentages from the same publication is 367,122 Black men and women total in state or federal correctional facilities (Jankowski, 1992). Another source found that there were 344,300 Black people who had been sentenced under either federal or state jurisdiction (Beck & Gilliard, 1995). There continued to be vastly more Black people in state jails and prisons (316,283) as opposed to federal jails and prisons (15,597). During an address in 1989, President George H. W. Bush introduced his antidrug plan in which, among other things, he outlined a zero-​tolerance policy. California v Acevedoup (1991) upheld the warrantless search of a bag locked in a driver’s trunk; other judicial decisions (e.g., Florida v.  Bostick, 1991)  have further undermined any protections against unreasonable searches and seizures by law enforcement (Alexander, 2010). As a result of biases, people of color are more likely to be stopped and/​or searched by law enforcement even without these legal precedents supporting searches and seizures by law enforcement in place. In 1994, Bill Clinton advocated for a federal “three strikes and you’re out” policy in his State of the Union address. The Justice Policy Institute (2010) observed that “the Clinton administration’s ‘tough on crime’ policies resulted in the largest increases in federal and state prison inmates of any president in American history” (cited in Alexander, 2010). Clinton also drastically restructured the American welfare system much to the detriment of lower income Americans. Subsequently, Congress and more than one half of the states passed three strike laws that mandated a minimum sentence of 25 years or longer for offenders with previous convictions. By 2000, there were half a million Black men in prison (572,900) and a significant number of Black women in prison (37,400) as well (Guerino, Marrison, & Sabol, 2011). These numbers [ 102 ]  Sociopolitical Considerations

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declined slightly in 2010, but not drastically. The Department of Justice states that in 2010 there were 561,400 Black men in prison and 26,600 Black women in prison (Guerino, Marrison, & Sabol, 2011). These estimates do not include people of Latino backgrounds, so these numbers could be higher.

The First Quarter of the 21st century

In 2008, America elected the first Black president of the United States. President Obama began implementing criminal justice reforms during his two terms in office, but he also increased funding for the Byrne grant program, which funds antidrug task forces. The Obama administration’s budget was such that the ratio of dollars allocated for prevention and treatment of substance use and the amount of dollars allocated for law enforcement is actually more favorable to law enforcement than the Bush administration (Alexander, 2010). Today, for-​profit companies are responsible for approximately 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained by the federal government (ACLU, n.d.). Over the past few decades, the United States has begun sending an increasing number of people to prison for an increasing length of time. Expenditures on corrections at the state and federal level continues to increase (The Sentencing Project, 2017). These numbers do not include the number of Black men and women who are no longer in prison or jail, but who may be on probation or parole after being in the correctional population.

FACTORS LEADING TO THE MASS INCARCERATION OF BLACK MALES

The factors that have led to the large-​scale incarceration of Black males are historical, and their underpinnings began even before slavery began in the United States. To justify the exploitation of Africa and Africans by Europe, European historians have depicted Africa as a deep, dark, savage continent so that “not only America, but also much of the rest of the world, regards Africa as the primal continent:  the most backward, the least developed, by almost every modern measure” (Hacker, 1992, p. 33). Early European settlers viewed Africans pejoratively. They were assumed to not have the psychological aptitudes for educational or professional achievement. Africa was regarded as less developed by Europeans, even though the land is rich in natural resources such as gold, ivory, bronze, salt and cotton, and Africans represented more than two thousand distinct ethnic groups and tribes. “Since Europeans first embarked on explorations, they have been bemused by the ‘savages’ they encountered in new lands” (Hacker, 1992, p. 26). M a s s I n c a r c e r at i o n  

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These backward people, as so described, were in most cases viewed as inferior by the Europeans. Europeans never envisioned that the Africans with whom they came in contact could ever match the accomplishments of Whites. They assumed that people of African heritage did not have the mental faculties to achieve an education and therefore could never rise to professional heights to become physicians, lawyers, dentists, and academicians. These assumptions were supported by the prevailing European thought of the time and continue to be espoused by social scientists who question the intelligence of people of African ancestry largely based on theories of genetic inferiority (Snyder & Mitchell, 2006)). African Americans, individually and collectively, have been relegated to a position of marginality and powerlessness by virtue of this country’s socioeconomic and political infrastructure. In addition, they have been systematically denied equal access to resources and have endured the inferior treatment of minority status. Historically, Black males were stereotyped as menacing, sex-​crazed, and ominous creatures (Hutchison, 1996). This inaccurate image has been and continues to be propagated by the media and Hollywood. Because Europeans only rudimentarily understood, if at all, the cultures, customs, and religious practices of Africans, they defined what they were unfamiliar with as inferior and deleterious (Dhooper & Moore, 2000). Contemporarily, these negative descriptors, are pervasive throughout American society and therefore widely accepted by the public. These stereotypes has had very injurious psychological, emotional, and physical effects on Black men and the Black community in terms of their efforts to cope with their attributed second-​rate status. Previous attempts to eradicate Black males from society manifested as lynching. Between 1882 and 1963, 3,400 Black people, including men and boys, were lynched in the South (Woodson, 2017). Current attempts at their removal from society occur through judicial maneuvers and the development of draconian social policy designed to render them unable to resist societal oppression. As previously discussed, the War on Drugs was a huge factor that led to the mass incarceration of Black males. The War on Drugs resulted in a 500% increase in U.S. incarceration rates, which disproportionately affected minority populations (Carrol, 2016). Black men were incarcerated for drug-​ related offenses six times more often than White men in 2010 (Drake, 2013). There are 2.2  million people behind bars in the United States with, “Non-​ Hispanic blacks (599 per 100,000 black U.S. residents) having the highest jail incarceration rate at year-​end 2016” (Gramlich, 2018, Carson, 2018). This so-​ called war resulted in over 1.5 million drug arrests in the U.S. in 2016, 80% of which were arrests for possession only (The Drug War, 2018). Although White people sell drugs more often than Black people and are just as likely to use drugs, Black people are 3.6 times more likely than White people to be arrested for selling drugs and 2.5 times more likely to be arrested for possession of drugs (Rothwell, 2014). These disproportionate arrest rates feed [ 104 ]  Sociopolitical Considerations

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the public assumption that Black people use drugs more often than White people, fuel public acceptance of the negative racial descriptors of Black men, and serve as justification for continued selective enforcement of a punitive American drug policy. The removal of Black men from society via incarceration has profound consequences on their families. Over the past 25 years, the rate of Black children who have an incarcerated parent has quadrupled to more than one in nine (Carroll, 2016). These children lose critical male figures who serve vital roles in their lives. Black men are heads of households, breadwinners. and role models of Black masculinity. While incarcerated, they lose the ability to effectively co-​parent and promote healthy child development (Perry & Langley, 2013).

BUILDING AND MAINTAINING THE PRISON-​I NDUSTRIAL COMPLEX

The creation of the PIC was strategic in Black male detention. Desai and Abeita (2017) cite Brewer and Heitzeg (2008) who define the PIC as “a self-​ perpetuating machine” where vast profits and “perceived political benefits” lead to designing policies that “ensure an endless supply of clients for the criminal justice system” (p.  45). The PIC emerged when states and the federal government turned the management of some prisons over to private corporations who in turn run the prisons for profit. Smith and Hattery (2010) assert that the U.S. PIC is not so much concerned with rehabilitation or crime prevention as it is with detention, removal, and exploitation of labor. The growth of prison construction began with a government commitment to mass incarceration. Once that happened, the government needed an excuse to fill these newly produced prison beds. The U.S. government used stiff sentencing guidelines such as those laid out in the Rockefeller drug laws of the 1980s. These laws required mandatory minimum sentences for possession of small amounts of drugs, such as crack, cocaine, heroin, and marijuana (p.  388). Moreover, these laws also enacted harsh sentences for selling:  “two ounces or more of heroin, morphine, ‘raw or prepared opium,’ cocaine, or marijuana or possessing four ounces or more of the same substances” (p. 289). The sentence for selling these drugs, “was made the same as that for second-​degree murder:  a minimum of 15  years to life in prison” (p.  289). These laws also made provisions for two other policies: (1) the Three Strikes You’re Out or habitual felon laws, and (2)  a distinction between sentences for possession (or sale) of crack cocaine versus powder cocaine. The habitual felon law allows judges to impose life sentences on individuals convicted of a third felony. The Rockefeller Drug Laws also re-​classified drug possession from misdemeanor status to felony status. (p. 390)

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Black male incarceration is inextricably woven into the U.S.  economy such that, as indicated earlier, there are approximately 2.2  million people incarcerated in this country, many of whom are guilty as charged and many of whom are not. In the past 10  years, the number of private prisons has risen from 5 to 100. According to the Sentencing Project (2018), since 2000 the number of people in private prisons has increased 47%, despite the overall prison population only rising by 9%. The two largest private prisons are CoreCivic (formerly Correctional Corporation of America) and Geo Group (formerly, Wackenhut Corrections Corporation), which together controlled 75% of the private prison industry as of 2013 (Center for Media and Democracy, 2013). The private prison corporation currently known as CoreCivic reported $245.8 million in the third quarter of 2002; the private prison corporation currently known as Geo Group reported a total revenue of $1.69 billion and a net profit of $143.84 million in 2013 (Center for Media and Democracy, 2013). Hence, there is an incentive to create strict penalties for infractions of the law as this result in economic profit for private and government-​run incarceration facilities. Black males appear to be targeted to fill that void. Structural inequality is a factor in Black male incarceration. A  lack of employment opportunities is a pipeline to Black male mass incarceration. In December 2017, the unemployment rate for Black Americans was 6.8%, which marked the lowest rate for this population since the Bureau of Labor Statistics began tracking this data in the early 1970s (Lockhart, 2018). However, that rate climbed by one percentage point in January 2018 and was higher than the overall national 3.8% unemployment rate in December of the previous year (Lockhart, 2018). In fact, traditionally, Black unemployment rates have characteristically been much higher than that of other groups and they have often been twice as high as the unemployment rates for Whites in both good and bad economic times (Soergel, 2018). Racial bias in hiring along with education levels, transportation issues, and structural inequality in wages are all factors that contribute to unemployment among Black Americans. When Black males cannot find work, their ability as potential heads of households to provide for themselves and their families is severely diminished. Black males’ unemployment also contributes to the decrease in marriage rates among African Americans and to the increase in the female-​headed household. Additionally, the unemployment rate and low earnings of young Black males who have no postsecondary schooling leads some to participate in criminal activity as a means of economic survival. For those who are caught participating in unlawful acts and subsequently convicted and incarcerated, a vicious cycle of poverty ensues because, upon release, they are stigmatized as criminal and they are severely limited in their ability to find work in the legitimate labor force. Subsequently, according to the Bureau of Justice Statistics, between 2005 to 2010, Black offenders had [ 106 ]  Sociopolitical Considerations

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the highest recidivism rate (81%), compared to Hispanic (75%) and White (73%) offenders five years after being released from prison (Bureau of Justice Statistics, 2014). As political economist, John Flateau describes in Deborah Small’s peer-​review article entitled, The War on Drugs is a War on Racial Justice metaphorically, the criminal justice pipeline is like a slave ship, transporting human cargo along inter-​state triangular trade routes from Black and Brown communities; through the middle passage of police precincts, holding pens, detention centers and courtrooms; to downstate jails or upstate prisons; back to communities as rehabilitated escapees; and back to prison or jail in a vicious recidivist cycle. (Small, 2001, p. 896)

The authors do not assert that Black males who commit crime do so without thought to their actions, but rather that there are factors that contribute to their overrepresentation within the criminal justice system.

CONTRIBUTORY ROLE OF BLACK CHURCHES TO MITIGATE MASS INCARCERATION

The institution of the Black Church has played a significant role in the prevention of incarceration as well as the rehabilitation of African Americans who are often disproportionately mass incarcerated (Moore, 2011; Moore, Adedoyin, Robinson, & Boamah, 2015). The Black Church has taken a substantial leadership role in reorientation, consciousness raising, educational interventions, community partnership, and civic enlightenment campaigns. These civic enlightenment campaigns block the school-​to-​prison paradigm from the prevention side and on the remedial side promote novel re-​integration and reentry programs for Black males, postimprisonment (Gregg, 2013; Moore, Adedoyin, Robinson, & Boamah, 2015). For example, Alexander (2010) reported that a coalition of grassroots faith-​based organizations have made ending mass incarceration a major priority and purpose to pursue. One of the major dividends of this grassroots organizing was the disinvestment of the United Methodist Church from all prison-​related investments portfolios (Alexander, 2012). Similarly, Newhouse (2011) reported innovative mass education strategies that a number of Black churches are deploying as their contributions toward ending the era of mass incarceration of Black people in the United States. Some of these innovations include infusing issues of mass incarceration into church bulletins, utilizing scriptures, mentoring groups, and thematic study guide to better inform the congregants on the urgent need to address the lopsided nature of the mass incarceration of Black people compared to other races in the United States. M a s s I n c a r c e r at i o n  

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Borrowing from the tradition of social work, case management has been innovatively used by Black churches to help people with re-​entry and to address recidivism. According to O’Connor, Ryan, and Parikh (1998) a good example of this is the prison fellowship, Transition of Prisoners (TOP) in Detroit. The TOP innovation is a case management approach that trains Black ex-​offenders to be, among other things, well-​acquainted with reintegration into the society, reuniting with their families, and job training (O’Connor, Ryan, & Parikh, 1998). Moreover, Spies, Hendricks, and McGinnis (2008) reported on an exemplary partnership between Court Services and Offender Supervision Agency (CSOSA) and some Black churches in Washington, D.C. The program involves using a mentor–​mentee relationship whereby an ex-​ offender (a mentee) is mentored and guided by a church volunteer (a mentor) in navigating societal and institutional services such as employment and job training skills (Spies, Hendricks, & McGinnis, 2008).

LINKING RACE, MASS INCARCERATION, AND THE DEATH PENALTY

Racism in the United States has not only contributed to a disproportionate percentage of the Black population having involvement in the penal system, but it also affects sentencing. Race and capital punishment have an onerous history in the United States. Prior to the Civil War, states had death as the punishment for certain crimes when they were committed by a Black man, but lesser sentences when the crimes were committed by a White man (Levinson, Smith, & Young, 2014). Race continued to have an influence on administration of the death penalty until 1972. The Supreme Court’s decision in Furman v. Georgia (1972) not only nullified the capital punishment statues in Georgia and Texas; it also struck down all the death penalty statues in the United States (Levinson et al., 2014). For a state to reinstate the death penalty, it had to address concerns about the arbitrary and discriminatory application of the death penalty. Only a few years later in 1976, the Supreme Court decided in Gregg v. Georgia that sufficient safeguards were in place to ensure that race did not have an influence on the use of the death penalty. However, even after this decision research showed that race continued to have an effect on sentencing. In 1983, nine years after the Gregg v.  Georgia decision, Baldus, Pulaski, and Woodworth (1983) conducted a review of thousands of murders in the state of Georgia. Their research found that even when controlling for other variables, people accused of killing White victims were four times more likely to be sentenced to death than those accused of killing Black victims (Baldus et al., 1983). This research was evidence of ongoing racially discriminatory administration of the death penalty in the state of Georgia despite the Supreme Court’s previous ruling. The findings of the study by Baldus et al. were cited in [ 108 ]  Sociopolitical Considerations

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the Supreme Court case McCleskey v. Kemp (1987). Warren McCleskey was a Black man who was convicted of armed robbery and the murder of a White police officer in the state of Georgia. His case was appealed, and it was eventually heard before the U.S. Supreme Court. However, the U.S. Supreme Court ruled that the evidence from this empirical study was not sufficient to overturn the death penalty sentence of the defendant. More recent research has continued to confirm that the single most reliable predictor of whether a defendant will be subjected to the death penalty is the race of that defendant’s victim. A study from 2014 found that the race of the victim was the major predictor for whether or not someone convicted of a crime was sentenced to death rather than the type of crime that that person committed (Donohue, 2014). In addition to the race of the victim, the race of the defendant also affects whether or not that person will receive the death penalty. The Baldus et al. (1983) study explored both race of defendant and race of victim effects. In addition to the findings pertaining to race of victim effects, the study also demonstrated race of defendant effects. For cases in which the victim was White, the death penalty was used in 22% of the cases in which the defendant was Black, but only used in 8% of the cases in which the defendant was White. The same study by Donohue (2014) that found that a victim’s race was a major predictor also found that the race of the defendant was a major predictor of whether or not a death sentence was imposed in a case. Based on the sample drawn from cases in Connecticut, the research found that Black defendants were three times more likely to receive the death penalty than White defendants in cases in which the victim was White. In addition, Gould and Leon (2017) found upon reviewing federal death penalty cases that the race of the defendant had an influence on the type of resources that person receives to defend themselves. Black defendants were 1.7 times more likely to receive a lower-​cost public defense than defendants of other races and ethnicities. An explanation for these race-​of-​defendant effects is implicit bias. Levinson et al. (2014) measured the implicit biases of a number of jury-​eligible citizens and found that in a mock trial a mock juror was more likely to convict a Black defendant than a White defendant if that person showed an implicit bias that related to race and the value of human life. Even after receiving the death sentence, the race of a victim may affect whether or not the person convicted is actually executed. Jacobs, Qian, Carmichael, and Kent (2007) found that Black persons convicted of killing White persons were more likely to be executed than offenders of other races and ethnicities. By contrast, other studies have concluded that even in states in which capital punishment is used more frequently, White people convicted of killing Black people either do not receive the death penalty or if they do, they are rarely executed (Zeisel as cited in Baumgartner, Grigg, & Mastro, 2015). Baumgartner, Grigg et al. (2015) recently conducted a metanalysis of the executions that have taken place in the United States from 1976 to 2013. M a s s I n c a r c e r at i o n  

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Their findings were consistent with previous research. The study found that there were very few situations in which Whites convicted of killing Blacks were executed whereas there are many situations in which Blacks are executed for killing Whites. These race-​of-​victim effects suggest that the Unites States judicial system values White lives more than Black lives as, overwhelmingly, people who murder Whites are more likely to be sentenced to death than people who murder Blacks (Levinson et al., 2014). Despite it being less likely that someone is sentenced to death for killing a Black person, Black men, especially young Black men, are more likely to be victims of homicide than people of other races and/​or genders (Baumgartner, Grigg, & Mastro, 2015). As the research has shown, those who kill young, Black men rarely receive the death penalty as punishment for their crimes if they are convicted at all. One study found that while Black men were approximately 6% of the population based on the 2010 census, 37% of homicide victims were Black men (Baumgartner, Johnson, Wilson, & Whitehead, 2015). It is egregious that a disproportionate number of Black people, especially Black men, are more likely to be sentenced to death as well as being more likely to executed for their crimes, especially if the victim of the crime was White. Forty-​two percent of prisoners on death row are Black, and Black people comprise 34.2% of the population of prisoners who have been executed (Death Penalty Information Center, 2015), despite Black people being 12.7% of the total U.S.  population (U.S. Census Bureau, 2013–​2017). Black lives continue to be devalued by prejudice and discrimination within the judicial system. Some have even referred to the racist application of capital punishment as legal lynchings (Klarman as cited in Levinson et al., 2014).

DISCUSSION

In this section, the authors offer suggestions for decreasing Black male mass incarceration. Educational attainment can be one mechanism for improving a person’s socioeconomic condition, but the U.S.  educational system as it currently functions is failing a host of the Black population and Black males in particular. A school-​to-​prison pipeline has been created whereby across all educational levels Black students are disproportionately represented “by school arrests, suspensions/​ expulsions, and office referrals, which disenfranchises Black males in particular, pushing them out of the education system and into the criminal justice system” (Desai & Abeita, 2017, 45–​46). The authors propose that more efforts are needed to increase the number of Black teachers (both male and female) at all academic levels so that Black students will have teachers who (a) serve as role models for them; (b) teach and understand within their context and shared experiences; and (c) provide the presence of people who [ 110 ]  Sociopolitical Considerations

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believe in them and expect that they can succeed (Cornelius, Moore, & Gray, 1998). According to the 2015–​2016 National Teacher and Principal Survey, 80% of all public school teachers were non-​Hispanic White whereas only 7% were non-​Hispanic Black. By contrast, there were 50.4 million youth in public school in the fall of 2016 with 49% being White and 51% being youth of color (Taie & Goldring, 2018). Clearly, more African American teachers are needed who can help set policy that is not punitive to Black students, who will help develop culturally relevant curriculum, and who will encourage Black students to achieve academically. A second recommendation has to do with job creation by and within the Black community. African Americans, who are 14% of the U.S.  population, spend approximately $1.2 trillion yearly on goods and services (McGirt, 2018). These authors suggest that given this kind of buying power, employment opportunities can be created through the pooling of Black resources to employ many of the nearly 400,000 to 475,000 adult Black males between the ages of 16 to 65 who are unemployed (Bureau of Labor Statistics, 2018). Work prospects could be created in all employment sectors through the creation of Black-​owned and operated businesses. For instance, Black youth could be employed through summer programs like neighborhood beautification projects that are designed not only to beautify an area but to instill community pride as well. Although there is a real gap between White and Black wealth, the authors here assert that the Black community must make efforts to contribute to its autonomy by building the necessary economic infrastructure to stop the cycle of poverty and reliance upon peripheral resources.

IMPLICATIONS FOR SOCIAL WORK PRACTICE

Social work is a profession that believes in the dignity and worth of all people. This means that no matter what the race of the individuals, their socioeconomic circumstances, the environment from which a person derives or is currently in, or the offense that has been committed by an individual, social workers aim to see the inherent strengths and potential in each person and work toward empowering that person to rise to their highest potential to make significant contributions to society. In theory that is laudable, but in practice that is not always easy. Because of the heinous acts that humans sometimes commit, either willfully or because of inherent deficits such as mental health maladies, rising above the natural tendency to shun dreadful acts in order to see and to bring out the best in people takes effort. In U.S. society, Black people, and Black males in particular, who are found guilty of a crime (whether or not they actually committed the crime) are marginalized twice and relegated to the periphery of society. As has been thoroughly previously discussed in this chapter, Black males have been M a s s I n c a r c e r at i o n  

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marginalized in every sphere of human social interaction. They are then remarginalized once convicted of a crime and incarcerated. They lose their right to vote and participate in the democratic process and their right to make a living wage (although they are sometimes given jobs within their penal institutions and paid pennies on the dollar); they lose privacy within their physical space, and once separated from their home environment, they often lose contact with spouses, significant others, children, other family, and friends. Perhaps equally important, they often lose hope for a future and succumb to the despair that comes with the prospect of living out the rest of their lives behind bars. As of 2018, according to the Bureau of Labor and Statistics, there were 707,400 social work jobs in the United States with a projected growth of 11% by 2028 (Bureau of Labor Statistics, 2019). This means that there is room for growth for social work employment within corrections. However, to be clear, what is needed are social workers who will work with this population devoid of racial bias and stereotypes that will undoubtedly thwart their ability to be effective with providing human services to imprisoned Black males. Social workers who work with this population must do so with a knowledge of the historical and contextual factors that contribute to their lived experiences within the United States that sometimes can result in Black males making choices that are not in their best interest. Social workers must also be willing to advocate for them against repressive capitalistic, social, and legal policies that are aimed at keeping Black males imprisoned and out of the societal mainstream. Due to the large numbers of Black males that are imprisoned, the authors believe that there is a need to prepare social workers to work with incarcerated Black males. This groundwork can be done through educational curriculum, across all levels (BSW, MSW, and DSW/​PhD) that focuses specifically on courses or content that address the mass incarceration of Black males. The Council on Social Work Education (CSWE; 2019) is the national accrediting body for more than 800 baccalaureate and master’s degree social work programs. The Council sets the standards whereby social work programs can demonstrate that students are being prepared to be competent professionals who can meet the needs of the populations that they serve. Although CSWE indicates the core courses that are to be taught in baccalaureate and master’s degree social work programs (PhD programs are not currently accredited although discussions are taking place about the potential need for PhD program accreditation), the Council does not prescribe how course content is taught. Social work programs are also free to choose the electives that are offered. At the time of writing this chapter, the number of social work courses on Black male incarceration is not known. It is here suggested that further attention be paid to the inclusion of mass incarceration, the politics of race and gender, and U.S. prison industry in social work curriculum.

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Moore, S.E. (2011). African American megachurches and community empowerment:  Fostering life in dry places. Journal of African American Studies, 15(2), 129–​132. Moore, S. E., Adedoyin, A. C. A., Robinson, M. A., & Boamah, D. A. (2015). The Black church:  Responding to the drug-​related mass incarceration of young Black males. Social Work and Christianity, 42(3), 313–​331. Newhouse, C. (2011). Churches against Jim Crow. Urban Faith. Retrieved from http://​ www.urbanfaith.com/​2011/​06/​churches-​against-​jim-​crow.html/​ O’Connor, T., Ryan, P., & Parikh, C.  (1998). A  model program for churches and ex-​ offender reintegration. Journal of Offender Rehabilitation, 28(1), 107–​126. Perry, A., & Langley, C. (2013). Even with the best of intentions: Paternal involvement and the theory of planned behavior. Family Process, 52(2), 179–​192. Robinson, M. A. (2017). Black bodies on the ground: Policing disparities in the African American community: An analysis of newsprint from January 1, 2015, through December 31, 2015. Journal of Black Studies, 48(6):551–​571. Rothwell, J.  (2014). How the war on drugs damages Black social mobility. Retrieved from Brookings Institution. Retrieved from https://​www. brookings.edu/​blog/​social-​mobility-​memos/​2014/​09/​30/​how-​the-​war-​on-​ drugs-​damages-​black-​social-​mobility/​ Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). The Sentencing Project. (2017). Criminal justice facts. Retrieved from https://​www. sentencingproject.org/​criminal-​justice-​facts/​ The Sentencing Project. (2018). Private prisons in the United States. Retrieved from https://​ www.sentencingproject.org/​publications/​private-​prisons-​united-​states/​ Small, D.  (2001). The war on drugs is a war on racial justice. Social Research, 68(3), 896–​903. Smith, E., & Hattery, A. (2010). African American men and the prison industrial complex. Western Journal of Black Studies, 34(4), 387–​398. Snyder, S. & Mitchell, D. (2006). Eugenics and the racial genome: Politics at the molecular level. Patterns of Prejudice, 40(4–​5), 399–​412. Soergel, A. (2018, June 5). Inequality lingers as Black unemployment reaches historic lows. U.S. News. Retrieved from https://​www.usnews.com/​news/​articles/​2018-​ 06-​05/​inequality-​lingers-​as-​black-​unemployment-​reaches-​historic-​lows. Spies, L.A., Hendricks, C., & McGinnis, J.  (2008). The CSOSA/​ Faith community partnership. Retrieved from http://​media.csosa.gov/​blog/​2008/​02/​ faith-​based-​offender-​reentry-​programs-​in-​washington-​dc/​ Taie, S., & Spiegelman, M. (2017). Characteristics of public elementary and secondary school teachers in the United States:  Results from the 2015–​ 16 National Teacher and Principal Survey: First look (NCES 2017-​070). U.S. Department of Education, National Center for Education Statistics. Retrieved from https://​nces. ed.gov/​pubs2017/​2017070.pdf Taie, S., & Goldring, R.  (2018). Characteristics of public elementary and secondary school. National Center for Educational Statistics. Retrieved from https://​nces. ed.gov/​pubs2017/​2017070.pdf U.S. Bureau of the Census. (1870). Table XIX:  Statistics of pauperism and crime in the United States at the census of 1870, 1860, and 1850. Retrieved from https://​www2.census.gov/​library/​publications/​decennial/​1870/​population/​ 1870a-​51.pdf U.S. Bureau of the Census (1880). Miscellaneous statistics:  Defective, dependent, and delinquent classes Table XI: Prisoners, by sex, nativity, and race. Retrieved

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from https://​www2.census.gov/​library/​publications/​decennial/​1880/​vol-​01-​ population/​1880_​v1-​22.pdf?# U.S. Bureau of the Census. (1890). Report on crime, pauperism, and benevolence in the United States at the time of the Eleventh Census 1890. Retrieved from http://​ftp2.census.gov/​library/​publications/​decennial/​1890/​volume-​3/​1890a_​ v3p1-​01.pdf U.S. Bureau of the Census. (1904). Prisoners and juvenile delinquents in institutions 1904. Retrieved from https://​www2.census.gov/​library/​publications/​decennial/​1900/​prisoners-​1904/​04187675ch1.pdf U.S. Bureau of the Census. (1913). Bulletin 121: Prisoners and juvenile delinquents, 1910. Retrieved from https://​www2.census.gov/​prod2/​decennial/​documents/​ 03322287%20no121-​130ch01.pdf U.S. Bureau of the Census. (1926). Prisoners in state and federal reformatories, 1926: Statistics of prisoners received and discharged during the year, for state and federal penal institutions. Retrieved from https://​babel.hathitrust.org/​cgi/​ pt?id=uc1.32106019603395;view=1up;seq=9 U.S. Census Bureau. (2017). American Community Survey 5-​year estimates [Data set]. Retrieved from https://​factfinder.census.gov/​faces/​tableservices/​jsf/​pages/​ productview.xhtml?pid=ACS_​17_​5YR_​DP05&prodType=table Woodson, J. (2017). What gets left behind: Stories from the great migration. Children & Libraries: The Journal of the Association for Library Service to Children, Digital Supplement, 3–​6. http://​www.ala.org/​alsc/​sites/​ala.org.alsc/​files/​content/​ awardsgrants/ ​ b ookmedia/ ​ a rbuthnothonor/ ​ J ackieWoodson_ ​ 2 017CAL-​ Arbuthnot-​Supplement.pdf

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CHAPTER 10

A Public Health Case for the Abolition of the Death Penalty ELIZABET H BECK , C YNTHIA F. ADCOCK , AND ALLISON BANTIMBA

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ublic health develops and implements strategies that improve the health, mental health, and quality of life for people, communities, and society. Given the significant impact of violence and trauma on physical and mental health outcomes and the attendant costs to society, trauma is a public health issue (Magruder, McLaughlin, & Borbon, 2017; Rosenberg, O’Carroll, & Powell, 1992). Magruder et al. (2017) explain that “the public health impact of trauma exposure is staggering for both communities and individuals” (p.  2). When trauma leads to posttraumatic stress disorder (PTSD), the consequences are even more profound. The primary goal of public health is to intervene in such a way that the vector (i.e., in the present case, the death penalty) that causes a health effect (i.e., trauma) is prevented or controlled, and this intervention can occur at the level of society, communities, families, and individuals (Magruder et al., 2017). In the following pages, the authors argue that the trauma and PTSD experienced by the death penalty’s many secondary victims supports an abolitionist stance. The literature reviewed is related to secondary victims of the death penalty, including family members of the defendant and the victim, defense attorneys, jurors, members of the execution team, and individuals who witness executions. Our argument is enhanced by Walter Long’s (2016) assertion that the death penalty is a trauma-​organized system. As Long states, “the purpose of the death penalty is to inspire dread through the threat and performance of state homicide” (p. 306). Because the death penalty was designed as Elizabeth Beck, Cynthia F. Adcock, and Allison Bantimba,A Public Health Case for the Abolition of the Death  Penalty In:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0011.

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a deterrent, it must be this way. Notably, a link between the death penalty and deterrence has not been proven (Donohue & Wolfers, 2006). In this chapter, the public health argument against the death penalty is supplemented with an examination of the legal foundation to support it through an exploration of U.S. Constitutional and international human rights law.

SECONDARY VICTIMS OF THE DEATH PENALTY

Courts in the United States have maintained that capital punishment is not cruel or unusual punishment, but they have not accounted for the public health issue that is the significant traumatization experienced by the secondary victims. As a trauma-​organized system, the death penalty begins to center the lives of people touched by it, often for decades. This centering is reinforced by the high-​profile nature of the death penalty, the attendant news cycle, and the ways that the case reemerges in the media during events such as hearings and executions. Grief, anger, and feelings of helplessness often arise in accordance with the multitude of legal phases connected with the death penalty. With each failed appeal, death warrant, and, when it occurs eventually, execution, family members experience the loss anew (Beck, Britto, & Andrews, 2007; Jones & Beck, 2007). Retraumatization is inherent in the death penalty. And the routinized, ritualized, and premeditated nature of the execution makes the death particularly chilling. The review of secondary victims begins with the defendant’s family members who are forced to schedule a specific time to say good-​bye to their not-​terminally-​ill loved one.

Defendant’s Family Members

Beck, Blackwell, Leonard, and Mears (2003) interviewed 19 people who had a loved one on death row and found that 11 had symptoms consistent with PTSD as well as depression. Thus, 57% of the study’s population had been diagnosed with, or exhibited the symptoms of, trauma and depression as comorbidities. Of specific concern is the impact of the death penalty on the children of those who have been condemned. The data make clear that children of incarcerated parents are at greater risk of emotional and behavioral issues as well as incarceration (Mears & Siennick, 2016). In research conducted with 19 children of men on death row, Beck and Jones (2007) found that 63% of the youth had a history of significant emotional issues, and 21% had been in trouble with the law. The impacts on individuals who were children at the time their parent was placed on death row are long-​term and deleterious. Contributing factors include the severe limitations placed on visitations due to the restrictive nature of death row; the children’s experience with stigma, [ 118 ]  Sociopolitical Considerations

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hostilities, and sometimes violence; and the ways in which the threat of death is never far away from the youth.

Victim’s Family Members

It is estimated that 10% of surviving family members of homicide victims do not support the death penalty (Cushing & Sheffer, 2002). A number of these family members state that when they tried to make their feelings known, they were met with hostility from the prosecutor’s office and even marginalized and silenced when they tried to publicly share their opposition (Cushing & Sheffer, 2002; Umbreit & Armour, 2007). The death penalty is often touted as bringing closure or healing. While this is clearly not the case for family members who oppose the death penalty, there is research suggesting it is also not the case for families who do support it. In a 2007 study, Umbreit and Armour interviewed family members of homicide victims about their experiences with the court system and their healing. Their sample included family members in Texas, where the death penalty is the ultimate sanction, and family members in Minnesota, which does not have the death penalty. The ultimate sanction in Minnesota is life without parole, and unlike the death penalty, this sentence often does not carry appeals. The authors found that the state’s decision to pursue the ultimate sanction was more important to family members’ experiences and well-​being than whether the defendant received life or death. Moreover, there was greater satisfaction with the criminal justice process among the Minnesota participants than those in Texas. An important factor in these differences was theorized to be the lack of control associated with the length and amount of appeals as well as fears of exoneration found in the death penalty process. Additionally, the researchers found that 42% of the Texas sample struggled with ongoing trauma versus 20% of the Minnesotans. Long’s claim that the court system is a trauma-​organized system provides context to this finding. Indeed, research has shown that interactions with the court system are associated with psychological distress and trauma among crime survivors (Armour & Umbreit, 2012; Umbreit & Armour, 2007). While a third of Texans were pleased that the death penalty was given, a smaller percentage reported feeling relief in association with execution. More and more, the term closure is becoming repugnant to crime survivors. Reasons given range from some family members not wanting to close their relationship with a deceased loved one, while others see it as a promise that can never be fulfilled. Rather than achieving closure, one learns to incorporate the loss into their life and identity, not shut it down as the word implies. The closure promised with the death penalty thus becomes a false promise that is instead associated with prolonged suffering (Armour & Umbreit, 2012; Umbreit & Armour, 2007). A P u b l i c H e a lt h  C a s e  

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Criminal Justice Personnel

While the case has been made that prosecutors, judges, and even detectives have been harmed by the weightiness of the death penalty (Bohm, 2013), this section focuses on what would seem to be the opposing positions:  defense attorneys and prison personnel associated with executions. What these two groups often share is intimate knowledge of and a relationship with the defendant and the fact that they also work in a uniquely demanding environment. Death penalty lawyers often come in two types: (a) those who are well-​ qualified, are committed, and provide strong representation and (b)  those who provide poor or ineffective counsel (Bright, 1994). This section focuses on the former.

Defense Attorneys

While the work is difficult for trial-​level attorneys, it is more so for those lawyers who focus on the appellate level. This is because at the appeals level, the odds are heavily weighted against clients, and lawyers are often in the position of having to convey bad news about an appeal, death warrant, or execution. In the days leading up to an execution, they often move between nonstop legal work in support of yet another appeal, clemency, or stay of execution, as well as being present for their clients as they face the very likelihood of death. These attorneys have to provide comfort in the last hours and minutes of someone’s life without the ability to touch them and within the bizarre and calculated nature of state execution. In 2013, Susannah Sheffer interviewed postconviction death penalty lawyers for her book, Fighting for Their Lives. Themes that ran throughout the book included the ways in which the limited resources available to the defense requires a work load that takes an emotional toll on family life and that lawyers’ sense of self-​efficacy begins to erode, as they are seldom in a position of winning. Consistent feelings of fear and anxiety were another theme. As one lawyer explained, “we’re worried that we are going to fuck something up, and someone will die because of it” (Sheffer, 2013, p. 41). Attorneys who had been through an execution described their short-​and long-​term experiences with trauma. These experiences included nightmares, flashbacks, panic attacks, crying jags for no apparent reason, and omnipresent feelings of sadness, numbness, immobility, and guilt. It is not surprising that many of the lawyers described PTSD symptoms as witnessing loss of life, or threat of loss of life, as one of the criteria for PTSD and the day-​to-​day work lives of death penalty lawyers (Sheffer, 2013).

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Many of the attorneys spoke about the importance of their relationship with clients and the deep feeling of affection that were born from their many years of their interactions. They also spoke of the transformation and humanity that they saw within their clients. Prison guards spoke of witnessing the same transformations. Prison warden Donald Cabana (1996) wrote the following about his preparing Connie Ray Evans for his execution: “How insane this whole process seemed! I knew this man, I believed his life with worth saving” (p. 14). As Solotroff (2001) writes, Cabana left his job a “broken man” (p. 173). Exhibiting signs of trauma, Cabana drank too much, ate too much, became angry, and had heart disease (Dow & Dow, 2002). He also no longer supports the death penalty (Dow & Dow, 2002). Cabana is not alone. As has been shared in research and personal accounts, a number of individuals formerly involved with the death penalty left their work in staunch opposition to it and with symptoms of trauma (Osofsky & Osofsky, 2002; Pickett & Stowers, 2002).

Prison guards

In a study with 50 prison guards who have been involved with executions, Osofsky and Osofsky (2002) found that a number of the guards worked to disassociate themselves from their actions. However, that coping mechanism did not always work, as the guards voiced concerns about their role in taking someone’s life and its implications for their humanity. They also said that they experienced worry, guilt, and periods of depression. Complicating these feelings were the ways in which the guards had grown to know the accused as people. In an NPR interview, Steve Pickett, who oversaw 95 executions as a prison chaplain, and Steve Martin, who was involved with four as a Texas prison guard, discussed the lingering effects of their work. Martin noted that participating in an execution “is not normal behavior for like-​minded humans to engage in” and the whole process is “emotionally crippling.” Pickett explained that Martin was not alone and added that everyone is haunted by their participation in execution. Pickett claimed that the lives of the prison personnel with whom he worked had “unraveled” (Sullivan, 2014).

Witnesses

Executions were once public in the United States. A  Covington, Ohio, judge responded to the pomp and circumstance of an estimated 20,000 people flocking to witness the 1936 state-​sanctioned execution by hanging of Raney Bethea in

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western Kentucky by ordering no witnesses to be allowed at Ohio’s next scheduled execution (Linders, 2018). The judge argued that capital punishment is the state’s responsibility and the state must shield the community from the brutalization of witnessing such an event (Linders, 2018). Linders (2018) argues that witnesses are still necessary because the “legitimacy of capital punishment has been—​and still is—​entangled with the audience of executions” (p. 258). Media representatives are brought into the execution room as a source of government accountability; in turn, they assume the brutalization of bearing witness on behalf of the crowds that are kept outside. Barnett (1995) interviewed journalists who covered the execution of Robert Alton Harris at San Quentin in 1992, one of whom discussed not including his own opinion of the execution in the subsequent article or else the crowds that are kept out of the death chambers would not be able to decide for themselves the efficacy of the execution (p. 2). Freinkel, Koopman, and Spiegel (1994) surveyed 15 journalists who also witnessed Robert Harris’s execution, finding that almost 60% of them experienced dissociation, an unhealthy long-​term coping mechanism. Bohm (2013) recognizes these dissociative symptoms to include feeling estranged or detached from others; distant from one’s own emotions, like one’s surroundings seem unreal or dreamlike; and a sense of timelessness, emotions in an extreme degree, or attempting to avoid feelings about the execution entirely. Witnesses have reported feeling “fearful, sullied, degraded, dehumanized, ashamed, voyeuristic, complicit, detached, despair, and numb” (Bohm, 2013, p.  245). Although no study has found signs of long-​lasting trauma, Bohm (2013) hypothesizes that a lack of long-​term symptoms is likely due to the journalists becoming so dissociated that they lose the ability to recognize the symptoms (p. 251). By dissociating, witnesses are able to separate from and normalize the violence involved in an execution. Freinkel et  al. (1994) find that the dissociative symptoms experienced by witnesses are similar to those experienced by combat veterans even though the journalists are witnessing violence that does not create any level of perceived threat. Journalists are able to prepare as much as possible prior to witnessing an execution because of the death penalty routine and systematic nature. The dehumanization of the condemned prisoner in the moments before the execution prompts the witnesses’ dissociation (Johnson, McGunigall-​ Smith, & Callahan, 2012). Johnson et al. (2012) write that witnesses hear the final words delivered “by a man visibly strapped in a supine position to an imposing gurney . . . as if the condemned prisoner were some sort of specimen presented for inspection” reducing and distorting a witnesses understanding of the human life that will soon be ended (p. 23). When interviewed by Barnett (1995), Freinkel argues that this process of dissociation is dehumanizing and self-​brutalizing, which is the very reason why public crowds were eliminated as an audience of state sanctioned executions in the first place. [ 122 ]  Sociopolitical Considerations

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Jurors

Jurors in a capital trial are subjected to a trauma-​involved experience that may last days, weeks, or even months in which they are required to dissociate as much as possible. Given the bifurcated process of a death penalty trial, the process tends to be longer than nondeath penalty trials. Jurors are often forced to listen to gruesome accounts of horrific crimes and view the accompanying crime scene photos, at both phases of the trial. Not all members of the jury enter the box with a clear understanding of their work. Bienen (1993) found that some jurors were not fully aware of their responsibilities at the start of trial. For example, some were unaware that they would have a role in the sentencing phase of the trial, and others believed that they were only required to offer a recommendation. Once the trial is concluded, if the defendant has been found guilty, the men and women who make up the jury must rely on the facts presented, eliminating their bias and emotion once again, to decide if the defendant should be executed by the state as a result of his or her crime. Research shows this posture is difficult for juries. The Capital Jury Project found the courts’ requests for jurors to dissociate to be nearly impossible. The Project interviewed jurors who delivered both life and death sentences during capital trials in 14 states to examine the psychological effects of serving on a capital jury. Antonio (2006) found that jurors’ sense of safety is compromised by overwhelming anxiety, “fear, and paranoia about being watched by people inside the courthouse” (p.  282). Jurors reported trauma-​related symptoms, such as anxiety, loss of sleep, feelings of regret and fear, physical illness, and flashbacks of the crime (Antonio, 2006). In Kentucky, a judge noticed the jury being visibly affected by the facts presented and decided to take additional recesses during the trial as well as to engage services of a psychological debriefing team for the jury post trial (Dabbs, 1992). Bienen (1993) compares the symptoms of stress and trauma that manifest in jurors to the posttraumatic guilt experienced by service providers, police officers, hostage negotiators, or emergency and disaster workers. Jurors, who have no professional training or support, are forced to confront and become intimately involved in “another person’s pain, suffering, or death” resulting in the “disturbance in sleeping or eating patterns and . . . recurring flashbacks to the images for a year or longer” (Bienen, 1993, p. 1348).

THE LEGAL FOUNDATION FOR A PUBLIC HEALTH CHALLENGE TO THE DEATH PENALTY

In viewing the death penalty as a trauma-​organized system, the public health model of traumatic stress instructs that the “societal factors, attitudes, and characteristics that influence trauma likelihood and intervention” must be A P u b l i c H e a lt h  C a s e  

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considered in addition to who is exposed to the trauma. (Magruder et  al., 2017). According to the National Academy of Medicine, “Public health is what we do together as a society to ensure the conditions in which everyone can be healthy. Although many sectors play key roles, governmental public health is an essential component” (DeSalvo, Wang, Harris, Auerbach, Koo, & O’Carroll, 2017, p. 1). The public health role of the government flows from the democratic ideals set forth in the preamble to the U.S. Constitution: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The people added the Fifth Amendment to the Constitution, acknowledging that the government may deny individuals their life or liberty, but insisting that due process be provided. In addition, they ratified the Eighth Amendment to ensure that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It was not until Trop v. Dulles (1958), that the U.S. Supreme Court set forth the standard, still binding upon courts, for determining whether a punishment is cruel and unusual: The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect . . .The Court recognized in (Weems v. United States,1910) that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. (pp. 100–​101; emphasis added)

Currently, a majority of Supreme Court justices take the position that because the death penalty was an accepted punishment when the Eighth Amendment was adopted in 1791, it is not per se unconstitutional. As the dissenting justices pointed out, on April 1, 2019, in Bucklew v. Precythe: Today’s majority appears to believe that because “the Constitution allows capital punishment: . . . the Constitution must allow capital punishment to occur

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quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in (Glossip v. Gross, 2015), namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” (p. 1145)

However, the Supreme Court is open to finding the death penalty unconstitutional as applied, in which case the Court measures the challenged application of the death penalty against state, national, and international standards of decency. Two examples of shifts in the Supreme Court’s Eighth Amendment position on the death penalty stand out. This century, growing offense within the United States and abroad at the execution of juveniles and people with intellectual disabilities, or what the court noted as those with mental retardation [sic], led the Court to reverse its view of whether executing these individuals is cruel and unusual. Intellectual disability is presently the preferred terminology, with people first language being used in the United States, even though this language is rarely reflected in state and federal laws. In 1989, the Supreme Court narrowly held in Penry v.  Lynaugh that because there was no national consensus against the practice, the execution of people with intellectual disabilities was not cruel and unusual. By the time the issue came before the court in Atkins v. Virginia (2002), the number of states prohibiting the execution of people with intellectual disability had grown to 18 and, as the Court noted, “within the world community, the imposition of the death penalty for crimes committed by [intellectually disabled] offenders is overwhelmingly disapproved” (Footnote 21). The Court concluded that “death is not a suitable punishment for [an intellectually disabled] criminal” and constitutes cruel and unusual punishment under the Eighth Amendment (Atkins v. Virginia, 2002, p. 321). Similarly, in Stanford v.  Kentucky (1989), the U.S. Supreme Court held that the execution of persons who committed murder when 16 and 17 years old did not constitute a cruel and unusual punishment, given that over half of states still allowed the execution of juveniles. The Court did not consider international law. When the Supreme Court revisited the question in 2005, in Roper v. Simmons, it held that executing juveniles constitutes cruel and unusual punishment under the Eighth Amendment. In making its decision, the Supreme Court noted the “overwhelming weight of international opinion against the juvenile death penalty” and that the United States “is the only country in the world that continues to give sanction to the juvenile penalty” (Roper v. Simmons, 2005, p. 554). As these cases show, the Court recognized standards of decency evolving. Notably, the standards evolved as scientific evidence gave insight into what constitutes cruel and unusual punishment.

