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Slow Law: Temporal Logics in US Death Penalty Mitigation Investigations

Published online by Cambridge University Press:  06 June 2019

Jesse Cheng Open the ORCID record for Jesse Cheng [Opens in a new window]
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Abstract

From arrest to sentencing, cases in which the defendant is charged with capital murder in the United States take substantially longer to resolve than homicide cases in which prosecutors choose not to seek the death penalty. One might reasonably attribute the slowness of capital trials to heightened procedural safeguards that attend the potential deprivation of life. In this article, I suggest that this explanation, straightforward as it is, glosses over more probing and analytically interesting truths about the complex temporal dimensions of death penalty trials. Based on my experiences as both a former defense advocate and an ethnographic researcher of capital defense practices, the slowness of capital cases revolves in large measure around the investigative pursuits of sentencing mitigation. Mitigation investigation’s knowledge practices are informed by distinct temporal operations whose interrelations feed into a deeper logic to capital defense advocacy. This article parses out and traces the connections between these inner workings, using social theory on time to articulate the processes by which mitigation’s temporal logics produce the characteristically slow pace of death penalty cases. I conclude with brief thoughts speculating how the temporal analysis experimented with here might be extended to processes of US criminal adjudication more broadly.

Keywords

death penaltydefense advocacymitigation investigationtemporal analysis
Type
Articles
Information
Law & Social Inquiry , Volume 44 , Issue 4 , November 2019 , pp. 1174 - 1195
Copyright
© 2019 American Bar Foundation 

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Footnotes

He thanks the five anonymous reviewers for their invaluable comments, Sameena Mulla for her guiding thoughts on a very early prototype of this piece, and Scharlette Holdman for the expansive windows of insight she offered into the practice of capital mitigation. Fieldwork activities were supported by National Science Foundation Grant #SES-0548835 (IRB protocol HS#2005-4484).