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EMERGING OPPOSITION TO STATE-​I MPOSED PSYCHOLOGICAL TRAUMA

The previous legal analysis illustrates, that while the United States has stubbornly held onto the death penalty as a punishment, its Courts are open to being convinced by informed and evolved opinions of those within the United States and abroad that the death penalty is in certain circumstances an excessive and morally repulsive punishment. Key to the Atkins (2002) and Roper (2005) decisions was the evolved consensus of opinion that brain science (i.e., expert knowledge of impaired brain functioning), proved that the execution of juveniles and of persons with intellectual disability is morally and legally unjustifiable. It follows that the evolving scientific understanding of the trauma and PTSD suffered by secondary victims of the death penalty is relevant to considering whether the death penalty is in all cases a cruel and usual punishment under the Eighth Amendment. For most of the Western world (i.e., countries shaped by Western Christianity), World War II changed their perspective on the efficacy and morality of capital punishment. In 1948, the United Nations (UN) General Assembly adopted the Universal Declaration of Human Rights (UDHR). Key principles of the UDHR are that “everyone has the right to life, liberty and security of person” (Article 3) and that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). Some 20 years later, to strengthen its commitment to limiting the death penalty, the UN adopted the International Covenant on Civil and Political Rights (ICCPR). The ICCPR affirms that “every Human being has the inherent right to life. This right shall be protected by law” (Article 6). The ICCPR also demands restrictions on capital punishment and encourages abolition of capital punishment without delay. In 1987, “desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,” the UN adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United States has filed reservations to each of these conventions, reserving the right to impose the death penalty and, consequently, maintaining the societal factors that influence trauma associated with this sentence. For example, the U.S. Reservation to Article 6 1992) of the ICCPR states: The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. (p. 11)

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The U.S. Reservation to the Torture Convention (1988) states:  The United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/​ or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty. Yet, these reservations do not preclude the U.S. Supreme Court from considering whether the evidence gathered here—​that each verdict of death creates secondary victims, whose psychological, social, and economic well-​ being is severely harmed—​indicates a cruel and unusual punishment. In the alternative, this growing body of evidence of psychological trauma from death sentences should be considered on the question of whether it amounts to torture, or at the least, “cruel, inhuman or degrading treatment” in violation of international human rights law. The case of Staselovich v. Belarus (2003) is instructive. In this case, the Human Rights Committee, established under Article 28 of the ICCPR, concluded that the “continued anguish and mental stress” caused to the mother of a condemned prisoner by the government amounted to “inhuman treatment of the [mother], in violation of article 7 of the Covenant.” Specifically, the Committee found that the complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress.

In its report, Death Penalty and the Victims, the UN notes that “an increasing number of scholars consider the death penalty as a necessarily and unavoidably cruel, inhuman, or degrading punishment, and therefore against international human rights law” (United Nations, p. 12). The reasons articulated in the beginning of the chapter further support this stance.

DISCUSSION

Each of the populations explored in this chapter experienced trauma symptoms such as recurring flashbacks for greater than one year, thereby giving support to Long’s (2016) claim that the death penalty is a trauma organized system. Each verdict of death brings forth a number of additional victims, whose psychological, social, and economic well-​being is often forever changed. Public health makes clear that the best way to address the negative effects associated

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with trauma is by removing the vector, which in the present case is the death penalty. Given Umbreit and Armour’s (2007) findings that the death penalty seems to carry more trauma for victims than other forms of ultimate punishment allowed by governments, there are likely to be no adverse effects in terms of trauma associated with the abolition of the death penalty.

IMPLICATIONS FOR SOCIAL WORK

In social work in the United States, the phrase human rights is often used to describe a basic concept. The use of human rights as a policy and advocacy tool that stems from the UDHR is paltry in comparison. Yet the tools offered by the UDHR are many and include the use of international law, testimony, special rapporteurs, and the power of covenants and other declarations and documents, as Justice Kennedy cited the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment when ruling against the executions of juveniles (Reichter, 2007). While the Supreme Court has not ruled the death penalty cruel and unusual, every year more and more states are turning away from the practice and issuing moratoriums. Often, behind these moratoriums are statewide advocacy organizations that recognize the death penalty as a human rights violation, which may or may not have used the tools associated with the UDHR. Social workers can work to support policy change by getting involved with such organizations or by researching and organizing around the social change possibilities contained within the structure of the United Nations and the UDHR.

REFERENCES Antonio, M.  E. (2006). Jurors’ emotional reaction to serving on a capital trial. Judicature, 89(3), 282–​288. Armour, M.  P., & Umbreit, M.S. (2012). Assessing the impact of the ultimate penal sanctions on homicide survivors:  A two state comparison. Marquette Law Review, 96(1),  1–​136. Atkins v. Virginia, 536 U.S. 304 (2002). Barnett, C. (1995). Covering executions. American Journalism Review. Retrieved from https://​ajrarchive.org/​article.asp?id=1265 Beck, E., Blackwell, B. S., Leonard, P., & Mears, M. (2003). Seeking sanctuary: Interviews with family members of capital defendants. Cornell Law Review, 88, 382–​418. Beck, E., Britto, S., & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families. New York, NY: Oxford University Press. Beck, E., & Jones, S. (2007). Children of the condemned: An exploration of loss. Omega Journal of Death and Dying, 56, 191–​215. Bienen, L. B. (1993). Helping jurors out: Post-​verdict debriefing for jurors in emotionally disturbing trials. Indiana Law Journal, 68 (4): 1333–​1355.

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Bohm, R.  (2013). Capital punishment collateral damage. Durham, NC:  Carolina Academic Press. Bright, S. (1994). Counsel for the poor: The death penalty for the worst crime but for the worst lawyer. Yale Law Journal, 103, 1835–​1844. Bucklew v. Precythe, 139 S.Ct. 1112 (2019). Cabana, D.A. (1996). The confession of an executioner. Lebanon, NH: University Press of New England. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987). 1465 U.N.T.S. 85. Retrieved from https://​treaties.un.org/​ doc/​Publication/​UNTS/​Volume%201465/​volume-​1465-​I-​24841-​English.pdf Cushing, R., & Sheffer, S. (2002) Dignity denied: the experience of murder victims’ family members who oppose the death penalty. Boston, MA: Murder Victims Families for Reconciliation. Dabbs, M.  O. (1992). Jury traumatization in high profile criminal trials:  A case for crisis debriefing. Law & Psychology Review, 16, 201–​216. DeSalvo, K., Wang, C., Harris, A., Auerbach, J., Koo, D., & O’Carroll, P.  (2017). Public health 3.0:  A call to action for public health to meet the challenges of the 21st century. Preventing Public Disease, 14, 70017. doi:10.5888/​ pcd14.170017external icon Donohue, J., &Wolfer, J.  (2006). The death penalty no evidence for deterrence. The Economists’ Voice, 3(5). http://​works.bepress.com/​john_​donohue/​4/​ Dow, R., & Dow, M. (Eds.). (2002) Machinery of death: The reality of America’s death penalty regime. New York, NY: Routledge. Freinkel, A., Koopman, C., & Spiegel, G.  (1994). Dissociative symptoms in media eyewitnesses of an execution. American Journal of Psychiatry, 151(9), 1335–​ 1339. doi:10.1176/​ajp.151.9.1335 Johnson, R., McGunigall-​Smith, S., & Callahan, C.  (2012). Can I  get a witness? Thoughts on witnessing executions. The Prison Journal, 93(1), 11–​33. doi:10.1 177/​0032 8855 12467311 Jones, S., & Beck, E. (2007). The role of disenfranchised grief and nonfinite loss in the psychological distress of family members of death row inmates. Omega Journal of Death and Dying, 54, 281–​99. Linders, A. (2018). The 2018 NCSA presidential address: The audience of executions. Sociological Focus, 41(4), 255–​266. Long, W. (2016). The death penalty as a public health problem. In I. Šimonović (Ed.), Death Penalty and the Victims (pp. 350–​372). New York, NY: United Nations. Magruder, K.  M., McLaughlin, K.  A., & Borbon, D.  E. (2017). Trauma is a public health issue. European Journal of Psychotraumatology, 8(1). doi:10.1080/​ 20008198.2017.1375338. Mears, D.  P., & Siennick, S.  E. (2016). Young adult outcomes and the life-​course penalties of parental incarceration. Journal of Research in Crime and Delinquency, 53(1), 3–​35. doi:10.1177/​0022427815592452 Osofsky, M.J. & Osofsky, H. J. (2002). The psychological experience of security officers who work with executions. Psychiatry, 65(4), 358–​370. Penry v. Lynaugh, 492 U.S. 302 (1989). Pickett, C., & Stowers, C. (2002). Within these walls: Memoirs of a death house chaplain. New York, NY: Macmillan. Reichert, E. (2007). Challenges in Human Rights a social work perspective. New York, NY: Columbia University Press. Roper v. Simmons, 543 U.S. 551 (2005).

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Rosenberg, M.  L., O’Carroll, P.  W., & Powell, K.  E. (1992). Let’s be clear. Violence is a public health problem. JAMA, 267(22), 3071–​ 3072. doi:10.1001/​ jama.1992.03480220089034 Sheffer, S. (2013). Fighting for their lives: Inside the experience of capital defense attorneys. Nashville, TN: Vanderbilt University Press. Solotaroff, I. (2001). The last face you’ll ever see: The private life of the American death penalty. New York, NY: HarperCollins Stanford v. Kentucky, 492 U.S. 361 (1989). Staselovich v. Belarus, Comm. 887/​1999, U.N. Doc. A/​58/​40, Vol. II, at 169 (HRC 2003). Sullivan, L. (May 8, 2014). The executioners lament. Morning Edition @ NPR. Retrieved from https://​www.npr.org/​2014/​05/​08/​310481034/​the-​executioners-​lament Trop v. Dulles, 356 U.S. 86 (1958). Umbreit, M.S., & Armour, M.P. (2007). The ultimate penal sanction and “closure” for survivors of homicide victims. Marquette Law Review, 91(1), 101–​141. United Nations Office Of High Commission for Human Rights. (2016) The Death Penalty and the Victims. N.Y. United Nations. United States Deparment of State Initial Report of the United States of America to the United Nations Commmittee Against Torture. Retrieved from https://​1997-​ 2001.state.gov/​global/​human_​rights/​torture_​annex3.html United States Reservation to Article 6 1992. Retrieved from http://​hrlibrary.umn.edu/​ usdocs/​civilres.html Universal Declaration of Human Rights (1948). G.A. Res. 217A (III), U.N. Doc. A/​810. Retrieved from https://​www.un.org/​en/​universal-​declaration-​human-​rights/​ index.html

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CHAPTER 11

Affecting Legislative Change From the Judicial Perspective T IMOT HY R . SAVIELLO

T

he point of social work is to help people in need. That help can come in the form of addressing the symptoms of the problem or addressing the problem itself. A  key facet of social work is that social workers are trained not only to identify problems their clients are facing but to delve further and seek out the sources of those problems, which can be very localized (an abusive parent) or more general (lack of living-​wage employment in the community). Likewise, the causes of those problems can be localized (alcoholism) or more general (rising property taxes forcing businesses to move). Just as a social worker seeks to address the localized problem (getting client medical treatment), they also can seek to address the more general problem (drawing businesses to the community). Advocating for change in those situations or institutions causing problems for their clients is thus a natural extension of the social worker’s ultimate goal of helping people in need and has long been part of the social work tradition (Janson, 2011). Social Justice can be generally defined as a concept of fair and just relations between an individual and society, as measured by the distribution of justice, wealth, opportunity, and shared resources (Hoefer, 2012). Advocacy for social justice, then, is the process of seeking change within society and government that addresses any unequal distribution of those resources. In our representative system of government, justice is generally distributed by the criminal justice system, which, in turn, is governed by elected or appointed officials at all levels of government. In the context of the criminal justice system, the distribution of equal justice is often prevented by the biases that are inherent Timothy R. Saviello,Affecting Legislative Change From the Judicial PerspectiveIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0012

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all across that system. These biases include the resources necessary to allow the accused the employment opportunity necessary to be a contributing and productive member of a community; the right to competent counsel for the accused, wherein the resources necessary to make that counsel competent are rarely, if ever, provided; the drafting of the laws that establish what is and isn’t criminal behavior, and the rules and procedures by which a person can be accused, how his or her guilt is determined, and, if appropriate, what sentence properly satisfies the needs of the greater community. In the context of the death penalty, one way that advocates for social justice can seek to reduce the effects of this systemic bias is to advocate for changes to the laws that allow for sentencing an accused citizen to death. This chapter focuses on how advocacy can promote social justice by seeking legislative change to the laws that allow and control the imposition of a death sentence on an accused citizen. It does so by identifying the established methodology within the area of social work advocacy, discussing how that methodology can be applied to seeking change in the laws allowing the death penalty, and using examples drawn from a 2013 attempt in Georgia to change the death penalty laws in that state.

A PRACTICAL MODEL OF ADVOCACY PRACTICE

How then do you go about advocating for legislative change in pursuit of reducing the impact of bias in the application of the death penalty? There are any number of published models of policy advocacy practice. The specific tools and processes within the various models are generally used across all manner of policy advocacy (Jansson, 2011). Within that larger group of choices, there is a specific model of advocacy practice in pursuit of social justice focusing specifically on legislative change. It is a comprehensive model of five stages, guiding the process from the identification of the problem and its cause all the way through conducting a post-​advocacy review of how it all worked out. A review of these steps, and the overall methodology, will provide an overview of the process. Within that review, this chapter will use specific examples from a 2013 attempt to change Georgia’s death penalty. To this end, a brief explanation follows next before I proceed to provide an overview of policy advocacy models. Georgia’s death penalty statute prevents a defendant with intellectual disability from being sentenced to death following a conviction for a qualifying felony offense. The statute places the burden of proving intellectual disability upon the defendant. It further requires a standard of proof of beyond a reasonable doubt, the highest level of proof in the U.S. legal system. Because of the imprecise nature of intellectual disability, it is extremely hard to quantify. This makes proving intellectual disability to the standard of beyond a reasonable doubt extremely rare. This standard of proof is higher than the diagnostic [ 132 ]  Sociopolitical Considerations

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requirements for a clinician determining if a person meets threshold for an intellectual disability diagnosis. This means that a person can be diagnosed with an intellectual disability but not be able to prove intellectual disability beyond a reasonable doubt in a criminal court. Consequently, this makes it highly likely that there are persons under a sentence of death and facing execution in Georgia who are, in fact, intellectually disabled as a matter of science, but not as a matter of law. There was an effort made to change Georgia’s law to lower the standard of proof from beyond a reasonable doubt to either clear and convincing proof or proof to a preponderance of the evidence. This is the effort discussed in this chapter.

Step 1: Getting Involved

The first step in the process is simply to get involved. For a social worker, getting involved is part of the job description. However, they more often get involved by seeking to address the immediate, or local problem. In our general example, a physically abused domestic partner can present to a social worker with immediate physical injuries. The social worker will work first to get that client sufficient and appropriate medical care to treat the injuries. In this way, the social worker is immediately involved at the beginning of the work itself. Only after that immediate problem is resolved would the social worker move on to address the cause of those injuries, in this case the violent domestic partner (Jansson, 2011). That is a greater sort of involvement than simply helping the client with the immediate problem at hand. It can extend from helping the client move out, to advocating for a change in laws protecting domestic violence victims. Not all social workers get involved to that greater extent, and research shows that the level to which a person is willing to get involved depends in part upon a number of identifiable personal characteristics (Hoefer, 2012). Those characteristics include level of education, personal values, sense of professional responsibility, level of interest, skills, participation in other organizations, and the amount of time available (Hoefer, 2012). Knowing these factors is valuable for any advocacy practice because it allows an organization or person to then identify barriers to others getting involved in the advocacy, as well as how to encourage participation. In the 2013 Georgia effort, the initial people involved all had a direct connection to the local problem:  a person with intellectual disability being sentenced to death. The initial participants included groups providing legal representation to individuals on death row. It included a group that advocated for a variety of improvements to the criminal justice system. It included a nonprofit organization whose mission was to offer services to people with developmental disabilities including offering assistance when the client encountered the criminal justice system due to his or her developmental A f f e c t i n g L e g i s l at i v e  C h a n g e  

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disabilities. It also included the lobbying arm of a statewide organization of criminal defense lawyers. All of these organizations were involved with the immediate (or localized) problem of people with intellectual disabilities facing execution by the state of Georgia. Because they all also shared many of the identified characteristics, their involvement extended all the way through joining an advocacy project seeking legislative change.

Step 2: Identifying/​ Understanding the Issue

Once the participants are involved, and determine that advocating for legislative change is the chosen path, the next step is to identify and understand the problem (Hoefer, 2012). Not surprisingly, once the participants have gathered and determined that they are committed to advocating for change, there is momentum and energy to get started immediately. The model makes clear that it is critical to channel this energy into determining precisely what needs changing, precisely what change is the goal, and the best course for making that change (Hoefer, 2012). For the affected change to be effective, it is imperative that the problem and its cause be both properly identified and fully understood (Jansson, 2011). For a social worker with a client physically abused by a domestic partner, making meaningful change requires both identifying what causes that partner to be abusive, and then understanding why. Not surprisingly, this process is involved and is best approached by following a specific process. First, the issue should be defined as a single problem. Advocacy for change is most effective when a single, specific problem is the focus of the effort. This clarity both allows for the development of a specific solution and makes it much easier to measure the impact or effectiveness of the attempted change (Hoefer, 2012). In the Georgia effort, the problem was distilled down to the issue of the too-​high standard of proof for showing a defendant evidenced intellectual disability. Second, it is important to identify who is affected and how they are affected by the issue. Notably, this means identifying those affected both negatively and positively. When seeking change, opposition to change will invariably come from those invested in maintaining the status quo. Identifying those parties early in the process is invaluable in ensuring that opposition will be addressed proactively rather than reactively (Hoefer, 2012). In the Georgia effort, the group identified those negatively affected as the defendants and their families. Those who benefited from the issue, of course, included the families of murder victims, but also included the prosecutors and elected officials who actively sought the imposition of the death penalty in murder cases. Third, the main cause of the issue should be determined (Jansson, 2011). In most situations, there can be multiple proximate causes, and identifying [ 134 ]  Sociopolitical Considerations

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those can often depend on the values of those seeking to make the determination. While this can make determining the main cause more difficult, it is critically important to fully engage in this process because attempting to solve the problem without fully understanding what is causing it is not likely to be effective (Hoefer, 2012). In the Georgia effort, the ultimate cause of the problem was readily identifiable as the statute itself, but it involved dissecting the statute to identify the actual statutory language that created or allowed for intellectually disabled defendants to be sentenced to death. Fourth, possible solutions to the issue must be identified (Jansson, 2011). This should be one of the most collaborative parts of the process and is essentially brainstorming solutions (Hoefer, 2012). By this time in the effort, most of the advocates will have spent significant time thinking about the issue and will almost certainly have come up with ideas about how to solve the problem. Like any brainstorming process, it should start as broadly as possible to include as many ideas as possible. Ultimately however, there must be a winnowing at the end of the brainstorming process in which the number of proposed solutions is narrowed to a smaller and more workable group. In the Georgia effort, this involved discussing which parts of the statute might be changed and, if so, how? It also included discussing whether or not the best solution might be rewriting the entire statute or reorganizing how Georgia law approached the death penalty altogether. Fifth and finally, the group must review the proposed solutions to determine as best as possible their effectiveness or impact on social justice. The National Association of Social Workers (NASW, 2017)  defines social justice as being social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.

The process of winnowing down the number of proposed solutions should include discussing the pros and cons of each proposed solution, including discussing their actual effectiveness or impact (Jansson, 2011). The point is to determine how likely the proposed solution is to have a significant or sufficient effect on improving the problem (Hoefer, 2012). There are a variety of ways to compare and contrast the impact and effectiveness of each proposed solution, but most important is comparing them to each other to identify a single proposed solution (Hoefer, 2012). This clarity is vital to a successful advocacy process. In the Georgia effort, this process involved numerous drafts of

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changes to the statute and discussions with death penalty lawyers about the effects those changes might have.

Step 3: Planning

The next step is to begin planning the actual advocacy. This step builds upon the work done so far to produce a clear, unambiguous path forward from the current situation where the desired social justice is lacking, to where it is improved (Hoefer, 2012). The planning stage should ultimately produce a timeline that identifies specific tasks for specific people or organizations to complete for the advocacy to meet specific goals along the way to the desired final outcome. There are many planning models available, but in advocating for social justice by attempting to affect legislative change, there are certain features of a planning model that, if included, will improve the planning process. The ultimate action plan for the advocacy should be documented in a manner available to all participants. The ability to see an overall plan as well as the individual steps needed to achieve the stated goal is a valuable tool for any organization engaged in seeking change. Many models favor creating an advocacy map, in the form of a chart containing the important information for the advocacy plan from the small to the large. Such a chart is a concise way to show the connections between the goal to be achieved and the steps to be taken to realize that goal (Hoefer, 2012). The advocacy map should first and foremost include the work done in previous steps by clearly stating the identified problem as well as the desired outcome (Hoefer, 2012). Keeping the problem and desired outcome visible and present during the planning process helps keep all involved focused on the shared goal and limits the group straying from the most efficient path towards achieving that goal. One product of a well-​constructed advocacy map will be identifying the single person or organization who can actually make the change needed to fix the problem (Hoefer, 2012). Every effort should be made in the process to narrow this down to a single person or group to allow the map to lead the advocacy group to the right place to effect the desired change (Jansson, 2011). The chart should then list all the resources available to the group that could help move the advocacy forward. These resources could be individual people or organizations who have knowledge and/​or experience in the relevant areas or have established relationships with key people or organizations outside the advocacy group who could assists in the advocacy effort (Hoefer, 2012). Resources could also be data repositories with relevant data or information, which could be organized and presented in a way to advance the advocacy. A physical place could be a resource, if a lack of such a place has been an [ 136 ]  Sociopolitical Considerations

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obstacle to the desired change (Hoefer, 2012). In short, the list of resources should include anyone or anything that can be utilized to advance the advocacy. In the Georgia effort, the resources included additional organizations who advocated for citizens with developmental disabilities in specific ways. One such group was working to educate police and criminal court judges and staff about developmental disabilities and how they might make a client appear more dangerous than he or she actually was. It also included identifying legislators whose help could convince other legislators of the benefit of the desired change in legislation. Next the advocacy map should list the specific tasks that each identified resource must complete to advance the advocacy effort (Hoefer, 2012). These specific tasks make up the path the advocacy effort will take as it moves toward the ultimate goal. Without specific tasks, the group risks inefficient use of effort and time and a potential loss of momentum. In the Georgia effort, this included tasking people who had established relationships with key legislators with appealing directly for their support. Conversely, if there is no actual task that an identified resource can do, then the resource provides no assistance and should be removed from the advocacy effort. The map should then identify short-​, medium-​, and long-​term outcomes leading up to the ultimate change sought. This is important because identifying specific achievable outcomes short of the ultimate goal provides positive feedback to the group as they work towards the ultimate goal. Short-​ term outcomes should be the immediate result of the identified task (Hoefer, 2012). The medium-​term outcomes should be results that then flow from the short-​term outcomes (Hoefer, 2012). The long-​term outcome is essentially the action that actually fixes the identified problem (Hoefer, 2012). In the Georgia effort, one short-​term outcome was having a member speak to a friend who was a member of a key legislative committee. One medium-​term outcome was that legislator then scheduling a hearing before the committee at which the advocacy group could present its case. Another would have been the legislator sponsoring a bill to change the law. The long-​term outcome would have been the passage by the legislature of the new legislation. Because each task and the associated goals may be more or less important than others, the advocacy group should prioritize them in order to work most efficiently (Hoefer, 2012). Finally, the map should identify the ultimate social justice outcomes that were the goal of the entire advocacy effort (Hoefer, 2012). In the case of the Georgia effort, this would have been that defendants with intellectual disability were able to prove their disability by meeting the new, lower standard of proof and thus not being sentenced to death. It is important to have a clearly identified and quantifiable ultimate outcome to know if the process has been successful and thus may be ended or if it needs to continue, or perhaps start anew. A f f e c t i n g L e g i s l at i v e  C h a n g e  

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Step 4: Advocating

To this point, the process has involved identification of the problem, the solution and the specific tasks required to achieve the desired outcome. The next step is actually engaging in the advocacy. In any attempts to affect change that require the assistance of people or organizations, those stakeholders must be convinced to do the things that so far they have not done. Three important methods used to convince stakeholders to change include education, negotiation, and persuasion (Hoefer, 2012). After determining the best method of advocacy, the advocates must then ensure that they are presenting the highest quality information they can, as effectively as possible.

Method

One presumption inherent in the advocacy process is that the stakeholders capable of making the changes to achieve the outcomes have not already made those changes because they are either misinformed or not educated about the issue in the same way as the change advocates (Hoefer, 2012). It is important to remember that the stakeholders in question will be defensive about their current position and resistant to change. The goal of the education portion of the advocacy process is get stakeholders to lay down those defenses and consider the proposed change (Hoefer, 2012). The first step is often providing facts and information about the underlying issue. In the Georgia effort, this involved educating the legislators about what intellectual disability is and how hard it is to quantify or measure. The process can also involve educating the stakeholder on the damage or harm being done by the status quo. In the case of the Georgia effort, this process involved identifying specific defendants under a death sentence who have documented intellectual disability, but who were unable to prove it beyond a reasonable doubt. When effective, this process moves the stakeholder from an initial position resistant to the desired change into a position where he or she is open to that change. Negotiation describes any time an advocate is communicating with a stakeholder seeking relevant change in that stakeholder’s behavior (Hoefer, 2012). Because negotiation is used in many different areas of life, there are numerous resources discussing a wide variety of philosophies and methods (Jansson, 2011). Each advocacy group should identify and choose a philosophy and method that is consistent with their values and goals. In the context of the advocacy process however, there are several points that are worth making when developing a negotiation strategy. First, neither side is likely to get everything they want, so it is important to be consistent with the prioritizing that was part of the planning process (Hoefer, 2012). Next, before beginning the negotiation it is critical to identify [ 138 ]  Sociopolitical Considerations

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your positions. First identify your initial and fallback positions. The initial position is the first desired outcome you announce at the beginning of the negotiation. It should be ambitious but not overly so. The fallback positions are the concessions you are willing to make during the process to keep negotiations open. Finally, you should identify the worst possible outcome of the negotiation that is acceptable to you. This reduces the stress inherent in the negotiating process and thus reduces the chance of making decisions based more on emotion than deliberation (Hoefer, 2012). In the Georgia effort, the initial position was changing the standard of proof to proof to the preponderance of the evidence. The fallback position was agreeing to clear and convincing proof. While more stringent that preponderance, it was still less stringent than the status quo. Finally, the unacceptable outcome was agreeing to legislation that made some changes but did not change the standard of proof. As a method of advocacy, persuasion is more powerful than negotiation because successful persuasion means you’ve convinced the other party to do everything you want and does not involve making concessions (Hoefer, 2012). However, in the context of the death penalty, time and experience has clearly shown abolition advocates that the pro-​death penalty position is so deeply entrenched that incremental progress towards change is the only realistic approach. While persuasion is always present in the direct advocacy process, in advocating for change in death penalty laws it generally exists in the background of the engagement and acts more as a guide to keep the engagement collaborative rather than adversarial (Bedell, 2000).

Type and Presentation of Information

A key consideration when engaged in the actual advocacy is that the information presented is the best and most relevant to your goals and that the presentation itself is done as effectively as possible (Hoefer, 2012). The information presented can generally be classified as either substantive or contextual. Substantive information can generally be seen as the facts or hard data of the issue, but can also include specific anecdotes (Hoefer, 2012). In the context of the Georgia effort, this included scientific data about intellectual disability as well as stories of how men and women with verified intellectual disability ended up on death row. Contextual information is less specific and generally includes information that frames the issue and desired outcomes in a way that engages the stakeholder (Hoefer, 2012). In the Georgia effort, this involved identifying the number of voting citizens who had family members with intellectual disability and that those voters were already connected to groups advocating for their loved ones. The idea, of course, was that those voters were one-​issue voters who could vote for or against the legislator based on how he or she responded on this particular issue. A f f e c t i n g L e g i s l at i v e  C h a n g e  

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The presentation of the information is important because it is often dependent on factors unique to each advocacy effort. This can include the type of advocacy, the targets and stakeholders, and the timing of the effort in relation to external events (Hoefer, 2012). How the information is presented can be broken down into the manner and format. The manner involves considering the quality of the information, the timing of when to present it, how much time you have to make the presentation, in what environment will it be presented, and the chosen style (Hoefer, 2012). The style can vary from positive to negative (“Doing this will help you” vs. “Not doing this will hurt you,” respectively), collaborative or confrontational, and private to public or some combination thereof (Hoefer, 2012). Similarly, the information could be presented in a variety of formats, including in-​person, in small groups, or at a public hearing, as well as using different mediums such as PowerPoint presentation, letters, or public speaking (Jansson, 2011). Again, what style and format is best will depend on the specific advocacy project. In the Georgia effort, the decision was made to frame the argument in both positive and negative ways, but remain collaborative and was done in-​person as well as in public hearings and, in certain cases, in the press. Those decisions were made based upon the individual stakeholders targeted and the timing of the effort in relation to the legislative session, and they remained somewhat fluid so as to react to the ongoing results of the advocacy. Engaging in deliberative advocacy based upon careful and thorough preparation will hopefully bring about the ultimate goal of the entire project: the furtherance of social justice in the specific way and place the project intended to further it.

Step 5: Evaluating the Advocacy

The final step is to step back from the advocacy project after it is complete and evaluate. Rarely will an advocacy effort reach all of its goals, so evaluating the project can provide valuable information and insight into where the process can be improved next time. Advocates should take note that conducting a comprehensive post-​project evaluation is an important part of the process, and best practice is to build in the resources and time for the post-​project evaluation during the planning process in Step 3. Waiting to plan the evaluation until the project is over can often result in limited staff, funding and energy, and limit the value of the evaluation. The evaluation itself can take many forms, but generally it should focus on two main points. First, did the advocacy project achieve what it set out to do? Did it create the change in social justice as identified early in the project? Just as keeping the ultimate goal of the project in mind throughout the project helps keep the work focused on the goal, objectively determining if that change has taken place after the project is over keeps the focus on the whole point of social [ 140 ]  Sociopolitical Considerations

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justice: to combine social work and advocacy to address inequities in the distribution of resources and justice in society. Second, thoroughly reviewing and evaluating the work done along the way and how it linked to the outcomes sought provides an after-​the-​fact look at how successful each portion of the project was. If an advocacy map was created and used during the project, it can provide an efficient and valuable map to the evaluation process as well (Hoefer, 2012). Was the ultimate goal clearly identified? Was the issue properly framed? Was the problem and its cause comprehensively determined? Did the brainstorming process sufficiently identify proposed solutions, and successfully identify the best one? Did the planning process effectively and efficiently identify the resources, their tasks, and the short-​term, medium-​term and long-​term outcomes? Did those tasks produce those outcomes? Did those outcomes produce the change sought? And, coming full circle, did that change further social justice in the way the project wanted and intended?

DISCUSSION

In the Georgia effort, the project did not achieve its ultimate goal of lowering the state’s standard of proof of intellectual disability in the sense that no legislation was ultimately proposed and considered by the legislature. The project reached its apex during the negotiation stage, when the legislators willing to sponsor a bill made demands that went past the unacceptable outcome of the advocates: a bill that made superficial changes to the law but did not change the standard of proof. The postproject evaluation focused on two main points. First, it focused on the stakeholder targets that were chosen and if different targets might have produced better results. Second, it focused on the education and persuasion portion of the negotiation phase of the advocacy, considering whether there were other approaches that might have made the targets more open to the change sought.

IMPLICATIONS FOR SOCIAL WORK

In the end, trying to affect legislative change in the context of the death penalty in America can only be an incremental process. As discussed elsewhere in this book, approval of the death penalty is deeply entrenched in our political system, even as support for it may wane in the populace. As long as we are a nation of laws, then advocacy for legislative change will be a critical tool in attempting to affect change in how the death penalty is used in this nation. Social workers can assist in this advocacy effort by drawing on their core professional values and ethics and advocacy-​and policy-​related skill sets to A f f e c t i n g L e g i s l at i v e  C h a n g e  

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educate, negotiate, and persuade in collaboration with impacted communities and other advocates/​professionals.

REFERENCES Bedell, G.  (2000). Three steps to yes:  The gentle art of getting your way. New  York, NY: Three Rivers Press. Hoefer, R. (2012). Advocacy practice for social justice. Chicago, IL: Lyceum. Jansson, B. (2011/​2014). Becoming an effective policy advocate. Belmont, CA: Brooks/​ Cole. National Association of Social Workers. (2017). Code of ethics. Retrieved from https://​ www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​Code-​of-​Ethics-​English

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SECTION III

Social Work Considerations

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CHAPTER 12

Linking the Social Services and Criminal Justice Systems LEON GINSBERG

S

ocial work’s involvement in the complex criminal justice system is extensive and varied. Direct or clinical practice with individuals, groups of individuals, and their families are the primary activities of social workers in criminal justice. Among the human services professions, social work is generally broader in its approaches. The social work profession not only focuses on direct or clinical services to clients and their families, but it also involves itself in larger system concerns such as public policy and research. These nonclinical functions are included in the National Association of Social Workers’ (NAWS; 2017)  Social Work Code of Ethics, social work licensing standards, and programs of education for social workers. The U.S. Bureau of Labor Statistics focuses on services as fundamental for social workers. However, the less well-​known indirect services pursued by social workers are applied to larger systems and to groups and communities of service recipients (Ginsberg & Miller-​Cribbs, 2005). In the criminal justice field, offenders as well as victims of crime and violence are the subject of social policies that affect them. The Social Work Code of Ethics includes commitment to the ethical principle that social workers seek to overcome injustice: “Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice” (NASW, 2017). Karen Knox (2015), writing about social work in victim services programs in the Encyclopedia of Social Work, says that social work addresses issues of Leon Ginsberg,Linking the Social Services and Criminal Justice SystemsIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0013

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crime and violence in many ways. She notes that social workers who are engaged in micro or direct services work provide clinical and sometimes forensic services to individuals, families, and groups of victims and offenders who are in correctional, justice, and mental health programs. They often function as case managers of direct service providers who refer to and coordinate a number of assistance programs. At the larger systems level, social workers may serve as managers of criminal justice programs and as organizers to help improve the conditions of offenders and victims of crime and violence. They also may be involved in policy development and in influencing legislators in their development of criminal justice policy (Knox, 2015). In its annual compendium of social policy statements, Social Work Speaks (Wheeler & McClain, 2007), the NASW calls for increasing levels of social work services for the incarcerated population which it believes would reduce the rates of recidivism, reentry, and incarceration. It proposes increasing advocacy to deal with issues such as disproportionate rates of incarceration of racial and ethnic minorities, women, youth, and undocumented persons. In addition, it calls for increased professional services, quality health care, and rehabilitation of offenders. educational opportunities and vocational education for incarcerated individuals. The NASW also calls for the development of best practices standards and expansion of prevention and other measures to provide a range of alternatives such as community-​based options and other alternatives to incarceration.

SOCIAL WORK AND CRIMINAL AND JUVENILE JUSTICE POLICIES

Among the activities of social workers as has been mentioned is the development and revision of social policies. Those policies, for the most part, deal with vulnerable people such as children and adolescents, people with disabilities, and older adults. In criminal justice, offenders against the law, juveniles, and crime victims are among the vulnerable populations that are the social policy concerns of social workers. Social workers are involved in the development of criminal justice policies within the scope of their work in public agencies such as departments of human services and departments of corrections. Although the policymaking process for human services is frequently a function of the U.S. Congress and state legislatures, professional social workers often serve as staff members in policymaking state agencies and are involved in the policymaking process. They may also serve as staff assistants to legislatures and legislative committees that deal with criminal justice issues. Social workers use their knowledge and the analysis of data to help in those efforts. Therefore, social workers often have significant influence over criminal justice policies. Some social workers also serve as administrators of criminal justice programs in positions such as state directors of departments of corrections [ 146 ]  Social Work Considerations

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or administrative staff members within those departments. They often serve as staff members in state departments of human services which provide some services to adult offenders and, especially, youth—​although recent social work presence in juvenile justice has been trending down, owing to a return to more retributive models of juvenile justice with less focus on restoration and rehabilitation (Abrams, 2013). A 2010 survey of residential placements for youth offenders that included detention centers, residential treatment programs, boot camps, and group homes found that although these placements were intended to rehabilitate juvenile offenders, services were inadequate in meeting mental health, substance abuse, and the educational needs of the residents (Sedlak & McPherson, 2010). This has led professionals in the public health sector to call for a focus on prevention and treatment in lieu of restrictive custody (McBride, Terry-​ McElrath, VanderWaal, Chirqui, & Myllyluoma 2008). Lipsey, Howell, Kelly, Chapman, and Carver (2010) propose an approach to juvenile justice program reform that is focused on establishing a continuum of care model that emphasizes prevention, early intervention, valid risk assessment, and appropriate matching of risk level to services provided.

SOCIAL WORK AND CRIMINAL JUSTICE RESEARCH

Social workers also work to develop information about criminal justice clients and programs. They are involved in collecting and publishing data on criminal justice issues. Among the subjects social workers who conduct criminal justice research study are issues such as the characteristics of offenders, the degrees of success of various kinds of service programs, and analyses of the costs of varying approaches to criminal justice. Researchers rely on and, in some cases, are involved in the collection of criminal justice data such as the Federal Bureau of Investigation’s uniform crime reporting publications. Regularly published crime reports include Crime in the United States, National Incident-​ Based Reporting System, Law Enforcement Officers Killed and Assaulted, and Hate Crime Statistics. These are annual publications that provide basic data on criminal justice matters.

ADULT CORRECTIONS VERSUS JUVENILE JUSTICE

Much of the content in this chapter is about adult criminal justice or corrections. However, it is important to note that there is a whole other field of social work practice in juvenile justice, elements of which are also covered in this chapter. Rather than defining young people as criminal offenders, U.S. law and social work generally define work with youth offenders as dealing The Social Services and Criminal Justice Systems 

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with young people as children, a protected class of citizen, who need and are entitled to child welfare services. Those services typically include efforts such as family counseling, foster care, and group care in children’s facilities. Child cases are usually heard in juvenile courts, not the criminal courts that hear adult cases (MSWGuide.org, 2018). In other words, youth offenders are not considered criminals but are, simply, children who are addressed in specific ways and who need child welfare services. Delinquency is one of the problems that children may face in addition to those that are more common such as being neglected or abused. Therefore, youth offenders are typically clients of state departments of human services rather than clients of departments of corrections. A sharp distinction is made between adult corrections programs and juvenile programs in the United States. Juvenile offenses are still further subdivided into delinquency offenses and status offenses: A status offense is an action deemed illegal because it has been carried out by a minor. The same behavior would not be regarded as an illegal act if carried out by an individual of legal age. Such behavior includes; running away from home, use of alcohol and other illegal drugs among other offenses. Juvenile delinquency incorporates status offenses but differs in the scope of offending behavior. Offenses carried out by a minor in this case may cross over to criminal activity regardless of age. These are activities that provide for prosecution of both minors and those of legal age/​adults. They may include; robbery, murder, and organized crime. Status offenders are not charged with crimes or treated as adults. (TheTall, 2016)

Young people, in some states, may be charged with adult offenses such as rape, robbery, murder, and organized crime. The justice system, through the courts, may define a young person’s crime as one that should be treated as an adult offense. In those cases, young offenders are tried and may be punished as if they were adults. They may be sentenced to adult prisons and up until 2005, and owing to the U.S. Supreme Court’s decision in Roper v.  Simmons, persons under 18 years old were considered death eligible. The NASW cites data compiled by Sabol, Minton, and Harrison (2007) that found 2,364 juveniles in adult state prisons in 2006 in addition to those held in federal prisons. The NASW takes the position that the incarceration of youth in adult prisons is unethical and unhealthy developmentally; they state that such youth experience: “Vulnerability to exploitation and abuse. . . . Exposure to offenders with extensive criminal backgrounds may foster a pattern of incarceration rather than successful reentry into society” (NASW, 2017, p. 286). Dissatisfaction with the ways in which young people are treated in the juvenile justice system is widespread. The Southern Poverty Law Center (2018), an advocacy organization, reported that, for example, Florida incarcerates more [ 148 ]  Social Work Considerations

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children in adult jails than any other state. They provide little or no education to those young people although education is required by federal and state policies.

DIRECT OR CLINICAL SERVICES TO INCARCERATED INDIVIDUALS AND THEIR FAMILIES

In terms of the varied examples of social work employment in criminal justice, the statistics are not specific to the social work profession except to indicate that social workers make up part of the work force in the field of criminal justice. According to the Bureau of Justice Statistics (2018b), there were 91,300 jobs in criminal justice for probation officers and correctional treatment specialists. These may be social workers, but they also include persons with education in criminal justice, counselors, psychologists, and others. The average pay for these positions was $51,410 per year. There is a 6% growth in such employment projected through 2026 (Bureau of Justice Statistics, 2018b). The best known and perhaps most prevalent roles of social workers are in a variety of direct practice, sometimes called clinical, counseling responsibilities. According to Criminal Justice Social Work Careers, social workers serving clients in the criminal justice system, including offenders and their families, are criminal justice social workers or forensic social workers. They may work with incarcerated persons, recently released ex-​offenders, or people identified for targeted secondary prevention or intervention programs such as drug court. Social workers are responsible for identifying rehabilitative services the justice system originally intended with correctional facilities, or to support family members impacted by offender actions. (The family members may be of crime victims as well as those of offenders.) Jobs within criminal justice social work include diversion program managers, probation and parole officers, Guardians Ad Litem, sex offender clinicians, mitigation or arbitration specialists, transitional case managers, and conflict mediators. A very specialized subset of criminal justice social workers are victim advocates. They work for or with local law enforcement agencies to assist victims through the legal process from the moment of reporting the crime through the trial and beyond (MSWGuide.com, 2018).

Locations of Services

Social workers may deal with adult and youth offenders in a variety of settings that constitute, in part, a continuum of care that in its ideal form, emphasizes prevention, early intervention, valid risk assessment, and appropriate The Social Services and Criminal Justice Systems 

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matching of risk level to services provided (Lipsey et al., 2010). The location of services is reflective of the underlying societal values (e.g., retribution, rehabilitation, restoration) and may inform the scope and level of services to be provided. Adult offenders, after court decisions, may be sentenced to state or federal penitentiaries for specific terms, related to the length of the sentence for the specific crime as designated by law. In some cases, offenders may be located in transition homes, sometimes referred to as halfway houses. Transition homes are considered residential programs and involve supervised facilities to which an offender may be sentenced either after being incarcerated and before being fully disengaged from the criminal justice system. Or the offender may be housed in a work-​release facility where he or she may live at night but be located in a work setting during the day. Prison labor has long been a feature of penitentiary life. In 2016, 20,000 incarcerated persons participated in the largest prison labor strike in history (Sliva & Samimi, 2018). Although no specific changes were made in prison labor policies, the strike demonstrated large-​scale concern among the incarcerated population about the labor policies under which the work (Sliva & Samimi, 2018). The controversy of prison labor has spilled over into the immigration detainment system, with tens of thousands of immigrants detained by U.S. Immigration and Customs Enforcement filing lawsuit against GEO Group, a private prison corporation that contracts work with the federal government (Phillips, 2017). Some other works describe ongoing prison life. Mike Luke (2018) of Tulane University describes a creative-​writing class effort undertaken by Professor Zachary Lazar to discuss prison life at Angola prison in Louisiana. Luke points out that Louisiana incarcerates a larger percentage of its population than any other state or nation. Ninety percent of Angola’s incarcerated never leave and die within the prison, few from capital punishment (Luke, 2018). Young people may be housed in a juvenile detention facility, institutions in which a child may be placed while law enforcement or social agencies evaluate the child’s behavior and need for residential care and treatment. Social workers are often assigned to detention facilities to counsel with the young person and to help determine the further disposition of the case. Some children are placed in children’s homes, which are nonsecure facilities that provide substitute family care. Or the young person may be placed in foster care with a family other than his or her biological family or sometimes with a relative when the child’s problems may be related to the unsuitability of the biological family. Most states also maintain secure juvenile facilities, which operate somewhat like adult prisons. The trend in most states is away from using such facilities. In 2011, the U.S. Office of Juvenile Justice and Delinquency Prevention found that some 61,000 youth were in public or private residential facilities (U.S. Office of Juvenile Justice and Delinquency Prevention, 2014).

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Therapy or Direct Services

Offenders, both adult and juvenile, are often provided clinical or counseling services, which, as indicated earlier, is the most prevalent kind of employment in the criminal justice or juvenile services fields. Social workers may conduct interviews and individual counseling sessions with residents of institutions such as penitentiaries and juvenile justice facilities. These sessions are designed to help the client overcome his or her problems and re-​enter the community. Social workers who are educated in providing services to groups of clients may conduct group sessions, sometimes called group therapy, in prisons or other facilities designed to help offenders understand their problems and solutions that may help them re-​enter community life. At times, the individual services devolve into family services with the social worker helping the family arrange to return to the community.

Case Management

Often, social workers serve as case managers with offenders, family members, and crime victims. In case management, social workers assume responsibility for coordinating the care of an individual or an individual and his or her family. The case manager brings the client or client system into contact with a variety of services which are managed or coordinated by the case manager. An adult offender may need a variety of services such as employment counseling and training, substance abuse treatment, and mental health issues. Insuring the provision of those services and coordinating them is often the responsibility of the social work case manager. At times, the problem faced by an adult offender is locating housing where he or she may live once released from corrections custody. Such postimprisonment services often fall to the case manager.

Adjustment, Probation, and Parole

Social workers also serve as state and federal probation and parole officers. Probation is one of the sentences given to convicted adult offenders. A specific term is set. The offender lives in the community instead of in an institution and carries on her or his usual behavior such as employment, school, and household work. According to Bureau of Justice Statistics (2018c) there were 3,673,300 persons on probation in 2016. They are required to report periodically to a probation officer. Their probation may be ended and they may be ordered to a prison for violating any of the conditions of their probation such

The Social Services and Criminal Justice Systems 

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as using controlled substances, committing a crime, or failing to meet the probation officer at agreed upon times. Parole is an early release from prison short of completion of a sentence. Again, parole may be terminated if the offender fails to meet requirements. The parolee may be returned to prison. Social workers often serve as federal or state government parole officers. Probation, which is often the sentence for juveniles (referred to as adjustment), varies among the states. It is often a preferred juvenile justice action to help avoid children being incarcerated in institutions.

Police Departments

Some local police departments employ social workers to assist in general police work. Many police interventions are associated with problems that social workers encounter. Domestic violence incidents are often the reasons for police being called for help and the reasons why social workers often become involved with families. In some cases, social workers with police departments can assist in arranging services for those who are affected by domestic violence. Domestic violence shelters are one of the resources available to family members affected by violence. These are typically confidential facilities. Their locations are not publicized because of the possibility that domestic violence perpetrators could stalk and endanger domestic violence victims. The shelters often provide ongoing counseling help with social workers or other treatment personnel. Health services, mental health services, and career assistance, are typically available at domestic violence shelters (Berry, 2000). Some police reports involve juvenile conduct that is delinquent. Some of those reports involve the previously described status offenses. A  child may be incorrigible, and the family may be unable to control the child’s behavior. Social workers with police departments may refer the child and the family to a family or juvenile court for resolution of the problem. Social workers with police departments usually do not provide social and counseling services to the family but refer the family and the child to other resources in the community. A juvenile services program or child and family services department may be contacted by the social worker to help the child and the family in resolving its issues. The first choice of child and family services programs is typically counseling with the family to resolve the issues (Lamin & Teboh, 2016; Michaels & Tregor, 1973).

Local Jails

According to the Bureau of Justice Statistics (2018a), there were 740,700 people in local, city, and county jails at midyear in 2016. That was a decrease from 785,500 at midyear in 2008. Incarcerated persons who identified as [ 152 ]  Social Work Considerations

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non-​Hispanic Black/​African American comprised 599 per 100,000 population compared to 171 per 100,000 non-​Hispanic White American population in 2016. Overall, 229 persons per 100,000 population of the United States were in jails. Jails had a capacity of 915,400 beds. Jail statistics are calculated at a particular time in a year. The daily population of jails changes every day. Because sentences are typically short, usually one-​year maximum, the turnover is significant (Bureau of Justice Statistics, 2018a). Those who are in jails are often not convicted of crimes. They are in jail awaiting trial and cannot pay the bail necessary for being released until their trials. According to Day and Sunkara, (2018) some 400,000 people are in prison because they cannot post the required bail for release. The required bail is often arbitrary according to Day and Sankara (2018) such as $3,000 for allegedly stealing a backpack and $10,000 for allegedly stealing a bicycle. Others are sentenced to jail for relatively minor offenses and sometimes for nonviolent offenses such as writing bad checks. Sometimes the crimes are failure to pay child support or other domestic violations. At other times, the crime may be a misdemeanor, or the prosecutors may consider the crime minor and requiring only time in a local jail rather than a penitentiary. The jail population is volatile. In a typical year, seven million people are released from jails. Wilson also notes that half or more people released from jail are jailed again within three years of being released (Wilson, 2010). Local jails differ from one another in significant ways. Some are relatively humane residences with social services provided to incarcerated persons. Some jail residents are accused of or convicted of drug or alcohol violations. Social workers may refer those clients to treatment facilities to help them cope with their substance abuse issues. Other local jails provide little more than custody. Some local communities operate work programs for the incarcerated such as maintaining and cleaning public property with landscaping and sanitation assignments. As mentioned before, prison labor is a highly controversial and politically charged issue. The Thirteenth Amendment of the U.S. Constitution has been charged by legal experts and critics as creating a loophole in the face of slavery abolition (DuVernay, 2016). The Thirteenth Amendment states: “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). Social workers may be employed in or assigned to jails. They help with the incarcerated individual’s personal and family issues. For example, family and children’s services workers assist jailed parents in maintaining contact with their children. Or, if necessary, children may be placed for temporary care with relatives or in foster families recruited by child welfare agencies. Social workers may help jailed clients arrange for keeping or acquiring employment. Social workers may assist families of jailed personnel in obtaining financial assistance, food assistance, housing, and all the other resources that The Social Services and Criminal Justice Systems 

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a jailed person may have provided to the family before being jailed. And social workers may assist couples in maintaining or restoring their relationships. In other words, social workers assisting incarcerated or formerly incarcerated persons and their families are likely to perform the whole range of services and referrals that they might provide to any client.

Victim Assistance Programs

Among the roles social workers play in the criminal justice field is victim assistance. Two federal laws, the Victims of Crime Act and the Violence Against Women Act, provide federal funds to the states for assisting victims (Berry, 2000; NASW, 2017). Many states offer services to victims of crime and violence. Assistance may include financial or other resources to help a victim recover from a violent crime. Many of the results of victimization are emotional and social workers are often called upon to provide or arrange for the provision of counseling. However, referral for other services including housing, education and training, as well as counseling for victims and their families may be provided under victim assistance programs.

PRISONS AS SUBSTITUTE FOR MENTAL HEALTH SERVICES

One of the issues that affects current correctional services and their populations is the policy, which began in the 1960s, of removing large numbers of people with mental illnesses, often most of the populations of state mental hospitals, to communities. As Powers (2017) writes, patients were supposed to receive mental health care in often newly formed community mental health centers. As Wheeler and McClain (2017) note in their NASW policy statement, “Correctional facilities have become the treatment facility of last resort for individuals who have been failed by other systems” (p. 285). The reasons for this deinstitutionalization were multiple. Incarcerating people with mental illnesses in public hospitals raised serious legal, especially civil rights issues. Could a person be deprived of his or her freedom even though they had not committed and been convicted of crimes? Could the mental hospitals meet the standards for group care facilities such as nursing homes that were promulgated by state governments?

Deinstitutionalization

Much of the deinstitutionalization story began in California although most other states followed suit. Persons hospitalized with mental illnesses suddenly [ 154 ]  Social Work Considerations

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found themselves without their residences, food, and basic care, which had been provided to them by those mental hospitals. Families were called upon to care for their formerly institutionalized relatives. Often, it was the inability of their families to care for members with complex and/​or intensive mental health challenges that led to the commitment to mental hospitals in the first place. As Powers (2017) notes, realtors were reluctant to rent dwellings to persons with severe and persistent mental health diagnoses, even to those who could afford them. And employers were unwilling to provide people with severe and persistent mental health diagnoses with jobs. So large numbers became occupiers of the streets of cities and towns with little or no resources to make it possible for them to survive independently. As a consequence, they often committed crimes such as vagrancy because they had few options. They perpetrated petty thefts or even robberies to make it possible for them to eat and meet other basic needs. Homelessness became a serous public problem often because former patients as well as people who might become patients were no longer hospitalized. The California depopulation of the mental hospitals was led by Governor Ronald Reagan. When Reagan defeated Jimmy Carter’s candidacy for re-​election of president, after Carter had proposed major developments in community mental health services, he quickly moved to cut back the funding and the services for mentally ill people. One person of the Attica prison in New York described the difficulty one mentally ill patient had in adjusting to prison life, partly because he had no money to make the kinds of purchases that persons from more affluent means could make (Lenin, 2018). Of course, not all of people with mental illness become homeless. Lack of income or assistance payments and unemployment as well as chronic illness are also reasons for homelessness. However, a disproportionate amount of the homeless population is mentally ill. According to the National Coalition for the Homeless (2018) in a study by the federal Substance Abuse and Mental Health Administration, 20% to 25% of the homeless population is mentally ill compared to 6 percent of the total population, For much of its history, social work’s involvement with services to people with mental illness is a major area of social work education and employment.

DISCUSSION

In many ways, the social services and criminal justice systems are historically linked. Social workers are heavily directly employed in the criminal justice fields. Many of the social agencies in which social workers serve clients include services to clients of criminal justice programs and institutions. Social work’s larger systems orientations to social policy development, management of human services programs, and social research also deal, in many ways, with criminal justice. The Social Services and Criminal Justice Systems 

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IMPLICATIONS FOR SOCIAL JUSTICE AND HUMAN AND CIVIL RIGHTS

The transfer of individuals from psychiatric institutions to penal institutions raises troubling implications for social justice and human and civil rights. This dislocation/​relocation of people places social workers in a bit of an ethical quandary: continue the person-​centered and ethics-​driven work of the profession, but within a system of logics that is antithetical to those same very ethical mandates of the profession. For example, the penological goals of retribution and deterrence are at odds with the NASW (2017) ethical principles, centrality of human relationships and the inherent dignity and worth of all individuals. Social workers should be diligent about the inherent contradictions between the ethical mandates of the helping professions and the logic and values of the adult corrections and juvenile justice systems. Furthermore, when possible, social workers should exploit this contradiction by using the ethics of the profession to argue for policies that advance social justice and human and civil rights across all levels. Similarly, social workers should challenge policies that diminish the realization of social justice and human and civil rights. For instance, social workers can challenge unfair sentencing policies that result in excessive and racially disparate sentencing practices, particular procedural issues within the adjudication process (e.g., standard and burden of proof), and cruel and unusual punishments (e.g., the lethal injection method of execution, and all other methods for that matter).

Implications for Social Work and Criminal Justice Practice

To achieve comprehensive systemic reform, social workers must play a dominant role in criminal (including juvenile) justice and social welfare policy development, evaluation, and implementation. To do so, social workers should collaborate with other professionals who are positioned within this discourse. For examples, social workers may work closely with lawyers, politicians, government agencies, educators, physicians, community organizations, researchers from other disciplines, and clinical/​forensic professionals such as psychologists and psychiatrists. As well, social workers should consider the possibility of running for and holding political office.

REFERENCES Abrams, L. S. (2013). Juvenile justice at a crossroads: Science, evidence, and twenty-​ first century reform. Social Service Review, 87(4), 725–​752. Berry, D.B. (2000). The domestic violence sourcebook, 3rd ed. New  York, NY:  McGraw-​Hill. [ 156 ]  Social Work Considerations

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Bureau of Justice Statistics. (2018a, February). Jail inmates in 2016. Retrieved from https://​www.bjs.gov/​content/​pub/​pdf/​ji16.pdf Bureau of Justice Statistics. (2018b, April 13). Probation officers and correctional treatment specialists. Retrieved from https://​www.bls.gov/​ooh/​Community-​and-​ Social-​Service/​Probation-​officers-​and-​correctional-​treatment-​specialists.htm Bureau of Justice Statistics. (2018c, April 26). Probation and parole in the United States, 2016. Retrieved from http://​www.bjs.gov/​index.cfm?ty=pbdetail&iid=6188 Day, M. & Sunkara, B. (2018, August 6). Modern day debtors’ prison. The New York Times. Retrieved from https://​www.nytimes.com/​2018/​08/​06/​opinion/​columnists/ ​bernie-​sanders-​cash-​bail.html DuVernay, A. (Director). (7 October, 2016). 13th [Documentary]. United States: Netflix. Ginsberg, L.  & Miller-​Cribbs, J.  (2005). Understanding social problems, policies, and programs. University of South Carolina Press. Hockenberry, S. (2014, August). Juveniles in residential placement, 2011. U.S. Office of Juvenile Justice and Delinquency Prevention. Retrieved from https://​www.ojjdp. gov/​pubs/​246826.pdf Knox, K. S. (2015). 11 Victim Services. Social Workers’ Desk Reference, 12, 86. Lamin, S. A., & Teboh, C. (2016). Police social work and community policing. Cogent Social Sciences, 2(1), 1212636. Lenin, J. J. (2018, June 5). This place is crazy. Esquire. Retrieved from https://​www.esquire. com/​lifestyle/​a20717313/​mental-​illness-​treatment-​in-​prison/​ Lipsey, M. W., Howell, J. C., Kelly, M. R., Chapman, G., & Carver, D. (2010). Improving the effectiveness of juvenile justice programs. Center for Juvenile Justice Reform at Georgetown University. Retrieved from http://​cjjr.georgetown.edu/​pdfs/​ebp/​ ebppaper.pdf Luke, M. (2018, June 25). The writer’s pen. Retrieved from https://​news.tulane.edu/​ news/​writer’s-​pen McBride, D. C., Terry-​McElrath, Y. M., VanderWaal, C. J., Chriqui, J. F., & Myllyluoma, J. (2008). US Public Health Agency Involvement in Youth-​Focused Illicit Drug Policy, Planning, and Prevention at the Local Level, 1999–​2003. American Journal of Public Health, 98(2), 270–​277. Michaels, R. A., & Tregor, H. (1973). Social work in police departments. Social Work, 18(5),  67–​75. MSWGuide.org (2018). Criminal justice social work. Retrieved from https://​www. mswguide. org/​careers/​criminal-​justice-​social-​work/​ National Association of Social Workers. (2017). Ethical principles. Retrieved from https://​www.socialworkers.org/​pubs/​code/​code.asp?print=1& print=1& National Coalition for the Homeless. (2018). Homelessness in America. Washington, DC:  National Coalition for the Homeless. Retrieved from https://​ nationalhomeless.org/​about-​homelessness/​ Phillips, K.  (2017, March 5). Thousands of ICE detainees claim they were forced into labor, a violation of anti-​slavery laws. The Washington Post. Retrieved from https://​www. washingtonpost.com/​news/​post-​nation/​wp/​2017/​03/​05/​ thousands-​of-​ice-​detainees- ​claim-​they- ​were-​forced-​into-​labor-​a-​violation-​of-​ anti-​slavery-​laws/​?utm_​term=.16eb9303d3a9 Powers, R. (2017). No one cares about crazy people: The chaos and heartbreak of mental health in America (1st Ed.). New York, NY: Hachette Books. Roper v. Simmons, 543 U.S. 551 (2005) Sabol, W., Minton, T.  and Harrison, P.  (2007, December). Prison and jail inmates at midyear 2006. Bureau of Justice Statistics Bulletin. Retrieved from https://​www. bjs.gov/​content/​pub/​pdf/​p06.pdf The Social Services and Criminal Justice Systems 

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Sedlak, A., & McPherson, K.  S. (2010). Conditions of confinement:  Findings from the survey of youth in residential placement. Washington, DC:  US Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Sliva, S. M., & Samimi, C. (2018). Social work and prison labor: A restorative model. Social Work, 63(2), 153–​160. Southern Poverty Law Center. (2018, February 14). Children deprived of education in Florida adult jails. Retrieved from https://​www.splcenter.org/​news/​2018/​02/​ 14/​splc-​report-​children-​deprived-​education-​florida-​adult-​jails TheTall (February 8, 2016). What are the differences between a “status offense” and “juvenile delinquency”? Retrieved from https://​www.enotes.com/​homework-​ help/​discuss-​differences-​between-​status-​offense-​345838 Wheeler, D.  P., & McClain, A.  (2017). Social work speaks (10th ed.). Washington, DC: National Association of Social Workers. Wilson, M. (2010). Criminal justice social work in the United States: Adapting to new challenges. NASW Center for Workforce Studies. https://​www.socialworkers.org/​ LinkClick.aspx?fileticket=n8L3HaALWb8%3D&portalid=0

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CHAPTER 13

Serious Mental Illness, Criminal Justice, and the Death Penalty ANNA SCHEYET T AND KATHERINE J. CR AWFORD

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mnesty International (2006) reported that, since 1977, when the death penalty was reinstated in the United States, over 100 individuals identified with a serious mental illness (SMI) have been executed. This represents 1 in 10 of the executions that have occurred during that time. The actual number is probably higher since the criminal justice system woefully underidentifies and underreports mental illnesses among the incarcerated. While exact numbers are not available, Mental Health America (2016) estimates that 20 percent of persons on death row have SMI. Social workers should be profoundly troubled by this injustice. Whether or not one supports the death penalty in certain cases, the death penalty for individuals with SMIs who, as a result of their illness, are unable to understand, reason, or control their behavior, is a grave injustice. In this chapter, we will explore this issue, looking at why the purpose of the death penalty is not met in the execution of individuals with SMIs; how individuals with mental illnesses are actually at elevated risk of involvement in the criminal justice system and of more severe sentencing, including the death penalty, once in the system; and how existing protections under the law are insufficient and ineffective in protecting individuals with SMIs from the death penalty.

Anna Scheyett and Katherine J. Crawford,Serious Mental Illness, Criminal Justice, and the Death PenaltyIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0014

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DEFINING SERIOUS MENTAL ILLNESS

For this discussion, it is important to understand what is meant by SMI. While definitions may vary somewhat, it is clear that this term refers to those most severely impaired by a psychiatric illness. The National Institute of Mental Health (n.d.) defines SMI as “a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities.” The diagnoses most commonly thought of as SMIs are schizophrenia, bipolar disorder, schizoaffective disorder, dissociative disorder, major depression, and posttraumatic stress disorder. People with SMI often have disordered functioning, disordered thinking, delusions, hallucinations, paranoia, and inability to control their behaviors (American Psychological Association, 2009). However, even this definition is not enough when one is thinking about criminal culpability, execution, and SMI, since with treatment many individuals with SMIs no longer have serious functional impairments or have functional impairments that do not influence their understanding or volition. The American Bar Association (2006) clarified who with SMI should be excluded from the death penalty: At the time of the office had a severe mental disorder or disability that significantly impaired their capacity (a)  to appreciate the nature, consequences, or wrongfulness of the conduct, (b)  to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.

PURPOSE OF THE DEATH PENALTY NOT MET FOR INDIVIDUALS WITH SMI

To be sentenced to a penalty of death, a person must not simply be found guilty, but guilty of a most heinous crime and therefore more morally culpable or more deserving of the ultimate punishment (Izutsu, 2005). The U.S. Supreme Court decision in Ford v. Wainwright (1986) found the execution of persons who are so mentally ill that they do not understand why they are being executed to be in violation of the U.S. Constitution (Ohio Justice and Policy Center, 2015). However, importantly, the protection afforded in the Ford v. Wainwright (1986) decision considers the individual’s mental state at the time of execution, not at the time of the crime, and is therefore inadequate for people with SMI who may have committed a crime while symptomatic, but who become medically stabilized through treatment during and after incarceration. The Supreme Court has identified two major purposes for capital punishment—​ retribution and deterrence. Someone with SMI, which by [ 160 ]  Social Work Considerations

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definition means they have diminished ability to reason, understand, or control behavior, cannot be fully culpable. If a person has SMI, he or she cannot be deterred from his or her actions by the threat of execution because, presumably, their illness is impairing their understanding or volition regarding their actions. Similarly, retribution cannot be just if the individual being punished does not understand fully the nature of the crime or why he or she is being punished (American Bar Association, 2016). The argument that the purposes of the death penalty are not met when the offender has SMI has been used effectively and accepted for two similar vulnerable populations. In 2002 the U.S. Supreme Court ruled in Atkins v. Virginia (2002) that the death penalty cannot be used for individuals with intellectual disability. Arguing a violation of the Eighth Amendment’s ban on cruel and unusual punishment, the Court determined that because of the reduced understanding and therefore culpability of an individual with intellectual disability, a death sentence was disproportionate to the crime and thus cruel and unusual. In addition, the ruling determined that because of their cognitive impairments that limit their ability to understand the punishment, the purposes of retribution and deterrence are not met when considering a person with an intellectual disability. Finally, the Court decided that because people with intellectual disabilities may not be able to appropriately participate in their trial and that juries may not be able to properly understand the mitigating nature of a person’s intellectual disability, sentencing is varied and unreliable and therefore disproportionate and unfair (Sundby, 2014). A similar determination was made in 2005 for juvenile offenders in the Supreme Court case, Roper v. Simmons (2005). Social workers must question the justice of categorically precluding the death penalty for two vulnerable and less culpable groups—​people with intellectual disability and people who commissioned a capital crime while under the age of majority (i.e., 18 years)—​while not categorically precluding the death penalty for people with SMI. According to the Death Penalty Information Center, only Connecticut has a law that exempts someone from execution if the person’s “mental capacity was significantly impaired or ability to conform conduct to the requirements of law was significantly impaired” (Death Penalty Information Center, n.d., p. 3). Other states, including Kentucky, Indiana, and North Carolina, have considered such laws but have not passed them (Death Penalty Information Center, n.d., p. 3).

Individuals With SMI at Higher Risk of Involvement with the Criminal Justice System

Individuals suffering from mental illness are overrepresented in the criminal justice system (Cloud & Davis, 2013; Human Rights Watch, 2009; Johnston, S e r i o u s M e n ta l I l l n e s s a n d C r i m i n a l J u s t i c e  

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2017). A  large percentage of incarcerated individuals have current or recent mental health symptoms—​56% of state prisoners and 45% of federal prisoners (Cloud & Davis; 2013; Bureau of Justice Statistics, 2017; Lamb & Weinberger, 2017). While about half of the individuals in jail or prison suffer from some form of mental health issue, it is estimated that those individuals in jail and prisons with SMI is between 10% and 25% (American Psychological Association, 2014; Lamb & Weinberger, 2017). There are many factors that have led to the criminalization of persons with SMI (American Psychological Association, 2014; Lamb & Weinberger, 2017). Included in these factors are deinstitutionalization, the process by which large numbers of individuals with mental illness were released into the community after being discharged from large psychiatric institutions (Lamb & Weinberger, 2017). This process resulted in large-​scale psychiatric hospital closures and reduction in bed space for these individuals (Lamb & Weinberger, 2017). The premise behind community integration and community-​based services for those with mental health issues and intellectual disabilities is in line with the values of social work. However, the lack of planning, funding, and resource allocation to community mental health endeavors combined with community resistance to mental health treatment facilities have led to a lack of appropriate and effective services for individuals with SMI (Lamb & Weinberger, 2017). Many individuals with SMI can function and live a prosocial life within the community; however, some individuals with SMI are at a high risk for engaging in behavior that would be considered criminal (Lamb & Weinberger, 2017). The individuals with SMI at greatest risk include (a) those who do not believe they have a mental illness; (b) those who are nonadherent to psychiatric treatment, including medication; (c) those who may have severe acute psychotic symptoms and comorbid substance abuse issues; (d) those who may become violent when under extreme stress; and (e)  those who have shown less potential or desire for recovery (Lamb & Weinberger, 2017). Additionally, there is research showing that providers may not engage people with SMI in community mental health services due to bias or assumptions that these clients do not want treatment, or that working with them is difficult and undesirable (Pope, Smith, Wisdom, Easter, & Pollack, 2013). Although many individuals in prison suffer from mental health issues, prisons are not equipped to address these needs appropriately (Human Rights Watch, 2009; Pope et al., 2013). Many times, mental health services in prisons are understaffed and have limited programs or inadequate facilities (Cloud & Davis, 2013). As a result, many prisoners suffering from SMI will not receive any treatment or effective treatment that leads to stability and progress for reintegration within the community (Cloud & Davis, 2013; Human Rights Watch, 2009; Pope et al., 2013). Even with many well-​trained and committed mental health professionals in corrections, there are several barriers that [ 162 ]  Social Work Considerations

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impede meeting the needs of their patients (Human Rights Watch, 2009). Many of these barriers stem from large caseloads, institutional cultures that do not value or prioritize mental health services, and a basic physical environment and space that is not conducive to therapeutic gains (Cloud & Davis, 2013; Human Rights Watch, 2009). Although there have been several attempts for improved mental health services within prisons, the system is overwhelmed and cannot handle the number of individuals with psychiatric issues that are flooding the prisons (Cloud & Davis, 2013; Human Rights Watch, 2009; Pope et al., 2013). Prison can have a detrimental impact on a person who has no previous mental health issues, and when someone with SMI diagnosis is incarcerated, the impact on their mental health can be devastating (Human Rights Watch, 2009; Johnston, 2017; Lamb & Weinberger, 2017). Prisoners with SMI may be punished and segregated from the general population for behavior associated with their mental illness (Cloud & Davis, 2013; Human Rights Watch, 2009). Extended confinement and isolation from the general population can be psychologically harmful to any prisoner and can produce “anxiety, depression, anger, cognitive disturbances, perceptual distortions, obsessive thoughts, paranoia, and psychosis” (Human Rights Watch, 2009, p. 3). The risk of harm is especially severe for prisoners who already have SMI, and this stress and lack of beneficial social contact and unstructured time can worsen and exacerbate symptoms of their mental illness (Human Rights Watch, 2009). This exacerbation of symptoms can lead to decompensation while in isolation and require psychiatric hospitalization (Cloud & Davis, 2013; Human Rights Watch, 2009). Pope et  al. (2013) interviewed individuals with SMI and a history of incarceration and found several common themes. Some of these prominent themes included (a) the criminal justice environment and all its components were stressful; (b)  the mental health services in jail and prison were inconsistent and unpredictable; and (c) there were multiple challenges to re-​entry into the community after incarceration (Pope et al., 2013). One major challenge faced by individuals with SMI upon re-​entry was release into unstable housing situations, which subsequently led to drug use and or the inability to maintain or obtain mental health services (Pope et al., 2013). Several factors increase the chances of an individual with SMI encountering the criminal justice system. Many of these individuals receive inadequate, ineffective care in the community, which may lead to exacerbated mental health symptoms and criminalized behavior. Once incarcerated, these individuals suffer severe consequences from the stressful environment and the inadequate and inconsistent mental health treatment, all which perpetuate and exacerbate features of their mental illness (Lamb & Weinberger, 2017; Pope et al., 2013). Upon release into the community, there are limited services that provide the necessary mental health counseling and medications, structure, housing, financial opportunities, and follow-​up to assist these individuals in S e r i o u s M e n ta l I l l n e s s a n d C r i m i n a l J u s t i c e  

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their recovery and prosocial community engagement (Lamb & Weinberger, 2017). As a result of the lack of resources, these individuals are at a high risk of reoffending and continuing to cycle in and out of the criminal justice system (i.e., recidivism).

Individuals With SMI at Higher Risk of More Severe Sentencing

In addition to being at higher risk of incarceration in general, people with SMI are differentially vulnerable to pressures experienced during the arrest and trial process, which leads them to being at higher risk of severe sentencing. This is true throughout the process that leads to conviction, beginning at the time of arrest. Research has shown that only 10% of people with SMI have a good understanding of their Miranda rights and therefore not know they can ask for a lawyer or remain silent (Viljoen, Roesch, & Zapf, 2002). In addition, people with SMI often have trouble being assertive and organized in their arguments and therefore may struggle to demand their rights during an arrest. Finally, research has shown that people with SMI are more vulnerable to false confession, accounting for about one third of all false confessions (Drizin & Leo, 2004). During trial, people with SMI may have difficulty in helping with their own defense. Confusion or problems with communication can make them poor witnesses, and paranoia or delusions can make them unwilling to cooperate with their lawyers or demand to represent themselves. Depressive symptoms can lead them to forego appeals or even request the death penalty (Blume, 2004). At sentencing, the jury frequently considers issues of future dangerousness; therefore, the myth of the brutal and dangerous mentally ill may influence a death penalty sentence. In addition, juries consider remorse in sentencing, but psychotropic medications can make a person flat, unemotional, and nonresponsive, which can be mistaken for apathy and lack of remorse. (American Bar Association Death Penalty Due Process Review Project, 2016). In fact, while lawyers often try to use mental illness as a mitigating factor, it has been found to harm defendants as frequently as help them and is seen as an aggravating factor as often as a mitigating factor (Mangels, 2017). A recent book entitled, Deadly Justice: A Statistical Portrait of the Death Penalty, examined the prevalence of mental illness among people executed in the United States between 2000 and 2015 and came to some shocking conclusions (Baumgartner, Davidson, Johnson, Krishnamurthy, & Wilson, 2017)Using rigorous chart review criteria, which only counted an incarcerated person as having SMI if there was credible source material from testimony, they found that 43% of individuals executed had a mental health diagnosis. This is in comparison to the public, where approximately four percent of the population has an SMI. They also examined death row volunteers (i.e., individuals [ 164 ]  Social Work Considerations

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who did not appeal and who agreed to execution) and found that 32.2% had attempted suicide and failed before being executed. The overall rate of mental illness among these volunteers was 63%. Given the link between trauma and some mental illness, the authors also examined trauma histories in executed individuals and found a nearly fourfold increase over the public (39.7 % vs. 10 %). The authors summarize their findings: “Our research suggests that the death penalty actually targets those who have a mental illness” (Baumgartner & Neill, 2017).

EXISTING PROTECTIONS FOR PEOPLE WITH SMI ARE INEFFECTIVE

The American Bar Association (2016), Mental Health America (2016), the National Alliance on Mental Illness (2018), and numerous other organizations support and advocate for a death penalty exemption for people with SMI. One question that is often raised in these discussions is why this exemption is needed, since there are multiple other policies to protect people with SMI from the death penalty. It is true that these protections exist, but they are limited and imperfect at best. As previously noted, over 100 people with SMI have been executed in this country since 1977; clearly, the existing protections are not working.

Competency

The principle that a person must be competent to stand trial is an old one, going back to early American legal processes. It is often erroneously presumed that people with SMI will be found incompetent to stand trial. Competency to stand trial is based on the person’s mental state at the time of trial, not at the time of the crime, with the argument being that defendants must be competent to assist in their own defense (Dusky v. United States, 1960). If a defendant is found incompetent, they are taken to a medical facility and provided treatment until they are determined to be competent, and then they will face charges and sentencing. Therefore, someone who was actively mentally ill at the time of a crime, but who has received treatment and is now stable will proceed to trial and will not be protected from imposition of the death penalty.

Insanity

A second way many assume a person with SMI can avoid the death penalty is by using the insanity defense and pleading not guilty by reason of insanity. S e r i o u s M e n ta l I l l n e s s a n d C r i m i n a l J u s t i c e  

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This policy posits that an individual can be so mentally ill at the time of committing a crime that they should be absolved of culpability. In English and U.S.  common law, culpability requires both actus reus, or a guilty/​wrongful act, and mens rea, or a guilty mind. Someone who is insane cannot have mens rea and therefore should not be considered culpable (Beecher-​Monas & Garcia-​Rill,  2017). Multiple challenges exist with not guilty by reason of insanity. This law varies state by state in the United States, with varied definitions of insanity. It is important to note that in all cases, insanity and mental illness are not synonymous. First, the term insanity is a legal construct and is not recognized clinically, whereas the term mental illness (e.g., psychosis) is a clinically accepted construct and classification with implications for treatment intervention and insurance reimbursement. A person with SMI can have an SMI and yet not be considered insane under state statutes. The most common definition of insanity is referred to as the M’Naughten rule, which states that a person is insane if he or she “did not know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong” (Mangels, 2017, p. 10). Some states use a somewhat broader definition based on the Model Penal Code, which says a person is not responsible if at the time of the crime, the person who stands accused, “as a result of mental disease or defect . . . lacks substantial capacity to either to appreciate the criminality of his [sic] conduct or to conform his [sic] conduct to the requirements of the law” (American Bar Association Death Penalty Due Process Review Project, 2016, p. 20). These are very narrow definitions of insanity. Under these definitions, someone who killed a person because of psychotic delusions of grandeur where they believed they were above the law would not be found not guilty by reason of insanity. As a result, not guilty by reason of insanity is seldom used and even more seldom is it successful. Nationally, the defense pleads not guilty by reason of insanity in only 1% of criminal cases, and of these, only 25% are successful. Individuals found not guilty by reason of insanity are sentenced to a psychiatric institution until such time as they are deemed cured of their disorder (American Bar Association Death Penalty Due Process Review Project, 2016, p. 21). At this point, individuals will be charged and sentenced.

The Case of Scott Panetti

The standard for competence is defined as “the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . rational as well as factual understanding of the proceedings against him” (Dusky v. United States, 1960). The standard for competence

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has been variably applied, often egregiously so. One example of this is the case of Scott Panetti, a man with a long history of paranoid schizophrenia who killed his former in-​laws in 1992. In 1995, Panetti was determined to be competent to stand trial because he understood that he was on trial and understood the basics of court proceedings. Panetti demanded the right to represent himself and pled not guilty by reason of insanity. He engaged in a long, rambling, and barely coherent defense, and he called over 200 witnesses to the stand, including Jesus, the Pope, and John F. Kennedy, all while wearing a cowboy costume and a purple bandana. Panetti was found guilty of murder and sentenced to death. His case has been appealed multiple times, and as of this writing, he is still on death row (Amnesty International, 2006).

The Case of Kelsey Patterson

Competency to be executed rests on a definition of competency that is both vague and narrow and varies from state to state. In general, competency requires that the person “not have the mental capacity to understand the nature of the death penalty and why it was imposed upon the convict [sic]” (Ohio Justice and Policy Center, 2015, p. 4). As with other concepts discussed throughout this chapter, “not competent to be executed” is interpreted and applied in ways that can baffle and horrify. One of the most egregious examples is the case of Kelsey Patterson. Patterson had a long history of schizophrenia and, in prior assaults, had been found incompetent to stand trial. In 1992 he shot and killed a business owner and the business owner’s secretary; then stripped down to his socks, paced and mumbled incoherently; and waited for the police to arrive. He was found competent to stand trial. As well, the jury rejected Patterson’s defense of not guilty by reason of insanity, and he was subsequently found guilty and sentenced to death. While on death row, Patterson continued a pattern of delusional ideation, believing he had a “permanent stay of execution” and could not be killed. He was executed in 2004. (American Bar Association Death Penalty Due Process Review Project, 2016).

The Case of Charles Singleton

A similarly tragic case is that of Charles Singleton, who suffered from schizophrenia and committed a murder. While on death row, he continuously expressed the belief that his victim was alive and that his jail cell was full of demons. The court determined that he could be forcibly medicated. The medications effectively rendered Singleton as presenting competent enough to stand trial and he was executed (Death Penalty Information Center, n.d.).

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Mitigating Evidence

An additional and final policy that is thought to be protective for people with SMI is the ability to introduce mitigating factors related to mental illness during the sentencing phase. However, as previously noted, stigma about mental illness may make a jury view someone with SMI as more dangerous and therefore worthy of the death penalty, rendering the mitigating evidence counterproductive (Ohio Justice and Policy Center, 2015). As mitigation is the focus of two other chapters in this book, this will be the extent to which mitigating evidence discussed here.

DISCUSSION

Applying the death penalty to individuals with SMI is a tremendous violation of social justice and one that should deeply concern social workers. Individuals with SMI and their families often struggle to access appropriate and effective mental health services and are at risk of instability and symptomatology as a result of our inadequate service system. Individuals with SMI are at higher risk of involvement with the criminal justice system and at greater risk of more severe sentencing. People with SMI may commit awful crimes but not be fully culpable for their actions due to their mental illness. Some response, for the protection of the public, such as imprisonment and treatment, is necessary. However, sentencing people with SMI to the most severe form of punishment (i.e., death) is unjust. It serves no purpose—​neither retribution not deterrence. This begs the question, What should social workers do?

IMPLICATIONS FOR SOCIAL WORK

Social workers need to take on the responsibility for educating lawmakers, community members, those in the criminal justice system, and other practitioners about the multiple levels of injustice and inequity surrounding individuals with SMI and the criminal justice system. These issues range from inadequate and inconsistent treatment in the community, as well as in the jails and prisons, to the differential sentencing practices and unreasonable use of the death penalty. Individuals with SMI involved in the criminal justice system are one of the most vulnerable and marginalized populations in society and social workers need to advocate for change in the current practices with sentencing and death penalty usage. Additionally, social workers need to advocate for more extensive and effective prevention efforts. Social workers must find ways to acquire and implement successful preventative mental health measures focused on diverting SMI individuals from [ 168 ]  Social Work Considerations

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incarceration. Although there are several initiatives in the community focused on addressing mental health needs for those with SMI, these services have not been extensively effective in keeping these individuals out of the criminal justice system (Lamb & Weinberger, 2017). Many of these services are not adequate for the high need population who recidivate in the criminal justice system. Lamb and Weinberger (2017) suggest that for these individuals to be treated effectively in the community, there should be (a) a balance between treatment that focuses on both community safety and individual rights; (b) a close liaison between the court or monitoring agency; and (c) an importance placed on structure and oversight of these individuals. More emphasis needs to be focused on research showing what types of services are effective and appropriate (Robst, Constantine, Andel, Boaz, & Howe, 2011). There needs to be major shift in how providers work with and engage with these individuals in community treatment. One method for moving toward this change can be the prioritizing of specialized training and skill development of social workers and other providers who work with these individuals (Pope et al., 2013; Lamb & Weinberger, 2017). There should be more interdisciplinary collaborations between social workers and lawyers to address the issues of SMI and the inequitable treatment and sentencing of these individuals. Additionally, social workers should partner with National Alliance on Mental Illness and other organizations that can assist in educating those in the criminal justice system and those responsible for imparting punitive measures for these individuals. Also, educating family and friends of individuals with SMI who are at risk of criminal justice involvement is imperative and should be the first line of defense in prevention. There has also been a push to help educate and train law enforcement on how to address those with SMI (Compton et al., 2017). More evaluation and continued implementation of these programs and initiatives is needed to assist in reducing recidivism and assisting individuals with SMI in accessing appropriate services. Another avenue of prevention is through the utilization of treatment courts (James & Glaze, 2016). However, the services and utilization of these courts needs to be more extensive and more in-​depth evaluation of their success needs to occur (Hodges & Anderson, 2006; Tyuse & Lindhorst, 2005). The way to even begin addressing the overrepresentation of individuals with SMI in criminal justice settings and the unjust sentencing of these individuals should through a holistic community approach to prevention, education, and advocacy.

REFERENCES American Bar Association. (2006). Mental illness resolution 122-​A. Retrieved from https://​www.americanbar.org/​groups/​committees/​death_​penalty_​representation/​resources/​dp-​policy/​mental-​illness-​2006/​

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American Bar Association Death Penalty Due Process Review Project. (2016). Severe mental illness and the death penalty. Retrieved from https://​www.americanbar. org/​ g roups/​ c rsj/​ p rojects/​ d eath_​ p enalty_ ​ d ue_ ​ p rocess_ ​ r eview_ ​ p roject/​ serious-​mental-​illness-​initiative-​/​ American Psychological Association. (2009). Assessment and treatment of serious mental illness, Retrieved from https://​www.apa.org/​practice/​resources/​smi-​proficiency. pdf American Psychological Association. (2014). Incarceration nation. Monitor on Psychology, 45(9). Retrieved November 22, 2018, from http://​www.apa.org/​ monitor/​2014/​10/​incarceration.aspx Amnesty International. (2006). United States of America: The execution of mentally ill offenders. Index no. AMR 51/​003/​2006. Retrieved from https://​www.amnesty. org/​en/​documents/​AMR51/​003/​2006/​en/​ Baumgartner, F., Davidson, M., Johnson, K., Krishnamurthy, A., & Wilson, C. (2017). Deadly justice: A statistical portraying of the death penalty. New York, NY: Oxford University Press. Baumgartner, F., & Neill, B.  (2017, April 3). Does the death penalty target people who are mentally ill? We checked. The Washington Post. Retrieved from https://​ www.washingtonpost.com/​news/​monkey-​cage/​wp/​2017/​04/​03/​does-​the-​ death-​penalty-​target-​people-​who-​are-​mentally-​ill-​we-​checked/​?utm_​term=. bb8c68c79c7f Bureau of Justice Statistics. (2017). Indicators of mental health problems reported by prisoners and jail inmates, 2011-​2012. Retrieved from https://​www.bjs.gov/​ index.cfm?ty=pbdetail&iid=5946 Beecher-​Monas, E., & Garcia-​Rill, E. (2017). What do volition and intent really mean. Kentucky Law Journal, 106, 265–​314. Blume, J.  (2004, September 15). Killing the willing:  “Volunteers,” suicide and competency. Scholarship@Cornell Law: A Digital Repository. Retrieved from https://​ scholarship.law.cornell.edu/​cgi/​viewcontent.cgi?article=1015&context=lsrp_​ papers Cloud, D., & Davis, C.  (2013, February). Treatment alternatives to incarceration for people with mental health needs in the criminal justice system: The cost-​savings implications. Vera Institute of Justice. Retrieved from https://​www.vera.org/​ publications/​treatment-​alternatives-​to-​incarceration-​for-​people-​with-​mental-​ health-​needs-​in-​the-​criminal-​justice-​system-​the-​cost-​savings-​implications Compton, M. T., Halpern, B., Broussard, B., Anderson, S., Smith, K., Ellis, S., . . . Myers, N. (2017). A potential new form of jail diversion and reconnection to mental health services:  Stakeholders’ views on acceptability. Behavioral Sciences & the Law, 35(5–​6), 480–​491. Death Penalty Information Center. (n.d.). Legislation limiting the execution of individuals with mental illness. Retrieved from https://​deathpenaltyinfo.org/​ mental-​illness-​and-​death-​penalty. Drizin, S., & Leo, R. (2004). The problem of false confessions in the post-​DNA world. North Carolina Law Review, 82, 891–​1008. Dusky v. United States, 362 U.S. 402 (1960). Ford v. Wainwright, 477 U.S. 399 (1986). Hodges, J., & Anderson, K. (2006). What do social workers need to know about mental health courts? Social Work in Mental Health, 4,  17–​30. Human Rights Watch. (2009, September 22). Mental illness, human rights, and US prisons:  Human Rights Watch statement for the record Senate Judiciary

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Committee Subcommittee on Human Rights and the Law. Retrieved from https://​ www.hrw.org/​news/​2009/​09/​22/​mental-​illness-​human-​rights-​and-​us-​prisons Izutsu, L. (2005). Applying Atkins v. Virginia to capital defendants with severe mental illness. Brooklyn Law Review, 70, 995–​1042. James, D. J., & Glaze, L. E. (2006). Highlights mental health problems of prison and jail inmates. Bureau of Justice Statistics Special Report. Retrieved from https://​www. bjs.gov/​content/​pub/​pdf/​mhppji.pdf Johnston, E. L. (2017). Retributive justifications for jail diversion of individuals with mental disorder. Behavioral Sciences & the Law, 35(5–​6), 396–​407. Lamb, H. R., & Weinberger, L. E. (2017). Understanding and treating offenders with serious mental illness in public sector mental health. Behavioral Sciences & the Law, 35(4), 303–​318. Mangels, A. (2017, Fall). Should individuals with severe mental illness continue to be eligible for the death penalty? Criminal Justice, 32(3),  9–​14. Mental Health America. (2016, June 14). Board of directors position statement 54: Death penalty and people with mental illnesses. Retrieved from http://​www. mentalhealthamerica.net/​positions/​death-​penalty National Institute of Mental Health. (n.d.). Mental illness. Retrieved from https://​ www.nimh.nih.gov/​health/​statistics/​mental-​illness.shtml National Alliance on Mental Illness. (2018). Death penalty. Retrieved from https://​ www.nami.org/​Learn-​More/​Mental-​Health-​Public-​Policy/​Death-​Penalty Ohio Justice and Policy Center. (2015). Serious mental illness and the death penalty. Retrieved from http://​www.ohiojpc.org/​what-​we-​do/​community-​education/​ resources/​ Pope, L. G., Smith, T. E., Wisdom, J. P., Easter, A., & Pollock, M. (2013). Transitioning between systems of care: missed opportunities for engaging adults with serious mental illness and criminal justice involvement. Behavioral Sciences & the Law, 31(4), 444–​456. Robst, J., Constantine, R., Andel, R., Boaz, T., & Howe, A. (2011). Factors related to criminal justice expenditure trajectories for adults with serious mental illness. Criminal Behaviour and Mental Health, 21(5), 350–​362. Roper v. Simmons, 543 U.S. 551 (2005). Sundby, S. (2014). The legacy of Atkins and Roper. William & Mary Bill of Rights Journal, 23, 487–​528. Tyuse, S., & Lindhorst, D. (2005). Drug courts and mental health courts: Implications for social work. Health & Social Work, 30, 233–​240. Viljoen, J., Roesch, R., & Zapf, P. (2002). An examination of the relationship between competency to stand trial, competency to waive interrogation rights, and psychopathology. Law and Human Behavior, 26, 481–​506.

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CHAPTER 14

Intellectual Disability, Criminal Justice, and the Death Penalty CLIFF SLOAN AND L AURYN FR AA S

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n the landmark decision Atkins v. Virginia (2002), the U.S. Supreme Court ruled that the Eighth Amendment of the U.S. Constitution prohibits the execution of persons with intellectual disability. The Court explained that persons with intellectual disability act with diminished moral culpability due to “their disabilities in areas of reasoning, judgment, and control of their impulses” (p. 306). Moreover, “their impairments can jeopardize the reliability and fairness of capital proceedings” and place such individuals at “special risk of wrongful execution” (pp.  306–​307, 321). Finally, a “national consensus” has emerged against executing individuals with intellectual disability (p. 316). Accordingly, while individuals with intellectual disability may be convicted and imprisoned, they may not be executed (p.  321). In Atkins (2002), the Court explicitly relied upon the then-​current clinical and medical standards of the American Psychiatric Association (APA) and the American Association on Intellectual and Developmental Disabilities (AAIDD). The AAIDD was known at that time as the American Association on Mental Retardation. The Court also noted that states have “the task of developing appropriate ways to enforce the constitutional” prohibition against executing individuals with intellectual disability (Atkins v. Virginia, 2002, p. 317). A few states, such as Florida and Texas, then disregarded current clinical and medical standards of intellectual disability and developed their own nonclinical criteria. The Supreme Court has consistently rejected such an approach. The most important decisions in this area are Hall v.  Florida (2014) and Moore v. Texas (2017). The case of Hall (2014) concerned the constitutionality Cliff Sloan and Lauryn Fraas,Intellectual Disability, Criminal Justice, and the Death PenaltyIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0015

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of a Florida law that foreclosed “all further exploration of intellectual disability” if an individual was “deemed to have an IQ above 70”—​including a 71, even though that strict cut-​off conflicted with clinical standards (Hall v. Florida, 2014, p. 704). Emphasizing that intellectual disability “is a condition, not a number,” the Supreme Court explained that, in “determining who qualifies as intellectually disabled, . . . [the] medical community’s opinions” play an important role (pp.  710, 723). As in Atkins (2002), the Court looked to the latest versions of the APA and AAIDD clinical standards (Hall v. Florida, 2014, pp. 709–​711). The Court ruled that Florida’s rigid rule erroneously “disregard[ed] established medical practice in two interrelated ways” (p. 712). First, the rule took “an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence” (p. 712). Second, it treated an IQ test score as “a single fixed number” instead of a “range” by disregarding the standard error of measurement associated with the score. (pp. 712–​713). In Moore (2017), the U.S. Supreme Court likewise emphasized the role of medical and clinical standards. Rather than using current standards, the Texas court had clung to a superseded standard published in 1992, as well as several controversial nonclinical evidentiary factors (i.e., the Briseno factors; p. 1044). The Supreme Court explained that while states have “some flexibility” in assessing claims of intellectual disability, the “medical community’s current standards supply one constraint on States’ leeway in this area”; Supreme Court precedent does not “license disregard of current medical standards” (pp. 1049, 1052–​1053). The U.S. Supreme Court found that the Texas court erroneously departed from current medical standards. With respect to intellectual functioning (i.e., the first prong of an intellectual disability diagnosis), Texas’s decision to disregard “the lower end of the standard error-​range” of the defendant’s IQ score of 74 impermissibly conflicted with clinical understanding (Moore v. Texas, 2017, pp.  1049–​1050). The Texas court’s consideration of adaptive behavior (i.e., the second prong of an intellectual disability diagnosis) also deviated from current medical standards and rested instead on lay stereotypes. The Texas court “overemphasized Moore’s perceived strengths” rather than the “deficits” on which “the medical community focuses”; “stressed Moore’s improved behavior in prison” even though clinical standards “caution against reliance on adaptive strengths developed ‘in a controlled setting’ ” such as prison; used risk factors for intellectual disability (such as academic failure and childhood abuse) to “detract . . . from a determination that his intellectual and adaptive deficits were related”; and “departed from clinical practice by requiring Moore to show that his adaptive deficits were not related to ‘a personality disorder’ ” (pp. 1049–​1051). The Supreme Court also ruled that Texas’s use of its nonclinical, lay-​stereotype Briseno factors was unconstitutional—​a point on which the Court was unanimous (pp.  1051–​1053). The Briseno factors were not I n t e l l e c t ua l Di s a b i l i t y a n d C r i m i n a l J u s t i c e  

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“aligned with the medical community’s information” on intellectual disability and instead “advanced lay perceptions of intellectual disability” (pp.  1044, 1051). The Supreme Court set aside the Texas decision because it “failed adequately to inform itself of the ‘medical community’s diagnostic framework’ ” (Hall v. Florida, 2014, p. 721, as cited in Moore v. Texas, 2017, p. 1053). On remand, the Texas court then again denied Moore’s Atkins claim—​even though the prosecutor now agreed with the defense that Moore was a person with intellectual disability and could not be executed. But the U.S. Supreme Court summarily reversed (referred to as Moore II; Moore v. Texas, 2019). The Court explained that the Texas court’s new decision conflicted with the U.S. Supreme Court’s prior decision in Moore (2017). It emphasized several fundamental defects: the Texas court “again relied less upon the adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths”; it “relied heavily upon adaptive improvements made in prison” and failed to heed the Supreme Court’s “caution against relying on prison-​based development”; it improperly required Moore to show that the “cause of [his] deficient social behavior was related to any deficits in general mental abilities rather than ‘emotional problems,’ ” when “a personality disorder or mental-​ health issue is ‘not evidence that a person does not also have intellectual disability’ ”; and it continued to use its nonclinical Briseno factors, despite the Texas court’s claim to the contrary (pp. 670–​671). Concluding that the Texas decision “rest[ed] upon analysis too much of which too closely resembles what we previously found improper,” the Supreme Court determined that “on the basis of the trial court record, Moore has shown he is a person with intellectual disability” (p. 672). The Court thus strongly reaffirmed its adherence to the clinical framework in evaluating Atkins (2002) claims.

MEDICAL AND CLINICAL DIAGNOSTIC CRITERIA ON INTELLECTUAL DISABILITY

In considering intellectual disability and the death penalty, the U.S. Supreme Court has consistently looked to the latest versions of the APA’s (2013) Diagnostic and Statistical Manual of Mental Disorders (DSM) and the AAIDD’s Definition Manual on Intellectual Disability (AAIDD manual) and its user’s guide. As the Court has explained, “current manuals offer ‘the best available description of how mental disorders are expressed and can be recognized by trained clinicians’ ” and reflect “improved understanding over time” (Moore v. Texas, 2017, p.1053). Those materials thus should provide a foundation for Atkins (2002) claims and expert opinions. The medical and clinical standards provide that diagnosis of intellectual disability is based on an assessment of three criteria: (a) deficits in intellectual functioning; (b) deficits in adaptive behavior; and (d) the onset of the deficits during the development period. All [ 174 ]  Social Work Considerations

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three must be met for a finding of intellectual disability and exemption from the death penalty.

Prong 1: Def icits in Intellectual Functioning

This prong is usually satisfied if a defendant has a valid IQ score of 75 or below. As the fifth edition of the DSM (DSM-​5) explains, individuals with intellectual disability “have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error” which generally “involves a score of 65-​75” (APA, 2013, p. 37). Similarly, the AAIDD Manual stipulates:  “The ‘significant limitations in intellectual functioning’ criterion for a diagnosis of intellectual disability is an IQ score . . . approximately two standard deviations below the mean, considering the standard error of measurement for the specific instruments used and the instruments’ strengths and limitations” (Schalock et al., 2010). Accordingly, courts look to a defendant’s IQ score to determine whether the first prong has been satisfied.