References

REFERENCES

Adam, Barbara. Time and Social Theory. Cambridge, UK: Polity Press, 1994.Google Scholar
American Bar Association. “ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.” Reprinted in Hofstra Law Review 31, no. 4 (2003): 913–1090.Google Scholar
American Bar Association. “Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases.” Reprinted in Hofstra Law Review 36, no. 3 (2008): 677–92.Google Scholar
Amsterdam, Anthony G., and Bruner, Jerome. Minding the Law. Cambridge, MA: Harvard University Press, 2002.Google Scholar
Auyero, Javier. Patients of the State: The Politics of Waiting in Argentina. Durham, NC: Duke University Press, 2012.CrossRefGoogle Scholar
Barkow, Rachel. “The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity.” Michigan Law Review 107, no. 7 (2009): 1145–1205.Google Scholar
Bear, Laura. “Time as Technique.” Annual Review of Anthropology 45, no. 1 (2016): 487–502.CrossRefGoogle Scholar
Bloom, Frederic. “The Law’s Clock.” Georgetown Law Journal 104, no. 1 (2015): 1–55.Google Scholar
Blume, John H., and Leonard, Pamela Blume. “Principles of Developing and Presenting Mental Health Evidence in Criminal Cases.” The Champion 24, no. 9 (2000): 63–71.Google Scholar
Bowers, William J., Sandys, Marla, and Steiner, Benjamin D.. “Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experiences, and Premature Decision Making.” Cornell Law Review 83, no. 6 (1998): 1476–1556.Google Scholar
Bright, Stephen B. “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer.” Yale Law Journal 103, no. 7 (1994): 1835–83.CrossRefGoogle Scholar
Bright, Stephen B. “Neither Equal nor Just: The Rationing and Denial of Equal Services to the Poor When Life and Liberty Are at Stake.” Annual Survey of American Law 1997 (1997): 783–836.Google Scholar
Chammah, Maurice. “Scharlette Holdman, a Force for the Defense on Death Row, Dies at 70.” New York Times, July 22, 2017.Google Scholar
Cheng, Jesse. “Ethnographic Advocacy against the Death Penalty.” Anthropology and Humanism 43, no. 1 (2018): 21–38.CrossRefGoogle Scholar
Comfort, Megan. Doing Time Together: Love and Family in the Shadow of the Prison. Chicago: University of Chicago Press, 2007.Google Scholar
Conley, Robin. Confronting the Death Penalty: How Language Influences Jurors in Capital Cases. Oxford: Oxford University Press, 2015.Google Scholar
Dudley, Richard G. Jr., and Leonard, Pamela Blume. “Getting It Right: Life History Investigation as the Foundation for a Reliable Mental Health Evaluation.” Hofstra Law Review 36, no. 3 (2008): 963–88.Google Scholar
Durkheim, Emile. The Elementary Forms of the Religious Life. Translated by Swain, J. W.. New York: Free Press, [1915] 1965.Google Scholar
Ellis, James, and Luckasson, Ruth. “Mentally Retarded Criminal Defendants.” George Washington Law Review 53, no. 3–4 (1985): 414–93.Google Scholar
Feeley, Malcom M. The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage, 1979.Google Scholar
Gelman, Andrew, Liebman, James S., West, Valerie, and Kiss, Alexander. “A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States.” Journal of Empirical Legal Studies 1, no. 2 (2004): 209–61.CrossRefGoogle Scholar
Goodpaster, Gary. “The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases.” New York University Law Review 58, no. 2 (1983): 299–362.Google Scholar
Gould, Jon B., and Greenman, Lisa. Report to the Committee on Defender Services, Judicial Conference of the United States: Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases. Washington, DC: Judicial Conference of the United States, 2010. http://www.uscourts.gov/sites/default/files/fdpc2010.pdf.Google Scholar
Greenhouse, Carol. A Moment’s Notice: Time Politics across Cultures. Ithaca, NY: Cornell University Press, 1996.Google Scholar
Han, Clara. Life in Debt: Times of Care and Violence in Neoliberal Chile. Berkeley, CA: University of California Press, 2012.Google Scholar
Haney, Craig. “The Social Context of Capital Murder: Social Histories and the Logic of Mitigation.” Santa Clara Law Review 35, no. 2 (1995): 547–609.Google Scholar
Haney, Craig. “Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation.” Hofstra Law Review 36, no. 3 (2008): 835–82.Google Scholar
Heaney, Lois. Preparing the Penalty Phase. Report by the National Jury Project. 1983 (in author’s possession).Google Scholar
Holdman, Scharlette. The Nature and Role of Mitigating Evidence in Capital Cases. Legal memorandum by the Center for Capital Assistance. n.d. (in author’s possession).Google Scholar
Hughes, Emily. “Mitigating Death.” Cornell Journal of Law and Public Policy 18, no. 2 (2009): 337–90.Google Scholar
Judicial Conference of the United States. Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation. Subcommittee on Federal Death Penalty Cases, Committee on Defender Services. 1998. http://www.uscourts.gov/sites/default/files/original_spencer_report.pdf.Google Scholar
Kansas Judicial Council. Report of the Judicial Council Death Penalty Advisory Committee. 2014. https://cdm16884.contentdm.oclc.org/digital/collection/p16884coll55/id/3.Google Scholar
Kaplan, Paul J. “Forgetting the Future: Are Capital Trial Defenders Cause Lawyers?” Theoretical Criminology 14, no. 2 (2010): 1–25.CrossRefGoogle Scholar