Prong 2: Def icits in Adaptive Behavior

Courts must also analyze a defendant’s deficits in adaptive behavior (also referred to as adaptive functioning). This prong focuses on the limitations in an individual’s adaptive behavior in everyday life, assessed across three domains—​conceptual, social, and practical. According to the AAIDD manual, conceptual skills include “language; reading and writing; and money, time, and number concepts.” Social skills include “interpersonal skills, social responsibility, self-​esteem, gullibility, naivete (i.e., wariness), follows rules/​obeys laws, avoids being victimized, and social problem solving.” Practical skills include “activities of daily living (personal care), occupational skills, use of money, safety, health care, travel/​transportation, schedules/​routines, and use of the telephone” (Schalock et al., 2010, p. 44). This prong is satisfied “when at least one domain of adaptive functioning—​ conceptual, social, or practical—​is sufficiently impaired that ongoing support is needed in order for the person to perform adequately in one or more life settings at school, at work, at home, or in the community” (APA, 2013, p. 38). Experienced and competent clinicians should utilize standardized measures (Schalock et  al., 2010). Accordingly, “when such standardized measures are used, significant limitations in adaptive behavior are defined as performance approximately two standard deviations below the population mean” (p. 43). The DSM-​5 provides an illustrative list of potential adaptive deficits. It includes “difficulties in learning academic skills involving reading, writing, arithmetic, time or money”; impaired “abstract thinking, executive function  .  .  .  and I n t e l l e c t ua l Di s a b i l i t y a n d C r i m i n a l J u s t i c e  

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short term memory”; “difficulties regulating emotion and behavior in age-​ appropriate fashion”; and the need for support “with complex daily living tasks in comparison to peers” including areas such as “grocery shopping [and] transportation” (APA, 2013, p. 34). Deficits in adaptive behavior are identified through a review of the defendant’s social, medical, and education history, as well as through clinical assessment and standardized testing (Schalock et al., 2010, pp. 47–​55, 94–​96). Lastly, according to the DSM-​5, assessment of adaptive behavior uses “both clinical evaluation and individualized, culturally appropriate, psychometrically sound measures” (APA, 2013, pp. 37–​38).

Prong 3: Age of Onset

The age of onset prong requires that an individual’s deficits manifest during the developmental period. The DSM-​5 (APA, 2013)  requires onset “during the developmental period” (p.  33), and the AAIDD (2010) manual requires onset “before age 18” (p. 1). Generally, this element is satisfied through school records, childhood medical and mental health records, and information from knowledgeable informants regarding intellectual and adaptive deficits during the individual’s childhood and adolescence (APA, 2013) . A diagnosis before age 18 is not required (Schalock et al., 2010, p. 27). The AAIDD (2010) manual (pp.  95–​96) discusses special considerations for a retrospective diagnosis. The age of onset requirement distinguishes intellectual disability from other neurocognitive disabilities. An expert’s diagnosis is based on both clinical assessment and standardized testing of intellectual and adaptive functions as well as a social, medical, and educational history of the individual (APA, 2013, p. 37). In Atkins (2002) litigation, this evidence generally includes the testimony of expert witnesses. Social workers can play a significant role in Atkins litigation by assisting lawyers, experts, and other stakeholders in constructing a thorough social and educational history of the claimant and in establishing relationships with key informants (such as family members, teachers, neighbors, and employers) to ensure that all pertinent evidence is considered and presented. Social workers may also help lawyers and other stakeholders understand the diagnostic features of intellectual disability and ensure that current medical and clinical guidance is being properly applied. In addition, social workers can play an important role in ensuring that the defendant receives appropriate support.

PROCEDURAL VARIATIONS IN ATKINS LITIGATION

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the sole decider of whether the defendant has established that he or she is a person with intellectual disability. In other states, both the judge and the jury play a role in Atkins litigation, with the court making pretrial determinations and the jury deciding the issue during sentencing. In all states, capital defendants bear the burden of proving that they are a person with intellectual disability. Most states require a defendant to prove that he or she is intellectually disabled by a preponderance of the evidence. Some states, however, impose a higher standard of proof, such as clear and convincing evidence of intellectual disability. Georgia’s standard is the most extreme:  uniquely, it requires defendants to prove intellectual disability beyond a reasonable doubt. Most death penalty cases involve state capital defendants. In cases involving federal capital defendants, federal case law should be consulted on these issues.

RECURRING ISSUES IN ATKINS LITIGATION

This section provides an overview of some common issues in current Atkins (2002) litigation. Social workers can play an important role by, among other things, dispelling incorrect lay stereotypes about persons with intellectual disability; educating stakeholders about the mixed competencies of persons with intellectual disability; and ensuring that proper medical and clinical standards are applied. A discussion of recurring issues follows beginning with the troubling role of negative stereotypes.

Stereotypes of Persons with Intellectual Disability

Clinicians recognize that “incorrect stereotypes” about persons with intellectual disability “can interfere with justice” (AAIDD, 2010, p.  26). Some of these erroneous stereotypes include misunderstandings that persons with intellectual disability:  “look and talk differently from persons from the general population”; “cannot do complex tasks”; “cannot get driver’s licenses, buy cars, or drive cars”; “do not (and cannot) support their families”; “cannot romantically love or be romantically loved”; and “are characterized only by limitations and do not have strengths that occur concomitantly with the limitations” (Schalock et al., 2010, p. 26). These erroneous stereotypes are refuted by professionals in the field and by published literature and studies (Schalock et al., 2010). Nevertheless, these harmful stereotypes unfortunately have continued to play a significant role in Atkins (2002) litigation. To take one prominent example, until 2017, the Texas Court of Criminal Appeals used seven nonclinical “evidentiary factors” that it had derived from lay stereotypes of persons I n t e l l e c t ua l Di s a b i l i t y a n d C r i m i n a l J u s t i c e  

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with intellectual disability and from the fictional character Lennie in John Steinbeck’s Of Mice and Men (Ex parte Briseno, 2004). While the Supreme Court struck down Texas’s use of its nonclinical Briseno factors as unconstitutional in the Moore (2017) decision, lay stereotypes of people with intellectual disability often have influenced Atkins litigation. Indeed, one survey found that certain courts have ruled that capital defendants did not have sufficient deficits in adaptive behavior because the defendant:  “(1) could read, write, and perform some rudimentary math; (2) had friends; (3) was able to maintain his personal hygiene; (4) drove a car on occasion; (5) was appropriately groomed and possessed a driver’s license; and (6)  maintained relationships with women” (Blume, Johnson, Marcus, & Paavola, 2014). By understanding the characteristics of persons with intellectual disability, social workers can assist in dispelling harmful lay stereotypes of individuals with intellectual disability.

The Weighing of Perceived Adaptive Strengths Against Weaknesses

Under medical standards, the adaptive behavior inquiry focuses on the things that an individual cannot do in everyday life without adequate support. Importantly, this inquiry does not focus on a balancing of perceived adaptive strengths against adaptive deficits. Indeed, individuals “with an [intellectual disability] typically demonstrate both strengths and limitations in adaptive behavior” (Schalock et al., 2010, p. 47). Accordingly, “significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills” (APA, 2013, p. 33). The Supreme Court emphasized this clinical precept in Moore (2017). It rejected the Texas court’s approach, which weighed the defendant’s purported strengths—​including that the defendant “lived on the streets, mowed lawns, and played pool for money”—​against “the considerable objective evidence of [the defendant]’s adaptive deficits” (Moore v. Texas, 2017, p. 1050). Explaining that “the medical community focuses the adaptive-​ functioning inquiry on adaptive deficits,” the Supreme Court ruled that the state court erred in “overemphasiz[ing] [the defendant]’s perceived adaptive strengths” in its adaptive-​behavior inquiry (p.  1050). In light of the Supreme Court’s clear guidance on this issue, Atkins (2002) litigants must ensure that a defendant’s purported strengths are not used to undermine or outweigh documented deficits in the adaptive behavior inquiry. Particularly in light of harmful lay stereotypes, social workers can play an important role in educating about the mixed competencies of persons with intellectual disability and ensuring that proper clinical standards are applied.

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The Use of Prison Behavior

As the Supreme Court has recognized, clinicians “caution against reliance on adaptive strengths developed ‘in a controlled setting’ ” such as prison (Moore v. Texas, 2017, p. 1050). Such “caution” is important because adaptive functioning “may be difficult to assess in a controlled setting” (APA, 2013, p. 38). As well, the AAIDD user’s guide states that “behavior in jail or prison” should not be used in an intellectual disability diagnosis (Schalock et al., 2012, p.  20). Despite this clinical guidance, prison behavior sometimes has been overemphasized in litigation (Blume et  al., 2014). Social work practitioners thus need to be prepared to explain why a defendant’s prison behavior fails to provide a sound basis upon which to assess adaptive behavior that the defendant could be expected to exhibit in the “outside world.”

The Use of Criminal Behavior

Mental health professionals similarly caution against the use of “past criminal behavior” to “infer level of adaptive behavior” (Schalock et al., 2012, p. 20). This warning is further sounded in the academic literature. In an article entitled, “Atkins v. Virginia: Implication and Recommendations for Forensic Practice” published in The Journal of Psychiatry & Law, scholars Gilbert MacVaugh and Mark Cunningham (2009) write:  “Evaluators are discouraged from utilizing criminal behavior to ascertain the presence or absence of deficits in adaptive functioning” (p. 169). The warning not to use criminal behavior to infer disability is, according to the AAIDD (2010) manual, because “adaptive behavior” in the intellectual disability context “is the collection of conceptual, social, and practical skills that have been learned and are performed by people in their everyday lives” (Schalock et al., 2010, p. 45). In contrast, the commission of a crime is a discrete, singular event. Before the Moore (2017) decision, use of criminal behavior in the adaptive-​behavior inquiry was common in Texas capital cases, where the nonclinical Briseno factors directed courts to consider whether “the commission of th[e]‌offense require[d] forethought, planning, and complex execution of purpose” in making an Atkins determination. But, as one legal commentator observed, even John Steinbeck’s Lennie—​whom the Texas courts agreed should be exempt from the death penalty “by virtue of his lack of reasoning ability and adaptive skills” (Ex Parte Briseno, 2004, pp.  6–​9) “went to great lengths to conceal his crime” (Blume, Johnson, & Seeds, 2009). Social workers can play an important role in educating others about the problems of using criminal behavior in determining intellectual disability.

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Claims of Malingering

In Atkins (2002) litigation, the term malingering generally refers to the allegation that a defendant is faking intellectual disability to avoid the death penalty. Clinical guidance counsels that such a conclusion should be viewed “cautiously” (Schalock et  al., 2012, p.  24). This is because, among other reasons, “the elements required for a diagnosis of ID [intellectual disability] must have been present from an early age (ID must originate before the age of 18), so there is almost always a documented lifetime history . . . of significant limitations in intellectual functioning and adaptive behavior” (Schalock et al., 2012, p. 24). In addition, “the more common faking direction when an individual with ID attempts to fake is to ‘fake good’ so as to hide their ID and try to convince others that he or she is more competent” (p. 24). Moreover, there are no formalized, reliable assessments designed to determine whether an individual with low IQ (i.e., below 80) is attempting to fake symptoms of intellectual disability. (Schalock et al., 2012). Clinicians should exercise “considerable caution” and “great prudence” before attempting to use a specific malingering test on an individual with intellectual disability due to a lack of research supporting the accuracy of such tests for persons with intellectual disability and due to the documented misuse of malingering tests (Blume et al., 2009, pp. 689, 732–​733). Whenever claims of malingering are raised, social workers should educate others as to the sensitive nature of such claims and the need to exercise careful and restrained expert opinion in this area.

Imposition of an Additional Relatedness Requirement

An additional issue that may arise is that of relatedness. The DSM-​5 states: “[to] meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning must be directly related to the intellectual impairments described in Criterion A” (APA, 2013, p. 38). Before the Moore (2017) decision, the Texas court seized upon the phrase “directly related” as imposing an additional onerous hurdle that Atkins claimants must satisfy to prove that they have intellectual disability. The APA, however, has directly refuted this interpretation, explaining that “the requirement that the deficits in adaptive behavior must be ‘related’ to the impairments in intellectual functioning does not alter the normal assessment [emphasis added]” (Brief of amici curiae APA et al., 2016, p.  9). Instead, to satisfy the diagnostic criteria, clinicians “need only exclude the obvious limits to adaptive functioning imposed by other ailments” such as “physical disabilities that impair sensory abilities (e.g., blindness or deafness)” (p. 9). Moreover, clinicians must be careful not to create a “false dichotomy” between intellectual disability and other conditions, since “ ‘[c]‌o-​ occurring mental, neurodevelopmental, medical, and physical conditions are [ 180 ]  Social Work Considerations

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frequent in intellectual disability’ ” (APA, 2013, p. 40, as cited in Brief of amici curiae APA et al., 2016, p. 20). Thus, any attempts to impose additional relatedness requirements on Atkins claimants is inconsistent with the medical community’s clinical framework and should be vigorously opposed.

The Flynn Effect

The Flynn effect refers to the phenomenon that, over time, standardized IQ test scores tend to increase with the age of the IQ test (by about 0.3 points per year) without a corresponding increase in actual intelligence in the general population (Schalock et al., 2010, 2012). Both the AAIDD and the APA recognize the Flynn effect as a factor for clinicians to consider when examining IQ scores with aging norms. The AAIDD user’s guide states that, in cases in which a test with aging norms is used, “a corrected Full Scale IQ upward of 3 points per decade for age of the norms is warranted” (Schalock et al., 2012, p. 23). According to James R.  Flynn (2006; for whom the Flynn effect is named), failure “to adjust IQ scores in the light of IQ gains over time turns eligibility for execution into a lottery—​a matter of luck about what test a school psychologist happened to administer” (pp. 174–​175). While courts are currently divided on the propriety of revising IQ scores for the Flynn effect, it is an issue that should be carefully considered when an IQ test with outdated norms is at issue.

DISCUSSION

This section focuses on the vulnerability of persons with intellectual disability in the criminal justice system. As the U.S. Supreme Court has recognized, persons with intellectual disability “face a special risk of wrongful execution because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel” (Hall v. Florida, 2014, p. 701). In addition, “their demeanor may create an unwarranted impression of lack of remorse for their crimes” (Atkins v. Virginia, 2002, p. 321). Even beyond the capital context, “people with intellectual disability are more likely to be arrested, convicted, sentenced to prison and victimized in prison” (Davis, 2009). Moreover, individuals with intellectual disability who become involved in the criminal justice system are particularly vulnerable because they may not want their disability to be recognized (and try to cover it up); not understand their rights, but pretend to understand; not understand commands, instructions, etc.; be overwhelmed by police presence; act upset at being

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detained and/​or try to run away; say what they think officers want to hear; have difficulty describing facts or details of offense; be the first to leave the scene of the crime, and the first to get caught; [and] be confused about who is responsible for the crime and “confess” even though innocent (Davis, 2009).

The DSM-​5 similarly recognizes that gullibility and “lack of awareness of risk” for persons with intellectual disability “may result in exploitation by others and possible victimization, fraud, unintentional criminal involvement, false confessions, and risk for physical and sexual abuse” (APA, 2013, p. 38). Through awareness of these issues, social workers can act as powerful advocates to ensure that defendants with intellectual disability are treated fairly in the criminal justice system. This may include educating lawyers and judges about the vulnerabilities associated with intellectual disability. It may also entail working with prison officials to ensure that incarcerated persons with intellectual disability receive safe prison housing that can accommodate their unique needs; and advocating directly for persons with intellectual disability to ensure their voices are heard and understood.

IMPLICATIONS FOR SOCIAL WORK

The U.S. Supreme Court has ruled that the Constitution forbids executing individuals with intellectual disability. Social workers have an important role to play in ensuring that this constitutional right, grounded in clinical understanding, is respected and enforced for the most vulnerable among us. Social workers can (a) play a significant role in Atkins litigation by assisting lawyers, experts, and other stakeholders in constructing a thorough social and educational history of the claimant and in establishing relationships with key informants (such as family members, teachers, neighbors, and employers) to ensure that all pertinent evidence is considered and presented; (b)  help lawyers and other stakeholders understand the diagnostic features of intellectual disability and ensure that current medical and clinical guidance is being properly applied, including refutation of additional relatedness requirements; (c) play an important role in ensuring that the defendant receives appropriate support; (d) work to dispel lay and harmful stereotypes about persons with intellectual disability; (e) educate stakeholders about the mixed competencies of persons with intellectual disability, helping to ensure that proper medical and clinical standards are applied; (f)  provide education about why a defendant’s prison fails to provide a sound basis upon which to assess adaptive behavior, and criminal behavior to assess intellectual disability; (g) when claims of malingering are raised, educate others as to the sensitive nature of such claims and the need to exercise careful and restrained expert opinion in this area; (h) educate lawyers and judges about the vulnerabilities associated [ 182 ]  Social Work Considerations

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with intellectual disability in the criminal justice system; (i) work with prison officials to ensure that incarcerated persons with intellectual disability receive safe prison housing that can accommodate their unique needs; and (j) advocate directly for incarcerated persons with intellectual disability to ensure their voices are heard and understood. Through awareness of these issues, social workers can act as powerful advocates to ensure that defendants with intellectual disability are treated fairly in the criminal justice system.

REFERENCES American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: Author. Atkins v. Virginia, 536 U.S. 304 (2002). Blume, J. H., Johnson, S. L., Marcus, P., & Paavola, E. C. (2014). A tale of two (and possibly three) Atkins: Intellectual disability and capital punishment twelve years after the Supreme Court’s creation of a categorical bar. William & Mary Bill of Rights, 2(4), 393–​414. Blume, J. H., Johnson, S. L., & Seeds, C. (2009). An empirical look at Atkins vs. Virginia and its application in capital cases. Cornell Law Faculty Publications. Retrieved from http://​scholarship.law.cornell.edu/​cgi/​viewcontent.cgi?article=1006&con text=facpub Brief of amici curiae American Psychological Association, American Psychiatric Association, American Academy of Psychiatry and the Law, National Association of Social Workers, and National Association of Social Workers Texas Chapter, p. 9, Moore v. Texas, 797 U.S. (2016). Davis, L.  A. (2009). People with intellectual disability in the criminal justice system:  Victims and suspects. Retrieved from https://​thearc.org/​wp-​content/​ uploads/​forchapters/​Criminal%20Justice%20System.pdf Ex parte Briseno, 135 S.W.3d 1, 6–​9 (Tex. Crim. App. 2004). Flynn, J.  R. (2006). Tethering the elephant:  Capital cases, IQ, and the Flynn effect. Psychology, Public Policy, and Law, 12(2), 170–​189. Hall v. Florida, 572 U.S. 701 (2014). Macvaugh III, G. S., & Cummingham, M. D. (2009). Atkins v. Virginia: Implications and recommendations for forensic practice. Journal of Psychiatry & Law, 37(2–​3), 131–​187. Moore v. Texas, 137 S. Ct. 1039 (2017). Moore v. Texas, 139 S. Ct. 666, 667 (2019). Schalock, R. L., Borthwick-​Duffy, S. A., Bradley, V. J., Buntinx, W. H., Coulter, D. L., Craig, E. M., . . . Shogren, K. A. (2010). Intellectual disability: Definition, classification, and systems of supports (11th ed.). Washington, DC: American Association on Intellectual and Developmental Disabilities. Schalock, R. L., Borthwick-​Duffy, S. A., Bradley, V. J., Buntinx, W. H., Coulter, D. L., Craig, E. M., . . . Yeager, M. H. (2012). User’s guide to intellectual disability: Definition, classification, and systems of supports. Washington, DC: American Association on Intellectual and Developmental Disabilities.

I n t e l l e c t ua l Di s a b i l i t y a n d C r i m i n a l J u s t i c e  

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CHAPTER 15

Immigration, Foreign Nationals, and the U.S. Death Penalty L ARRY NACKERUD AND JOHN R . BARNER

T

he movement of people as migrants continues to rise around the world. The 2017 International Migration Report, compiled annually by the Department of Economic and Social Affairs of the United Nations (2017), estimates that 258 million persons are currently living in a country other than the country of their birth. This figure represents 3.4% of the world’s more than seven billion persons and a slight but meaningful increase from 2.8% in 2000. In response to this movement of migrants, the countries of the world design immigration policies that generally either accept new residents into their midst or block them from gaining admission. And the United States, as a designated receiving nation of migrants, is no exception to anti-​immigration sentiment. Overall, U.S. immigration policies, since its first one, the Chinese Exclusion Act of 1882, have wavered between celebrating the nation’s immigration past and struggling to accept or reject its immigration present (Daniels, 2004). Within the complexity of U.S. immigration policy, three main themes emerge:  family-​based/​sponsored immigration; employment-​based immigration, temporary and permanent; and diversity-​based, humanitarian entrant categories (Krogstad & Gonzalez-​Barrera, 2018). As well, the Immigration and Nationality Act of the United States mandates a limit on how many immigrants can come from any one country. No group of permanent immigrants (family-​ based and employment-​based) from a single country can exceed 7% of the total number of people immigrating to the United States in a single fiscal year (American Immigration Council, 2018). Immigration policy debates focus on Larry Nackerud and John R. Barner,Immigration, Foreign Nationals, and the U.S. Death PenaltyIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0016

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a number of questions: How many people should be admitted to the United States as immigrants—​either permanently or temporarily—​each year? What countries or regions of the world should these newly admitted immigrants be from? What is the right balance in the U.S. immigration system between family-​based and employment-​based admissions? How large a role should the admission of diversity and humanitarian entrants play in the overall U.S. immigration system? The latter question represents a concern for distributive justice and the international protection of human rights, which are arguably central to the mission and aims of the social work profession. According to the United Nations, human rights are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status, and include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, work and education, and much more. Everyone is entitled to these rights without discrimination.

FOREIGN NATIONALS

This chapter focuses on the interplay between the policy arenas of immigration and the death penalty. Central to that interplay is the question of the rights of foreign nationals who have committed a capital offense and whether their rights recognized or not within the U.S. criminal justice system. A foreign national, for the sake of this chapter and its particular focus, is defined as any individual under sentence of death in the United States who does not possess U.S. citizenship. Foreign nationals who might be under sentence of death in the United States could thus include tourists and visitors, migrant workers with temporary permits, resident aliens, undocumented persons, asylum-​seekers, and persons in transit. Foreign nationals comprise a significant portion of the U.S.  population at any one time, as tens of millions of foreign nationals visit the United States annually and approximately 22 million U.S. residents are noncitizens, according to 2017 data from the American Community Survey of the U.S. Census Bureau (2017). While the seeking of the death penalty and/​or the execution of a foreign national is not commonplace in the United States, whenever it does happen, it is an occurrence characterized by policy complexity and subsequent challenges of international relations between the host country, the United States, and the country within which the foreign national holds citizenship. According to the Death Penalty Information Center’s (2019) data set entitled, Reported Foreign Nationals Under Sentence of Death in the U.S., as of November, 2018, there were a total of 131 foreign nationals under sentence of death in the United States. Table 15.1 provides a table of data on the number of foreign nationals on death row in the United States, the country/​nationality of origin of the 131 foreign nationals under sentence of death (n = 35), and the Imm i g r at i o n a n d F or e i g n N at i o n a l s  

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Table 15.1   FOREIGN NATIONALS AWAITING EXECUTION OR RESENTENCING IN THE UNITED STATES

Country of Origin

Foreign Nationals (n)

Mexico

53a

Cuba

8

Vietnam

8

El Salvador

8

Honduras

5

Cambodia

4

Guatemala

3

Canada

2

Colombia

2

Dominican Republic

2

Iran

2

Jamaica

2b

Laos

2

Philippines

2

Trinidad

2b

Argentina

1

Armenia

1

Bahamas

1b

Bangladesh

1

China

1

Costa Rica

1

Cuba

1c

Egypt

1

Estonia

1b

France

1

Germany

1

Haiti

1

Jamaica

1b

Jordan

1

Ireland

1

Lebanon

1

Lithuania

1

Nicaragua

1

Russia

1

Serbia

1

St. Kitts and Nevis/​UK

1

Tonga

1

Vietnam

1b

Adapted from Death Penalty Information Center (2019). a Two sentences reversed on appeal. b Overturned under Hurst v. Florida. c Reversed on appeal.

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dramatic concentration of these persons from one country, Mexico (n = 53; Death Penalty Information Center, 2019).

THE VIENNA CONVENTION ON CONSULAR RELATIONS AND THE OPTIONAL PROTOCOL CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES

A major point of contention is why the United States and representatives of its criminal justice system have so often failed to act in accord with the mandates of the Vienna Convention on Consular Relations (VCCR) when a foreign national is being tried for a capital offense whereby the death penalty is a possibility, is sentenced to death and is awaiting execution, or is scheduled for execution. The VCCR created a foundation for the development of friendly relations among nations, irrespective of their differing constitutional and social systems (Coyne & Entzeroth, 2009). This policy instrument, actually a treaty, was designed to facilitate the ease with which persons of any country can travel about the world and provide a framework for how foreign nationals can expect to be treated when any difficulties arise. The VCCR consists of 179 articles that regulate a wide variety of aspects and functions of consular activities—​referring to activities related to the consulate in a foreign city. The consular institution actually developed as the framework of international law matured. Growth of international trade and heightened business and commercial activity led individual nation-​states to permit foreign representatives, often referred to as consuls or consulates, to establish permanent consular posts in the host country. As an agent of the sending government, a consul’s role was traditionally to promote and protect the nation’s commercial interests. To achieve these interests, a consul was employed to oversee a diverse range of duties, which often included overseeing imports and exports of the sending state; economic investigation; protection of the shipping interests of the sending nation; development of commercial interaction with the receiving state; and the rendering of services to those persons considered to be foreign nationals by the host country. Permission to establish consular posts was, and continues to be, based on mutual consent and international notions of reciprocity and respect among nation-​states (Fleishman, 2003). The U.S. Senate ratified the VCCR in 1969 (Coyne & Entzeroth, 2009). It is important to note that the United States also ratified the Optional Protocol Concerning the Compulsory Settlement of Disputes (OPCCSD). The OPCCSD provided that disputes arising out of the interpretation and application of the VCCR should fall within the compulsory jurisdiction of the International Court of Justice (Coyne & Entzeroth, 2009). By ratifying the OPCCSD, the United States recognized the right of parties to bring disputes before Imm i g r at i o n a n d F or e i g n N at i o n a l s  

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the International Court of Justice. As is discussed later in the chapter, following the review of a number of contentious death penalty cases, the United States gave notice of withdrawal from the OPCCSD in March 2005 (Coyne & Entzeroth, 2009). The international treaty that followed the ratification of the VCCR standardized the interpretation and implementation of consular law. It defined consular rights, privileges, and duties among signatory nations, of which the United States was one (Fleishman, 2003).

Article 36

Considered by legal scholars to be the most important component of the VCCR, Article 36 deals with communication and contact with foreign nationals by officials from the consulate in the receiving state (Fleishman, 2003). Consulate officials assist foreign nationals in a variety of situations—​ some quite commonplace, but important, such as the loss of a person’s passport, and some of a more serious nature, such as when a person is arrested and charged with a crime. In no situation is Article 36 of greater import than in the case of a possible death penalty finding and execution of a foreign national via the criminal justice system of a host country. Article 36 requires that when a foreign national is detained by authorities in another country, the authorities must notify the consular officers of the detainee’s home country if the detainee so requests: With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he [she] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay or his [her] rights under this sub-​ paragraph; (a) consular officers shall have the right to visit the national of the sending State who is in prison, custody or detention, to converse and correspond with him [her] and to arrange for his [her] legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he [she] expressly opposes such action. . . . The

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rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. (Cited in Coyne & Entzeroth, 2009, p. 158)

Thus, under Article 36 of the VCCR, criminal justice authorities in a host country must inform all detained foreigners without delay of their right to have their consulate notified of their detention and to communicate with their consular representatives. Unless the foreign national declines, the criminal justice authorities in the host country must notify the consulate of the detention without delay. The host country’s criminal justice officials must also facilitate consular communication and grant consular access to the foreign national being detained. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the person being detained. Local laws and regulations must give full effect to the rights protected in Article 36. The United States ratified the VCCR without reservations in 1969 and so fundamental is the right to consular notification and access that the U.S. Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR (Death Penalty Information Center, 2019).

Without Delay

The U.S. State Department has repeatedly interpreted the term without delay to mean as soon as practicable (i.e., without undue delay) and normally by the time the detainee is booked for detention. While not all the reported foreign nationals currently on death row were deprived of their consular rights by arresting authorities, there is overwhelming evidence that prompt notification of these rights remains highly sporadic and problematic across the United States. The importance of timely notification to the consular’s office, and certainly at least some notification, cannot be overstated. Neither can it be overstated that the failure of notification has powerful consequences. There is strong indication that timely consular assistance significantly reduces the likelihood that death sentences will be sought or imposed on foreign nationals facing capital charges (Death Penalty Information Center, 2019). The failings of the United States to adhere to Article 36 are dramatic. Research indicates that, even when applying a less stringent definition of without delay used by the U.S. Department of State, only 7 cases of more than 160 (i.e., approximately 4%) were found to be in complete compliance with Article 36 requirements. (These include cases resulting in execution, reversal Imm i g r at i o n a n d F or e i g n N at i o n a l s  

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on appeal, and exoneration and release.) In most of the remaining cases, detained nationals learned of their consular rights long after their arrest, if at all, and typically from attorneys or other prisoners—​not from U.S. criminal justice authorities. As a consequence, consular officials were often unable to provide crucial assistance to their nationals when it would be most beneficial: at the arrest and pretrial stage of capital cases. For example, in a well-​known case of failure to notify as mandated in Article 36, Arizona criminal justice authorities did not formally inform German nationals Karl and Walter LaGrand of their Article 36 rights until 17 years after their arrest—​and just weeks before their execution. Another prominent example is the finding by the International Court of Justice in Avena and Other Mexican Nationals (2004) that U.S. criminal justice officials had violated their Article 36 obligations in 51 of 52 reviewed cases of Mexican nationals resulting in death sentences, a 98% failure rate, in the most serious of all possible circumstances (Death Penalty Information Center, 2019).

THE VCCR, MEXICO, AND THE U.S. DEATH PENALTY

In certain countries with a large number of foreign visitors and foreign guest workers, such as the United States, foreign nationals can make up a sizeable percentage of those persons on death row. The vast majority of foreign nationals (i.e., more than 40%) in the United States on death row are from one country:  Mexico. And in a most impressive fashion, Mexico has done by far the most to protect the rights of foreign nationals being detained in the United States and particularly so in death penalty cases. Owing to the country’s historically strong disdain for the death penalty and mixed history of antagonistic international relations with the United States, Mexico has made extensive efforts and put in place a number of mechanisms to diminish the occurrences of Mexican nationals being put to death in the United States (Olivero, 2013). Traditionally, Mexico has limited the use of the death penalty within its borders. Mexico has undertaken vigorous attempts to not only require the United States to abide by its agreements, but to actively prevent the executions of Mexican nationals in the United States. This has been met with limited success, leading to protests by the Mexican government and condemnation of the actions of U.S. criminal justice officials within the international community. Relatedly, the Government of Mexico has an extensive and increasingly sophisticated program of consular assistance to Mexican nationals residing in the United States. For example, in the early 1980s, the Mexican government increased consular officer services to provide protection, due to the increased number of Mexican nationals facing death sentences. In 1981, the [ 190 ]  Social Work Considerations

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Mexican Foreign Ministry created consular protection officers whose purpose was to protect the rights of Mexican nationals out of the country. In 1982, the Mexican government enacted the Governing Law of the Mexican Foreign Service, governing the actions of consular officers in foreign nations, the most important being the obligation to protect the rights of Mexican nationals on death row or involved with capital cases (Olivero, 2013). These included assisting Mexican nationals in their relations with local authorities, advising nationals of their rights and obligations, visiting detainees in prisons, and representing those Mexicans who cannot defend their own interests. In 1986, the Mexican Foreign Ministry even established a Program of Legal Consultation and Defense that sent Foreign Service officers to American law schools to better assist attorneys representing Mexican nationals in capital cases (Olivero, 2013). The Mexican government has spent unprecedented effort and resources on behalf of Mexican nationals facing death sentences in the United States. However, failure of U.S.  criminal justice officials to adhere to the policy mandates of the VCCR has severely hampered the Mexican government’s ability to provide immediate and adequate assistance to its nationals. This issue is most acute in capital cases, where early and timely intervention can literally mean the difference between life and death for a person.

Landmark Court Decisions

A complicating feature in the criminal justice system of the United States is that of federalism—​that is, the allocation of powers between the national government and the states. The U.S. Supreme Court has significantly limited, via case law decisions, Congress’s ability to legislate, especially in ways that binds individual states, like Texas, through the adoption of narrow views of Congress’s power under the Fourteenth Amendment and the Commerce Clause and through expansive views of state sovereignty (Johnsen, 2003). In other words, the national government of the United States may have signed the VCCR and agreed to consular contact/​notification upon the detention of a foreign national, but an individual state, like Texas, and owing to claims of sovereignty, will feel absolutely no compulsion to do so. History has shown criminal justice and legal officials at the federal level in the United States ineffectual in forcing individual states to comply with international treaty obligations (Fleishman, 2003; Johnsen, 2003). Repeated violations of the VCCR in U.S.  death penalty cases has led to extensive litigation in national and international courts. For example, in December 1997, faced with increasing numbers of Mexican nationals on death rows across the country and widespread violations of Article 36, the Government of Mexico sought an advisory opinion from the Inter-​American Imm i g r at i o n a n d F or e i g n N at i o n a l s  

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Court on Human Rights regarding the application of Article 36 of the VCCR. The court observed that Article 36 provides one of the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial. The court concluded that the execution of an individual who had been afforded no opportunity to exercise their rights to consular notification and access would constitute an arbitrary deprivation of life (Cornell Law School, 2019). In 2003, the Government of Mexico initiated proceedings in the International Court of Justice against the United States on behalf of 54 Mexican nationals on U.S. death row. Mexico argued that the United States had failed to comply with the International Court of Justice’s mandate in past instances and was obligated to provide a legal remedy in each and every death penalty case that involved a violation of Article 36. Among other issues, the Government of Mexico asked the Court to adjudge and declare that the United States violated its international legal obligations by failing to comply with Article 36 of the VCCR and that the convictions and sentences of its nationals should be vacated (Cornell Law School, 2019). In March 2004, the International Court of Justice determined in the case of Avena and Other Mexican Nationals that advisement of consular rights without delay means a duty upon the arresting authorities in the United States to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is most likely a foreign national. Police and other arresting criminal justice officials in the United States should theoretically be made aware of a suspect’s probable nationality through routine identity confirmation and background checks, done either during the initial investigation, upon arrest, or very shortly thereafter. The International Court of Justice issued its final judgment in the Avena case on March 31, 2004. By a vote of 14-​to-​1, the Court found that for 51 Mexican nationals, the United States had failed to inform the detainee of his or her right to consular notification without delay, in violation of Article 36 (1) (b) of the VCCR. In 49 cases, the Court also found that the United States had violated its corresponding obligation to notify the Mexican consulate of the detention without delay, as well as Mexico’s right to communicate and have access to its nationals. In 34 of the cases, the United States was also found to have deprived Mexico of its right to arrange for legal representation of those nationals in a timely manner, in breach of Article 36, paragraph 1(c). While many hailed the International Court of Justice’s judgment as an unequivocal win for Mexico, the legal community was skeptical that it would lead to concrete results for Mexican nationals facing execution in the United States (Cornell Law School, 2019). Sensing the increased importance of understanding the nuances of the American legal system, the Mexican Foreign Ministry established a Program [ 192 ]  Social Work Considerations

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of Legal Consultation and Defense in 1986. This program sent selected career Foreign Service officers to American law schools to better assist attorneys representing Mexican foreign nationals, specifically capital defendants (Fleishman, 2003). Mexico’s long-​standing opposition to the death penalty has solidified its commitment to providing Mexican citizens with the highest level of consular assistance available. It is crucial to the success of this objective that each Mexican national facing capital charge be informed of his or her right to contact the consular post (Fleishman, 2003).

Human Rights Implications

Under the Governing Law, consular officials are required to assist Mexican nationals in their relations with local authorities, advise nationals of their rights and obligations in the foreign state, visit Mexicans who are detained in prisons, and represent those Mexicans who cannot defend their own interests. These obligations are only the baseline for consular officials and demonstrate the Mexican government’s commitment to defend the rights of Mexican nationals in the United States. An example of the international condemnation, based on the held view of human and civil rights, the American Court of Human Rights wrote an advisory opinion that condemned the United States and included a statement that execution of persons on death row never notified of their right to contact their consulate would be an arbitrary deprivation of life and would violate the foreign national’s due process rights under the International Covenant on Civil and Political Rights and the American Convention on Human Rights. In the previously described decision, the majority rejected the standard approach of the courts in the United States, requiring a defendant to show that a violation of the VCCR prejudiced him or her. The majority of justices noted that the right of access is fundamental and no inquiry is required to determine whether consular service would have changed the outcome of the proceedings. In September 2000, in the wake of that Advisory Opinion by the Inter-​American Court of Human Rights, the Mexican government established the Mexican Capital Legal Assistance Program (MCLAP). The primary objective of the MCLAP is averting death sentences involving Mexican nationals. This unprecedented program sought to achieve its goal by increasing the quality of defense provided to its foreign nationals potentially facing capital cases. Whereas prior efforts at averting death sentences have come from individual consulate offices, the MCLAP now coordinates all efforts by providing necessary assistance from the time of a nationals’ initial detention. The MCLAP is now able to monitor defense counsel’s performance and, when necessary, steps in to provide needed support (Fleishman, 2003). Imm i g r at i o n a n d F or e i g n N at i o n a l s  

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DISCUSSION

Through its continued use of the death penalty, the United States isolates itself from the majority of nation-​states that make up the international community. It isolates itself even further by its failure to comply with Article 36 of the 1963 VCCR. Moreover, U.S. withdrawal in 2005 from OPCCSD, a mechanism within the VCCR designed to assist in the implementation of international relations, only deepened this isolation (Fleishman, 2003). Causing further disruption within the realm of international relations is the fact that the United States not only imposes the death penalty and executes its own citizens but also often attempts to do so with foreign nationals who commit capital crimes while in the United States (Olivero, 2013). The Mexican government has been instrumental in raising international awareness regarding repeated violations of the consular notification provisions of the VCCR by the United States. Its determined intervention may prove to be the necessary impetus to push the United States toward the process of internalizing its treaty obligations under the VCCR. Currently, the United States remains relatively impervious to international pressure concerning abuses of the VCCR. This resistance has been bolstered by the combined force of unabated freedom of individual states to uphold their criminal laws, the federal government’s impotence to control state action, and the judiciary’s unwillingness to recognize the force of international treaty obligations (Fleishman, 2003).

IMPLICATIONS FOR SOCIAL WORK EDUCATION AND PRACTICE

Awareness of public policy instruments—​in this case, particularly those that promote positive international relations and the recognition of actions that minimally recognize the civil rights of all persons—​is central to social work education. It would be no stretch to claim that awareness of Article 36 of the VCCR is missing from social work education. Remedying this situation of omission is an easy task. It is our recommendation that teachings focused on the VCCR and OPCCSD be included in all required courses of social welfare policy and programs. As well, this material could easily be included in electives focused on human rights, international social work, and immigration policy. As the moniker of social justice grows ever stronger in social work education, the mandate of consular notification on behalf of a detained foreign national included in Article 36 of the VCCR could serve as a powerful example of how to achieve such a desired mandate, a more just system of communities and nation-​states (Rawls, 1971), and particularly so in the interplay particularly between the possible abolition of the death penalty and the continued efforts to reform U.S. immigration policy. Social work practitioners could make [ 194 ]  Social Work Considerations

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a positive contribution to the advancement of the criminal justice system of the United States with, whenever they become aware of the need for such, of insistence of timely (without delay) notification of the consulate office of a foreign national’s home country upon detention at any level of the criminal justice system, but certainly when a capital offense is under consideration and the death penalty is a possibility.

REFERENCES American Immigration Council. (2018). How the United States immigration system works. Retrieved from https://​www.americanimmigrationcouncil.org Avena and Other Mexican Nationals (Mexico v.  United States of America). (2004). Judgment, International Court of Justice Reports, 12. General List No. 128. Cornell Law School (2019). Cornell Center on the Death Penalty Worldwide. Retrieved from http://​www.deathpenaltyworldwide.org/​foreign-​nationals.cfm Coyne, R. & Entzeroth, L. (2009). Capital punishment and the judicial process (3rd ed.). Durham, NC: Carolina Academic Press. Death Penalty Information Center (2019). Foreign nationals and the death penalty in the US. Retrieved from https://​deathpenaltyinfo.org/​ foreign-​nationals-​and-​death-​penalty-​us Fleishman, M. (2003). Reciprocity unmasked: The role of the Mexican government in defense of its foreign nationals in United States death penalty cases. Arizona Journal of International and Comparative Law, 20(2), 359–​407. Johnsen, D.  (2003). Ronald Reagan and the Rehnquist court on congressional power:  Presidential influences on constitutional change. Indiana Law Journal, 78(1), 363–​412. Krogstad, J. M. & Gonzalez-​Barrera, A. (February, 2018). Key facts about U.S. immigration policies and proposed changes. Pew Research Center. Retrieved from http://​www.pewresearch.org/​ Olivero, J. M. (2013). The imposition of the death penalty on Mexican nationals in the United States and the cultural, legal and political context. Laws, 2,  33–​50. Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press. United Nations, Department of Economic and Social Affairs, Population Division (2017). International Migration Report 2017: Highlights (ST/​ESA/​SER.A/​375). Retrieved from https://​www.un.org/​en/​development/​desa/​population/​migration/​publications/​migrationreport/​docs/​MigrationReport2017_​Highlights.pdf U.S. Census Bureau. (2017). American Community Survey [Data set]. Retrieved from https://​www.census.gov/​programs-​surveys/​acs/​data.html

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CHAPTER 16

The Death Penalty From the Family Perspective JENNIFER SCHWEIZER AND ELIZABETH BECK

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aving a loved one on death row means that family members live, sometimes for decades, with the constant threat that their loved one will be issued a death warrant and then, within a matter of weeks, executed. In their study involving 25 family members of people on death row, Beck, Britto, and Andrews (2007) found that 63% were clinically depressed and experienced symptoms consistent with posttraumatic stress disorder (PTSD). In all cases, both sets of symptoms lasted more than one year. Additionally, at the time of the interview, which took place at least three years after arrest, 44% were still symptomatic. As one mother whose daughter had died in a traffic accident explained, “I got depressed when I lost my daughter, but I came out of it. I can’t come out of this” (Beck et al., 2007, p. 10). On top of living with depression and PTSD, family members of people on death row often experience dramatic changes of roles within their communities. As an extension of their loved one who has been deemed unfit to live, family members become notorious and, in a number of cases, targets of their community’s anger. In some instances, parents are viewed as complicit in the criminal act, as they are seen as having raised a murderer. The family members’ experience with stigma compounds their trauma and often leads them to become socially isolated during a time in which they need support (Heflick, 2005; Radelet, 2016; Sharp, 2005). Against the backdrop of pain, family members must actively engage in saving their loved one’s life, a process that can further compound their pain and trauma. For example, family members, in collaboration with defense team Jennifer Schweizer and Elizabeth Beck,The Death Penalty From the Family PerspectiveIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0017

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members, often play an important role in the development of evidence related to their loved one’s life. This evidence is used to point to life experiences that can mitigate a punishment of death. In many cases, these experiences involve trauma, including physical, psychological, or sexual abuse experienced by the defendant and his or her family members. This process often forces family members to recount painful and traumatic experiences from their own past experiences with an abuser (Beck et al., 2007; Joy, Beck, & Hurley 2019). Family members then must relive old trauma at the same time they are dealing with the new trauma associated with a capital trial and the criminal justice system in the United States. Renowned trauma expert Judith Herman (1992) and others have written about the difficulties of engaging in the American courtroom experience and how this alone can create PTSD. One of the criteria for PTSD includes the person experiencing firsthand repeated or extreme exposure to aversive details of a traumatic event, which is the essence of what happens in court and in preparation for the proceedings (American Psychiatric Association, 2013). In this chapter, we explore the psychological pain as well as the physical and mental health consequences of having a loved one on death row. We begin by focusing on the extant literature, which is largely rooted in the unique and violent nature of the loss and reflects theories of grief and trauma. Next, we move from the person to the environment as we explore the literature related to processes that are both based in and further the stigmatization of family members. These include the community responses, the media, race, and prosecutorial discretion. We conclude with a short review of stigma. To further our discussion of the external environment, in the findings section of the chapter, we present new data on family members’ experience with stigma. In our discussion of stigma, we show how the unique nature of the death penalty creates internal/​psychological harm and external/​social harm for loved ones of capital defendants. We conclude our discussion with ways defense teams can help family members navigate trauma and stigma as they participate in mitigation.

GRIEF AND TRAUMA

Much of the literature involving family members of people who are defendants in capital cases, on death row, or executed, tends to focus on family members’ experiences with grief and trauma. The primary focus of this literature is how loss associated with the death penalty complicates grieving, thereby opening the way for depression and PTSD. The term complicated grief is used to describe experiences of loss that are compounded by factors that make the pain “severe and disabling” (Enez, 2018, p. 270). Used interchangeably with complicated grief are terms that help to define it: pathological grief, abnormal grief, T h e De at h P e n a lt y F r o m t h e Fa m i ly P e r s p e c t i v e  

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and prolonged grief. People with complicated grief often experience an inability to accept the death, intense yearning for their loved one, avoidance, somatic distress, social withdrawal, and suicidal ideation (Enez, 2018). In 1999, experts came together to discuss the experience of grief or bereavement when it occurs in tandem with trauma, as experiences or symptoms of grief, be it complicated or not, are different than those of trauma. While grief is associated with feelings of loss, trauma is often associated with feelings of anxiety and panic. The effects of trauma include (a) re-​experiencing the traumatic event through flashbacks, memories, nightmares and having exaggerated physical and emotional reactions to something that is reminiscent of the event; (b) emotional numbing or even avoidance, which includes avoidance of places, thoughts, activities, and feelings; (c)  loss of interest, restricted emotions, and attachments; and, (d)  increased arousal that leads to anger, irritability, hypervigilance, and difficulty concentrating (American Psychological Association, 2013; Jacobs, Mazure, & Prigerson, 2000). During their meeting, the experts agreed that neither trauma nor grief symptoms alone accounted for the experiences of those individuals in whom trauma and grief occurred within the same “sudden, violent, or horrific” event (Jacobs et al., 1999, pp. 185–​199). Once it became recognized that, in some cases, grief and trauma occur as mutually reinforcing experiences, the researchers were able to see that the mental and physical health outcomes related to trauma and grief combined were more negative than when individually occurring. Symptoms included impaired role and functional performance, as well as higher rates of morbidity. The term traumatic grief, now also known as traumatic bereavement, was coined at the 1999 meeting (Jacobs et al., 1999; van Denderen, de Keijser, Kleen, & Boelen, 2015). More so than other horrific losses, murder is most associated with traumatic bereavement. Indeed, loved ones of murder victims have a PTSD rate of between 19% and 71% across studies. The studies also indicated that actual experiences of PTSD are particularly intense and grave for this population (Thompson, 1998). These studies are significant as loved ones of individuals on death row unequivocally experience execution as a premediated and scrupulously planned murder of their loved one by the state (Joy, 2013). In fact, some states listed the cause of death as homicide on the death certificates of people executed (Beck et al., 2007). Sadly, the agony for many family members begins on the day that their loved one is either noticed for a death penalty trial or given a sentence of death. Two theories that help to explain the depth and nature of their pain are nonfinite loss and anticipatory mourning. Bruce and Schultz (2001) coined the phrase nonfinite loss to explain the ways in which a painful event (including a terminal diagnosis or a death sentence) places loved ones in the position of having to live within the context of the event (i.e., the dark cloud of execution) while knowing that at a point in the future the pain will intensify. [ 198 ]  Social Work Considerations

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Bruce and Shultz describe nonfinite loss as occurring when individuals as being held between two worlds. The first is the known pain, and the second is dreaded future. Rando (2000) uses the term anticipatory mourning to describe losses that are anticipated and argues that they often lead to an additional level of pain with the final loss, while Vandiver (1989) uses the term chronic dread to describe the experiences of family members of people sentenced to die. Community support has been widely recognized as one of the most important factors that can assist people who are grieving (Herman, 1992; Joy, 2013). Instead, family members of people charged with a capital crime or who are on death row are often ostracized and experience isolation, shame, and stigma. Bereavement scholar Ken Doka (1999) coined the phrase disenfranchised grief to describe those losses in which society does not acknowledge the bereaved person’s right to grieve. In these cases, the loss is not openly acknowledged or publicly mourned, and social support is withheld. Attig (2004) explains that disenfranchised grief is more than indifference, as it actively dismisses, discounts, discourages, and invalidates the bereaved person’s experiences and inhibits one’s ability to display loss and hurt.

COMMUNITY HOSTILITY, MEDIA, AND RACE

We were not able to find studies that specifically focused on community effects on family members of capital defendants or people on death row. Rather, there are numerous accounts within the narrative studies that provide examples of negative responses from communities and their members (Beck et al., 2007; Joy, 2013; Joy, Beck, & Hurley, in press; Sharp, 2005). These examples include name calling, job loss, threats of violence, and violence. All of the researchers described individuals who lost jobs, were harassed at work, or denied a job because of their loved one’s capital charge (Beck et al., 2007; Joy, 2013; Sharp, 2005). While it is impossible to say that there is a correlation between media attention and harassment or violence from community members, many people interviewed felt like that was the case. One family stated that every anniversary for the 19 years that their loved one was on death row, the local paper ran a story about the murder and the victim. Following each of these stories, family members would find feces on their door step. When Beck et al. (2007) reviewed the news media coverage involving loved ones of the people they interviewed, they found in some cases that the reporting was straightforward, while other reporting used vilifying language to describe defendants. Additionally, the authors found editorials that essentially called for the death of the defendant and pictures of community members celebrating an execution. T h e De at h P e n a lt y F r o m t h e Fa m i ly P e r s p e c t i v e  

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The issue of racism and the death penalty in the United States is persistent and well documented in research articles and court findings. African Americans make up 13% of the general population in the United States, but 42% of the death row population. Of people executed since the death penalty was reinstated in Gregg v. Georgia (1976), 34% were African American (Death Penalty Information Center, 2019). Both the race of the defendant and the race of the victim play a large in role in the decision to seek the death penalty. At present, 75.6% of people on death row are there because they were accused of killing a White victim. As of 2005, there was not a single person on death row whose victim was a person of color (Beck et al., 2007; Death Penalty Information Center, n.d.). Prosecutors have a great deal of discretion in determining who will die or not. It is true that there are standards set related to factors that aggravate the use of death penalty or mitigate it (Gregg v.  Georgia, 1976), there is still an enormous amount of leeway. A review of the federal death penalty makes clear that the nature of the prosecutor and jurisdiction in which the crime occurs affects who will get death and who will not. Between 1995 and 2000, 42% of the cases asking the attorney for the death penalty came from 5 of the 94 federal districts, while 40 districts never sought the death penalty (Equal Justice Initiative, n.d.). Given the impact of race and prosecutorial discretion, it is not surprising that a number of family members of capital defendants provided examples in which their family members had been murdered, murders they perceived as more heinous than the one that there loved one had been accused of, and yet the death penalty had not been sought. These families felt stigmatized by race and geography. These are just a few of the disparities and problems with death penalty. Socioeconomic class is another important factor.

STIGMA

Participation in the criminal justice system is itself deeply stigmatizing. This stigmatization begins with arrest or the notification that someone has been named a person of interest. Cushing and Shaffer (2002) found that family members often have to choose to conceal their relationship to their loved one or be ostracized for it, thereby ensuring that family members are consistently confronted with the issue of stigma. For Sharp (2005), stigma is a natural consequence of having a loved one on death row. The stigmatization is heightened during trial through the prosecution’s narrative and the extended interest from the media (O’Brien & Wayland, 2015). In 2017, the first author Jennifer Schweizer sought to understand the experience of stigma in relationship to family members with a loved one who had been charged with a capital crime, on death row, or executed. Irving Goffman began his formative work on stigma in 1963. He argued that stigma develops [ 200 ]  Social Work Considerations

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as a result of social interactions and, therefore, is a social construct (Major & O’Brien, 2005). It is a mark of disgrace that sets apart the stigmatized individual from others. Once stigmatized, a person often becomes dehumanized and assumptions are made about his or her inferiority (Goffman, 1963; Roberts & Jackson, 2008). Link and Phelan (2001) define stigma as the converging of the following: labeling of differences, stereotyping, exclusion, discrimination, loss of status, and exercise of power (also so Link & Phelan, 2006). As stigma theory explains, in extreme situations, the person who is stigmatized is believed to be so different from the norm of society that he or she is not really human, which is used to justify horrific treatment toward the stigmatized individual (Link & Phelan, 2001). The extant literature contains examples of violence perpetrated toward family members of loved ones on death row (Beck et al., 2007; Joy, 2013; Sharp, 2005). Stigma affects both how one is treated by others and one’s view of their own self. Two forms that stigma takes are self-​stigma, in which the stigmatized person has internalized stigma and is engaged in self-​blame, and stigma by association. Stigma by association involves social and psychological reactions to those close to a stigmatized person, and includes the stereotypes of blame, shame, and contamination (Larson & Lane, 2006). In addition to ways in which individuals experience stigma, there are other factors that lead to stigmatization and its negative consequences. The major one is race. In 1986, Goffman wrote that race is stigma. Race biased stigma is well documented and works to dehumanize those toward whom a racist gaze is cast. Due to the prevalence of direct racism, narratives of difference, and acts of othering, people of color are systemically, and sometimes personally, cast as the racial other (Howarth, 2006). The stigmatization that comes from involvement in the criminal justice system is so great that it ensures that one’s life changes are always impacted (Tobin Tyler & Brockman, 2017).

Stigma Research with Family Members

To explore the experience of stigma by association, 10 family members of capital defendants were interviewed using the qualitative approach of interpretative phenomenological analysis (IPA). The intent of IPA is to explore the lived experiences of participants, the meaning the participants have of their experiences, and how they make sense of their experiences (Smith, 2011; Smith, Flowers, & Larkin, 2009; Smith & Osborn, 2008). Participants included mothers, siblings, wives, children, and a niece of individuals who had been charged with a capital crime and for whom the death penalty was sought. It had been more than five years since the arrest and charge of their loved one, and the capital defendant was no longer in a pretrial phase of the criminal justice system, except for one person who was being retried for his crime. T h e De at h P e n a lt y F r o m t h e Fa m i ly P e r s p e c t i v e  

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Individual semistructured interviews with family members of capital defendants were used to gather data. Each interview was transcribed and thoroughly analyzed using the steps outlined for IPA research. These steps involve reading and re-​reading each transcript, making initial notes of the transcript, developing emergent themes that reflected the experiences of stigma by association among the family members, and searching for connections between the emergent themes (Smith, 2009). Once the detailed examination of the individual transcript was complete and the emergent themes were developed for one case, the next participant’s interview transcript was individually analyzed using the same steps. The final step in IPA analysis involves looking for similarities and differences in the emergent themes across all of the cases. Major themes with supporting sub-​themes were developed from the data. They are discussed next.

Discussion of Study Findings

Society often ignores or discredits the harmful effects of the death penalty on family members of capital defendants. The purpose of this research was to explore and gain an in-​depth understanding of how family members of people who have been charged with a capital crime and faced the death penalty experienced stigma. The data pointed to two ways in which stigma was experienced:  self-​stigma and stigma by association. In addition to internal experiences with stigma, family members also spoke about the ways in which they were stigmatized by their race, the community, and the criminal justice system. These external stigmatizing influences are important as they exacerbate the stigma experienced by family members and because each played a role in the way in which the death penalty was administered. We include a brief section on this type of mutually reinforcing stigmatization.

Self-​Stigma

Many family members in the study described experiences associated with self-​ stigma, which manifested in the sample as self-​blame, avoidance, and secrecy. Some family members began to believe what others said about them, question their own judgment, and blame themselves for their loved one’s actions. Family members also discussed feeling on guard in anticipation of the possibility of stigmatizing experiences. Personal responsibility.  In the area of self-​stigma, family members were deeply engaged in self-​blaming, while at the same time they feared judgment by others. These feelings were seen across relationship status to include parents, spouses, and children. While the general feeling of self-​blame was [ 202 ]  Social Work Considerations

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found throughout the majority of the interview sample, family members blamed themselves for different things. For example, a daughter of a capital defendant, who was in high school when her father was arrested, wondered how she could have prevented the crime from occurring. In another case, a mother wondered about her own parenting skills and what clues she missed. A sister described her feeling of self-​blame as so strong that she actually felt as if she did something: “You feel guilty for a long time like you actually did something, you were actually part of hurting this other family and them.” One family member reported his brother, who suffered from mental illness, to the police after he suspected his brother committed a murder in their neighborhood. Instead of receiving help for his mental illness, this man’s brother was charged with a capital crime and ultimately executed. This brother continues to experience immense guilt for his brother’s execution, and he feels like the government made him a “partner” in his brother’s death. Avoidance and secrecy.  Many family members who expected to be judged avoided situations and people they knew and worked hard to keep their situation a secret. One participant was a child when her maternal uncle, with whom she had a close relationship, was charged with and convicted of a capital crime. She said that she felt more than embarrassed; she was ashamed. For many years she kept her uncle’s arrest secret. She explained, “People who didn’t know, you didn’t want them to kind of like know, because it’s a thing where you’re going to be like judged.” A mother explained her fears following a local poll showing greater support for the death penalty than nonsupport: So that made me feel like everybody else I came in contact with favored killing my son. So when I walk anywhere, to the store, the grocery store, I just feel like folks are looking at me and saying that’s her. That’s Jason’s mom . . . if I’m not in an area—​it’s like will they find out?

Interestingly, the feelings of shame and fear that the secret will get out followed some family members even after they moved away from their previous community. As a sister explained, “you feel like even though people don’t know, you feel like they know. You feel like they’re looking down on you, which they’re not.” This family member also described feeling humiliated as she worried that others would reflect her brother’s actions onto her: “And that’s what it was, humiliation for a long time. I was in a shell, so to speak, for a while. I did not want to talk about it. It embarrassed me. It’s going to make me look horrible, and I’m not like that.” In another example, a mother who was once very active in her community was afraid to leave her home following her son’s arrest. When she eventually did leave her home, she avoided familiar places where she might have encountered someone she knew. She went to different grocery stores and churches to avoid seeing familiar faces. The desire to isolate from one’s community can be very T h e De at h P e n a lt y F r o m t h e Fa m i ly P e r s p e c t i v e  

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strong. As one wife explains, “when it first happened, I did not want to come out of the house and I felt that everyone was judging me or knew why he was in there and then we would become victims, judged or ostracized.”

Stigma by Association

The experience of stigma by association included family members’ experiences with emotional pain upon experiencing stigmatization by others, feeling hurt by others’ judgment of them and their loved one, and instances of ostracism. Judgment. The experience of judgment and its pain extended through execution. A son, who was a child when his father was arrested and a teenager when he was executed, still hears people refer to his father in negative ways, and he is judged through his father: I’ve heard people say that I’m crazy because he was crazy and stuff like that. And it’s like it’s wrong, I mean—​and my grandma, who was his mom—​people look at her as a bad woman because her kid did this and they feel like she didn’t raise him right. And that’s not true at all. . . . I mean that’s pretty much what they all look at me as. I was the son of the killer.

A sister also believed she and her family were viewed negatively because of their relationship to someone charged with a capital crime. She believed that the general public thought that she and her loved one got what they deserved. She conveyed her frustration as she did not want her family to be viewed as a group where the actions of one member reflected on all of them. Real experiences fueled fears in which people were called names or pointed at. A  family member stated that she heard people say, “There’s that family that killed so and so. There’s that family that did that. Don’t be around those people, they’re horrible.” While many people talked about being whispered about or pointed to, some had direct confrontations. Consider this niece whose close friend’s mother, someone from whom she thought she would receive support, said, “I believe in the death penalty. He should get what he got.” Another mother was hurt when a co-​worker who knew about her son’s capital charge talked about her support of the death penalty. A brother reported feeling harassed at work because of his relationship to someone on death row. He reported to his supervisor what his co-​worker said: Why waste the money feeding him and they’re getting fat on death row. Why not take a bullet and line them up? He said he had a gun. He had a powerful gun. Line them up side by side and shoot the first head and the bullet will pass through that head and the next and the next and the next.

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Unfortunately, instead of offering support or protection from harassment, the supervisor’s response was “People have the right to their opinions.” Ostracism.  Some family members experienced ostracism solely because of their relationship to someone charged with a capital crime. One mother recounted how her young child at four or five years old lost a friend after the friend’s mother would no longer allow her to play with the child. The shunning did not go away, as the mother explained that, “Still to this day, they don’t talk to us hardly at all.” This mother also reported that people in her community avoided her and her family and treated them like they “had a communicable disease.” A brother sought comfort in the friends he had known since childhood, but instead they turned him away from their homes. This brother explained, “They’ve rejected me. And I  guess that’s what I  fear most in life is being rejected, ma’am. Is being rejected.” In addition to experiencing harassment from some of his co-​workers, he experienced isolation. Reflecting about his coworkers, this brother explained: And all of the sudden I didn’t see them anymore. I was going to lunch by myself. I was going to lunch and sitting in the van by myself. And I just—​people isolated themselves from me. People isolated themselves from me before I isolated myself from them. It’s affected me.

After the arrest of his father for killing his estranged wife and two of their children, this son experienced profound change in the dynamics of his family: It just seemed like nobody from that side of the family, my mom’s side of the family, talked to me. I  mean my mom’s mom did, but it bothered me talking to her because I understand it was her daughter and she lost, but whenever we would talk she would never mention my dad and it would bother me. . . . And from the day the crime happened, almost half of my mom’s side of the family just disappeared on me.

Being ostracized by one’s family appeared to intensify the pain family members experienced. Many family members expressed fear knowing that ostracism would occur in the future.

Factors That Further Affect Stigma

Many of these family members knew the role that historic and present racism, and its accompanying stigmatization, played in the state’s decision to seek the death penalty against their loved one. A  brother described the prosecutor’s

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decision to seek the death penalty as a combination of politics and racism: “I saw the politics. Then I saw the racism. Then I saw the jockeying for political points by the politicians. Vote for me, I’ll make you free. Vote for me. I’ll make you safer, this and that. I saw all of that.” The criminal justice system often creates or perpetuates stigma. For some family members, institutional stigma was experienced in the unfair ways in which they and their loved ones were treated in the criminal justice system. A sister felt the prosecutor was biased against her brother in that the prosecutor sought the death penalty against her brother but not the co-​defendant in the case. This bias added to the sister’s pain: They wanted him so bad. And the prosecutor wanted that death penalty so bad. He would just look at the family, and when he was looking at the jury, you know, the death penalty is what we need. He would just look at us and just smile. And it just, you know, it was hard.

Family members whose loved one is facing the death penalty often have to endure the additional burden of hearing their loved one portrayed as inhuman, as a monster. It is not uncommon for a capital defendant to be referred to as a monster by members of the community and the prosecution team. Indeed, this may be part of the prosecution’s strategy. As O’Brien and Wayland (2015) describe, “in the prosecutor’s narrative, the victim of the homicide is the tragic protagonist” (p. 755). Meanwhile, the narrative that accompanies the defendant is one that portrays him or her “as a one-​dimensional predatory creature” (p. 755). Family members are intensely hurt, and their experiences of stigma are exacerbated by the characterization of their loved one as an inhuman monster who is unworthy of life. The media as an institution serves as an additional source of stigma. Capital offenses are generally highly reported in the media, which increases the amount of people who know about the crime and may pass judgment. The media takes away the family’s control over what information is shared, and family members often unwittingly become public figures. The media tends to facilitate the dehumanization of a capital defendant by providing misinformation or include adjectives like monstrous. As one brother described the inaccurate portrayal of his brother and family in the local news, “all of the sudden now they’re making stories. They’re being featured in the newspaper and so I was stigmatized that way in my home town.” A wife described frustration at the media’s description of her husband: “It’s what he did, not who he is. So that’s kind of hurtful.” In addition to community members, media reporters can also be a source of harassment. The young son whose father was charged with the murder of

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his mother and younger siblings felt harassed by community members and reporters: And when it all first occurred, I used to have to get escorted to school by hopping the backyard fences and stuff because reporters were all around and people were coming by with doll babies and lighting them on fire and throwing them in our yard and stuff like that. And it was a pretty rough childhood. And then when he was executed all the press started coming back around and all of that so it was a real huge distraction.

DISCUSSION

As described earlier in the chapter, family members of capital defendants are severely impacted mentally, emotionally, and physically by their involvement in the death penalty system. Stigma compounds the stress and trauma experienced by family members of capital defendants. The pain and needs of family members are ignored. Very few resources are available to help them as they wade through the harm of being involved in the death penalty process. Family members are typically denied the compassion and support they need to manage their pain and retraumatization in healthy ways.

Implications for Social Work Practice

It is important for the defense team, including social workers and other mitigation experts, to be attentive to the impact of the death penalty and stigma on the lives of their client’s family members. Attentiveness to stigma extends beyond compassion. Family members fear being stigmatized even by members of the defense team. Experiences with stigma have taught family members to distrust individuals, including those who may want to help. This distrust may significantly hinder what family members are able to share, even when the goal is to help their loved one. For example, family members might shy away from describing stigmatizing experiences they or the client may have endured, such as sexual assault. It is critical that defense teams explore ways to decrease, or to help families cope with, experiences of stigma. It may be useful, then, for defense teams to utilize a trauma-​informed approach when working with family members of their clients. According to the Substance Abuse and Mental Health Services Administration (Substance Abuse and Mental Health Services Administration, 2014), a trauma-​informed approach involves four assumptions: the basic realization about trauma and

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its effects; the ability to recognize signs of trauma in individuals, families, and staff; response by integrating knowledge of trauma in practices and procedures; and resistance to retraumatizing clients and staff. In using a trauma-​informed approach, interactions with family members shift from “What’s wrong with you?” to “What happened to you?” The SAMHSA (2014) also outlines six principles of a trauma-​informed approach. The principles of a trauma-​informed approach are not a set of rules to follow, but instead are a guide to help develop relationships and environments that encourage recovery and avoid retraumatization (Sweeney, Filson, Kennedy, Collinson, & Gillard, 2018). Defense teams can explore these principles to find ways to incorporate them in their work with family members of capital defendants. SAMHSA’s six principles of a trauma-​informed approach are (a) safety; (b) trustworthiness and transparency; (c) peer support; (d) collaboration and mutuality; (e)  empowerment, voice, and choice; and (f)  cultural, historical, and gender issues. Safety can involve both family members and staff feeling psychological and physical safety. This may include meeting with family members in a place that feels safe to them; interacting with family members in a way that is open and nonjudgmental; developing rapport so the individual is willing to share personal, often painful, information; empathizing with how family members are affected by the death penalty process; and managing one’s own personal bias to provide a safe environment and to not further stigmatize. Safety can also include defense team members creating a self-​care plan to promote their own resiliency in this difficult work. A self-​care plan is not only important to the team members but also the family members. Defense team members can work with family members in creating such a plan. In utilizing trustworthiness and transparency, defense team members, when appropriate, can seek to make decisions with transparency or explain when they cannot do so. While defense teams are unlikely to be transparent with case strategies, team members can educate the family on the death penalty process and notify them of hearing dates and upcoming news reports. Defense team members can also develop trust by being consistent and following through on what they agree to. Although mitigation specialists and investigators are the primary contacts with family members, this should not preclude conversations with lawyers, as sometimes family members may need to be able to ask specific legal questions. Trustworthiness and transparency may also mean that the defense team works to maintain respectful boundaries with family members. The third component to a trauma-​informed approach is peer support. Here defense teams may consider connecting family members with family members of other capital defendants who have been through the death penalty process. Family members may be encouraged to seek support from state or local

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antideath penalty organizations. This connection may lessen some of the helplessness and loneliness felt by many family members of capital defendants. Peer support may also involve utilizing the family members’ lived experiences to share their stories and educate others about the harmful impacts of the death penalty process. Collaboration and mutuality includes levelling the power imbalance between the defense team and the family members, as well as any power differences that may exist among members of the defense team. This principle recognizes that everyone has a role in the process. Defense teams may utilize this principle by helping family members understand their important role in their loved one’s case as they work together to develop mitigation evidence. This may require a bit of a shift in the thinking of defense team members from “What do I need to get from this family member?” to “What can this family member and I do together to support the client?” The principle of empowerment, voice, and choice consists of exploring individuals’ strengths and providing opportunities for choice and control. Family members of capital defendants may often feel powerless and stigmatized by the death penalty process. In their interactions with family members, defense team members can recognize ways in which family members’ voices and choices are diminished. Defense team members can increase their awareness of any personal bias they may have, as well as use language that is person-​centered and empowering. The defense team can also identify strengths and explore ways in which family members can develop and utilize healthy coping strategies. Cultural, historical, and gender bias explores the impacts of cultural, historical, and gender issues of the client and his family as they pertain to death penalty mitigation. In utilizing this trauma-​informed approach principle, defense team members should also be mindful of any bias and prejudice they may have and work to overcome them. Defense teams can also explore the historical and institutional stigma and trauma family members may have experienced.

Cultural Competency in Mitigation

The Supplemental Guidelines for the Mitigation Function of Defense Teams in Death Penalty issued by the American Bar Association in 2003 speaks to the importance of cultural competency in mitigation (Holdman & Seeds, 2008). The recommendations state that people “must be able to identify, locate, and interview relevant persons in a culturally competent manner” (Holdman & Seeds, 2008, p. 885). At the basic level, cultural competency involves rejecting stereotypes, which allows people to work effectively across cultures. Often

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this is limited to obtaining basic knowledge about a culture or set of cultures. In this regard, cultural competency has been criticized for reinforcing the notion that, in learning to be culturally competent, I am normative and you are other and, therefore, less than. In the cultural competency model, power is not addressed and therefore a power dynamic is at play that does not promote safety and transparency. There are alternatives to cultural competency that are more in line with trauma-​informed approaches. One approach is Furlong and Wight’s (2011) critical awareness, in which practitioners cultivate curiosity and an “ ‘informed not knowing” (p. 39). Naber’s (2012) advice is to “simply sit with people that we seek to understand  .  .  .  to enable their own narrative rather than our preconceived ideologies  .  .  .  to structure our thinking” (p. 249). This then provides the space for individuals to represent themselves and to dismantle stereotypes. REFERENCES American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: American Psychiatric Publishing. Attig, T. (2004). Disenfranchised grief revisited: Discounting hope and love. OMEGA—​ Journal of Death and Dying, 49(3), 197–​215. doi:10.2190/​P4TT-​J3BF-​KFDR-​5JB1 Beck, E., Brito, S., & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families. New York, NY: Oxford University Press. Bruce, E.  J., & Schultz, C.L. (2001). Nonfinite loss and grief:  A psychoeducational approach. Baltimore, MD: Paul H. Brooks. Cushing, R., & Shaffer, S. (2002). Dignity denied: The experiences of murder victims’ families members who oppose the death penalty. Murder Victims’’ Families for Reconcilia­ tion. Retrieved from https://​static.prisonpolicy.org/​scans/​DignityDenied.PDF Death Penalty Information Center. (2019). [Homepage]. https://​deathpenaltyinfo.org/​ Doka, K. J. (1999). Disenfranchised grief. Bereavement care, 18(3),  37–​39. Enez, Ö. (2018). Complicated grief:  Epidemiology, clinical features, assessment and diagnosis. Psikiyatride Güncel Yaklaşımlar, 10(3), 269–​279. Equal Justice Initiative. (n.d.). The federal death penalty system: A statistical survey. Retrieved from https://​deathpenaltyinfo.org/​dpic-​summary-​federal-​death​penalty-​sytem-​statistical-​survey Furlong, M. & Wight, J. (2011). Promoting “critical awareness” and critiquing “cultural competence”: Towards disrupting received professional knowledges. Australian Social Work, 64(1),  38–​54. Goffman, E.  (1986). Stigma notes on the management of spoiled identity. Simon & Schuster Inc. Gregg v. Georgia, 428 U.S. 153 (1976). Heflick, N.  A. (2005). Sentenced to die:  Last statements and dying on death row. OMEGA—​Journal of Death and Dying, 51(4), 323–​336. Herman, J. (1992). Trauma and recovery: The aftermath of violence—​From domestic abuse to political terror. New York, NY: Basic Books. Holdman, S.  & Seeds, C.  (2008). Cultural competency in capital mitigation. Hofstra Law Review, 36(3), 883–​922.

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Howarth, C. (2006). Race as stigma: Positioning the stigmatized as agents, not objects. Community & Applied Social Psychology, 16(6), 442–​451. doi:10.1002/​casp.898 Jacobs, S., Mazure, C., & Prigerson, H. (2000). Diagnostic criteria for traumatic grief. Death Studies, 24(3), 185–​199. doi:10.1080/​074811800200531 Joy, S. (2013). Grief, loss, and treatment for death row families: Silent no more. Lanham, MD: Lexington Books. Joy, S., Beck, E., & Hurley, A.  (2019). The traumatic bereavement of children experiencing the loss of a loved one to death row. In M. Hutton, & D. Moran. Editor (Ed.), The Palgrave handbook of prison and the family (pp. 165–​180). Cham, Switzerland: Palgrave Macmillan. Larson, J. E., & Lane, F. J. (2006). A review of mental illness courtesy stigma for rehabilitation educators. Rehabilitation Education, 20(4), 247–​252. Link, B. G., & Phelan, J. C. (2001). Conceptualizing stigma. Annual Review of sociology, 27, 363–​385. doi:10.1146/​annurev.soc.27.1.363 Link, B. G., & Phelan, J. C. (2006). Stigma and its public health implications. The Lancet, 367(9509), 528–​529. doi:10.1016/​s0140-​6736(06)68184-​1 Major, B., & O’Brien, L.  (2005). The social psychology of stigma. Annual Review of Psychology, 56, 393–​421. doi:10.1146/​annurev.pysch.56.091103.070137 Naber, N.  (2012). Arab America:  Gender, cultural, politics, and activism. New  York, NY: New York University Press. O’Brien, S. D. & Wayland, K. (2015). Implicit bias and capital decision-​making: Using narrative to counter prejudicial psychiatric labels. Hofstra Law Review, 43, 751–​782. Radelet, M. L. (2016). The incremental retributive impact of a death sentence over life without parole. University of Michigan Journal of Law Reform, 49(4). https://​repository.law.umich.edu/​cgi/​viewcontent.cgi?article=1161&context=mjlr Rando, T.  (Ed.). (2000). Clinical dimensions of anticipatory mourning: Theory and practice in working with the dying, their loved ones, and their caregivers. Champaign, IL: Research Press. Roberts, B. W., & Jackson, J. J. (2008). Sociogenomic personality psychology. Journal of Personality, 76, 1523–​1544. doi:10.1111/​j.1467-​6494.2008.00530.x Sharp, S, F. (2005). Hidden victims: The effects of the death penalty on families of the accused. New Brunswick, NJ: Rutgers University Press. Smith, J.  A. (2011). Evaluating the contribution of interpretative phenomenological analysis. Health Psychology Review, 5(1), 9–​27.doi:10.1080/​17437199. 2010.510659 Smith, J.  A., Flowers, P., & Larkin, M.  (2009). Interpretative phenomenological analysis: Theory, method and research. Los Angeles, CA: SAGE. Smith, J. A. & Osborn, M. (2008) Interpretative phenomenological analysis. In J. A. Smith (Ed.) Qualitative psychology: A practical guide to research methods (pp. 53–​ 80). London, England: SAGE. Substance Abuse and Mental Health Services Administration. SAMHSA’s concept of trauma and guidance for a trauma informed approach. Retrieved from https://​ store.samhsa.gov/​system/​files/​sma14-​4884.pdf Sweeney, A., Filson, B., Kennedy, A., Collinson, L., & Gillard, S.  (2018). A  paradigm shift:  relationships in trauma-​ informed mental health services. BJPsych advances, 24(5), 319–​333. Thompson, M. P., Norris, F. H., & Ruback, R. B. (1998). Comparative Distress Levels of Inner-​ City Family Members of Homicide Victims. Journal of Traumatic Stress, 11(2), 223–​242.

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van Denderen, M., de Keijser, J., Kleen, M., & Boelen, P. A. (2015). Psychopathology among homicidally bereaved individuals: A systematic review. Trauma, Violence, & Abuse, 16(1), 70–​80. doi:10.1177/​1524838013515757 Vandiver, M.  (1989). Coping with death:  Families of the terminally ill, homicide victims, and condemned prisoners. In M. L. Radelet (Ed.), Facing the death penalty:  Essays on a cruel and unusual punishment (pp.  123–​138). Philadelphia, PA: Temple University Press.

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CHAPTER 17

The Relevance of Trauma and Secondary Trauma to Death Penalty Cases ROBYN PAINTER

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.S. Supreme Court case law recognizes severe trauma in a client’s life history as a powerful mitigating factor. However, uncovering and working effectively with someone else’s most traumatic moments is a delicate and difficult process even in the best of circumstances. This chapter outlines recent case law in this area, practical considerations for capital defense teams, and best practices for establishing rapport and investigating your client’s past trauma. Prophylactic measures practitioners can take for preventing their own secondary trauma is also discussed. Although the U.S. Supreme Court has ostensibly, “confined the imposition of the death penalty to a narrow category of the most serious crimes,” (Atkins v. Virginia, 2002, p. 319) as capital defense practitioners, we see time and again that this ultimate sentence is routinely imposed on the most vulnerable, the most abused, the most impoverished, and the least resourced individuals in our society. The individuals who we represent and aspire to aid are often those whose privations and life circumstances have led them to commit crimes that are judged by our society to be the worst of the worst. Ironically, they are also often the people who have been failed by every facet of society—​families, schools, children’s protection agencies, churches, health care and mental health care providers, courts, and the justice system, to name a few. As the mitigation social worker on a capital defense team, you will be responsible for making a personal connection with your clients and their Robyn Painter,The Relevance of Trauma and Secondary Trauma to Death Penalty CasesIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0018

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loved ones. It is worth noting that the overwhelming majority of individuals sentenced to death are men, although some women are also sentenced to death. For example, on April 30, 2019, a Gwinnett County jury handed down Georgia’s first death sentence in more than five years to a woman named Tiffany Moss, who stands convicted of murdering her stepdaughter—​and who chose to legally represent herself during the trial without the assistance of counsel (Rankin, 2019). Additionally, and in alignment with the social work value, Dignity and Worth of the Person (National Association of Social Workers, 2017), I also wish to recognize that some persons on death row may identify as gender fluid. Here forward, I will be referring to death sentenced individuals as client/​s. As a social worker, you may be able to connect with your clients in a way that their attorney or other people on their defense team may not. It is not an understatement to say that the quality of this connection could be a life-​ saving one. In addition, you will also have the training to recognize the familial and social patterns, and mental health symptomology that will likely become the foundation of your clients’ case for life. The first task of any capital defense team is humanizing your clients to the jury, the judge, the appellate court, or clemency panel and flipping the script of the prosecution so that the fact finders in your clients’ cases can understand the life circumstances that led your clients to what was likely the worst moment of their lives. The goal is that this understanding will inspire mercy in the decision-​maker and result in a life-​sentence for your clients. To do this, you and your team must uncover the traumatic events in your clients’ lives that have led the clients to where they are today. It is not an easy thing—​even in the most intimate relationships—​to uncover another person’s trauma and work with it in a productive way. So, the work you that you will undertake on your capital clients’ behalf will often be uncomfortable for both you and your clients. However, it is crucial that you establish a relationship of trust (i.e., rapport) that allows your clients and their families to gradually disclose childhood events and family life that be seen as diminishing your clients’ moral culpability. You must establish this relationship skillfully and gently and avoid retraumatization of your clients, to the extent possible. You must also be clear within your team, with yourself, and with your clients (if needed) that your goal is to preserve the life of your clients—​not the reputation of their family, your relationship with the clients, your clients’ relationship with other people, or even your clients’ self-​ image. You must know at the outset that the task of investigating the traumatic mitigating factors in your clients’ lives will be a daunting one. However, you will also know that through your work you are advancing the causes of human dignity and mercy and helping to tell the stories our society needs to hear and understand to heal ourselves and become a more compassionate and just society. [ 214 ]  Social Work Considerations

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THE U.S. SUPREME COURT RECOGNIZES TRAUMA AS MITIGATING EVIDENCE

Clients’ past trauma has become a potentially powerful mitigator in death penalty cases because the U.S. Supreme Court has recognized it as such. Indeed, in an area of jurisprudence where avenues to relief have continually shrunk after the adoption of the Anti-​Terrorism and Effective Death Penalty Act of 1996 (Caplan, 2015), it is notable that the U.S. Supreme Court keeps incrementally expanding the ways in which trauma is relevant to the jury’s sentencing inquiry (Porter v.  McCollum, 2009; Rompilla v.  Beard, 2005; Williams v.  Taylor, 2000; Wiggins v.  Smith, 2003)  and the Court’s own standard of whether or not death sentenced clients’ defense counsel rendered ineffective assistance (Strickland v. Washington, 1984).

Failure to Introduce Early-​L ife Trauma as Ineffective Assistance of Counsel

Starting in the early 2000s, the U.S. Supreme Court began highlighting how trial counsel’s failure to present the traumatic details of a death sentenced person’s upbringing constituted ineffective assistance of counsel under Strickland v. Washington (1984). To illustrate this trend, I describe three U.S. Supreme Court cases in this section. The three cases are Williams v.  Taylor (2000), Wiggins v. Smith (2003), and Rompilla v. Beard (2005). In Williams v.  Taylor (2000), the high Court made it clear that counsel’s failure to introduce evidence about Williams’s “nightmarish” childhood in which his parents had been convicted of criminal neglect of Williams and his siblings and where Williams had been “severely and repeatedly beaten by his father” before he became a ward of the state was unreasonable attorney performance (pp.  395–​396). The Court ruled that these omissions by Mr. Williams’s attorneys effectively deprived Mr. Williams of the assistance of counsel at trial. Williams’s attorneys also failed to introduce evidence that their client was intellectually disabled and that he only made it through the sixth grade in school. In Wiggins v.  Smith (2003), the U.S. Supreme Court expanded upon this analysis when it observed that merely relying on the clients’ presentence investigation (PSI) report, Department of Social Services (DSS) records, and a psychological evaluation that did not delve into Mr. Wiggins’s social history “fell short of the professional standards that prevailed in Maryland in 1989” (p.  524). Instead, the Court observed that the American Bar Association guidelines demand that a capital defense team’s investigation, “should comprise efforts to discover all reasonably available mitigating evidence to rebut any aggravating evidence that may be introduced by the prosecutor” (p. 524). T h e R e l e va n c e of  T r au m a  

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In Wiggins (2003), the Court highlighted traumatic facts about Mr. Wiggins’s upbringing and life as a young man that had not been heard by his sentencing jury as particularly mitigating evidence and stressed that the defense investigation had not appropriately followed up on the clues it did have in the PSI and DSS records, as well as the psychological report (Wiggins v. Smith, 2003). In particular, the Wiggins (2003) Court viewed the fact that Mr. Wiggins and his siblings had been left alone by their mother on at least one occasion for days with nothing to eat and that Mr. Wiggins had been the victim of sexual assault on multiple occasions as significant mitigating evidence: Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case. (pp. 534–​535)

The fact that the jury did not hear of these traumatic events ultimately rendered Mr. Wiggins’s death sentence unconstitutional because the information available to Mr. Wiggins’s counsel in the PSI and DSS records “would have led a reasonably competent attorney [and the capital defense team] to investigate further” (p. 534). Most important, the Court affirmed that the traumatic life events present in Mr. Wiggins’s case were demonstrative of “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability” (p. 535). Wiggins (2003) stands as a clear reminder of the importance of the role of the mitigation social worker, who is able to take a bare bones accounting of traumatic life events contained in court and other records and—​through diligent investigation and interviews with the clients’ families, friends, teachers, case workers, community members, and others—​flesh out the life-​saving stories that help the jury to have mercy on the team’s clients. In the third and final case discussed in this section, Rompilla v. Beard (2005), the U.S. Supreme Court affirmed the importance of a thorough investigation into the traumatic mitigating life events of death noticed clients before trial. The Court highlighted the necessity of doing a thorough records review and casting a wide net when investigating mitigating information on your clients’ traumatic life histories. This is true even in cases—​like Rompilla’s—​where the clients and the family are unable to disclose any mitigating evidence of prior trauma. Indeed, in these cases, a thorough records review is even more essential and will be the primary responsibility of the assigned social work investigator. In Mr. Rompilla’s case, the defense team had interviewed five family members, as well as the client himself, and all claimed to have very little useful information for Mr. Rompilla’s attorneys (Rompilla v.  Beard, 2005). The defense team also engaged three mental health experts to opine on Mr. [ 216 ]  Social Work Considerations

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Rompilla’s mental state and any mitigating mental health factors, but without details about his upbringing, these experts were not able to render useful or accurate assessments in defense of Mr. Rompilla. During visits by the defense team, Mr. Rompilla himself claimed that he was “bored” of his defense team’s inquiries and returned to his cell when they visited him (p. 381). He even obstructed their efforts by sending them off on false leads that never panned out. However, the Court found that this behavior did not excuse the defense team’s fundamental duty to have examined information that the defense team knew the prosecution planned on using in its case in aggravation against Mr. Rompilla to justify imposition of the death sentence (p. 381). In Rompilla (2005), the prosecution had announced early on its intent to enter the testimony of a victim of Mr. Rompilla’s from a prior conviction into the record during the sentencing phase of the case to demonstrate that Mr. Rompilla had a history of violence and to counteract the defense’s argument of residual doubt because the two crimes—​the prior and the murder at issue in this case—​were similar. Because the defense was on notice that this information would be used at the trial by the prosecution, the defense team had a duty to find out everything it could about the prior crime. Mr. Rompilla’s case file was publicly available and housed at the same courthouse where Mr. Rompilla was being tried for his current conviction. Had the defense team obtained the case file for the prior crime and reviewed it, they would have found multiple leads that undercut Mr. Rompilla’s moral culpability for the crime for which he received the death sentence. For instance, contained in that case file were prison records from a prior conviction that indicated that Mr. Rompilla had an impoverished childhood, suffered from substance abuse, dropped out of school at age 16, and potentially suffered from schizophrenia and/​or significant cognitive deficits (Rompilla v. Beard, 2005). The Court observed that had counsel become aware of this information, they might not have accepted their client’s and family’s assessment of his background at face value and would have dug deeper to attain the client’s school records, juvenile incarceration records, and adult prison records, which were the basis for the very different and compelling mitigation case presented by postconviction counsel. As the mitigation social worker on a defense team, establishing a sufficient rapport with your clients to get them to sign basic releases so that you can request these types of records should always be one of your first tasks on any case—​regardless of what the prosecution is planning on introducing as evidence. Having every available piece of paper from your clients’ lives prior to the alleged commission of the crime will not only allow you to generate further leads and truly understand your clients’ lives, but it will also allow you to push back on family members who want to give you a more benign version of events and to supply your mental health expert witnesses with relevant data so that they can render accurate, mitigating assessments. Many capital T h e R e l e va n c e of  T r au m a  

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defendants can present as having antisocial personality disorder without further information about the traumatic roots of their behaviors. Importantly, an antisocial personality disorder diagnosis is aggravating and will not render your clients sympathetic to the jury. The case finally presented by postconviction counsel demonstrated that Mr. Rompilla—​like so many capital clients—​had suffered tremendous trauma as a child and that this trauma was at the heart of his dysfunctional, maladaptive, and criminal adult behaviors. To wit, he was beaten mercilessly by his father at a young age; his parents both had substance abuse problems; Mr. Rompilla was exposed to alcohol in utero and suffered from fetal alcohol syndrome; Mr. Rompilla’s mother had once stabbed his father in front of her children; Mr. Rompilla and his brother were kept in a filthy wire dog cage at a young age that contained their excrement; and the Rompilla children attended school in rags and were isolated from their peers (Rompilla v. Beard, 2005). The Court found this evidence so different in quality and volume from what the defense team presented at trial, that it ruled that there was very little room for argument that Mr. Rompilla had not been prejudiced by these omissions. In closing, the Rompilla (2005) case also demonstrates the importance of doing a full investigation into your clients’ life circumstances and having documented evidence of the trauma suffered by your clients prior to involving mental health experts. Whereas the three mental health experts retained by trial counsel in Rompilla (2005) found “nothing useful” for the defense case in mitigation, experts retained by the postconviction team, who were given access to this crucial, traumatic life history information were able to ascertain that Mr. Rompilla suffered from organic brain damage and had impaired cognitive function that impaired his “capacity to appreciate the criminality of his conduct or to conform his conduct to the law” (Rompilla v. Beard, 2005, p. 392).

The U.S. Supreme Court’s Acknowledgement That Later-​i n-​L ife Trauma Is Also Mitigating

As outlined in Williams (2000), Wiggins (2003), and Rompilla (2005), and in case law going back several decades, the U.S. Supreme Court has clearly recognized the value of early trauma as mitigating evidence in death penalty cases. For example, in Penry v. Lynaugh (1989), the high Court opined: Evidence about the defendant’s background and character is relevant [to the appropriateness of the death penalty] because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. (p. 319)

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In 2009, the Court formally extended this analysis to apply to trauma that happens later in life, such as in the case of Korean War veteran George Porter (Porter v.  McCollum, 2009). In Mr. Porter’s case, the Court described the “moving” testimony of Mr. Porter’s commanding officer about two gruesome battles in which Mr. Porter had served and was injured, ultimately receiving two Purple Hearts (Porter v.  McCollum, 2009, pp.  448–​450). Mr. Porter’s postconviction counsel presented this evidence that also included information that he had gone absent without leave (AWOL) on several occasions following his exposure to the horrific violence of the battles he endured, and included information that he had terrible nightmares upon his return and began drinking heavily and fighting—​which he did not remember afterwards—​after these experiences. As in Rompilla (2005), the fact that Mr. Porter was not cooperative with counsel did not excuse his trial counsel from conducting a diligent investigation and presenting all possible mitigating evidence on his client’s behalf (Porter v. McCollum, 2009). In the end, the U.S. Supreme Court ruled that the traumatic episodes from Mr. Porter’s military service were not diminished because they came later in life or because his service was complicated by a record of instances of being AWOL, which the Court found to be consistent with his diagnoses. The Court also ruled that Mr. Porter’s early childhood trauma was still relevant, despite the fact that Mr. Porter was 54 at the time of trial. To the contrary, the Court cited the United States “long tradition of according leniency to veterans in recognition of their service” and recognized “the relevance of Porter’s extensive combat experience [to sentencing] is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll [of] combat” (Porter v.  McCollum, 2009, pp.  448–​450). Therefore, Porter (2009) not only serves as a symbol of how mitigating combat or military-​related experiences can be, but also for the proposition that trauma—​whenever it is experienced in life—​is something that must be thoroughly investigated, documented, and ultimately presented in your clients’ case for life.

THE LIFE OF A DEATH SENTENCED PERSON

As demonstrated by the cases just discussed, no two death-​sentenced clients are alike, and one case can differ wildly from the next. A  common denominator found in most death penalty cases is the presence of pervasive and devastating trauma in your clients’ lives and in the lives of the clients’ families. Around the world, and especially in the United States, the great majority of clients found on death row are indigent and grew up in environments of

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poverty, depravation, violence, and chaos (United Nations, 2017). More often than not, clients who end up with a death sentence also have an additional vulnerability—​be it a learning or intellectual disability, organic brain damage, mental health issue, or some form of outsider status (e.g. sexual orientation, gender fluidity, smallness of stature, being a child of a father who is not the current partner of their mother, etc.) in their family of origin that caused them to be additionally targeted for abuse or even further isolated from support in an already dysfunctional family situation (e.g., Porter v. McCollum, 2009). Modern psychiatry and neuroscience have begun to reveal the devastating effects on brain development of such circumstances. However, the U.S. Supreme Court’s analysis in death penalty cases has focused less on the biological mechanisms at work in death sentenced clients’ brains and much more on the philosophical notion that a person who experienced so much hardship cannot be found to have the same level of moral culpability as someone who did not experience enormous disadvantage. For this reason, in cases where defense teams have relied heavily on positron emission tomography scans, brain imaging, or expert neuropsychiatric testimony, clients have been denied relief. In contrast, where defense teams have been able to skillfully uncover, document, and corroborate the clients’ past history of trauma and present it as a compelling narrative that elicits a compassionate, merciful response, courts have granted relief. Simply put, bare science and diagnoses can have the perverse effect of dehumanizing death sentenced clients and, ironically, convince a fact finder that someone is too other (i.e., too pathological or too dangerous to be allowed to live). On the other hand, powerful storytelling related to fully explaining (while never excusing) clients’ crimes can have the opposite effect. Because of this truth of capital defense, the mitigation social worker plays such an important role on the defense team that it is hard to overstate your importance.

Types of Trauma

The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 2013)  defines posttraumatic stress disorder as stemming from exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:  (a) directly experiencing the traumatic event; (b) witnessing, in person, the event(s) as it occurred to others; (c) learning that the traumatic event(s) occurred to a close family member or close friend; and (d) experiencing repeated or extreme exposure to aversive details of the traumatic event(s). In other words, people are not built to experience or to be exposed to repeated, horrific violence. In 1996 and 1997 a group of researchers from the Kaiser Foundation and the Centers for Disease Control (CDC) launched what has become known as [ 220 ]  Social Work Considerations

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the Adverse Childhood Events (ACES) study that chronicled the detrimental physical health effects on individuals who had been exposed to adverse events in childhood (CDC, n.d.). The researchers sent questionnaires about whether or not respondents who had been examined at a Kaiser clinic in California had been exposed to adverse events such as psychological abuse, physical abuse, sexual abuse, substance abuse in the home, violence toward their mother, or experienced a household member with mental illness or who was incarcerated before the age of 18 (Felitti et  al., 1998). The researchers then examined whether or not exposure to multiple adverse events in childhood correlated to negative health outcomes in adulthood. The ACES study (CDC, n.d.) found that White, Asian, and college-​educated respondents were significantly less likely to have had adverse exposures than respondents who were Black, Latinx/​Hispanic, or had not attained a college education. The ACES researchers also found a strong relationship between the number of adverse childhood exposures and the prevalence of health risk factors for leading causes of death in adults. The ACES study demonstrated the relationship between a dysfunctional childhood and an increased physiological risk of cancer or ischemic heart disease on one hand, and health-​risk indicators such as smoking, lack of physical activity, excessive drinking, depression, suicide attempts, and multiple sexual partners, on the other.