Lynch, Mona. “Demanding Death: An Analysis of Prosecutors’ Final Arguments in California Capital Penalty Phase Trials.” Paper distributed at the California Attorneys for Criminal Justice & California Public Defenders Association Capital Case Defense Seminar. n.d. (in author’s possession).Google Scholar
Marceau, Justin F., and Whiston, Hollis A.. “The Cost of Colorado’s Death Penalty.” University of Denver Criminal Law Review 3 (2013): 146–63.Google Scholar
May, Jon, and Thrift, Nigel, eds. Timespace: Geographies of Temporality. London: Routledge, 2003.CrossRefGoogle Scholar
Miethe, Terance D. Estimates of Time Spent in Capital and Non-Capital Murder Cases: A Statistical Analysis of Survey Data from Clark County Defense Attorneys. Las Vegas: University of Nevada, Las Vegas, 2012. https://deathpenaltyinfo.org/documents/ClarkNVCostReport.pdf.Google Scholar
Millar, Kathleen. “The Precarious Present: Wageless Labor and Disrupted Life in Rio de Janeiro, Brazil.” Cultural Anthropology 29, no. 1 (2014): 32–53.CrossRefGoogle Scholar
Mulla, Sameena. The Violence of Care: Rape Victims, Forensic Nurses, and Sexual Assault Intervention. New York: New York University Press, 2014.CrossRefGoogle Scholar
Munn, Nancy. “The Cultural Anthropology of Time: A Critical Essay.” Annual Review of Anthropology 21 (1992): 93–123.CrossRefGoogle Scholar
National Scientific Council on the Developing Child. “Excessive Stress Disrupts the Architecture of the Developing Brain.” Working Paper 3, Harvard University Center on the Developing Child (2005).Google Scholar
Norton, Lee. “Capital Cases: Mitigation Investigations.” The Champion 16, no. 4 (1992): 43–45.Google Scholar
Pennsylvania District Attorneys Association. “Pennsylvania Supreme Court Criticizes ‘Intolerable’ Tactics of Capital Defenders.” Press Release, 2015. https://www.pdaa.org/pennsylvania-supreme-court-criticizes-intolerable-tactics-of-capital-defenders/.Google Scholar
Radin, Margaret Jane. “Cruel Punishment and Respect for Persons: Super Due Process for Death.” Southern California Law Review 53, no. 4 (1980): 1143–85.Google Scholar
Riles, Annelise. The Network Inside Out. Ann Arbor, MI: University of Michigan Press, 2000.CrossRefGoogle Scholar
Roth, Julius. Timetables: Structuring the Passage of Time in Hospital Treatment and Other Careers. Indianapolis, IN: Bobbs-Merrill Co., 1963.Google Scholar
Rountree, Meredith, and Owen, Robert. “Overlooked Guidelines: Using the Guidelines to Address the Defense Need for Time and Money.” Hofstra Law Review 41, no. 3 (2013): 623–34.Google Scholar
Sarat, Austin. “Narrative Strategy and Death Penalty Advocacy.” Harvard Civil Rights-Civil Liberties Law Review 31, no. 2 (1996): 353–82.Google Scholar
Simmel, Georg. The Philosophy of Money. London: Routledge, 1978.Google Scholar
Steiker, Carol S., and Steiker, Jordan M.. Courting Death: The Supreme Court and Capital Punishment. Cambridge, MA: Belknap Press, 2016.CrossRefGoogle Scholar
Stetler, Russell. “Capital Cases: Mitigation Evidence in Death Penalty Cases.” The Champion 23, no. 1 (1999): 33–38.Google Scholar
Stetler, Russell, and Wendel, W. Bradley. “The ABA Guidelines and the Norms of Capital Defense Representation.” Hofstra Law Review 41 (2013): 635–96.Google Scholar
Thompson, E. P. “Time, Work-Discipline, and Industrial Capitalism.” Past & Present 38, no. 1 (1967): 56–97.CrossRefGoogle Scholar
Turnbull, Sarah. “‘Stuck in the Middle’: Waiting and Uncertainty in Immigration Detention.” Time & Society 25, no. 1 (2015): 61–79.CrossRefGoogle Scholar
Vick, Douglas W. “Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences.” Buffalo Law Review 43, no. 2 (1995): 329–460.Google Scholar
Washington Death Penalty Assistance Center. Washington’s Death Penalty System: A Review of the Costs, Length and Results of Capital Cases in Washington State. 2004. http://abolishdeathpenalty.org/wp-content/uploads/2013/08/WAStateDeathPenaltyCosts.pdf.Google Scholar
White, Welsh S. “Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care.” University of Illinois Law Review 1993, no. 2 (1993): 323–78.Google Scholar
White, Welsh S. Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. Ann Arbor, MI: University of Michigan Press, 2006.CrossRefGoogle Scholar
Willis, Paul. Learning to Labor: How Working Class Kids Get Working Class Jobs. New York: Columbia University Press, 1981.Google Scholar
Zerubavel, Eviatar. Patterns of Time in Hospital Life: A Sociological Perspective. Chicago: University of Chicago Press, 1979.Google Scholar

Cases Cited

Argersinger v. Hamlin, 407 U.S. 25 (1972).CrossRefGoogle Scholar
Atkins v. Virginia, 536 U.S. 304 (2002).Google Scholar
California v. Brown, 479 U.S. 538 (1987).Google Scholar
California v. Ramos, 463 U.S. 992 (1983).Google Scholar
Eddings v. Oklahoma, 455 U.S. 104 (1982).CrossRefGoogle Scholar
Franklin v. Lynaugh, 487 U.S. 164 (1988).CrossRefGoogle Scholar
Lafler v. Cooper, 132 S. Ct. 1376 (2012).CrossRefGoogle Scholar
Lockett v. Ohio, 438 U.S. 586 (1978).Google Scholar
Missouri v. Frye, 132 S. Ct. 1399 (2012).Google Scholar
Rompilla v. Beard, 545 U.S. 374 (2005).CrossRefGoogle Scholar
Santobello v. New York, 404 U.S. 257 (1971).Google Scholar
Wiggins v. Smith, 539 U.S. 510 (2003).CrossRefGoogle Scholar
Williams v. Taylor, 529 U.S. 362 (2000).CrossRefGoogle Scholar
Woodson v. North Carolina, 428 U.S. 280 (1976).Google Scholar