BEST PRACTICES FOR TRAUMA INVESTIGATIONS

The ACES study (CDC, n.d.) is a fascinating one and relevant to the work of death penalty investigation because it will give you clues to follow, both in your clients’ lives and the lives of those to whom your clients are related. As you collect documentary evidence about your clients’ lives and the lives of their family members, you will likely see patterns emerge—​in school records, health records, social services records (if they exist), and juvenile court records and in the records of other agencies who may have had contact with your clients and their family members. For example, if your clients have had multiple suicide attempts or siblings with substance abuse problems or parents who experience depression, obesity, or other significant health problems, these may be clues that you will want to start attempting to track down and document. Some of the basic types of trauma you will want to investigate and ascertain whether or not they are present in your clients’ life histories are being a victim of or witness to violence, neglect by caretakers as a child, sexual abuse or rape, loss of family members or those significant to your client, exposure to combat, physical abuse or torture, mental abuse or torture, exposure to criminal activity at a young age, and being the cause of harm to another person. Following in this section, I  address step-​by-​step best practices for trauma investigations. T h e R e l e va n c e of  T r au m a  

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Step 1: Establish Rapport with Your Clients, Review Records, and Obtain Releases

The first place to begin a trauma investigation is with your clients and a thorough records review. Someone on your investigation team will first need to meet with your clients to start establishing a rapport and to get the broad outlines of the clients’ life histories. This might be you, this may be someone else on your team, or it could be multiple team members, depending on the client, the personalities on the team, and your client’s mental health state and tolerance of visits. On many death rows, incarcerated persons must undergo a cavity search before having a visit with anyone off of death row. While this is unpleasant for anyone, for clients who have experienced sexual abuse, this process can be re-​traumatizing. There are also myriad other reasons (e.g., meal schedule, court schedule, access to the store, access to the yard, presence of other incarcerated persons, presence of other guards, mental health symptomology, communications from loved ones outside of prison) why clients may not want a visit at certain times, or visits with you. As a team, you and your colleagues must be sensitive to these issues and to try to create an atmosphere of trust and safety with your clients as much as possible, in less than ideal circumstances. Whether your clients enjoy visits with you or not, know that there are many factors at play and do not take it personally. If you are working in a pretrial setting, you may not have very much information about your clients available to you at first beyond the police report from the crime scene and whatever report was made at the time of arrest. It will be important for someone to quickly establish rapport because your team will need to get your clients to sign record release forms so that you can start contacting agencies that may have had contact with your clients prior to arrest, including other law enforcement agencies. You will want to do the same for clients’ family members, as much as they are willing to cooperate. If you are working with a defense team on appeal or in habeas corpus proceedings, you will likely have a wealth of records already available to you from the trial court record (the trial transcript, exhibits introduced by both the defense and prosecution at trial, the defense team’s files and notes, and your clients’ jail and prison records, to name a few). In this posture, you will want to study the records you have, scour them for gaps, and carefully reconstruct your clients’ life histories to ensure that the trial team did not miss something. Whatever stage your clients’ case is at, it is best to always ensure for yourself that you have all of the records available to you. For example, do not simply trust boxes sent to you by a predecessor defense team, but go to the court, the prosecutor’s office, and the police station yourself and examine and copy the transcripts or other records directly at the source. Do not simply

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accept whatever packet of information your team may be given at an indictment or through discovery, but make independent records requests of law enforcement, when applicable. Once you have studied whatever materials you have and have had the opportunity to interview your clients and obtain their consent for your team to request records from multiple other sources, you are ready to start making records requests. During your team’s initial interviews with your clients and their loved ones, you will want to pay special attention to: place of birth; the circumstances of birth (e.g., any conditions or health issues either before, during, or after delivery); if there were any hospitalizations; whether family moved and with what frequency; where clients went to school; the age at which schooling ended; and whether there was any social services or criminal justice involvement with the family. Do not be surprised if your clients’ or their families’ recollection of events are incomplete—​memory gaps are a symptom of trauma (Sumpter & McMillan, 2005). Therefore, where you can, identify possible records or third-​party individuals to corroborate your clients’ memories. Elementary school teachers, former neighbors, former co-​workers of your clients’ parents, and retired case workers are all examples of people you will want to try to identify and speak with as you piece together and corroborate the traumatic events of your clients’ upbringings.

Step 2: Collect all the Documentary Evidence There Is About Clients’ Life Histories

Once you have your signed releases in hand—​ both general and Health Insurance Portability and Accountability Act (HIPAA)-​compliant releases—​ you can start requesting all the records that may exist about your clients’ lives prior to his crime. These records should extend to the very earliest days of existence—​the time spent in utero—​if at all possible. In this stage of your investigation, you will want to think of yourself as a researcher uncovering and documenting as precise and complete a history of your clients and their families as possible. This means that you will not only have to ask your clients about their lives and take notes as to where they lived, studied, worked, were hospitalized, jailed, or had significant relationships, but you will also have to be a bit of a detective—​continually scouring the records you do have and the ones that you obtain for further clues of people, places, or institutions that might not have been mentioned, and seek records or interviews from those places as well. Family members, significant others, teachers, long-​term health-​ care providers, clergy, co-​workers, and friends are also good sources for this information and you may also find information about these people—​or new people to interview—​in the records you request.

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Step 3: Schedule Face-​t o-​F ace Interviews with Relevant Reporters

After you have a good number of records and have had a chance to review them, contact the people who you think will be reporters with relevant information in your clients’ cases. Cast the net wide—​do not rely solely on family, friends, or your clients, because many times the people closest to your family may be invested in transmitting a certain image of clients’ life histories and upbringings to outsiders. Especially where there has been a history of poverty, mental health issues, addiction, child abuse, sexual abuse, and neglect, individuals may feel protective and private with this information. This is a very challenging dynamic, because this is precisely the information that you will be seeking. In cases where there is significant shame and secrecy attached to past trauma, you will especially want to be familiar with the documentary record of clients and their families, and to potentially start your interviews from the outside and progress inward. For example, you may choose to first interview teachers, clergy, therapeutic professionals (provided you have appropriate releases), neighbors, and others who are peripheral to the family’s life, but who may have important information nonetheless. Then, you may want to move to friends and more distant relations like cousins, aunts, and uncles, saving clients’ closest family members and friends for last. This allows for you to corroborate evidence you see in documents so that you can push back gently (or firmly) on sanitized narratives of your clients’ upbringings, if necessary. However, every case is different and every family situation is different. What may look like a rational and productive strategy in one case may make no sense at all or be counter-​productive in another case, depending on the personalities, relationships, and individual quirks of your clients and their loved ones. At all times, use your best judgment and talk it through with your team members—​the last thing you want to do is to offend or antagonize a key witness. Finally, with all of these considerations in mind, allow plenty of time—​ maybe even several days, depending on the person—​to interview each witness and try everything in your power to speak to them in person. If you can conduct the interviews with another team member, this is also highly advisable for your own protection and because if your witness becomes unavailable for any reason, the other person may be able to at least execute an affidavit summarizing whatever mitigating information may have been gleaned from the interview.

Step 4: Build Trust Through Empathy, Caring, and Transparency

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always doing in your investigation of their cases. Without this trust, you will find that an already difficult task as a mitigation social worker becomes infinitely more challenging. The process of establishing trust with your clients will be easier, however, if you recognize and are honest with yourself and within your team from the outset all of the potential barriers that may make you or your teammates a difficult person for your clients to trust. In many death penalty cases, these barriers can look like: • Racial, gender, cultural, educational, socioeconomic and other lines of difference between clients and the defense team; • Shame and fear (i.e., stigma) on the part of the clients and/​or their families; • The routines of incarceration; • Mental health issues; • Judgment or indifference on the part of the defense team; • Unfamiliar family structure and dynamics; • Your role in the criminal justice system; • Incompatible personalities; and, • Psychological transference (i.e., something about you that reminds the client of someone else) and countertransference (i.e., something about the client that reminds you of someone else). In consideration of these factors, the team should try its best to identify who may be a good match with the client to become the principle point of contact. This person will visit frequently with the client, establish rapport, conduct interviews, monitor mental health, and keep the lines of communication open. This person may also be the point of contact for the family—​or someone else may be a better fit, depending on the circumstances. Once this point-​of-​contact person is identified, one of the best ways to start establishing trust is through respect for your clients. Ask your clients if they have a preference for when and how frequently you visit, explain your role, and answer any questions your clients may have. Be as forthright and honest as you can. Also, be kind. Most important—​if you say you are going to do something for him or a family member—​do it. Do not commit to doing things you cannot do. Understand that your clients have likely led a life where a lot of people have disappointed or failed them. Do not be one of those people. Instead, gain trust by being trustworthy and look for common interests. Almost any two people in the world can find something they have in common—​even if it is as trivial as a favorite food, sports team, or musician. Build on this commonality and try your best to make your visits with your clients a break from the monotony of incarceration. Remember that you are one of your clients’ contacts to the outer world. Finally, almost nothing is as valuable to a relationship as listening. Listen actively and empathically, keeping your facial expressions warm, friendly, or T h e R e l e va n c e of  T r au m a  

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neutral, as appropriate—​no matter what clients may be disclosing. The last thing you want to do is to have traumatized clients confide in you, only to have that confidence received with disgust or negativity (even if you didn’t mean to show it). Make a point of not taking notes during most visits. Notetaking—​ while sometimes a necessity—​can also impede trust, especially at the beginning of a relationship. If and when you need to take notes, make sure to ask permission and explain why. Be a safe, nonjudgmental person that your clients can talk to about anything and provide your clients with empathy, where you are able to give it.

Step 5: Prepare Clients and Their Families to Talk to Others and Avoid Retraumatization

Once you have established a trusting rapport with your clients and other witnesses in the case and done your homework in terms of gathering documents, you will want to start preparing your clients and witnesses to speak to outside expert witnesses—​including state experts—​and to testify, if that is appropriate. If your clients or family members will be addressing traumatic events in these interviews, make sure that they have access to frequent breaks and that they are aware going into the interview or testimony what kinds of questions will likely be asked. You may want to rehearse with them once or twice to help them feel confident. Reassure them that you will be nearby and—​if possible—​debrief with them afterward and then bring them to a place of talking about another, lighter topic before leaving them. If you have any serious concerns about their safety before leaving them after such a session, contact the prison psychologist or other safety personnel and make sure to touch base with your clients or witnesses as soon as reasonably possible the next day.

DISCUSSION

Death penalty representation is potentially life-​saving work. However, even when death penalty defense teams do not win a case, sensitive, empathetic representation of death-​sentenced clients also has the potential to help clients and their loved ones by providing accompaniment, dignity, and an opportunity for marginalized individuals to have their voices heard, to tell their side of the story, and to transcend their traumatic experiences. These human stories are so valuable because society has the opportunity to learn profound truths from these new narratives that otherwise would not come to light without the diligent and caring work of a creative and dedicated capital defense team.

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IMPLICATIONS FOR SOCIAL WORK SELF-​C ARE

As someone working on the front lines of human rights, who is exposed to histories of violence and maltreatment of others on a regular basis, you will need to take special care of yourself as a mitigation social worker to ensure your own well-​being. Posttraumatic stress disorder can occur not only in individuals who have directly witnessed or experienced trauma, but also in those who have experienced, “repeated or extreme exposure to aversive details of the traumatic events” (American Psychiatric Association, 2013). For this reason, it is very important that you are aware that this can occur, as awareness is a major protective factor in preventing secondary trauma, or compassion fatigue, as it is sometimes also called. To prevent secondary trauma, it is important that you maintain appropriate professional boundaries with both your clients and their families; that you take breaks and vacations; maintain friends and interests outside work; and put a support plan in place to help you identify when you may be engaging in unhealthy coping strategies or becoming depressed (Figley, 2002). Many individuals who carry their own history of trauma are drawn to capital defense work for this very reason. Before you begin this work, make sure you are aware of your own trauma triggers and have a discussion with your team about these triggers. Knowing and understanding your own, as well as your teammates’, will help you to protect each other and to encourage each other to step back when needed. During my time as a capital defense attorney, I found it helpful to consult a counselor when I dealt with particularly stressful circumstances. As you contemplate entering into this field, I would encourage you to think about an intermittent or continuing relationship with another trusted professional as a prophylaxis you employ to ensure you are able to keep going in this work for the sake of your clients.

REFERENCES American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: Author. Atkins v. Virginia, 536 U.S. 304, 319 (2002). Caplan, L.  (2015, June 21). The destruction of defendants’ rights. The New  Yorker. Retrieved from https://​www.newyorker.com/​news/​news-​desk/​the-​destruction-​of​defendants-​rights Centers for Disease Control and Prevention. (n.d.). Adverse childhood experiences (ACES). Retrieved from https://​www.cdc.gov/​violenceprevention/​childabuseandneglect/ acestudy/​index.html Felitti, V. J., Anda, R. F., Nordenberg, D., Williamson, D. F., Spitz, A. M., Edwards, V., & Marks, J. S. (1998). Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood

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Experiences (ACE) Study. American Journal of Preventive Medicine, 14(4), 245–​258. Figley, C.  R. (2002). Compassion fatigue:  Psychotherapists’ chronic lack of self care. Journal of Clinical Psychology, 58(11), 1433–​1441. National Association of Social Workers. (2017). Ethical principles. Retrieved from https://​ www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​Code-​of-​Ethics-​English Penry v. Lynaugh, 492 U.S. 302 (1989). Porter v. McCollum, 558 U.S. 30 (2009). Rankin, B.  (2019, April 30). Tiffany Moss was convicted of starving stepdaughter. Atlanta Journal Constitutional. Retrieved from https://​www.ajc.com/​ news/ ​ l ife-​ d eath-​ j ury-​ a gain-​ d eliberate-​ s entence-​ for-​ g winnett-​ s tepmom/​ ac3xy8LiYYQod9EWj0Kz7J/​ Rompilla v. Beard, 545 U.S. 374 (2005). Strickland v. Washington, 466 U.S. 668 (1984). Sumpter, R.  E., & McMillan, T.  M. (2005). Misdiagnosis of post-​traumatic stress disorder following severe traumatic brain injury. British Journal of Psychiatry, 186(5), 423–​426. United Nations, Human Rights Office of the High Commissioner. (2017, October 10). Death penalty disproportionately affects the poor, UN rights experts warn. Retrieved from https://​www.ohchr.org/​en/​NewsEvents/​Pages/​DisplayNews. aspx?NewsID=22208&LangID=E Wiggins v. Smith, 539 U.S. 510 (2003). Williams v. Taylor, 529 U.S. 362 (2000).

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CHAPTER 18

Advocacy, Activism, and Policy Practice Social Workers as Advocates for Criminal Legal System Reforms MARISSA MCC ALL DODSON

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n the last 15 years, public attitudes about criminal legal policies have shifted dramatically. Instead of calls for more punitive, so-​called tough-​on-​crime laws, people across the United States are asking lawmakers to advance policies that avoid incarceration and focus on rehabilitation and restorative justice. In a survey conducted by Public Opinion Strategies in 2018, there was overwhelming support for sending less people to prison, eliminating mandatory prison sentences, and increasing opportunities for rehabilitation (Blizzard, 2018). Moreover, an October 2018 Gallup poll found that most Americans do not believe that the death penalty is imposed fairly and support its declining use (Death Penalty Information Center, 2019). Jurisdictions across the country are passing legislation that is more holistic and less retributory. These policy shifts are in stark contrast to those from the previous five decades when political candidates and elected officials committed to tough-​on-​crime policies, and the results have been remarkable. Today, the federal government and nearly every state in the United States is sending less people to prison and, those who are incarcerated are receiving less time than any time in recent memory. In 2016, the country’s incarceration rate was the lowest it had been in two decades (Gramlich, 2018). Moreover, for the first time in more than 25  years, the number of people facing active death sentences in the United States has fallen below 2,500 and 20 states have repealed capital punishment—​8 since 2005 alone Marissa McCall Dodson,Advocacy, Activism, and Policy PracticeIn:Social Work, Criminal Justice, and the Death Penalty.Edited by: Lauren A. Ricciardelli, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190937232.003.0019

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(Death Penalty Information Center, 2019). Although policy reforms in the 1980s and 1990s were aimed at prosecuting more children in the more punitive adult systems, the last 15 years have reversed those trends. Since 2007, eight states have increased the age of criminal prosecution to 18 years old (Thomas, 2018). In addition, 17 states have reduced the incarceration of children in custodial facilities, and 8 have limited the automatic transfer of children to adult court (Thomas, 2018). Recently, as many have started focusing on reducing incarceration and investing resources into communities, social workers have recommitted to working on criminal legal systems. In this reform climate, understanding the role of the social work activist and the best ways to engage through advocacy will be important to maximizing the scope and impact. To this end, a discussion of social workers as activists follows next.

SOCIAL WORKERS AS ACTIVISTS

Activism through advocacy is central to the practice of social work. It requires “deliberate actions that empower people to advance their rights and improve their communities” (Thompson, 2009). This duty of advocacy is recognized in the Code of Ethics of the National Association of Social Workers (NASW; 2017), which specifically requires social workers to “approach, initiate, assist, educate and organize clients for participation in advocacy.” When it comes to criminal legal systems, social workers are uniquely trained and positioned to understand the profoundly detrimental impact that punitive policies have on marginalized communities. The way in which racial minorities and people with little financial means are disproportionately represented in criminal legal systems demands the attention of social workers. This is also grounded in the NASW Code of Ethics, which charges social workers to engage in social justice action on behalf of groups that are socially or economically vulnerable. Social workers are charged to call out social injustice and pursue changes on behalf of marginalized and oppressed groups of people (NASW, 2017). When seeking to address systems, policies, and practices that will advance social and economic conditions for disadvantaged communities, social workers refer to this as cause advocacy (Thompson, 2009). Research demonstrates that when people, particularly those who have been impacted by criminal legal systems, civically engage to advocate for positive community changes, they are more likely to lead successful and healthier lives (Bazemore & Stinchcomb, 2004). Thus, not only must social workers help clients advocate for themselves and their families, they should also help people engage in advocacy efforts that can challenge and change the systems and structures that cause harm. Social workers have played key roles in the development of policies and practices that promote fairness and dignity for communities impacted by [ 230 ]  Social Work Considerations

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criminal legal systems. Social workers have been making their mark on these systems since their modern-​day creation at the end of the 19th century. Premised on prioritizing rehabilitation over punishment, social worker activists in criminal legal systems have effectively advocated for policies that imposed less severe sentences, more opportunities for advancement and easier reintegration. In fact, it was a social worker—​John Augustus—​who first introduced the concept of probation as an alternative to incarceration in 1841 (Gumz, 2004). Unlike the onerous and oppressive way in which it is used today, probation originally focused on connecting people with the resources necessary to avoid incarceration and live more fulfilling and productive lives. Social worker activists were also critical to the creation of juvenile courts. In 1899, social workers in Cook County, Illinois, advocated for the first juvenile court in the country because of the assertion by social workers that children were the future, and the government needed to protect their welfare and best interest (Gumz, 2004). Up until the 1960s, about half of all probation officers were trained social workers (Epperson, 2018). As crime rates increased in the 1960s, however, lawmakers began passing harsher and more punitive laws which made it harder to advocate on behalf of those accused of crimes. During this time, social worker activists were instrumental in advocating for education, employment, and community treatment (Sarri & Shook, 2008). Despite the overwhelming pressure to treat people harshly in criminal legal systems, social workers remained diligently committed to increasing resources to impacted communities. By the 1990s, however, most social workers had withdrawn from criminal legal advocacy due to devastating declines in governmental funding under the Reagan administration, as well as the reduction in funds by the NASW and other organizations that provided training to social workers in the criminal legal systems (Sarri & Shook, 2005). Today, there has never been a more critical role for social work activists in improving communities impacted by criminal legal systems.

ADVOCACY AGAINST RACIAL INJUSTICE

The racial disparities that exist in modern-​day criminal legal systems are pervasive and staggering. Most scholars and experts link the systemic and ubiquitous oppression of Black people in the criminal legal system to the end of the institution of slavery. Social workers are prohibited in the Code of Ethics from “practicing, condoning, facilitating or collaborating with any form of discrimination” (NASW, 2017, Section 4.02; emphasis added). Further, the code requires that social workers engage in social and political action to, “prevent and eliminate domination of, exploitation of, and discrimination against any person, group or class” (Section 6.04[d]‌). To be an effective social work activist A d vo c a c y, A c t i v i s m , a n d P ol i c y P r ac t i c e  

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for criminal legal reforms, an understanding of the history of racial and economic oppression ingrained in criminal legal systems is imperative. Soon after the Civil War, state and local governments began using the exception to slavery created by the Thirteenth Amendment to the U.S. Constitution to gain back control over Black people through criminal convictions (Alexander, 2010; Blackmon, 2008; DuVernay, 2016). While it is true that there have been multiple and significant efforts over the last 150 years to further this control over people of color and people with little wealth, it is crucial for advocates to remember that the modern-​day criminal legal systems are rooted in a vigorous effort to legitimize a derivative of the institution of slavery in this country. At every stage in the process—​from the likelihood of a stop to whether someone will be sentenced to death—​the criminal legal outcomes are worse for Black people. According to the U.S. Census, Black people account for about 14% of the population, yet nearly 30% of the incarcerated population is Black (Nellis, 2016; U.S. Census Bureau, 2018). Black people are also more likely to spend time in jail awaiting trial; more likely to be convicted; and more likely to get a harsher sentence, whether it is prison instead of probation or death instead of life imprisonment (Bright, 2002). Furthermore, based on exonerations, Black people are 12 times more likely to be wrongfully sent to prison for a drug crime, 3.5 times more likely to be wrongfully convicted of a sexual assault, and 50% more likely to be wrongfully imprisoned of murder than White people (Gross, Possley, & Stephens, 2017). Although we are socialized to believe that Black people are more likely to commit crimes than White people, the evidence makes clear that this is wrong. Overwhelming research finds that White people commit crimes at equal or higher rates than Black people, despite being less likely to be accused (Hinton, Henderson, & Reed, 2018; Ingraham, 2017). Further, 1 in 3 Black men born in 2001 can expect to be incarcerated at some point in their lifetime, compared to 1 in 17 White men (Hinton et  al., 2018; Ingraham, 2017). In addition, even though Black people are three times more likely to be searched during a traffic stop on less evidence than their White counterparts, White people are more likely to be in possession of an illegal item when stopped (Norton, 2017; The Sentencing Project, 2018). White people are also equally likely to use and sell drugs, yet significantly less likely to be charged than Black people (Hinton et al., 2018). When it comes to violent crime, researchers have found that in poorer urban areas, there are more incidents of crime, regardless of race. Moreover, when White men are living in conditions of poverty, they are more likely to commit violent crimes than Black men in similar circumstances (Hinton et al., 2018). In addition, due to the disparities in intergenerational economic mobility that stem from the institution of slavery, Black people are more likely to be financially insecure and live in resource-​poor communities. Nearly half of Black [ 232 ]  Social Work Considerations

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children are raised in households in the bottom fifth of the income distribution, compared to just over 10% of White children (Winship, Reeves, & Guyot, 2018). Also, the majority of the Black population born in a household with little income can expect to permanently be stuck in poverty (Winship et al., 2018). Given these structural inequities, it is not surprising that most Black people accused of a crime must rely on an indigent defense system, when available, and most of these offices are understaffed and underfunded (The Sentencing Project, 2018). The laws that create criminal legal systems do not explicitly address race. Thus, advocacy for reforms cannot simply ask for the laws that treat Black people differently than White people to be changed. Though the objective is relatively simple—​end racial disparities—​the tactics and strategies are complicated. Social work activists for racial justice must work with others to make clear to policymakers that they must acknowledge the racist history of criminal systems and take proactive steps to address the disparities created. Social worker activists should work with others to advance race-​conscious policies such as implicit bias training for all system actors, decriminalizing minor offenses, expanding alternatives to incarceration, increasing fairness in the jury selection process, and requiring the use of racial impact statements.

ADVOCACY AGAINST ECONOMIC INJUSTICE

Since these systems were created to benefit the wealthy at the expense of people with virtually no independent economic value, people without financial resources—​regardless of race—​continue to find themselves entangled in at least one criminal legal system. Nearly 20% of American families with children are officially classified as poor, and another 30%, because of insufficient income, live under similar stressful conditions (Kearney & Harris, 2016). Despite relatively recent efforts to diversify incomes in certain neighborhoods, poverty remains concentrated with extremely scarce resources for people who live in these communities. The research makes clear that concentrated poverty is directly related to lower educational attainment and earning potential (Boschma & Brownstein, 2016). Further, those experiencing poverty are more likely to be arrested and incarcerated for a minor offense, and, on average, incarcerated people earn 41% less than those in the same age group (Rabuy & Kopf, 2015). Children born into poverty are much more likely to be involved in the criminal legal system. For example, studies have found that boys from the poorest families are 40 times more likely to end up in prison compared to boys from the richest families (Looney & Turner, 2018). In addition, girls from the poorest American families are 17 times more likely to be incarcerated at some point in their lives (Looney & Turner, 2018). While A d vo c a c y, A c t i v i s m , a n d P ol i c y P r ac t i c e  

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more likely to be accused of a crime, it is also important for advocates to remember that people who live in poverty are also more likely to experience criminal activity perpetrated against them (Kearney, 2016). It is evident that communities most impacted by criminal legal systems are most in need of resources to improve economic mobility—​necessities like quality education, affordable housing, stable employment, and health care. Social work activists in criminal legal systems are highly equipped to advocate for these investments in impacted communities. People with little financial wealth are overrepresented in criminal legal systems and shockingly bear most of the costs. This is primarily done through the assessment and collection of fines and fees that, in most places, are not determined based on a person’s ability to pay. Placing overwhelming debt on people who are already in poverty, or on the brink thereof, only exacerbates their disadvantage and extends involvement in criminal legal systems. In 2019, the U.S. Supreme Court decided that courts cannot impose financial obligations on a defendant who does not have the ability to pay (Timbs v. Indiana, 2019). This was a monumental decision, the implementation of which will be crucial to addressing economic disparities in criminal legal systems. Social worker activists should join other advocates to hold courts and policymakers accountable for holdings of this decision in pursuit of economic justice on behalf of people impacted by criminal legal systems. In addition to ensuring that financial obligations are not imposed if there is no ability to pay, as required in Timbs (2019), social work activists should also advocate for other reforms that can reduce economic disparities in criminal legal systems. These reforms include: limiting governmental reliance on criminal legal debt, eliminating the predatory incentives of the private sector, expanding the right to vote for people despite outstanding criminal legal debt, expanding alternatives to monetary sanctions, and imposing caps on the percentage of income that can be collected (Endick, Greenamyre, Heath, & Alexandra, 2016).

SOCIAL WORK ACTIVISTS AGAINST THE DEATH PENALTY

There is no more egregious aspect of the criminal legal systems in the United States than the use of the death penalty. The official act of killing someone unquestionably diminishes the value and worth of every person and contradicts NASW’s (2017) broad ethical principle for social workers to respect the inherent value of everyone. Since more Black people have been executed than White people for the same crime, race has long been a factor in deciding whether the death penalty should be used as a punishment in the criminal legal system (Betancourt et. al., 2006). In 2002, based on inconsistency with professional and ethical standards, and the arbitrary, unfair, and racially biased application [ 234 ]  Social Work Considerations

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of the death penalty to target the most vulnerable, the NASW (2002) developed policy statements for social workers engaged in advocacy against the death penalty. Considering the recent legal and legislative victories that have restricted the use of the death penalty in the United States, there are five policy statements that are still relevant for social workers today. Social work activists should join other advocates against the death penalty to influence governments to (a) abolish the death penalty for all crimes; (b) pending abolition, impose an immediate moratorium on executions; (c) pending abolition/​ moratorium, enact legislation to prevent the use of the death penalty against people who have mental impairments; (d)  pending abolition/​moratorium, ensure that people facing the death penalty are represented by adequately trained, funded and experienced in capital proceedings; and (d)  impose life sentences as an alternative (NASW, 2002).

ADVOCACY THROUGH EMPOWERMENT

The objective of cause advocacy is to advocate for the goods and services that promote human dignity and social justice for a group of people (Thompson, 2009). This, however, is not enough to bring about meaningful change. Those impacted by the indignities and injustices of criminal legal systems must also be empowered to advocate for themselves and lead the reform discussions. The concept of empowerment has long been embraced as a key feature in social work practice (Thompson, 2009). In cause advocacy spaces, this means that impacted people must be empowered to influence decisions made about their lives and determine the best outcomes. There is a common misperception that people directly impacted by incarceration have not, cannot, or do not want to advocate for systemic changes. When I first began policy work in 2008, I held this faulty belief. Fortunately, however, I learned early in my career the importance of advocacy leadership by men and women and children who have experience the effects of a criminal legal system. Three years after graduating from law school I got my first lesson in how traditionally educated professionals, with good intentions, can impede the leadership and full potential of those who are most informed about the needs and solutions of communities impacted by the harsh effects of criminal legal policies. I  was working at the Georgia Justice Project, an organization that takes a holistic approach to indigent criminal defense by delivering legal and social services to people charged with a crime in the Atlanta-​area. I was attending a conference that brought together dozens of organizations and individuals interested in improving access to opportunities for people with a criminal history when I  met a gentleman who was formerly incarcerated and had been a longtime community organizer and advocate for reforms to criminal legal systems in the South. He expressed his frustrations about the A d vo c a c y, A c t i v i s m , a n d P ol i c y P r ac t i c e  

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attention and dollars that had newly become available to do the work he and others had been doing for decades. While grateful for the possibility of finally achieving meaningful and sustainable change, he could not help feeling slighted by the new attention to reform and the grant of millions of dollars to organizations led by the graduates of the nation’s top schools who had little to no experience with the realities of the criminal legal system. This incident gave me my first lesson in advocacy—​that social workers, lawyers, and other traditionally trained people who are eager to be involved in advocacy must recognize our place in the movement. This lesson is particularly relevant to the field of social work. As of 2018, less than a quarter of MSW programs had a criminal legal course and only five percent offered a specialization or concentration in criminal legal systems (Epperson, 2018). It should not be surprising, then, that since the profession has been sitting on the sidelines for the last 30 years during arguably the most pervasive civil and human rights issues of our lifetime has had a noticeable impact on the field. Social workers are now Whiter, more elite, and less connected to the people and communities most impacted by criminal legal systems (Diaz, 2011). Traditionally trained professionals such as social workers, lawyers, and other public policy advocates must recognize the privilege that is enjoyed because of the systemic oppression and control of others; and, in turn, they use this privilege of people who do not enjoy it. Social worker activists must both empower those impacted by criminal legal systems to advocate for themselves as well as make space in advocacy settings in which impacted people have not been traditionally invited to participate. Promisingly, there are social workers who are intentionally reconciling these truths and finding ways to be effective in the reform movement. RISE is a grassroots collective that regularly hosts events to instill values of social justice and empower social workers to be effective agents of change (Diaz, 2011). RISE social workers are committed to two ideals that every social worker interested in reforms to the criminal legal system should reflect (a) a deep understanding of the institutional and structural problems that exist and (b) the ability to identify ways that social workers can do a better job working with underprivileged populations (Diaz, 2011). Instead of blaming structures of power, RISE social workers center their work on the fact that they are part of those in power, and even though this comes with all the negatives associated with elitism, detachment, and ignorance, it also comes with great potential to bring about real change (Diaz, 2011). Social work activists will be most effective in criminal legal reform spaces by recognizing their status and becoming a humble resource. The humility required to be a resource to empower impacted people can be challenging. This is because too many of us who have never experienced incarceration quickly propose uninformed solutions, and because of our privilege [ 236 ]  Social Work Considerations

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mistakenly believe we are the best advocates of reform. This culture has created an understandable resentment and distrust of outsiders who, because of power and influence, have traditionally been able to get both attention and funding to advance reforms. For far too long, the voices of those impacted have been rarely, if ever, heard in rooms where philanthropic donors were providing resources or elected officials were contemplating policy changes. Thus, social worker activists must acknowledge their privilege and find ways to build trust with people impacted by a criminal legal system by becoming a resource and empowering people to lead. Social workers must ensure that the voices and perspectives of those most directly impacted by criminal legal systems are not tokenized, but instead that there are opportunities for leadership in advocacy.

DISCUSSION

When social workers understand the practical considerations of the relevant policies, they can more effectively engage in reform strategies of advocacy and/​or activism. Whether it is at a meeting with elected city officials about ending cash bail, a discussion with a candidate for District Attorney about the use of the death penalty, or a townhall event about disparate policing, social workers and other allies to the reform movement must find ways to empower impacted people to lead the advocacy for reform. The ethical principles that guide the profession of social work demand advocacy against policies that create racial and economic disparity, impose the death penalty, criminalize poverty, and implement excessive incarceration.

IMPLICATIONS FOR SOCIAL WORK AND CRIMINAL LEGAL PRACTICE

The NASW’s (2017) ethical principles require that social workers respect the inherent dignity and worth of every person. Yet, criminal legal policies disproportionately harm people of color and those who are poor, disadvantaged, and of limited mental or intellectual capacity. These disparities demand advocacy within the current systems that devalue the lives and communities of the most vulnerable and disregard the concept of personal dignity. Becoming aware of the legal, social, and economic barriers that exist for people impacted by the criminal legal system is at the crux of effective advocacy for social workers. By working with lawyers, judges, and corrections staff social workers play critical roles in advocating for rehabilitating resources for people, families and communities impacted most by criminal legal systems. To this end, I conclude with a summary of recommendations offered throughout this chapter: A d vo c a c y, A c t i v i s m , a n d P ol i c y P r ac t i c e  

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• Social work activists for racial justice must work with others to make clear to policymakers that they must acknowledge the racist history of criminal systems and take proactive steps to address the disparities created; • Social worker activists should work with others to advance race-​conscious policies such as implicit bias training for all system actors, decriminalizing minor offenses, expanding alternatives to incarceration, increasing fairness in the jury selection process, and requiring the use of racial impact statements; • Social work activists in criminal legal systems are highly equipped to advocate for resources to improve economic mobility such as quality education, affordable housing, stable employment, and adequate healthcare; • Social worker activists should join other advocates to hold courts and policymakers accountable for holdings of this decision in pursuit of economic justice on behalf of people impacted by criminal legal systems; • Social work activists should advocate for other reforms that can reduce economic disparities in criminal legal systems that include: limiting governmental reliance on criminal legal debt, eliminating the predatory incentives of the private sector, expanding the right to vote for people despite outstanding criminal legal debt, expanding alternatives to monetary sanctions, and imposing caps on the percentage of income that can be collected (Endick et al., 2016); • In accordance with the NASW (2002), social work activists should join other advocates against the death penalty to influence governments to (a) abolish the death penalty for all crimes; (b) pending abolition, impose an immediate moratorium on executions; (c)  pending abolition/​moratorium, enact legislation to prevent the use of the death penalty against people who have mental impairments; (d) pending abolition/​moratorium, ensure that people facing the death penalty are represented by adequately trained, funded and experienced in capital proceedings; and (e) impose life sentences as an alternative; • Social worker activists must both empower those impacted by criminal legal systems to advocate for themselves as well as make space in advocacy settings in which impacted people have not been traditionally invited to participate; and finally, and relatedly, • Social work activists will be most effective in criminal legal reform spaces by recognizing their status and becoming a humble resource.

REFERENCES Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: New Press. Bazemore, G., & Stinchcomb, J. (2004). A civic engagement model of reentry: Involving community through service and restorative justice. Federal Probation, 68(2), 14–​24.

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Betancourt, B., Dolmage, K., Johnson, C., Leach, T., Menchaca, J., Montero, D., & Wood, T. (2006). Social workers’ roles in the criminal justice system: Adapting to the USA’s changing attitudes towards the death penalty, 1953–​2001. International Social Work, 49(5), 615–​627. Blackmon, D.  (2008). Slavery by another name:  The re-​enslavement of Black people in America from the Civil War to World War I. New York, NY: Doubleday. Blizzard, R.  (2018, January 25). Memo to interested parties. Public Opinion Strategies. Retrieved from https://​www.politico.com/​f/​?id=00000161-​2ccc​da2c-​a963-​efff82be0001 Boschma, R. and Brownstein, R. (2016, February 29). The concentration of poverty in American schools: An exclusive analysis uncovers that students of color in the largest 100 cities in the United States. The Atlantic. Retrieved from https://​www. theatlantic.com/​education/​archive/​2016/​02/​concentration-​poverty-​american-​ schools/​471414/​ Bright, S. (2002). Race, poverty, the death penalty, and the responsibility of the legal profession. Seattle Journal for Social Justice, 1(1), art. 6. http://​digitalcommons. aw.seattleu.edu/​sjsj/​vol1/​iss1/​6 Death Penalty Information Center. (2019). National statistics on the death penalty and race. Retrieved from https://​deathpenaltyinfo.org/​race-​death-​row-​inmates​executed-​1976 Diaz, F. (2011, March 25). The new generation of activists: How social workers from rise are restoring social justice to their profession. Huffington Post. Retrieved from https://​www.huffpost.com/​entry/​the-​new-​generation-​of-​act_​b_​781496 DuVernay, A. (Director). (7 October, 2016). 13th [Documentary]. United States: Netflix. Endick, R., Greenamyre, Z., Heath, K., & Alexandra, J. (2016). Confronting criminal justice debt: a guide for policy reform. Criminal Justice Policy Program Harvard Law School. Retrieved from http://​cjpp.law.harvard.edu/​assets/​Confronting-​ Crim-​Justice-​Debt-​Guide-​to-​Policy-​Reform-​FINAL.pdf Epperson, M.  (2018). Advance:  Reflections on the role of social work in criminal legal reform. National Association of Social Workers, Illinois Chapter. Retrieved from http://​www.naswil.org/​news/​chapter-​news/​featured/​advance-​reflections​on-​the-​role-​of-​social-​work-​in-​criminal-​justice-​reform/​ Gramlich, J. (2018). America’s incarceration rate is at a two-​decade low. Pew Research Center. Retrieved from https://​www.pewresearch.org/​fact-​tank/​2018/​05/​02/​ americas-​incarceration-​rate-​is-​at-​a-​two-​decade-​low/​ Gross, S., Possley, M., & Stephens, K.  (2017). Race and wrongful convictions in the united states. National Registry of Exonerations Newkirk Center for Science and Society University of California Irvine. Retrieved from http://​www.law.umich. edu/​special/​ exoneration/​Documents/​R ace_​and_​Wrongful_​Convictions.pdf Gumz, E. J. (2004). American social work, corrections and restorative justice: An appraisal. International Journal of Offender Therapy and Comparative Criminology, 48(4), 449–​460. Hinton, E., Henderson, L., & Reed, C. (2018). An unjust burden: The disparate treatment of Black Americans in the criminal justice system. Vera Institute of Justice. Retrieved from https://​storage.googleapis.com/​vera-​web-​assets/​downloads/​ Publications/​for-​the-​record-​unjust-​burden/​legacy_​downloads/​for-​the-​record-​ unjust-​burden-​racial-​disparities.pdf Ingraham, C. (2017, November 16). Black men sentenced to more time for committing the exact same crime as a white person, study finds. Washington Post. Retrieved from https://​w ww.washingtonpost.com/​n ews/​w onk/​w p/​2 017/​1 1/​1 6/​

A d vo c a c y, A c t i v i s m , a n d P ol i c y P r ac t i c e  

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black-​men-​sentenced-​to-​more-​time-​for-​committing-​the-​exact-​same-​crime-​as-​ a-​white-​person-​study-​finds/​?utm_​term=.aff88f0f1e9f Kearney, M., & Harris, B.  (2016). The unequal burden of crime and incarceration America’s poor. The Hamilton Project. Retrieved from https://​www.brookings. edu/​wp-​content/​uploads/​2016/​06/​Crime-​blog-​post_​april28FINAL-​v3.pdf Looney, A and Turner, N. (2018). Work and opportunity before and after incarceration. The Brookings Institution. Retrieved from https://​www.brookings.edu/​wp-​ content/​ uploads/​2018/​03/​es_​20180314_​looneyincarceration_​final.pdf National Association of Social Workers. (2002). Peace and social justice. Retrieved from https://​www.socialworkers.org/​assets/​secured/​documents/​da/​da2010/​ referred/​Capital%20Punishment.pdf National Association of Social Workers. (2017). Code of ethics. Retrieved from https://​ www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​Code-​of-​Ethics-​English Nellis, A.  (2016). The color of justice:  Racial and ethnic disparity in state prisons. The Sentencing Project. Retrieved from https://​www.sentencingproject.org/​ publications/​ color-​of-​justice-​racial-​and-​ethnic-​disparity-​in-​state-​prisons/​ Norton, R. (2017, June 19). Black and Latino drivers are searched based on less evidence and are more likely to be arrested, Stanford researchers find. Los Angeles Times. Retrieved from https://​www.latimes.com/​local/​lanow/​la-​me-​ln-​ stanford-​minority-​drive-​disparties-​20170619-​story.html Rabuy, B., & Kopf, D.  (2015). Prisons of poverty:  Uncovering the pre-​incarceration incomes of the imprisoned. Prison Policy Initiative. Retrieved from https://​www. prisonpolicy. org/​reports/​income.html Sarri, R., & Shook, J. (2008). The future for social work in juvenile and adult criminal justice. Advances in Social Work, 6(1). https://​advancesinsocialwork.iupui.edu/​ index.php/​advancesinsocialwork/​article/​view/​92 The Sentencing Project. (2018). Report of the Sentencing Project to the United Nations Human Rights Committee regarding racial disparities in the united states criminal legal system. Retrieved from https://​www.sentencingproject.org/​ publications/​un-​report-​on-​racial-​disparities/​ Thomas, J.  (2018). Raising the bar:  State trends in keeping youth out of adult courts 2015–​2017. Campaign for Youth Justice. Retrieved from http://​www. campaignforyouthjustice. org/​images/​A-​StateTrends_​Report-​Web.pdf Thompson, N.  (2009). Understanding social work:  Preparing for practice (3rd ed.). Basingstoke, England: Macmillan International Higher Education. Timbs v. Indiana, 586 U.S. _​_​_​(2019). U.S. Census Bureau. (2018). Quick facts 2018. Retrieved from https://​www.census. gov/​quickfacts/​fact/​table/​US/​PST045218 Winship, S., Reeves, R., & Guyot, K. (2018). The inheritance of black poverty: It’s all about the men. The Brookings Institution. Retrieved from https://​www.brookings. edu/​research/​the-​inheritance-​of-​black-​poverty-​its-​all-​about-​the-​men/​

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Epilogue Making a Seat at the Table L AUREN A . RICCIARDELLI

I

t, the system, is simultaneously an extension of us, and at the same time, larger than and operating independently of, us. It is perpetually becoming and reifying its own grotesque logic. It is, and we become by virtue of it, the self-​consuming Ouroboros (see cover art)—​“a mythological creature connected to notions of greed, appetite, self-​destruction, and endlessness” (Bang, 2018, p. 809). In this way, Ouroboros can be seen as representing self-​violence as the ultimate culmination of all violence. Ouroboros is also perhaps manifest as the socially constructed mechanisms that keep us running in place and under control. For example, someone who has been released from prison is expected to successfully re-​enter society as a contributing member. However, the label felon or ex-​felon often precludes political participation (e.g., voting), economic participation (e.g., employment), and social participation (e.g., belonging). Another example is when persons in the criminal justice system are incarcerated because they cannot pay fines—​incurred because they could not pay previous fines. It is also an odd expectation, for example, that when a person is charged with driving under the influence (DUI) and loses their license, they are still expected to have the economic means to pay the related fines, despite their means to earning that money being taken away in the form of driver’s license suspension/​revocation—​and if they do not pay, they can be jailed for violation of the probation terms. This cycle is also echoed in the financial credit industry (e.g., needing credit to earn credit). As well, there is arguably a parallel that happens in the psychopharmacological industry, among other things, in the form of side effect and symptom management. In the insurance industry, this cycle is known as the doughnut hole (i.e., gap in

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coverage). Each and every one of these examples impacts social work practice because we are all impacted by these systems; we live in them—​and those who are situated furthest from the minimal threshold of justice are arguably impacted most. These are the very individuals, groups, communities, and social issues with whom and which social workers engage and advocate. For the purposes of this book, Ouroboros refers to the U.S. criminal justice and death penalty apparatuses that function to maintain the social, economic, and political hierarchy—​that is, control. But truly, Ouroboros is whatever it is that undergirds, nurtures, and constructs these apparatuses; it is much more abstract, much more complex, much more penetrating—​much more insidious. It is the cultural zeitgeist of exclusion used to further the political interests of those in or vying for positions of power, manifest in its various forms, but always appealing to negative stereotypes, fear, and stigma—​and always cloaked in public safety and economic concerns. Over 150 years of code words and the codes have lost their functionality; we the people now know the codes. But that has not been enough to change them. And what we have not yet been able to do is contain the spirit of the language, which continues to haunt states’ so-​called modern legal codes to this very day. Social workers are well positioned to take on the spirit of the law when that spirit is bigoted; does not reflect the values of U.S. society; and, results in systematic and systemic discrimination, oppression, stigma, rights violations, and other forms of exclusion. Social workers are, after all, tasked with social and political action in the name of justice, equality and fairness, and rights. According to the National Association of Social Workers (2017), the ethical principle social workers’ ethical responsibilities to the broader society entails the following. Social workers should be aware of the impact of the political arena on practice and should advocate for changes in policy and legislation to improve social conditions in order to meet basic human needs and promote social justice. . . . Social workers should act to prevent and eliminate domination of, exploitation of, and discrimination against any person, group, or class on the basis of race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical ability. . . Social workers should act to expand choice and opportunity for all people, with special regard for vulnerable, disadvantaged, oppressed, and exploited people and groups.

Criminal justice reform—​or, at this point what is needed, economic, political, and social restructuring—​is long past due. In addition to placing the lives of innocent defendants at-​risk (see Death Penalty Information Center, 2019), the U.S. death penalty apparatus is antiquated and torturous; discriminatory on the basis of race and income; and, wrought with procedural error and bias. [ 242 ] Epilogue

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Although this book does not take up an economic-​based argument because this work represents an appeal to normative ethics and moral values—​and views the economic argument as ethically treacherous and logically tangential—​it should be noted here that death penalty cases are notoriously expensive to prosecute owing to the lengthy appeals process. In other words, the death penalty is not a cost saver, despite many arguments to this effect. The advancement of social, environmental, and economic justice, and human and civil rights falls squarely within the professional purview of social work. This ethic and the accompanying skill sets to engage, assess, intervene, evaluate, and advocate uniquely position social workers to collaborate with individuals, families, organizations, and communities—​including positions social workers may create for themselves due to a recognized need. This book is one such effort. In the discourse on criminal justice and the death penalty, social workers should take a seat at the proverbial table because these criminal justice issues are, at their heart, our—​all of our—​issues. If there is no seat to be had at the table, then social workers must make theirs. And if needed, social workers should convince other professionals to share a corner of their own. This is an easy case to make if—​and because—​we as social workers are first willing to extend that which we already bring to the table. That is to say, social workers bring a wealth of knowledge:  interdisciplinary collaboration; program design, implementation, and evaluation; quantitative and qualitative research designs and methods/​methodologies; grant writing; fund raising; policy practice; family assessment; biopsychosocial assessment; sociological and psychological theory; therapeutic models; psychometrics; clinical assessment/​diagnosis; human service organizations/​program eligibility; community organizing; engaging diversity and difference in practice; interpersonal communication; and navigating ethical dilemmas. In sum, social workers bring many talents for just one seat at the table and this should be a point of pride among the profession. As to the dilemma posed by Ouroboros, the so-​called criminal justice restructuring happens by addressing the social, political, and economic fronts simultaneously and by working within and between professions, in concert and from positions internal and external, to change and disrupt the inertia of the current exclusion apparatuses. Social participation can be enhanced vis-​ à-​vis public education initiatives that work to demystify and destigmatize diagnosis and to inform people of their rights and available resources. Political participation can be enhanced by participating in voting registration efforts and by engaging in related policy practice. And finally, economic participation can be enhanced by informing people of program eligibility and by advocating for economically just policies, such as a livable wage, a progressive tax structure, and universal health care. In this vein, social workers should consider using their skills and ethical framework to run for political office. Regarding the question of positionality, whether to position oneself internal or external Epilogue  [ 243 ]

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to the apparatus of exclusion (e.g., to provide skilled mitigation assistance in death penalty cases or to work in the policy arena to affect a moratorium/​abolition) is an interesting question and an important one. For now, in the present political moment and for the purposes of this book, the explanation that suffices is, it takes both—​it takes social workers from all backgrounds, and professionals of all types, and the public, positioned all over, to affect positive structural change and social progress. The caveat is, we must be coordinated, systematic, competent, and integrous. Here again social work can help, for many social work professionals possess talents and abilities in the areas of leadership and organization. And so, I  close this book with that, the former and final example of how social workers can play an integral role in contemporary criminal justice and death penalty reform efforts in the United States: we can advance social justice by functioning as interdisciplinary and ethics-​based change agents. As well, we have the requisite skill sets to assist other professionals in the planning for social, economic, and political restructuring required to sustain that change. Criminal justice reform and death penalty abolition without question will require the accompaniment of socially inclusive economic and political policies, with special attention paid to public education and drastic economic/​resource disparities therein, job and wage growth, and universal health/​mental health services. The shock of a criminal justice system that no longer functions as an economic engine and social filter will have to be absorbed—​before, during, and after restructuring. People will need new roles; roles will need to be constructed. And society will need to allow people to take these new roles without admonishment or stigma. To participate in this cultural and professional discourse, all we first must do as social workers is to find the table and then make and/​or take our seat at it.

REFERENCES Bang, L. (2018). In the maw of the Ouroboros: An analysis of scientific literacy and democracy. Cultural Studies of Science Education, 13, 807–​822. https://​link. springer.com/​ content/​pdf/​10.1007/​s11422-​017-​9808-​2.pdf Death Penalty Information Center. (2019). List of those freed from death row. Retrieved from https://​deathpenaltyinfo.org/​innocence-​list-​those-​freed-​death-​row National Association of Social Workers. (2017). Ethical standards. Retrieved from https://​ www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​Code-​of-​Ethics-​English

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GLOSSARY

Abolitionism Abolitionism is a movement that seeks to abolish a practice or institution on moral grounds, such as slavery and capital punishment. In the context of the contemporary criminal justice system, abolitionists seek not only to change prisons and how they operate, but also to envision and implement a new system in which there will be no need for imprisonment at all. Adaptive Behavior Adaptive behavior refers to the collection of conceptual, social, and practical skills that are performed by people in their everyday lives. Deficits in adaptive behavior refer to how a person meets community standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background. Adaptive behavior is assessed using both clinical evaluation and standardized measures. Individuals with intellectual disability have impairments in at least one domain of adaptive functioning—​ conceptual, social, or practical—​that is approximately 2 standard deviations or more below the population mean, including a margin for error measurement. Advocacy An activity by an individual or group that aims to influence decisions within political, economic, and social systems and institutions. Aggravating Circumstances Aggravating circumstances or evidence refers to factors that increases the severity or culpability of a criminal act. Some generally recognized aggravating circumstances include heinousness of the crime, lack of remorse, and prior conviction of another crime. Arbitrariness Arbitrariness occurs when rules or procedures not applied equitably to similar cases, as though to represent bias; an application of rule or procedure not supported by fair and substantial cause. Article 36 of the Vienna Convention on Consular Relations (VCCR) As one of 179 articles of the Vienna Convention on Consular Relations, Article 36 outlines the rights of a foreign national when detained by criminal justice authorities in a host country, as well as the obligations of the host country’s criminal justice officials to notify without delay the consulate office of the detained person’s home country. Atkins v. Virginia (2002) In Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court ruled that the Eighth Amendment of the U.S. Constitution forbids execution of those individuals with intellectual disability. Bereavement Bereavement is the state of grief associated with loss, and is often used to describe cases in which a person experiences the death of a loved one. Bifurcated Proceedings Bifurcated proceedings refer to capital trials that are held in two stages, a first phase to determine whether the defendant is guilty of the alleged capital charges and a second phase to determine punishment. All capital

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trials subsequent to Furman v. Georgia (1972) have involved bifurcated proceedings. Prior to Furman, guilt and punishment were decided at the same time, in what are referred to as unitary proceedings. Botched Execution Botched executions occur when there is prolonged suffering on the part of the person being executed, violating the U.S. Constitution’s Eighth Amendment protection against cruel and unusual punishment. The lethal injection protocol, which is the contemporary method of choice, is currently under scrutiny because, although painful, the first administered injections prevent the bodily demonstration of this pain, leaving the injected to suffer silently as they await death. To this end, states carrying out executions are not legally mandated to make public, maintain, or record state executions. Therefore, botched executions are typically identified through media reporting. Burden of Proof The obligation of a party in a criminal or civil proceeding to produce the evidence that will prove the claims they have made against the other party. Capital Procedure Capital procedure focuses on the instructions directed to the jury on what evidence to consider in the guilt phase of the trial, what factors may mitigate or aggravate the sentence, and what verdicts can be delivered in the penalty phase. Cause Advocacy Cause advocacy is advocacy in support of social and economic changes to systemic or structural policies and practices that impact a group or community. Certiorari Certiorari is a writ or order by which a higher court reviews a decision of a lower court. Collateral Consequences Collateral consequences refer to the many ripple effects of incarceration and the death penalty. For example, there is a great deal of data involving the negative effects to family members of incarcerated individuals. In his book called Capital Punishment’s Collateral Damage, author Robert Bohm identifies 13 populations of people who are affected by each penalty of death, which range from family members to judges. There is also data that explores the loss of revenue to communities and the moral implications of the death penalty. Competency The principle that a person must be competent to stand trial is an old one, going back to early American legal processes. It is often erroneously presumed that people with serious mental illness (SMI) will be found incompetent to stand trial. Competency to stand trial is based on the person’s mental state at the time of trial, not at the time of the crime, with the argument being that defendants must be competent in order to assist in their own defense (Dusky v. United States, 1960). If a defendant is found incompetent, they are taken to a medical facility and provided treatment until they are determined to be competent, and then they will face charges and sentencing. Therefore, someone who was actively mentally ill at the time of a crime but who has received treatment and is now stable will proceed to trial and will not be protected from imposition of the death penalty. Complicated Grief Complicated grief involves grief that is difficult to heal from or process successfully. For grief to be considered complicated, the person must exhibit some of the following symptoms for a period of greater than one year: intrusive thoughts, strong emptions, an unwillingness to accept the loss, excessive feelings of loneliness, avoidance, sleep disturbances, and loss of interest. Compounding Pharmacy Compounding pharmacies mix pharmaceuticals (i.e., drugs) for the specific needs of specific patients, and are not permitted to replicate U.S.

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Food and Drug (FDA)-​approved drugs. Because these pharmacies are usually regulated by the states and not by the FDA, compounding pharmacies have significantly higher failure rates than those of manufactured drugs. The concern with compounding pharmacies creating lethal injection mixtures is that persons who are being executed will be more likely to experience a painful death, thereby violating the U.S. Constitution’s Eighth Amendment protection against cruel and unusual punishment (Shapiro, 2018). Consideration In a capital case, jury consideration refers to weighing the evidence, testimony and argument provided during the verdict phase, as well as the special considerations (such as aggravating and mitigating circumstances) made by the jury in the penalty phase. Consulate A consulate is a small diplomatic office of one country in another country. If the first country has an ambassador in the other country, the main diplomatic office, located in the capital city is called an embassy. In this situation, any consulates would be located in other large towns and cities. Continuum of Care Generally speaking, a continuum of care entails a spectrum of social services that are provided from the most restrictive settings (e.g., institutions) to the least restrictive settings (e.g., community), and the gradients and transitions therein. A  continuum of care model emphasizes prevention, early intervention, valid risk assessment, and appropriate matching of risk level to services provided (Lipsey, Howell, Kelly, Chapman, & Carver, 2010). When the continuum ceases to be seamless, this is often referred to as gaps in care, or gaps in the continuum of care. Contract Theory Contract theory, or Contractarianism, is a moral and political framework that views the valid authority of government as being necessarily and inextricably reliant upon the consent of the governed (i.e., mutual agreement). Criminalization Criminalization refers to the process of transforming an activity into a criminal offense by classifying it as illegal. For example, so-​called sundown towns (i.e., all-​W hite communities in the Jim Crow Era that enforced restrictions excluding people of color vis-​a-​vis discriminatory local laws, intimidation, and violence) criminalized race. Critical Criminology Critical criminology frequently takes up the concern for the etiology of crime and the nature of justice within the social structure of class inequality. Law and punishment are viewed as the mechanisms through which structural inequalities in society are perpetuated and exacerbated. Dehumanization An extreme form of prejudice, dehumanization occurs when individuals and social groups are categorically presented as being without context, life connections, social relationships, basic human needs, wants, or hardships—​rendering them, in short, non-​ people, sub-​human, animals, or objects undeserving of empathy, understanding, positive regard, and fair treatment/​the protection of rights. Dehumanization is a propagandist technique and is employed to, for example, bolster public support for genocide, war, and draconian social policy and political fascism. Deinstitutionalization The process of moving individuals from the institutional setting into the least restrictive setting (e.g., the community), while still theoretically maintaining an appropriate level of support services. The deinstitutionalization movement was largely the result of economic neo/​liberal policy and political liberalism, combined with the introduction of psychotropic medications such as Thorazine®. The 1960s witnessed the first wave of deinstitutionalization, which impacted persons with mental health diagnoses, whereas

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the 1970s saw the second wave, which impacted persons with intellectual/​developmental disabilities. Direct Social Work Practice As per the Council on Social Work Education, the accrediting body of undergraduate (BSW) and graduate (MSW) social work programs in the United States, social workers engage, assess, intervene, and evaluate individuals, families, groups, communities, and organizations. This spectrum of practice is often conceptualized as falling along a micro to macro continuum. Program accreditation is said to enhance professional legitimacy vis-​à-​vis setting a national standard for social work curriculum. Social workers are license eligible at the MSW level, clinically and nonclinically (i.e., LCSW/​PIP/​ LMFT and LMSW, respectively) and in some states, people may attain licensure at the BSW level (i.e., LBSW). The MSW is currently thought to be the terminal practice degree. However, consideration is being given to making a doctorate in social work (i.e., DSW) the terminal practice degree. Whereas the DSW and doctorate of philosophy (i.e., PhD) in social work both require the successful completion of a doctoral dissertation, the DSW differs in that it has a more applied focus than does a PhD. If clinically licensed, social workers may work as therapists, clinically diagnose, and place people on involuntary psychiatric hold. Beyond the clinical arena, social workers may perform case management/​ resource allocation duties, policy practice, survey research and program evaluation, and advocacy/​community organizing. Lastly, and related to this book, social workers can function as case managers in the juvenile justice system and provide wrap-​around services to youth and their families; advocate for youth and their families in court; work as adult probation officers; work in, develop, and/​or evaluate diversionary programs; earn a dual degree in divinity and become a prison chaplain; work in the forensics/​prison psychiatric unit; and work as mitigation experts in death penalty cases. Dissociation According to the American Psychiatric Association (2013), one of the ways in which individuals deal with trauma is to remove themselves through dissociation from the experience and its effects. Dissociation can be healthy response, but when persistent and overwhelming it can elevate to a mental health disorder that effects memory, identity, emotion, perception, behavior, and sense of self. Dissociative symptoms can potentially disrupt every area of mental functioning. Due Process Due process is the federal provision under the 5th and 14th Amendments of the U.S. Constitution that all legal proceedings will be fair (i.e., neither unreasonable, nor arbitrary, nor capricious), and that before the government may act to take away an individual’s life, liberty, or property, the accused individual will be given due notice of proceedings. Eighth Amendment The Eighth Amendment to the U.S. Constitution was ratified in 1791, when capital punishment was allowed for a wide range of criminal offenses. Other punishments that would now be regarded as barbaric were also tolerated. Nonetheless, the Amendment prohibited infliction of cruel and unusual punishment. In the 1950s, the U.S. Supreme Court held that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 1958). When capital punishment was resumed in the 1970s, the Supreme Court held that the Eighth Amendment requires individualized sentencing based on “compassionate or mitigating factors stemming from the diverse frailties of humankind” (Woodson v.  North Carolina, 1976). Mitigation has thus been broadly defined by this requirement.

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Exoneration Exoneration occurs when the conviction for a crime is reversed, for example, through demonstration of innocence or flaw in the conviction process. False Confession Police-​induced false confessions are among the leading causes of wrongful convictions. There are two doctrines in criminal law designed to keep illegally obtained confessions from the jury. The first is the Miranda warnings designed to establish procedural safeguards to protect a suspect from unknowingly incriminating himself. The second is the voluntariness requirement that prevents coerced confessions from reaching the jury. However, these rules govern the admissibility of a confession into evidence only; they cannot be relied upon to determine false from true confessions. To combat false confessions and wrongful convictions, innocent defendants must turn to social scientists and expert witnesses to present evidence on the dynamics of false confessions. Since the DNA exonerations by the Innocence Project have conclusively proven the innocence of some confessed offenders, social scientists have been able to examine false confessions in more detail (Hritz, Blau, & Tomezsko, 2010, para. 1). Foreign Nationals A person who is considered to be a foreign national is defined as any individual under sentence of death in the United States who does not possess U.S. citizenship. Foreign nationals who might be under sentence of death in the United States could thus include tourists and visitors, migrant workers with temporary permits, resident aliens, undocumented persons, asylum-​seekers, and persons in transit. Fundamental Attribution Error Fundamental attribution error refers to the systematic and simultaneous discounting of important social, historical, and situational determinants of behavior (e.g., “criminal” behavior) and co-​occurring exaggeration of the causal role of dispositional or individual characteristics (Lynch & Haney, 2011, p. 590). This type of error occurs when we overestimate the internal factors of others’ undesirable behaviors and underestimate the external factors; we are also likely to underestimate the internal causes of our own misdeeds and overestimate the external causes. In other words, the fundamental attribution error holds: when you behave poorly, it’s because you’re a bad person versus when I behave poorly, it’s because I’ve had a bad day. Genogram In social work, genograms are pictorial displays of a person’s family relationships and biopsychosocial history. For instance, genograms depict relationships between individuals (i.e., type of relationship and strength of relationship), mental health factors such as drug use and depression, date of birth/​ age, gender, marital status, and medical diagnoses. Genograms may be used to effectively shape the mitigation narrative in death penalty and non-​death penalty cases alike. Guided Discretion So-​called guided discretion death penalty statutes require that juries or judges, after a guilty verdict, find the existence of certain statutorily defined aggravating factors before a death sentence can be authorized. The goal of guided discretion is to narrow the discretion of capital sentencers to avoid arbitrariness in death-​sentencing. The success of “guided discretion” in actually reducing arbitrariness is dubious at best. Human Rights According to the United Nations, human rights are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status, and include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these, without discrimination.

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Immigration Immigration is broadly understood as the action of coming to live permanently in a foreign country. Indigent Defense The Sixth Amendment to the U.S. Constitution provides the right to counsel to every defendant charged with a criminal offense which includes people who have little financial wealth and cannot afford to hire a lawyer. The definition of indigency and the services and representation rendered, however, are different in nearly every jurisdiction in the country. Insanity Not guilty by reason of insanity posits that an individual can be so mentally ill at the time of committing a crime that the person should be absolved of culpability. In English and U.S. common law, culpability requires both actus reus, or a guilty/​wrongful act, and mens rea, or a guilty mind. Someone who is insane cannot have mens rea and therefore should not be considered culpable (Beecher-​Monas & Garcia-​Rill, 2018). It is important to note that in all cases, insanity and mental illness are not synonymous. Firstly, the term insanity is a legal construct and is not recognized clinically, whereas the term mental illness (e.g., psychosis) is a clinically accepted construct and classification with implications for treatment intervention and insurance reimbursement. The most common definition of insanity is referred to as the M’Naughten rule, which states that a person is insane if he or she, “did not know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong” (Mangels, 2017, p.10). Intellectual Disability (ID) Intellectual disability, formerly termed mental retardation [sic], is characterized by deficits in intellectual functioning and adaptive behavior that originates during the development period (before age 18). Intellectual Functioning Intellectual functioning refers to an individual’s general mental abilities including reasoning, problem-​ solving, planning, abstract thinking, judgment, academic learning, and learning from experience. Intellectual functioning is typically measured with IQ test scores. Individuals with intellectual disability have IQ scores of approximately 2 standard deviations or more below the population mean, including a margin for error measurement (i.e., 70 ± 5). Jury Instruction Jury instruction refers to the direction or guidelines that a judge provides members of a jury concerning the law of the case (Garner, 2014, p. 861). Jury instructions represent a significant portion of the statutory guidance jurors receive when deciding on capital sentencing, as per the decision handed down in Gregg v. Georgia (1976). Given the special circumstances of capital trials, instructions are considered wholly separate from the charge of the jury found at the conclusion of closing arguments and immediately prior to the jury deliberations resulting in the rendering of a verdict of guilt or innocence. Jury Nullification In criminal trials, jury nullification refers to when members of a trial jury either acquit or find a defendant not guilty because the jurors do not support a government’s law or laws as being constitutional or humane. Legal Precedent According to the Cornell Law School Legal Information Institute (LII), precedent refers to a case or issue decided by a court that can be used to help answer future legal questions. Legislative Change Legislative change refers to the process by which a codified law or statute is removed, altered, or amended. Mass Incarceration According to Dr.  Elizbeth Jones’ scholarly article entitled, The Profitability of Racism:  Discriminatory Design in the Carceral State, “mass incarceration and mass criminalization are the contemporary manifestations of a

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political economy that has always made the subjugation of people of color profitable and further expanded white wealth for a concentrated few through the process of subjugation” (Jones, 2018, p. 67). Means Tested Means tested in social programs refers to the practice of placing conditions on receipt of benefit. Means testing is a method for determining whether someone qualifies for a financial-​assistance program; for example, the Supplemental Nutritional Assistant Program (SNAP), public housing, Medicaid, and Temporary Assistance for Needy Families (TANF) are means tested aid programs that provide benefits only to persons based on low income status. Currently, some states are implementing work-​based eligibility requirements, which are arguably contraindicative to the reason a person or family may need such assistance in the first place. Mental Health Professionals Social workers comprise approximately two thirds of mental health professionals. Social workers provide case management, inpatient discharge planning services, placement services, and other services to support healthy living. Other mental health professionals include psychologists, counselors, and psychiatrists. According to the National Alliance on Mental Illness (NAMI), mental health professionals work in inpatient facilities (e.g., general hospitals and psychiatric facilities) and outpatient facilities (e.g., community mental health clinics, schools and private practices). Mental health professionals:  provide assessment and therapy (i.e., clinical social workers, psychologists, counselors, clinicians, therapists), and prescribe and monitor medication (i.e., psychiatrists, psychiatric or mental health nurse practitioners). Methodology Methodology includes all of the court proceedings, the sentencing, the appeals process, up to and including the method of execution. Mitigation Mitigation refers to evidence the defense can present in the sentencing phase of a capital trial to justify why the defendant should not have imposed a sentence of death. Mitigating evidence reduces culpability and may include mental health history, remorse, lack of prior criminal record, youth, and history of childhood maltreatment. The U.S. Supreme Court found that the jury may consider any mitigating evidence found relevant in deciding between the death penalty and life in prison. Jurors weigh the aggravating factors presented by the prosecution against the mitigating factors presented by the defense. Moral Culpability Moral culpability is a legal concept linked to mens rea and guilt, but which considers whether or not someone’s moral responsibility for their actions may be diminished due to other mitigating factors or circumstances such as mental disability, diminished capacity, intoxication, age, and past trauma, to name a few relevant considerations. Moral Distance Moral distance is a philosophical question referring to the relationship between conceptions of justice and the distance of moral agents, who are theoretically in a position to relieve suffering (i.e., injustice), from the individuals and groups who experience the suffering (i.e., injustice); the concern, in part, over empathy/​empathic response at the social level. Moratorium A moratorium, sometimes referred to as a state or national moratorium, is a suspension of activity until a future event or resolution of an issue. States can pass a moratorium on imposing the death penalty unit matters surrounding the death penalty can be resolved. Neoliberalism Economic neoliberalism is an expression of 21st-​century capitalism in the United States that has resulted in rapid and widespread privatization of public services. This has effectively diminished service provider accountability,

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while simultaneously creating punitive and overly restrictive programs, policies, and practices. Core neoliberal values include individualism, freedom of choice, rational self-​interest, utilization of market mechanisms, and nonintervention of the state. Posttraumatic Stress Disorder (PTSD) PTSD refers to a condition of mental and emotional stress occurring as a result of injury, witnessing violence, or severe psychological shock, typically involving disturbance of sleep and constant vivid recall of the experience, sometimes with dissociative coping symptoms, hypervigilance, and/​or dulled responses to others and to the outside world. Poverty From a social justice as human rights perspective, poverty is conceptualized as a fundamental denial of rights. Key poverty programs in the United States include:  Medicaid, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and Housing Assistance. Because the distribution of poverty is not random, this is suggestive of systemic and systematic bias. Predictors of poverty include race, gender, age, geographic location, immigration status, and employment. With regard to the latter, many Americans with incomes below the poverty level are employed; however, they are underemployed. Other structural conditions that contribute to poverty include wage depression, cost of living, and regressive versus a progressive tax system. Prison-​Industrial Complex The prison-​industrial complex refers to when local, state, and federal prison administration contracts the management of the penal institutions to private companies. This change in management has been influenced by private industries and also coincides with an increase of incarceration rates. The growth in prisoners leads to an increase in profits for private companies that supply the prisons with goods and services. Procedural Justice Reform Procedural justice is central to the debate about reforming the U.S. criminal justice system. The term refers to the idea that people are more likely to obey the law if the justice system treats them fairly and with respect. Public Health The Centers for Disease Control defines public health as a scientific approach that works to protect an improve the health of people and their communities. Public health does so by supporting heathy practices in individuals as well as researching and responding to disease and injury prevention (including violence). Public heath seeks to identify, treat, and prevent threats to health and well-​being. Punishment Punishment, in distinction from private revenge, is a public administration of justice that acknowledges the rights of the accused in several fundamental respects. Radical Social Work Rooted in the 1970s, radical social work and its adherents recognize the misfit between the current power structure, and its accompanying values and goals, and a new political, economic, and cultural system that is focused on meeting environmental and human needs. Radical social work seeks structural change and equality. Recidivism In criminal justice, recidivism refers to the rate of reoffense and thus continued involvement in the correctional setting. Restorative Justice Restorative justice is the holistic process of focusing on rehabilitation and reconciliation of the person(s) accused or convicted of a crime, the survivors of crime and the community at-​large. Retraumatization Retraumatization occurs when the recall or retelling of past violent and traumatic events is itself the source of trauma.

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Retributive Justice Retributive justice is the practice of focusing on punishment for people who are accused and/​or convicted of a crime based on the theory that sufficient punishment will deter future offenses. School-​to-​Prison-​Pipeline (STPP) The school-​ to-​ prison pipeline represents a system of unequal treatment of disadvantaged children in the classroom through unfair disciplinary actions, unequal educational opportunities, and a general lack of concern. These conditions tend to push kids out of the classroom and into a life that oftentimes leads to incarceration. Secondary Trauma Secondary trauma is the trauma and/​or emotional stress that results when an individual hears about the firsthand trauma experiences of another. First responders and others in “helping professions” are particularly susceptible to secondary trauma. Also sometimes referred to as “compassion fatigue.” Secondary Victim Secondary victims are those people harmed by another person’s victimization. This includes people who might have witnessed someone’s victimization or loved ones of the victim. Secondary victimization or vicarious victimization effects those who are in support of someone who has experienced a traumatic experience. This includes social service workers and those involved in the criminal justice system. In cases of secondary victimization, the effects including those found with posttraumatic stress disorder (PTSD), can be qualitatively similar to the individual who has experienced the trauma first-​hand. Serious Mental Illness (SMI) The National Institute of Mental Health defines serious mental illness as “a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities.” The diagnoses most commonly thought of as SMIs are schizophrenia, bipolar disorder, schizoaffective disorder, dissociative disorder, major depression, and posttraumatic stress disorder. People with SMI often have disordered functioning, disordered thinking, delusions, hallucinations, paranoia, and inability to control their behaviors (American Psychological Association, 2009). Sixth Amendment The Sixth Amendment to the U.S. Constitution was ratified in 1791 and provided, among other trial rights, a defendant’s right to “the Assistance of Counsel.” In two landmark cases, the Supreme Court interpreted this Amendment to ensure that indigent capital defendants would be provided counsel at public expense (Powell v. Alabama, 1932) and eventually that all indigent defendants would be provided counsel (Gideon v. Wainwright, 1963). In the modern death penalty context, the U.S. Supreme Court has interpreted the right to effective assistance of counsel as requiring thorough mitigation investigation. Social Insurance Social insurance is defined as any government system that provides monetary assistance to people with an inadequate or no income. In the United States, social insurance refers to a federal insurance program that provides benefits to retired people and those who are unemployed or determined to have disability. Social Justice Social justice is a concept of fair and just relations between an individual and society, as measured by the distribution of justice, wealth, opportunity, and shared resources. The National Association of Social Workers (2017) defines social justice as being, social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to

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promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.” Social Services Publicly funded (i.e., through the local, state, and federal taxation systems) government services that are provided to individuals and families for the benefit of the community, such as education, medical care, and housing. Traditionally, people associate social services with the antipoverty programs created under the Franklin Roosevelt administration in response to the Great Depression. They are (currently named):  Temporary Assistance for Needy Families (TANF), and Supplemental Nutrition Assistance Program (SNAP), among others. Social Stratification Social stratification describes the way in which different groups of people are positioned within society. Social stratification is a system by which a society ranks categories of people in a hierarchy. The status of people is often determined by how society is stratified—​the basis of which can include wealth and income. Social stratification is sometimes referred to as social class. Social Withdrawal Social withdrawal can refer to children/​adults who are isolated or rejected from a peer group, as well as to children/​adults who choose to isolate from others because of anxiety or other emotional issues. Children who are socially withdrawn are at risk for a number of social, emotional, and academic difficulties. Social Work Professional Ethics Social work is a values-​based profession and involves the ethical treatment of people and their thoughts, feelings, and ideas. The National Association of Social Workers defines six core values in their code of ethics:  service, social justice, dignity and worth of the person, importance of human relationships, integrity, and, competence. There are other professional codes of ethics that can be consulted, such as the one promulgated by the International Federation of Social Workers. Standard of Proof The level of certainty and the degree of evidence necessary to establish proof in a criminal or civil proceeding. State Sovereignty State sovereignty is the power of a state to take actions as necessary to govern itself. Such actions may include, but are not limited to: creating laws (e.g., death penalty laws); levying taxes; declaring war; and forming treaties with foreign nations. Stigma/​ Self-​Stigma Irving Goffman described stigma in 1963 as a set of social interactions that are used to disgrace and set apart from society the person who has been socially constructed as being the “other.” Self-​stigma is when the individual internalizes the social construct and comes to see themselves as shameful, disgraceful, undesirable, and less-​than. Stigma can result in acts of violence, including physical assault and death. Strengths-​Based Perspective In social work, the strengths-​based perspective is an alternative approach to a pathology-​based model (e.g., the medical or disease model) of assessment. The strengths-​based perspective involves recognizing the person as a unique, dynamic, and complex individual who has many strengths, abilities, talents, and resources. Structural Inequality Structural inequality speaks to a system of privilege created by institutions (i.e., government, schools, employment opportunities) within an economy whereby a certain group is not given equal access to opportunities, rights, and decisions, thus leading to an inability to advance within that society.

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Structuralism In sociology, structuralism is a theoretical paradigm positing that elements of human culture must be understood in terms of their relationship to a larger, overarching system or structure. A structural approach to criminal justice will look beyond common cultural tropes about individual moral deficiency and instead focus on what are the underlying inequities in society that, for instance, result in racial and economic disparities in the criminal justice system in the first place. A structural approach will additionally view the U.S. criminal justice system as institutionalized social hierarchy. Tough-​on-​Crime Policies In the 1980s politicians and candidates committed to policies that would incarcerate more people and for longer periods of time. These policies include the “War on Drugs”; mandatory prison sentences (also referred to as “truth-​in-​sentencing” laws); recidivist sentencing statutes (also referred to as “three strikes laws”); and limiting parole eligibility. Transference /​Countertransference Transference is the redirection of vividly experienced past emotions to a third party (e.g., a therapist, social worker, or attorney)/​the emotional reaction of the therapist, social worker, lawyer, physician, or other third-​party to the subject’s experiences. Trauma-​Informed Approach A trauma-​informed approach to care is one that recog­ nizes the ways in which trauma impacts emotional, psychological, physiological, and cognitive development, and makes space for these impacts as a part of care. Trauma-​Organized System Judith Herman (2015) argued that courts of law in the United States can create the context for experiences of posttraumatic stress disorder. Walter Long (2016) further argued that because death penalty cases are organized to reach a decision on implementing state sanctioned homicide, such cases rely on the retelling and reenactment of traumatic events. According to Long (2016), each time the event is reenacted, it is reexperienced by the victims, further strengthening the grip of trauma on those who experience it. Voir Dire Voir dire is a legal phrase for a variety of procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the truth. Its modern meaning describes the process of qualification and selection of jurors. In death penalty cases, potential jurors are questioned to see whether their views on capital punishment are so firmly held that they would always vote for or against the death penalty. Thus, jury selection (the voir dire process) is a critical opportunity to assess jurors’ potential receptivity to mitigating evidence. However, since the process excludes prospective jurors who indicate they would never be willing to impose the death penalty, it is often referred to as “death qualification,” and the potential jurors who remain are called “death-​qualified.” Eliminating jurors with qualms about the death penalty results in a panel that is more prone to convict and may disproportionately exclude members of racial and religious groups whose support for the death penalty is weakest. War on Drugs The so-​called War on Drugs began in 1971 when President Richard M. Nixon declared drugs to be enemy number one in the United States. This “war” was designed to end the import, manufacture, sale, and use of illegal substance in the United States, and in other participating countries through a series of law enforcement, military actions, and policy changes. The War on Drugs has contributed greatly to the phenomenon of mass incarceration in the United States. Western Philosophy Western philosophy is the philosophical thought and work of the Western world. The word philosophy derives from the Ancient Greek term, philosophia, translated as “the love of wisdom.” Historically, Western philosophy refers to the philosophical thinking of Western culture, beginning with Greek

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philosophy of the pre-​Socratics such as Pythagoras and including Socrates, Plato, Aristotle, and, subsequently, thinkers of the Medieval, Renaissance, Modern, and Contemporary periods (i.e., the latter consisting of analytic, continental, pragmatism, and process philosophy).

REFERENCES American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: Author. American Psychological Association. (2009). Assessment and treatment of serious mental illness. Retrieved from https://​www.apa.org/​practice/​resources/​smi-​proficiency.pdf Atkins v. Virginia, 536 U.S. 304 (2002). Beecher-​Monas, E., & Garcia-​Rill, E. (2017). What do volition and intent really mean. Kentucky Law Journal, 106, 265–​314. Dusky v. United States, 362 U.S. 402 (1960). Furman v. Georgia, 408 U.S. 238 (1972). Garner, B. A., Ed. (2014). Black’s law dictionary (10th ed.). Eagan, MN: Thomson West Publishing Company. Gideon v. Wainwright, 372 U.S. 335 (1963). Gregg v. Georgia, 428 U.S. 153 (1976). Herman, J. (1992). Trauma and recovery: The aftermath of violence—​From domestic abuse to political terror. New York, NY: Basic Books. Hritz, A., Blau, M., & Tomezsko, S. (2010). False confessions. Retrieved from https://​ courses2.cit.cornell.edu/​ sociallaw/​student_​projects/​FalseConfessions.html Jones, E.  (2018). The Profitability of Racism:  Discriminatory Design in the Carceral State. U. Louisville L. Rev., 57,  61–​87. Lipsey, M. W., Howell, J. C., Kelly, M. R., Chapman, G., & Carver, D. (2010). Improving the effectiveness of juvenile justice programs. Washington DC: Center for Juvenile Justice Reform at Georgetown University. Retrieved from: http://​cjjr.georgetown. edu/​pdfs/​ebp/​ ebppaper.pdf Long, W. (2016). The death penalty as a public health problem. In I. Šimonović (Ed.), Death Penalty and the Victims (pp.  350–​372). New  York, NY:  United Nations. Retrieved from https://​shop.un.org/​books/​death-​penalty-​and-​victims-​52401 Lynch, M., & Haney, C. (2011). Looking Across The Empathic Divide: Racialized Decision Making On The Capital Jury. Michigan State Law Review, 2011, 573–​607. Mangels, A. (2017). Should individuals with severe mental illness continue to be eligible for the death penalty? Criminal Justice, Fall,  9–​14. National Association of Social Workers. (2017). Ethical Principles. Retrieved from https://​www.socialworkers. org/​pubs/​code/​code.asp?print=1& print=1& National Institute of Mental Health (n.d.) Mental Illness. Retrieved from https://​www. nimh.nih.gov/​health/​ statistics/​mental-​illness.shtml Powell v. Alabama, 287 U.S. 45 (1932). Shapiro, A.  (2018, February 21). BuzzFeed News uncovers source of Missouri's lethal drugs. National Public Radio’s All Things Considered. Retrieved from https://​ www.npr.org/​2018/​02/​21/​587731723/​buzzfeed-​news-​uncovers- ​source-​of​missouris-​lethal-​drugs Trop v. Dulles, 356 U.S. 86 (1958). Woodson v. North Carolina, 428 U.S. 280 (1976).

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RECOMMENDED WORKS AND RESOURCES

ADVOCACY GROUPS American Association on Intellectual and Developmental Disabilities (http://​aaidd. org/​) American Civil Liberties Union (https://​www.aclu.org/​) Black Lives Matter (https://​blacklivesmatter.com/​) Center for Media and Democracy (https://​www.prwatch.org/​cmd) Equal Justice Initiative (https://​eji.org/​) Georgetown Law Center on Poverty and Inequality (https://​www.law.georgetown.edu/​ poverty-​inequality-​center/​) Human Rights Watch (https://​www.hrw.org/​) Innocence Project (https://​www.innocenceproject.org/​) National Alliance on Mental Illness (https://​www.nami.org/​) National Association for the Advancement of Colored People (https://​www.naacp.org/​) National Coalition for the Homeless (https://​nationalhomeless.org/​) National Coalition to Abolish the Death Penalty (http://​www.ncadp.org/​) RISE (https://​swconference.wordpress.com/​) Sentencing Project (https://​www.sentencingproject.org/​) Southern Center for Human Rights (https://​www.schr.org/​) Southern Poverty Law Center (https://​www.splcenter.org/​) The Arc (https://​www.thearc.org/​) The Lionheart Foundation (https://​lionheart.org/​) The Marshall Project (https://​www.themarshallproject.org/​) United Nations Human Rights Council (https://​www.ohchr.org/​EN/​HRBodies/​HRC/​ Pages/​Home.aspx) BOOKS Abu-​Jamal, M. (1996). Live from death row. New York, NY: Harper Perennial. Alexander, M. (2012). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: New Press. The American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC: Author. Andrews, A. (2006). Social history assessment. Thousand Oaks, CA: SAGE. Appiah, K. A. (2010). The honor code: How moral revolutions happen. New York, NY: W. W. Norton. Beck, E., Britto, S., & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families. Oxford, England: Oxford University Press.

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Bedau, H., & Cassell, P. (Eds.). (2004). Debating the death penalty: The experts from both sides make their case. New York, NY: Oxford University Press. Bessler, J. D. (2012). Cruel & unusual: The American death penalty and the founders’ Eighth Amendment. Lebanon, NH: Northeastern University Press. Blackmon, D. A. (2009). Slavery by another name: The re-​enslavement of black Americans from the Civil War to World War II. New York, NY: Doubleday. Chambon, A. S., Irving, A., & Epstein, L. (Eds.). (1999). Reading Foucault for social work. New York, NY: Columbia University Press. Cialdini, R.  B. (2009). Influence:  Science and practice (Vol. 4). Boston, MA:  Pearson education. Coyne, R., & Entzeroth, L. (2012). Capital punishment and the judicial process (4th ed.). Durham, NC: Carolina Academic Press. Davis, A. Y. (2011). Are prisons obsolete? New York, NY: Seven Stories Press. Davis, L. J. (Ed.). (2013). The disability studies reader (4th ed.). New York, NY: Taylor & Francis. De Bono, E. (2017). Six thinking hats. London, England: Penguin UK. Dow, D. R. (2010). The autobiography of an execution. New York, NY: Twelve. Drimmer, F. (2014). Executions in America: Over three hundred years of crime and capital punishment in America. New York, NY: Skyhorse. Foucault, M. (2003). Abnormal: Lectures at the College de France, 1974–​1975. New York, NY: Picador. Foucault, M.  (2012). Discipline and punish:  The birth of the prison. London, England: Vintage. Ginsberg, L. H., Larrison, C. R., Nackerud, L., Barner, J. R., & Ricciardelli, L. A. (2019). Science and social work in the 21st century. New York, NY: Oxford University Press. Gould, S. J. (1996). The mismeasure of man. New York, NY: W. W. Norton. Haney, C.  (2005). Death by design: Capital punishment as a social psychological system. Oxford, England: Oxford University Press. Haney, C.  (2006). Reforming punishment:  Psychological limits to the pains of imprisonment. Washington, DC: American Psychological Association. Haynes, K. S., & Mickelson, J. S. (2006). Affecting change: Social workers in the political arena. Boston, MA: Pearson/​Allyn & Bacon. Joy, S. (2013). Grief, loss, and treatment for death row families: Silent no more. Lanham, MD: Lexington Books. Kushner, D. (2016). Alligator candy: A memoir. New York, NY: Simon & Schuster. Latzer, B., & McCord, L. (2011). Death penalty cases: Leading U.S. Supreme Court cases on capital punishment (3rd ed.). Burlington, MA: Elsevier. Mears, M. (1999). The death penalty in Georgia: A modern history, 1970–​2000. Atlanta, GA: Georgia Indigent Defense Division of Professional Education. Morris, N., & Rothman, D. J. (1998). The Oxford history of the prison: The practice of punishment in Western society. New York, NY: Oxford University Press. Polloway, E.  A. (2015). The death penalty and intellectual disability. Washington, DC: American Association on Intellectual and Developmental Disabilities. Rein, M. (1970). Social policy: issues of choice and change. New York, NY: Random House. Sarat, A.  (2016). Gruesome spectacles:  Botched executions and America’s death penalty. Stanford, CA: Stanford Law Books. Schalock, R. L., Borthwick-​Duffy, S. A., Bradley, V. J., Buntinx, W. H., Coulter, D. L., Craig, E. M., . . . Shogren, K. A. (2010). Intellectual disability: Definition, classification, and systems of supports (11th ed.). Washington, DC: American Association on Intellectual and Developmental Disabilities.

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Schalock, R. L., Borthwick-​Duffy, S. A., Bradley, V. J., Buntinx, W. H., Coulter, D. L., Craig, E. M., . . . Yeager, M. H. (2012). User’s guide to intellectual disability: definition, classification, and systems of supports. Washington, DC:  American Association on Intellectual and Developmental Disabilities. Sheffer, S. (2013). Fighting for their lives: Inside the experience of capital defense attorneys. Nashville, TN: Vanderbilt University Press. Stevenson, B. (2014). Just mercy: A story of justice and redemption. New York, NY: Spiegel & Grau. Tremain, S.  (Ed.). (2018). Foucault and the government of disability. Ann Arbor, MI: University of Michigan Press. Von Drehle, D. (2006). Among the lowest of the dead: The culture of capital punishment. Ann Arbor, MI: University of Michigan Press. Weissman, H. H., Epstein, I., & Savage, A. (1983). Agency-​based social work: Neglected aspects of clinical practice. Philadelphia, PA: Temple University Press. COURT DECISIONS Atkins v. Virginia, 536 U.S. 304 (2002). Avena and Other Mexican Nationals (Mexico v.  United States of America). (2004). Judgment, International Court of Justice Reports, 12. General List No. 128. Ayers v. Belmontes, 549 U.S. 7 (2006). Buck v. Davis, 580 U.S. _​_​_​(2017). California v. Acevedo, 500 U.S. 565 (1991). Callins v. Collins, 510 U.S. 1141 (1994). Commonwealth v. McGarrell, 624 Pa. 625 (2014). Dunn v. Price [Justice Stephen Breyer, dissenting]. 587 U.S. _​_​_​(2019). Dusky v. United States, 362 U.S. 402 (1960). Florida v. Bostick, 501 U.S. 429 (1991). Ford v. Wainwright, 477 U.S. 399 (1986). Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976). Hall v. Florida, 572 U.S. 701 (2014). In re Kemmler, 136 U.S. 436 (1890). Jurek v. Texas, 428 U.S. 262 (1976). Kansas v. Marsh, 548 U.S. 163 (2006). Kennedy v. Louisiana, 554 U.S. 407 (2008). Lockett v. Ohio, 438 U.S. 586 (1978). McCleskey v. Kemp, 481 U.S. 279 (1987). McCollum v. North Carolina, 512 U.S. 1254 (1994) McKoy v. North Carolina, 494 U.S. 433 (1990). Mills v. Maryland, 486 U.S. 367 (1988). Moore v. Texas, 137 S. Ct. 1039 (2017). Penry v. Lynaugh, 492 U.S. 302 (1989). Porter v. McCollum, 558 U.S. 30 (2009). Proffitt v. Florida, 428 U.S. 242 (1976). Ring v. Arizona, 536 U.S. 584 (2002). Roberts v. Louisiana, 428 U.S. 325 (1976). Rompilla v. Beard, 545 U.S. 374 (2005). Roper v. Simmons, 543 U.S. 551 (2005). Sears v. Upton, 561 U.S. 945 (2010). Skipper v. South Carolina, 476 U.S. 1 (1986).

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Stanford v. Kentucky, 492 U.S. 361 (1989). Strickland v. Washington, 466 U.S. 668 (1984). Summerlin v. Stewart, 341 F.3d 1082 (2003). Tennard v. Dretke, 542 U.S. 274 (2004). Trop v. Dulles, 356 U.S. 86 (1958). Walton v. Arizona, (88-​7351), 497 U.S. 639 (1990). Weems v. United States, 217 U.S. 349 (1910). Wiggins v. Smith, 539 U.S. 510 (2003). Wilkerson v. Utah, 99 U.S. 130 (1879). Williams v. Taylor, 529 U.S. 362 (2000). Woodson v. North Carolina, 428 U.S. 280 (1976). FILM DOCUMENTARIES/​N EWS/​T ED  TALKS Blumberg, J. (2007, October 23). A brief history of the Salem witch trials: One town’s strange journey from paranoia to pardon. Smithsonian Magazine. Retrieved from https://​w ww.smithsonianmag.com/​h istory/​a -​b rief-​h istory-​o f-​t he​salem-​witch-​trials-​175162489/​ Borg, A., Coccaro, C., Slutsky, S., Bekhor, J., Bell Pasht, J., Carter, J., Cohen, J., & Jones, V. (Producers). (2019). The redemption project with Van Jones [Docuseries]. Los Angeles, CA: Citizen Jones. Bright, S. Capital punishment: Race, poverty, & disadvantage [Illustrative case lecture on Rickey Ray Rector at Yale University Law School]. Retrieved from https://​www. youtube.com/​watch?v=MAouedeoKcQ&list= PLh9mgdi4rNez7ZuPRY3KNJ2ef 16qebyZe&index=2 Burns, K., McMahon, D., & Burns, S.  (Producers). (2012). The Central Park Five [Docuseries]. New York, NY: PBS. Retrieved from https://​www.pbs.org/​show/​ central-​park-​five/​ DuVernay, A., Averick, S., Barish, H., & Jones, T. (Producers), & DuVernay, A. (Director). (2016, October 7). 13th. United States: Netflix. Ellis, T., et al. (Producers) & Kunhardt, G., Kunhardt, P. W., & Kunhardt, T. (Directors). (2019, June 26). True justice:  Bryan Stevenson’s fight for equality. United States: HBO. Gatiss, M. (Writer), & Tovell, J. (Director). (2018). Miguel Angel Martinez (Docuseries episode 3). In Netflix (Producer), I am a killer. United States: Netflix. Golts, D.  (Writer), & Crowell, J., & Martin, A.  (Directors). (2018). The last defense [Television episode]. In Beckett et  al. (Producers), 20/​20. New  York, NY: ABC News. HBO (Producer), & Berlinger, J. and Sinofsky, B. (Directors). (1996, June 10). Paradise lost: The child murders at Robin Hood Hills. United States: HBO. HBO (Producer), & Berlinger, J. and Sinofsky, B. (Directors). (2001, March 12). Paradise lost 2: Revelations. United States: HBO. HBO (Producer), & Berlinger, J. and Sinofsky, B. (Directors). (2001, March 12). Paradise lost 3: Purgatory. United States: HBO. HBO (Producer), & Garbus, L.  (Director). (2018, May 7). A dangerous son. United States: HBO. Investigation Discovery (Producer), & Herzog, W.  (Director). (2011, November 11). Into the abyss. United States: Investigation Discovery. Jigsaw & Sundance. (Producers). (2018–​). Death row stories [Television series]. CNN Headline News. Retrieved from https://​cnncreativemarketing.com/​project/​drs/​

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Moyer, B.  (2012, April 2). Bryan Stevenson and Michelle Alexander on injustice. Billmoyers.com. Retrieved from https://​billmoyers.com/​content/​ bryan-​stevenson-​and-​michelle-​alexander/​ National Public Radio. (n.d.). Stories about the death penalty. Retrieved from https://​ www.npr.org/​tags/​140696289/​death-​penalty Oliver, J. (Producer). (2019, May 5). Last week tonight with John Oliver [Television episode]. In Lethal injection (Episode 10). New York, NY: HBO. Pearson, F.  (Producer), & Williams, M.  K. (Director). (2018, April 6). Raised in the system. United States: HBO VICE News. Ricciardi, L., & Demos, M. (Writers/​Directors). (2015, December 28). Making a murderer (Docuseries). United States: Netflix. Rossi, A.  (Producer), & Carr, E.  L. (Director). (2017, March 11). Mommy dead and dearest. United States: HBO. Shortal, J.  (2017, January 9). Mental illness and the death penalty [News segment examining Dylan Roof and Esteban Santiago]. KARE 11 Minnesota. Retrieved from https://​www. youtube.com/​watch?v=Uf_​Tdq1f1Lo Stevenson, B.  (2015). We need to talk about an injustice. TED Talk. Retrieved from https://​www.ted.com/​talks/​bryan_​stevenson_​we_​need_​to_​talk_​about_​an_​ injustice?language=en Toboni, G. (2019, January 8). We spoke to death row inmate Scott Dozier weeks before his apparent suicide. VICE News. Retrieved from https://​www.youtube.com/​ watch? time_​continue=1&v=AUEiF2lHveY MUSEUMS Hart, L. (2002, November 17). A new museum shows death penalty as a way of life. Los Angeles Times. Retrieved from https://​www.latimes.com/​archives/​la-​xpm-​2002-​ nov-​17-​na-​prison17-​story.html The Legacy Museum from Enslavement to Mass Incarceration. Montgomery, Alabama. (Project of the Equal Justice Initiative). Wulf, A. (2016, October 3). 7 Prison museums you can visit across the US. The Culture Trip. Retrieved from https://​theculturetrip.com/​north-​america/​usa/​articles/​ 7-​prison-​museums-​you-​can-​visit-​across-​the-​u-​s/​ MUSIC Bry, D. (2013, April 10). 15 Great songs about the death penalty that will hopefully one day sound more archaic than they do. . . . The Awl. Retrieved from https://​ www.theawl. com/​ 2013/​04/​15-​great-​songs-​about-​the-​death-​penalty-​that-​will-​ hopefully-​one-​day-​sound-​more-​archaic-​than-​they-​do/​ Dansby, A.  (2002, January 29). Death songs vs. death penalty:  Langford, Earle, Case fight capital punishment with murder ballads. Rolling Stone. Retrieved from https://​w ww.rollingstone.com/​m usic/​m usic-​n ews/​d eath-​s ongs-​v s​death-​penalty-​205882/​ Morrissey, A. (2013, July 11). Readers recommend: songs about capital punishment—​ results. The Guardian. Retrieved from https://​www.theguardian.com/​music/​ musicblog/​ 2013/​ jul/​11/​readers-​recommend-​songs-​capital-​punishment-​results Rothberg, P.  (2011, September 20). Top ten death penalty songs (in tribute to Troy Davis): Here’s my stab at a list of the top ten songs ever written in opposition to capital punishment. The Nation. Retrieved from https://​www.thenation.com/​ article/​top-​ten-​death-​penalty-​songs-​tribute-​troy-​davis/​

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WEB RESOURCES American Civil Liberties Union. (2019). The case against the death penalty. Retrieved from https://​www.aclu.org/​other/​case-​against-​death-​penalty California State University Library. (Rev. 2015). Citing legal materials in APA style. Retrieved from https://​library.csustan.edu/​jbrandt/​class/​apa-​legal.pdf Capital Jury Project at the State University of New  York-​Albany School of Criminal Justice. (2019). Articles and book chapters. Retrieved from https://​www.albany. edu/​scj/​ 13194.php Centers for Disease Control and Prevention. (n.d.). Adverse Childhood Experiences (ACEs). Retrieved from https://​www.cdc.gov/​violenceprevention/​childabuse andneglect/​ acestudy/​index.html Cornell Law School. (n.d.). Legal information Institute. Retrieved from https://​www. law.cornell.edu/​ Death Penalty Information Center. (2019). [Home page]. Retrieved from https://​ deathpenaltyinfo.org/​ Hritz, A., Blau, M., & Tomezsko, S. (2010). False confessions. Retrieved from https://​ courses2.cit.cornell.edu/​sociallaw/​student_​projects/​FalseConfessions.html Legal Action Center. (2019). [Home page]. Retrieved from https://​lac.org National Association of Social Workers. (2017). Code of ethics. Retrieved from https://​ www.socialworkers.org/​About/​Ethics/​Code-​of-​Ethics/​Code-​of-​Ethics-​English National Institute of Mental Health. (n.d.). Mental health information. Retrieved from https://​www.nimh.nih.gov/​health/​index.shtml Office of Justice Programs, Bureau of Justice Statistics. [Home page]. Retrieved from https://​bjs.gov/​ Oyez. (n.d.). [Home page]. Retrieved from https://​www.oyez.org/​ Population Reference Bureau. (2019). [Home page]. Retrieved from https://​www.prb. org/​ Stanford Encyclopedia of Philosophy. (n.d.). [Home page]. Retrieved from https://​ plato.stanford.edu/​ United Nations, Department of Economic and Social Affairs. (2018). International migration report. Retrieved from https://​www.iom.int/​wmr/​world-​migration​report-​2018 U.S. Census Bureau. (2018, October 11). American community survey. Retrieved from https://​www.census.gov/​programs-​surveys/​acs/​data.htm

[ 262 ]  Recommended Works and Resources

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INDEX

Tables and figures are indicated by t and f following the page number For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Abeita, A., 105 abolitionism, 34, 82, 117–​18, 234–​35, 245. See also death penalty activists, social workers as, 230–​31 adaptive behavior, 173–​74, 175–​76, 178, 179, 180–​81, 245 administrative fees and fines, 89, 90–​91,  234 adultification of Black children, 98–​99 adults, youth offenders treated as,  148–​49 Adverse Childhood Events (ACES) study,  220–​21 advocacy for criminal legal system reforms activists against death penalty,  234–​35 advocacy against economic injustice,  233–​34 advocacy against racial injustice,  231–​33 advocacy through empowerment,  235–​37 general discussion, 237 implications for social work,  237–​38 overview,  229–​30 social workers as activists, 230–​31 defined, 245 for legislative change general discussion, 141 implications for social work, 141–​42

overview,  131–​32 practical model of advocacy practice,  132–​41 advocacy maps, 136–​37, 141 Africa/​Africans, European views of,  103–​4 African Americans. See also Black male mass incarceration advocacy against racial injustice,  231–​33 and criminalization of poverty, 87 job creation by and within Black community, 111 linking race, mass incarceration, and death penalty, 108–​10 racism and death penalty, 200 age of onset, ID, 176 aggravating circumstances in capital trial procedure, 16, 26–​28, 27f, 30 defined, 245 SMI considered as, 164 statutory guidance for, 21 Aid to Families with Dependent Children (AFDC),  92–​93 Alaska Psychiatric Institute, 76–​77 Alexander, M., xxii, 107 Alito, Samuel, 7 American Association on Intellectual and Developmental Disabilities (AAIDD), 172, 174–​75, 176, 179, 181

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American Bar Association (ABA) cultural competency in mitigation,  209–​10 Death Penalty Due Process Review Project, xxi mitigation standards, 39–​41, 48–​49,  215 SMI exclusion from death penalty, 160, 165 American Community Survey, 185 American Court of Human Rights, 193 American Indian child welfare, 76 American Psychiatric Association (APA), 172, 174–​76, 180–​81, 182, 220 Amnesty International, 159 Andrews, A., 22, 196 Angola prison, Louisiana, 150 anticipatory mourning, 198–​99 anti-​death penalty arguments, xxvt See also death penalty anti-​nuisance laws, 93 Antonio, M., 26–​28, 123 Apology (Plato), 66 appellate level defense attorneys, 120–​21 appropriate punishment, death penalty as,  71–​72 arbitrariness of death penalty, 18–​20, 41–​42 defined, 245 Aristotle, 72 Armour, M.P., 119, 127–​28 arrest process, and people with SMI, 164 Article 36, VCCR defined, 245 implications for social work, 194–​95 Mexican nationals and U.S. death penalty,  191–​92 overview,  188–​89 without delay term, 189–​90 Artis, Roscoe, 5 association, stigma by, 201, 204–​5 Atkins v. Virginia, 37 defined, 245 exemption from death penalty for ID, 125, 126, 161, 172 intellectual disability claims based on diagnostic criteria, 174–​76 implications for social work, 182–​83 procedural variations, 176–​77 recurring issues, 177–​81

[ 264 ] Index

“Atkins v. Virginia” (MacVaugh & Cunningham), 179 Attig, T., 199 attorneys. See defense attorneys Augustus, John, 230–​31 Avena and Other Mexican Nationals, 190, 192 avoidance, by family members, 203–​4 bail, 153 Baldus, David, xxii, 108–​9 bankruptcy, 88 Barnett, C., 122 Baumgartner, F., 109–​10, 164–​65 Beccaria, Cesare, 68 Beck, E., 22, 118–​19, 196, 199 Bedau, H., 17 bereavement, 197–​99, 245 Bethea, Rainey, 121–​22 Beyond Procedural Justice (Bottoms & Tankebe), xxiii bias, racial. See Black male mass incarceration; race/​racism Bienen, L. B., 123 bifurcated proceedings, 26, 27f, 47–​48,  245 Bill of Rights, 16–​17 Black churches, role in mitigating mass incarceration,  107–​8 Black codes, 97–​99 Black Lives Matter (BLM), 87, 93 Black male mass incarceration. See also African Americans factors leading to, 103–​5 general discussion, 110–​11 growth of U.S. prison population,  97–​103 implications for social work, 111–​12 linking race, mass incarceration, and death penalty, 108–​10 overview, 97 prison-​industrial complex,  105–​7 role of Black churches in mitigating,  107–​8 Blackmun, Harry, 4–​6 Blackwell, B. S., 118–​19 Bohm, R., 122, 246 botched executions, 6–​7, 246 Bottoms, Anthony, xxiii Bowers, W., 20, 25–​28

5 6 2

Braga, Anthony, 89–​90 brain science, perverse effect in capital cases, 220 brainstorming, in advocacy practice, 135 Bratton, William J., 89 Brennan, William J., Jr., 8–​9 Brewer, R. M., 105 Briseno factors, 173–​74, 177–​78, 179 Britt, Joe Freeman, 6 Britto, S., 22, 196 broken windows model, 89–​90 Brookings Institution, 86–​87 Brown, Michael, 87 Bruce, E. J., 198–​99 Bucklew v. Precythe,  124–​25 Buck v. Davis,  9–​10 burden of proof, 246 Bureau of Justice Statistics, 106–​7, 149,  151–​53 Burt, Robert, 53 Bush, George H. W., 102 Butler, B., 51 Cabana, Donald, 121 California v Acevedoup, 102 Callins v. Collins,  4–​6 Capital Jury Project, 123 capital procedure, 15–​16, 20–​21, 246. See also jury considerations in capital cases capital punishment. See death penalty Capital Punishment and the Death Penalty (NASW), xxiv–​xxvii, xxvt Capital Punishment’s Collateral Damage (Bohm), 246 caring, in trauma investigations, 224–​26 Carmichael, J. T., 109–​10 Carter, Jimmy, 154–​55 Carver, D., 147 case management, 108, 151 cause advocacy, 230, 235, 246 Centers for Disease Control (CDC),  220–​21 certiorari, 246 Chapman, G., 147 Charkrabarti, Shami, 42–​43 children, effect of mass incarceration of on,  104–​5 child welfare, 76, 93

choice, in trauma-​informed approach, 209 choosing will, 69–​70 chronic dread, 198–​99 churches, role in mitigating mass incarceration,  107–​8 civil rights, 12, 156 clinical diagnostic criteria for ID, 172–​76 clinical services, criminal justice social work, 149, 151 Clinton, Bill, 92–​93, 102–​3 closing statements, 27f closure, for family of victims, 119 Code of Ethics, NASW, 145, 230,  231–​32 collaboration, in trauma-​informed approach, 209 collateral consequences, 246 color, people of, in prisons after Civil War, 97–​99. See also African Americans; Black male mass incarceration combat experience, as mitigating evidence, 219 community hostility, and death penalty, 199–​200. See also stigma community mental health services, 162,  168–​69 compassion fatigue, 227, 253 competency to be executed, 167 competency to stand trial, 165, 166–​67,  246 complicated grief, 197–​98, 246 compounding pharmacies, 7–​8, 246 consideration, defined, 247. See also jury considerations in capital cases Constitution, U.S. See specific amendments; U.S. Constitution consular officer services, Mexican, 190–​91,  192–​93 consulates, 187–​90, 192, 247 contextual information, in advocacy process, 139 continuum of care, 247 contract theory, 67–​69, 247 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 126, 127 CoreCivic, 81, 106

Index  [ 265 ]

62

correctional system. See mass incarceration; prisons Corrections Corporation of America, 81 cost of death penalty, xxvt, 10–​11,  242–​43 Council on Social Work Education (CSWE), 112, 248 counseling, in criminal justice social work, 149, 151 countertransference, 255 Court Services and Offender Supervision Agency (CSOSA), 108 crack epidemic, 101–​2 crime death penalty as punishment fitting,  71–​72 increase in 1960s, 100–​1 media portrayals of, 83 criminal behavior, using to determine ID, 179 criminalization defined, 247 of poverty criminal justice system’s role, 88–​94 culture of, 88 general discussion, 94 implications for social work, 94–​95 overview,  86–​87 criminal justice system. See also death penalty; mass incarceration; prisons advocacy for reforms activists against death penalty,  234–​35 economic injustice, 233–​34 empowerment,  235–​37 general discussion, 237 implications for social work, 237–​38 overview,  229–​30 racial injustice, 231–​33 social workers as activists, 230–​31 biases inherent in, 131–​32 book organization, xxvii equal justice considerations, xxi folding social justice into reform of, xxiii–​xxiv implications of decline in death penalty,  12–​13 intersection with social work and death penalty, ix–​x, 241–​44

[ 266 ] Index

linking social work and criminal justice social work careers,  149–​54 general discussion, 155 implications for social justice and rights, 156 overview,  145–​46 policies,  146–​47 prisons as substitute for mental health services, 154–​55 research, 147 youth offenders, 147–​49 neoliberalism and, 80–​81 personnel as secondary victims of death penalty, 120–​21 prudence and capital punishment,  63–​64 and radical social work, 81–​83 role in criminalization of poverty administrative fees and fines, 90–​91 broken windows model, 89–​90 child welfare and juvenile justice systems, 93 future issues, 93–​94 laws directed at people who are homeless, 93 overview,  88–​89 social welfare programs, 92–​93 substance use policies and laws,  91–​92 VCCLEA, 90 SMI and higher risk of more severe sentencing,  164–​65 SMI and risk for involvement in,  161–​64 structuralism and, 78–​79 and VCCR Article 36, 188–​89 critical awareness, 209–​10 critical criminology, 82, 247 cruel and unusual punishment, 124–​25. See also Eighth Amendment CSOSA (Court Services and Offender Supervision Agency), 108 CSWE (Council on Social Work Education), 112, 248 culpability, moral, 172, 220, 251. See also mitigation in death penalty cases cultural competency in mitigation,  209–​10

7 6 2

cultural issues, in trauma-​informed approach, 209 Cunningham, Mark, 179 Cushing, R., 200 Davis, Angela, xxi Day, M., 153 Deans, Marie, 38–​39 death penalty. See also jury considerations in capital cases; mitigation in death penalty cases advocating for legislative change general discussion, 141 implications for social work, 141–​42 overview,  131–​32 practical model of advocacy practice,  132–​41 book organization, xxvii decline in contemporary public opinion,  10–​11 errors in death penalty cases, 4, 5–​6 financial cost of death penalty,  10–​11 general discussion, 11–​13 implications,  12–​13 inhumane methods, 6–​8 overview, 3–​4, 35, 47 racial animus in society and jury deliberation process, 8–​10 role of effective legal defense, 11 state of system, 4–​10 in Western democracies, 34 equal justice considerations, xxi exemption for intellectual disability, 126, 161 diagnostic criteria, 174–​76 general discussion, 181–​82 implications for social work, 182–​83 overview, 125, 172–​74 procedural variations, 176–​77 recurring issues, 177–​81 from family perspective community hostility, media, and race, 199–​200 general discussion, 207–​10 grief and trauma, 197–​99 implications for social work, 207–​10 overview,  196–​97 stigma,  200–​7

foreign nationals and general discussion, 194 implications for social work,  194–​95 overview, 185–​87, 186t VCCR, Mexico, and U.S. death penalty,  190–​93 VCCR and OPCCSD, 187–​90 intersection of social work with criminal justice and, ix–​x,  241–​44 justice of choosing will, 69–​70 exercise of rights as objective freedom,  70–​71 general discussion, 72–​73 implications for social work, 73 necessary purge of incorrigibly evil,  65–​66 overview, 63 prudence and capital punishment,  63–​64 punishment fitting the crime,  71–​72 social contract theory, 67–​69 unanimity of support in Western philosophy,  64–​65 war on outlaws, 66–​71 linking to race and mass incarceration,  108–​10 methodological and procedural considerations capital methods of deliberation, 16 early developments, 16–​18 Furman v. Georgia,  18–​19 general discussion, 21 Gregg v. Georgia,  19–​20 implications for social work, 22 overview, 15 subsequent legal developments,  20–​21 public health challenge to emerging opposition to state-​ imposed trauma, 126–​27 general discussion, 127–​28 implications for social work, 128 legal foundation for, 123–​25 overview,  117–​18 secondary victims of death penalty,  118–​23

Index  [ 267 ]

8 6 2

death penalty (cont.) serious mental illness and defining serious mental illness, 160 executions of persons with SMI,  164–​65 general discussion, 168 implications for social work, 168–​69 ineffective protections for people with SMI, 165–​68 overview, 159 purpose of death penalty as not met,  160–​61 risk for involvement in criminal justice system, 161–​64 risk of more severe sentencing,  164–​65 social work, role in discourse on, xxiv–​xxvii,  xxvt social workers as activists against, 234–​35,  238 social workers in capital defense practice dehumanization of capital defendants,  49–​53 general discussion, 53–​55, 56f implications for social work, 55–​57 overview,  46–​49 trauma, relevance of best practices for trauma investigations,  221–​26 general discussion, 226 implications for social work self-​care,  227 life of death sentenced person, 219–​21 overview,  213–​14 trauma as mitigating evidence,  215–​19 Death Penalty and the Victims (UN report), 127 Death Penalty Due Process Review Project, xxi Death Penalty Information Center, xxvt, 161,  185–​87 death qualification of jurors, 15, 27f, 51, 255 debtor laws, 88 defendants. See also criminal justice system; death penalty dehumanization of capital, 46–​47,  49–​53

[ 268 ] Index

family members as secondary victims of death penalty, 118–​19 race of as predictor of death penalty, 109 defendant’s case, 27f Defender Association, 10–​11 defense attorneys Georgia Capital Defender, 47–​48 ineffective assistance in relation to early-​life trauma,  215–​18 racist, effect on death penalty verdicts,  9–​10 role in decline of death penalty, 10–​11 as secondary victims of death penalty,  120–​21 Definition Manual on Intellectual Disability (AAIDD manual), 174–​75, 176, 179 dehumanization, 46–​47, 49–​53, 122, 247 deinstitutionalization, 154–​55, 162, 247 deliberation, capital methods of, 15, 16. See also jury considerations in capital cases delinquency offenses, juvenile, 148, 152 demonization of capital defendants, 46–​47,  49–​53 depression, in family members, 196 Derrida, Jacques, 16 Desai, S., 105 desert, pro-​death penalty arguments based on, xxvt detention facilities, juvenile, 150 deterrence, as purpose of death penalty, xxvt,  160–​61 developmental period, ID onset in, 176 Diagnostic and Statistical Manual of Mental Disorders (DSM), APA, 174–​76, 180–​81, 182, 220 diagnostic criteria for ID, 172–​76 dignity, and mitigation in death penalty cases,  42–​43 direct social work practice, 149, 151, 248 discrimination. See mass incarceration; poverty, criminalization of; race/​ racism disenfranchised grief, 199 dissociation, 122, 248 documentary evidence, collecting for trauma investigations, 223

9 6 2

Doka, Ken, 199 domestic violence, social work related to, 152 Donohue, J. J., 109 drug abuse. See substance use drugs, lethal, 6–​8 due process, 248 early-​life trauma, as mitigating evidence,  215–​18 economic injustice, advocacy against, 233–​34, 238. See also poverty economic neoliberalism. See neoliberalism education, in advocacy process, 138 effective legal defense, role in decline of death penalty, 11 Eighth Amendment, 16–​17, 35–​37, 124–​ 25, 161, 248 Ellsworth, P., 18 empathy, in trauma investigations,  224–​26 employment opportunities, for Black Americans, 106–​7, 111 empowerment, 209, 235–​37, 238 Encyclopedia of Social Work (Knox),  145–​46 enemies, death penalty as war on, 66–​71 equal justice considerations, in criminal justice system, xxi errors in death penalty cases, 4, 5–​6, 25–​26,  64 ethics, social work professional, 254. See also Code of Ethics, NASW evaluating advocacy, 140–​41 Evans, Connie Ray, 121 evil persons, death penalty as necessary purge of, 65–​66 executions. See death penalty exercise of rights as objective freedom,  70–​71 exoneration(s), 4, 5, 249 face-​to-​face interviews, in trauma investigations, 224 false confession, 249 families death penalty from perspective of community hostility, media, and race, 199–​200

general discussion, 207–​10 grief and trauma, 197–​99 implications for social work, 207–​10 overview,  196–​97 stigma,  200–​7 effect of mass incarceration on, 104–​5 of incarcerated individuals, services to,  153–​54 preparing for talking about trauma, 226 pro-​death penalty arguments of, xxvt as secondary victims of death penalty,  118–​19 federalism, 191 federal moratorium on death penalty, xxii–​xxiii,  18–​19 federal prisons, Black people in, 99–​102 fees, 89, 90–​91, 234 Fifth Amendment, 124 Fighting for Their Lives (Sheffer), 120 financial cost of death penalty, xxvt, 10–​11,  242–​43 fines, 89, 90–​91, 234 fitting punishment, death penalty as,  71–​72 Flateau, John, 106–​7 Florida, nonclinical criteria for ID in,  172–​73 Flynn, James R., 181 Flynn effect, 181 Foglia, W., 26–​28 Foley, M. A., 17 Ford v. Wainwright, 160 foreign nationals defined, 249 and U.S. death penalty general discussion, 194 implications for social work, 194–​95 overview, 185–​87, 186t VCCR, Mexico, and, 190–​93 VCCR and OPCCSD, 187–​90 Freedman’s Bureau, 53 freedom, objective, 70–​71 free will, 70 Freinkel, A., 122 Fults, Kenneth, 8–​10 fundamental attribution error, 52, 249 Furlong, M., 209–​10 Furman v. Georgia, xxii–​xxiii, 18–​19, 29–​30,  108 “future danger” question, Texas, 9–​10

Index  [ 269 ]

0 7 2

gender. See also Black male mass incarceration and criminalization of poverty, 87 of persons sentenced to death,  213–​14 prison population trends, 98–​99, 100,  101–​3 in trauma-​informed approach, 209 genograms, 54–​55, 56f, 249 GEO Group, 81, 106, 150 Georgetown Law Center on Poverty and Inequality,  98–​99 Georgia advocating for legislative change in advocating step, 138–​39, 140 evaluating advocacy, 141 getting involved step, 133–​34 identifying/​understanding the issue,  134–​36 overview,  132–​33 planning step, 136–​37 decline in death sentence in, 47–​48 racial bias in death sentencing in, xxii, 108–​9 Georgia Capital Defender, 47–​48 Georgia Justice Project, 235–​36 Georgia Resource Center, 48 getting involved step, advocacy,  133–​34 Giles, J., 26–​28 Giuliani, Rudy, 89 Goffman, E., 200–​1, 254 Goodrich, Peter, 29 Gould, J. B., 109 government, public health role of,  123–​24 Gray, Jimmie Lee, 6 Gregg v. Georgia, xxii–​xxiii, 19–​20, 29–​30, 47–​48,  108 grief,  197–​99 Grigg, A. J., 109–​10 guards, as secondary victims of death penalty, 121 guided discretion, 47–​48, 249 Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (ABA),  39–​40 guilt phase, capital trials, 15–​16, 26, 27f,  51–​52

[ 270 ] Index

halfway houses (transition homes),  149–​50 Hall v. Florida,  172–​73 Haney, C., 50, 51–​52, 55 Harris, Robert Alton, 122 Harrison, P., 148–​49 Hattery, A., 105 health outcomes, adverse childhood events and, 220–​21 Hegel, G. W. F., 72–​73 Heitzeg, N. A., 105 helping systems, neoliberalism and, 80 Hendricks, C., 108 Herman, Judith, 196–​97, 255 historical issues, in trauma-​informed approach, 209 Hobbes, T., 68, 69 Holdman, Scharlette, 38–​39 Holterman, T., 30 homeless population, 93, 154–​55 Howell, J. C., 147 humane executions, inability to carry out,  6–​8 humanity of all persons, respect for, 42–​43. See also mitigation in death penalty cases human rights, 184–​85 and criminal justice social work, 156 defined, 249 implications of decline in death penalty for, 12 of Mexican nationals in U.S., 193 and public health challenge to death penalty, 128 Human Rights Committee, 127 humiliation, sense of in family members, 203 humility, in advocacy through empowerment,  236–​37 ICCPR (International Covenant on Civil and Political Rights), 126 identifying/​understanding issue, in advocacy,  134–​36 immigration, 184–​85, 250. See also foreign nationals Immigration and Nationality Act,  184–​85 immigration detainment system, 150

1 7 2

implicit bias, and race-​of-​defendant effects, 109 imprisonment. See mass incarceration; prisons incorrigibly evil persons, death penalty as necessary purge of,  65–​66 indentured servitude, 88 Indian Child Welfare Act, 76 indigent defense, 250 individualism, in U.S. culture, 88 individuals, dual responsibility to society and, 43 inequality. See also intellectual disability; poverty; race/​racism; serious mental illness in criminal justice system, 63–​64 structural, 254 information, in advocacy process,  139–​40 inhumane methods of execution, 6–​8 innocence, anti-​death penalty arguments based on, xxvt insanity defense, 165–​67, 250 instructions, jury. See jury instructions intellectual disability (ID) defined, 250 dehumanization of capital defendants, 51 exemption from death penalty for, 126, 161 general discussion, 181–​82 implications for social work, 182–​83 medical and clinical diagnostic criteria,  174–​76 overview, 125, 172–​74 procedural variations, 176–​77 recurring issues, 177–​81 and mitigation in death penalty cases, 37 standard of proof for in Georgia,  132–​33 intellectual functioning, 173–​74, 175, 250 Inter-​American Court on Human Rights,  191–​92 International Court of Justice, 187–​88, 190, 192 International Covenant on Civil and Political Rights (ICCPR), 126

International Migration Report, 184 interpretative phenomenological analysis (IPA), 201–​2 interviews, in trauma investigations, 224 investigations, trauma, 216–​18,  221–​26 involuntary servitude, under Thirteenth Amendment, 67 involvement step, in advocacy, 133–​34 IQ scores, 172–​73, 175, 181 Jacobs, D., 109–​10 jails, local, social work in, 152–​54 Jefferson, Thomas, 16–​17 Jim Crow laws, 97–​99, 100 job creation, decreasing mass incarceration through, 111 Johnson, R., 122 Jones, S., 118–​19 journalists, as secondary victims of death penalty, 122 judgment, experience of by family members,  204–​5 jurors, as secondary victims of death penalty, 123 jury considerations in capital cases capital methods of deliberation, 15, 16 context of consideration, 28–​29 death qualification of jurors, 51 defining consideration, 26–​28, 27f, 247 and dehumanization of capital defendants, 52 general discussion, 29–​30 implications for social work, 30–​31 mitigation standards, 41 overview,  25–​26 people with SMI, 164 racial animus in society and impact to,  8–​10 jury instructions, 27f context of, 28–​29 defined, 250 and dehumanization of capital defendants,  51–​52 general discussion, 29–​30 implications for social work, 31 overview,  25–​28 jury nullification, 250 jury selection (voir dire), 27f, 255

Index  [ 271 ]

2 7

justice, of death penalty choosing will, 69–​70 exercise of rights as objective freedom,  70–​71 general discussion, 72–​73 implications for social work, 73 necessary purge of incorrigibly evil,  65–​66 overview, 63 prudence and capital punishment,  63–​64 punishment fitting the crime, 71–​72 social contract theory, 67–​69 unanimity of support in Western philosophy,  64–​65 war on outlaws, 66–​71 Justice Policy Institute, 102–​3 juvenile correctional facilities, 98–​99,  150 juvenile justice systems, 230–​31 constitutionality of execution of juveniles, 125, 161 and criminalization of poverty, 93 linking social work and juvenile justice policies, 146–​47 locations of social services, 150 social work in police departments, 152 youth offenders, working with, 147–​49,  151 mitigation in death penalty cases, 37 Kaiser Foundation, 220–​21 Kant, I., 68, 71–​72 Kelling, George, 89 Kelly, M. R., 147 Kelman, M., 29–​30 Kennedy, Anthony, 35–​37 Kent, S. L., 109–​10 Knox, Karen, 145–​46 Koopman, C., 122 labor, prison, 150, 153 Lamb, H. R., 168–​69 Langan, P. A., 101–​2 later-​in-​life trauma, as mitigating evidence,  218–​19 Laws (Plato), 63, 65 lawyers. See defense attorneys

[ 272 ] Index

lay perceptions of intellectual disability,  173–​74 Lazar, Zachary, 150 legal defense, and decline of death penalty, 11 legal foundation for public health challenge to death penalty,  123–​25 legalization of recreational marijuana, 94 legal lynchings, 110 legal precedent, 250 legislative change advocacy for general discussion, 141 implications for social work, 141–​42 overview,  131–​32 practical model of advocacy practice,  132–​41 defined, 250 legitimacy, within criminal justice system, xxiii Leon, K. S., 109 Leonard, P., 118–​19 Les Miserables (musical), 94 lethal injection, 6–​8 Levinson, J. D., 109 life histories, 48–​49, 54–​55, 223. See also mitigation in death penalty cases Linders, A., 121–​22 Link, B. G., 200–​1 Lion King, The (movie), 11–​12 Lipsey, M. W., 147 listening, importance to trauma investigations,  225–​26 local jails, social work in, 152–​54 Locke, John, 67 Lockett, Clayton, 6–​7 Long, Walter, 117–​18, 127–​28, 255 long-​term outcomes, in advocacy maps, 137 Luke, Mike, 150 lynching, 8–​9, 104, 110 macro social work, 75–​77, 84, 145–​46 MacVaugh, Gilbert, 179 Magruder, K. M., 117 malingering, in Atkins litigation, 180 marijuana, legalization of recreational, 94

3 7 2

Martin, Steve, 121 mass incarceration, 80–​81 of black males, factors leading to,  103–​5 defined, 250 general discussion, 110–​11 growth of U.S. prison population,  97–​103 implications for social work, 111–​12 linking to race and death penalty,  108–​10 overview, 97 prison-​industrial complex,  105–​7 role of Black churches to mitigate,  107–​8 McClain, A., 154 McCleskey, Warren, 108–​9 McCleskey v. Kemp, xxii, 8–​9, 12, 108–​9 McCollum, Henry Lee, 5, 6 McCollum v. North Carolina, 5 McGinnis, J., 108 means tested programs, 92, 251 Mears, M., 118–​19 media and community hostility toward family, 199–​200 portrayals of crime, 83 portrayals of criminals, 50 secondary victims of death penalty, 122 as source of stigma against family members,  206–​7 medical diagnostic criteria for ID,  172–​76 medium-​term outcomes, in advocacy maps, 137 Mental Health America, 159, 165 mental health professionals, 251. See also social work mental health services, 76–​77, 154–​55, 162–​63. See also serious mental illness mental retardation. See intellectual disability mentor–​mentee relationships, for Black ex-​offenders,  108 Metaphysics of Morals, The (Kant), 68 methodology, 251. See also death penalty, methodological and procedural considerations

Mexican Capital Legal Assistance Program (MCLAP), 193 Mexico nationals with death sentences in U.S., 185–​87,  190 VCCR and U.S. death penalty, 190–​93 micro services, criminal justice social work,  145–​46 military-​related experiences, as mitigating evidence, 219 Minnesota, secondary victims of death penalty in, 119 Minton, T., 148–​49 mitigation in death penalty cases cultural competency in, 209–​10 defined, 251 evolving constitutional requirements,  39–​41 general discussion, 42–​43 implications for social work, 42–​43 irony of, 41–​42 jury considerations, 16, 26–​28, 27f, 30 overview,  34–​35 for persons with SMI, 168 practice of, 38–​39 role of family members, 196–​97 social workers in capital defense practice dehumanization of capital defendants,  49–​53 general discussion, 53–​55, 56f implications for social work, 55–​57 overview,  46–​49 theory of, 35–​37, 36f trauma, relevance of best practices for trauma investigations,  221–​26 general discussion, 226 implications for social work self-​care,  227 life of death sentenced person,  219–​21 overview,  213–​14 trauma as mitigating evidence,  215–​19 M’Naughten rule, 166, 250 Model Penal Code, 35, 166 monsters, offenders characterized as, 206 Moore v. Texas, 173–​74,  177–​78

Index  [ 273 ]

4 7 2

moral culpability, 172, 220, 251. See also mitigation in death penalty cases moral distancing, 49–​53, 251 Moran, G., 51 moratorium(s), xxii–​xxiii, 18–​19, 251 Morrison, Toni, 57 Moss, Tiffany, 213–​14 mourning,  197–​99 multidisciplinary approach to mitigation,  38–​39 murder, and traumatic bereavement, 198 mutuality, in trauma-​informed approach, 209 Naber, N., 209–​10 Nackerud, Larry, 75–​77 narratives, mitigating. See mitigation in death penalty cases National Academy of Medicine, 123–​24 National Alliance on Mental Illness (NAMI), 165, 251 National Association of Social Workers (NASW) advocacy against death penalty,  234–​35 advocacy against racial injustice,  231–​32 code of ethics, 254 criminal justice social work, 145, 146 duty of advocacy, 230 ethical responsibilities to broader society, 242 incarceration of youth in adult prisons,  148–​49 policy statement on death penalty, xxiv–​xxvii,  xxvt social justice as core value of, xxiii–​xxiv,  46–​47 social justice definition by, 135, 253 stand on capital sentence reform,  30–​31 National Coalition for the Homeless, 155 National Institute of Mental Health, 160 National Legal Aid and Defender Association (NLADA), 39–​40 national moratorium on death penalty, xxii–​xxiii,  18–​19 National Registry of Exonerations, xxvt National Teacher and Principal Survey,  110–​11

[ 274 ] Index

necessary purge of incorrigibly evil, death penalty as, 65–​66 negotiation, in advocacy process, 138–​39 neofascism,  81–​82 neoliberalism defined, 251 general discussion, 83–​84 implications for social work, 84 and private prison industry, 80–​81 radical social work and criminal justice system,  81–​83 wary outlook on, 79–​80 Newhouse, C., 107 Nicomachean Ethics (Aristotle), 72 nonclinical criteria for ID, 172–​74,  177–​78 nonfinite loss, 198–​99 Norton, Lee, 38–​39 not competent to be executed, 167 not guilty by reason of insanity defense, 165–​67,  250 nullification, jury, 250 objective freedom, exercise of rights as,  70–​71 O’Brien, S. D., 40–​41, 206 O’Connor, Sandra Day, 40 O’Connor, T., 108 Oklahoma, botched executions in, 6–​7 opening statements, 27f opioid crisis, 91–​92, 94 Optional Protocol Concerning the Compulsory Settlement of Disputes (OPCCSD), 187–​88, 194 Osofsky, H. J., 121 Osofsky, M. J., 121 ostracism, experience of by family members, 205 othering, in capital cases, 49–​53. See also race/​racism Ouroboros, 241–​42,  243–​44 outcomes, in advocacy maps, 137 outlaws, death penalty as war on, 66–​71 Panetti, Scott, 166–​67 Parikh, C., 108 parole,  151–​52 Patterson, Kelsey, 167 peer support, in trauma-​informed approach,  208–​9

5 7 2

penal system. See mass incarceration; prisons penalty phase, capital trials, 15–​16, 26–​28, 27f,  47–​48 Penry v. Lynaugh, 125, 218 people of color, in prisons after Civil War, 97–​99. See also African Americans; Black male mass incarceration personal responsibility, sense of in family members, 202–​3 persuasion, in advocacy process, 139 Phelan, J. C., 200–​1 philosophy. See Western philosophy physical health outcomes, adverse childhood events and, 220–​21 PIC (prison-​industrial complex)/​private prison industry, 80–​81, 83, 101–​2, 105–​7,  252 Pickett, Steve, 121 planning step, in advocacy, 136–​37 Plato, 63, 65, 66, 70 point-​of-​contact person, in trauma investigations,  225–​26 police departments, 89–​90, 152–​54 policy advocacy practice model. See also advocacy advocating step, 138–​40 evaluating advocacy, 140–​41 getting involved, 133–​34 identifying/​understanding the issue,  134–​36 overview,  132–​33 planning step, 136–​37 Pope, L. G., 163 Porter v. McCollum, 219 positionality, social worker, 243–​44 postconviction death penalty lawyers,  120–​21 post-​conviction mitigation, 38–​39, 48, 54–​55. See also mitigation in death penalty cases posttraumatic stress disorder (PTSD). See also secondary victims of death penalty; trauma defined, 220, 252 in family members, 196–​97, 198 in mitigation social workers, 227 in secondary victims, 117–​18

poverty advocacy against economic injustice,  233–​34 criminalization of criminal justice system’s role, 88–​94 culture of, 88 general discussion, 94 implications for social work, 94–​95 overview,  86–​87 defined, 252 structural explanations of, 77–​78 Powell, Lewis F., 8–​9 Powers, R., 154–​55 practical model of advocacy practice advocating step, 138–​40 evaluating advocacy, 140–​41 getting involved, 133–​34 identifying/​understanding the issue,  134–​36 overview,  132–​33 planning step, 136–​37 precedent, legal, 250 presentation of information, in advocacy process,  139–​40 preventative mental health measures, for persons with SMI, 168–​69 prison-​industrial complex (PIC)/​private prison industry, 80–​81, 83, 101–​ 2, 105–​7, 252 prison labor, 150, 153 prisons. See also mass incarceration appropriateness of imprisonment,  72–​73 behavior in, using to determine ID, 179 guards as secondary victims of death penalty, 121 persons with SMI in, 161–​64 population trends from 1900 to 1940s, 98–​100 from 1950s to 1990s, 100–​3 after Civil War, 97–​98 first quarter of 21st century, 103 radical social work and, 82–​83 social work services in, 145–​46,  149–​54 as substitute for mental health services,  154–​55 youth offenders in adult, 148–​49 privilege, social worker, 236–​37

Index  [ 275 ]

6 7 2

probation, 151–​52,  230–​31 procedural considerations. See death penalty, methodological and procedural considerations procedural justice reform, 252 procedural variations in ID exemption from death penalty, 176–​77 pro-​death penalty arguments, xxvt professional ethics, social work, 254. See also Code of Ethics, NASW Program of Legal Consultation and Defense, Mexico, 190–​91,  192–​93 prosecution’s case, 27f prosecutorial discretion, 200 protections for people with SMI,  165–​68 prudence and capital punishment, 63–​64 psychological trauma, state-​imposed, 126–​27. See also trauma PTSD. See posttraumatic stress disorder; secondary victims of death penalty; trauma public health challenge to death penalty general discussion, 127–​28 implications for social work, 128 legal foundation for, 123–​25 opposition to state-​imposed trauma,  126–​27 overview,  117–​18 secondary victims of death penalty,  118–​23 defined, 252 Pulaski, Charles, xxii, 108–​9 punishment, 71–​72, 252. See also death penalty; justice, of death penalty; mass incarceration; prisons purge of incorrigibly evil, death penalty as,  65–​66 Qian, Z., 109–​10 race/​racism. See also Black male mass incarceration advocacy against racial injustice, 231–​33,  238 anti-​death penalty arguments based on, xxvt and criminalization of poverty, 87

[ 276 ] Index

and death penalty from family perspective, 200, 201, 205–​6 and dehumanization of capital defendants,  50–​51 equal justice considerations in criminal justice, xxi linking to mass incarceration and death penalty, 108–​10 racial animus in society and jury deliberation process, 8–​10 radical social work, 81–​83, 252 Rand Corporation, 10–​11 Rando, T., 198–​99 rapport, establishing for trauma investigations,  222–​23 Reagan, Ronald, 92–​93, 101–​2, 154–​55 recidivism, 252 reciprocity, and match between crime and punishment, 71–​72 records, in trauma investigations,  222–​23 relatedness requirement, Atkins claims,  180–​81 releases, obtaining for trauma investigations,  222–​23 Republic (Plato), 65, 70 research criminal justice, linking social work and, 147 on stigma, with family members,  201–​5 resources, listing in advocacy maps,  136–​37 responsibility, sense of in family members,  202–​3 restorative justice, 252 retraumatization, 226, 252. See also trauma retribution, as purpose of death penalty, xxvt, 71–​73,  160–​61 retributive justice, 253 rights. See also human rights civil, 12, 156 and criminal justice social work, 156 exercise of as objective freedom,  70–​71 of perpetrators, 72–​73 RISE social workers, 236 Risler, Ed, ix–​x Roberts, John, 9–​10

72

Rockefeller drug laws, 101, 105 Rompilla v. Beard,  216–​18 Roper v. Simmons, 37, 125, 126, 148, 161 Rousseau, J. J., 66, 67–​69 Ruffin v. Commonwealth,  97–​98 Ryan, P., 108 Sabol, W., 148–​49 safety, in trauma-​informed approach, 208 SAMHSA (Substance Abuse and Mental Health Services Administration),  207–​8 Scalia, Antonin, 5 Schnell, Cory, 89–​90 school-​to-​prison-​pipeline (STPP), 110–​11,  253 Schultz, C.L., 198–​99 Schweizer, Jennifer, 200–​1 science, in death penalty cases, 39, 220 searches and seizures by law enforcement, 102 secondary trauma, 227, 253 secondary victims of death penalty criminal justice personnel, 120–​21 defendant’s family members, 118–​19 defined, 253 general discussion, 127–​28 jurors, 123 overview, 118 victim’s family members, 119 witnesses,  121–​22 secrecy, by family members, 203–​4 Section I, Thirteenth Amendment, 67 self-​blaming, by family members, 202–​3 self-​care, mitigation social worker, 227 self-​determination,  70–​71 self-​stigma, 201, 202–​4, 254 sentencing, 26–​28, 27f, 164–​65. See also death penalty; prisons; verdict phase, in capital cases Sentencing Project, 106 serious mental illness (SMI) and death penalty defining serious mental illness, 160 executions of persons with SMI,  164–​65 general discussion, 168 implications for social work, 168–​69 ineffective protections, 165–​68

overview, 159 purpose of death penalty as not met,  160–​61 risk for involvement in criminal justice system, 161–​64 risk of more severe sentencing,  164–​65 defined, 253 Settlement House movement, 53–​54 Shaffer, S., 200 shame, sense of in family members,  203–​4 Sharp, S. F., 200 Sheffer, Susannah, 120 shelters, domestic violence, 152 short-​term outcomes, in advocacy maps, 137 Singleton, Charles, 167 Sixth Amendment, 39–​41, 253 slavery, 53, 67 Smith, E., 105 Social Contract, The (Rousseau), 67–​68 social contract theory, 67–​69, 247 social histories, defendant. See mitigation in death penalty cases social insurance, 92, 253 social justice advocating for legislative change general discussion, 141 implications for social work, 141–​42 overview,  131–​32 practical model of advocacy practice,  132–​41 commitment to, 75–​77 and criminal justice social work, 156 defined, 253 folding into criminal justice reform, xxiii–​xxiv implications of decline in death penalty, 12 neoliberalism and, 80 and role of social workers in capital defense practice, 46–​47 social policies, in criminal justice social work,  146–​47 social safety net services, 92 social services, 254 social stratification, 254 social welfare, 80, 92–​93 social withdrawal, 254

Index  [ 277 ]

8 7 2

social work advocating for criminal legal system reforms activists against death penalty,  234–​35 economic injustice, 233–​34 empowerment,  235–​37 general discussion, 237 implications,  237–​38 overview,  229–​30 racial injustice, 231–​33 social workers as activists, 230–​31 advocating for legislative change general discussion, 141 implications for social work,  141–​42 overview,  131–​32 practical model of advocacy practice,  132–​41 and Black male mass incarceration,  111–​12 book organization, xxvii and criminalization of poverty, 94–​95 and death penalty from family perspective,  207–​10 and decline in death penalty, 12–​13 in discourse on death penalty, xxiv–​xxvii,  xxvt exemption from death penalty for ID, 176,  182–​83 intersection with criminal justice and death penalty, ix–​x, 241–​44 and jury considerations in capital cases,  30–​31 linking criminal justice systems and criminal and juvenile justice policies,  146–​47 criminal justice careers, 149–​54 criminal justice research, 147 general discussion, 155 implications, 156 overview,  145–​46 prisons as substitute for mental health services, 154–​55 youth offenders, 147–​49 and methodological and procedural considerations, 22 and mitigation in death penalty cases, 38–​39,  42–​43 and neoliberalism, 79–​80, 84

[ 278 ] Index

and persons with SMI in criminal justice system, 168–​69 professional ethics, 254 and public health challenge to death penalty, 128 radical, 81–​83, 252 social workers in capital defense practice dehumanization of capital defendants,  49–​53 general discussion, 53–​55, 56f implications,  55–​57 overview,  46–​49 structuralism and, 75–​79 trauma, relevance to death penalty cases best practices for trauma investigations,  221–​26 general discussion, 226 implications for self-​care, 227 life of death sentenced person,  219–​21 overview,  213–​14 trauma as mitigating evidence,  215–​19 Social Work Code of Ethics (NASW), 145, 230,  231–​32 Social Work Speaks (NASW), 146 society and dehumanization of capital defendants, 52 dual responsibility to individual and, 43 racial animus in, and jury deliberation process,  8–​10 Solomon, Barbara, 53–​54 Solotaroff, I., 121 Southern Poverty Law Center, 148–​49 speeding tickets, 90–​91 Spiegel, G., 122 Spies, L.A., 108 standard of proof, 254 Standards for Criminal Justice (ABA), 40 Stanford v. Kentucky, 125 Staselovich v. Belarus, 127 state-​imposed psychological trauma, 126–​27. See also trauma state prisons, Black people in,  99–​102

9 7 2

states differences in death penalty across, xxi,  17–​18 procedural variations in Atkins litigation,  176–​77 SMI and death penalty purpose in, 161 VCCR and death penalty, 191 state sovereignty, 254 status offenses, juvenile, 148 Steiker, C., 18 Steiker, J., 18 stereotypes of persons with ID,  177–​78 Stevenson, Bryan, 8, 57 stigma defined, 254 family members’ experience with factors further affecting, 205–​7 implications for social work, 207 overview,  200–​1 research with family members,  201–​5 self-​stigma, 201,  202–​4 stigma by association, 201, 204–​5 story-​telling in capital sentencing. See mitigation in death penalty cases STPP (school-​to-​prison-​pipeline), 110–​11,  253 stratification, social, 254 strengths-​based perspective, 254 Strickland v. Washington, 215 structural inequality, 254 structuralism defined, 255 general discussion, 83–​84 implications for social work, 84 and mass incarceration, 106–​7 neoliberalism, wary outlook on, 79–​80 overview,  75–​77 private prison industry, 80–​81 radical social work, 81–​83 structural theory, 77–​79 Substance Abuse and Mental Health Services Administration (SAMHSA),  207–​8 substance use and criminalization of poverty, 91–​92,  94 and mass incarceration, 101–​2, 104–​5

substantive information, in advocacy process, 139 Sunkara, B., 153 Supplementary Guidelines for the Mitigation Function of Defense Teams in Capital Cases (ABA), 40–​41,  209–​10 Tankebe, Justice, xxiii tasks, listing in advocacy maps, 137 Taylor, Linda, 92 Temporary Assistance for Needy Families (TANF),  92–​93 Texas adaptive behavior in persons with ID, 178, 179, 180–​81 “future danger” question, 9–​10 nonclinical criteria for ID in, 173–​74,  177–​78 secondary victims of death penalty in, 119 Tharpe, Keith, 8–​9 therapy, in criminal justice social work, 149, 151 Thirteenth Amendment, 67, 153 three strike laws, 102–​3 Timbs v. Indiana, 234 tough-​on-​crime policies,  255 traffic violations, 90–​91 transference, 255 transition homes (halfway houses),  149–​50 Transition of Prisoners (TOP), 108 transparency, 208, 224–​26 trauma and death penalty from family perspective,  196–​99 emerging opposition to state-​imposed,  126–​27 as public health concern, 117 relevance to death penalty cases best practices for trauma investigations,  221–​26 general discussion, 226 implications for social work self-​care,  227 life of death sentenced person, 219–​21 overview,  213–​14 trauma as mitigating evidence,  215–​19

Index  [ 279 ]

0 8 2

trauma (cont.) secondary, 227, 253 of secondary victims of death penalty, 117–​23,  127–​28 types of, 220–​21 trauma-​informed approach, 207–​9, 255 trauma-​organized system, 117–​18, 119, 123–​24,  255 traumatic grief/​traumatic bereavement, 198 Trop v. Dulles, 124 Trump, Donald, 81–​82 trust/​trustworthiness, 208,  224–​26 ultimate outcome, in advocacy maps, 137 Umbreit, M.S., 119, 127–​28 unalterably unjust persons, death penalty as purge of, 65–​66 unemployment rate, for Black Americans,  106–​7 United Nations (UN), 126, 127, 184 Universal Declaration of Human Rights (UDHR), 126, 128 U.S. Census Bureau, 185 U.S. Constitution. See also specific amendments challenges to death penalty, 17, 18, 19 public health challenge to death penalty,  123–​25 requirements for mitigation in capital cases,  39–​41 U.S. criminal justice system. See criminal justice system; specific related topics U.S. death penalty. See death penalty U.S. Department of Justice, 90 U.S. immigration policies, 184–​85. See also foreign nationals U.S. Office of Juvenile Justice and Delinquency Prevention, 150 U.S. Supreme Court. See also specific court cases disagreements between justices on death penalty, 4–​6 exemption from death penalty for ID, 172–​74,  178 history of death penalty as matter for,  17–​18 and mitigation in death penalty cases

[ 280 ] Index

constitutional requirements, 40 overview, 35 theory of mitigation, 35, 36f trauma as mitigating evidence,  215–​19 moratorium on death penalty, xxii–​xxiii,  18–​19 public health challenge to death penalty, 124–​25, 127 SMI and death penalty purpose,  160–​61 VCCR and death penalty, 191 vagrancy laws, 97–​98 Vandiver, M., 198–​99 verdict phase, in capital cases, 15–​16, 26, 27f,  51–​52 vicarious victimization. See secondary victims of death penalty victim assistance programs, 154 victim impact statements, 27f victims. See also secondary victims of death penalty race of, 108–​10, 200 traumatic bereavement in families of, 198 Vidmar, N., 18 Vienna Convention on Consular Relations (VCCR), 245 Article 36, 188–​89 general discussion, 194 implications for social work, 194–​95 Mexico and U.S. death penalty, 190–​93 overview,  187–​88 without delay term, 189–​90 Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), 86–​87, 90 voice, in trauma-​informed approach, 209 voir dire (jury selection), 27f, 255 volunteers, death row, 164–​65 wardens, as secondary victims of death penalty, 121 Warner, Charles, 6–​7 War on Crime, 100–​1 War on Drugs, 101–​2, 104, 255 war on outlaws, death penalty as,  66–​71 Wayland, K., 38–​39, 206

1 8 2

Weinberger, L. E., 168–​69 welfare fraud, 92 Welfare Queen speech (Reagan), 92 Welsh, Brandon, 89–​90 West, Cornel, 81–​82 Western philosophy defined, 255 support for death penalty in choosing will, 69–​70 exercise of rights as objective freedom,  70–​71 general discussion, 72–​73 implications for social work, 73 necessary purge of incorrigibly evil,  65–​66 overview, 63 prudence and capital punishment,  63–​64 punishment fitting the crime,  71–​72 social contract theory, 67–​69

unanimity of support, 64–​65 war on outlaws, 66–​71 Wheeler, D. P., 154 White Americans. See also race/​racism linking race, mass incarceration, and death penalty, 108–​10 racial injustice in criminal justice system, 232 Wiggins v. Smith, 40, 215–​16 Wight, J., 209–​10 Williams v. Taylor, 215 Wilson, James, 89 Wilson, M., 153 withdrawal, social, 254 without delay term, VCCR, 189–​90 witnesses, as secondary victims of death penalty,  121–​22 Woodworth, George, xxii, 108–​9 youth offenders. See juvenile justice systems

Index  [ 281 ]

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