Attorneys’ Use of Hegemonic Tales and Subversive Stories in the Presentation of Capital Mitigation

Abstract

It has been theorized that American culture is so individualistic that it compels defense attorneys in capital cases to rely upon and reinforce the very individualism that sustains the death penalty. Yet, stories also have the potential to be subversive, and because mitigation is specifically designed to present a contextualized view of a defendant and his or her social history, mitigation seems especially poised to offer a challenge to the hegemonic worldview that privileges individualistic causal explanations. Yet, the subversive potential of capital mitigation has never been examined. This study attempts to bridge this gap in the literature by analyzing eight mitigation cases from Delaware. The results confirm that while defense attorneys do utilize and reinforce individualistic causal explanations, most of them also attempted contextualizing stories that subverted the dominant cultural narrative, indicating that capital mitigation is an arena of social contest where both hegemonic and subversive stories can be told. The implications and limitations of these findings are discussed.

Keywords

capital punishment mitigation individualism hegemony

Introduction

It has been pointed out by Ewick and Silbey (1995) that narratives have the capacity to be hegemonic and support existing power structures or to subvert them by offering contradictory tales that challenge the dominant cultural narrative. Nowhere does this observation seem more applicable than in the area of capital mitigation. After all, American culture is highly individualistic and privileges individual-level causal explanations, especially when it comes to crime (Dunn & Kaplan, 2009; Haney, 1995, 1997; Scheingold, 1984). Yet, both the US Supreme Court (Rompilla v. Beard, 2005; Wiggins v. Smith, 2003; Williams v. Taylor, 2000) and the American Bar Association (ABA; 2003, 2008) have stressed the importance of contextualizing evidence derived from a defendant’s life and family history in the presentation of an effective mitigation case in capital penalty trials. In fact, the constitutionality of the modern death penalty has been premised on a requirement that fact finders consider all mitigating circumstances, even if they have no direct nexus to the crime in question (Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978; Penry v. Lynaugh, 1989; Tennard v. Dretke, 2004). Given these legal realities, it seems that capital mitigation may be especially poised to offer a challenge to the dominant cultural narrative that privileges individualized causal explanations. Yet, the subversive potential of capital mitigation has never been examined, so it is not known if capital defenders actually use this opportunity to present an alternative theory of behavior causation.

In a preliminary examination of one mitigation case, Dunn and Kaplan suggest that the individualizing nature of American culture and social institutions compels defense attorneys to draw from and rely upon individualizing arguments that ironically “frame the defendant as responsible” and “inadvertently reinforce the ideology of individualism that fueled their client’s social exclusion in the first place” (2009, pp. 338–339). They suggest that individualism is so powerful and pervasive in American culture that it has become hegemonic and as such will impact the ways defense attorneys construct their cases (Dunn & Kaplan, 2009). This study is an excellent first step that expands the literature on capital mitigation, but it only uses one case and does not examine the subversive potential of capital mitigation. Therefore, in order to expand their framework, this study analyzes the role of both individualizing and contextualizing stories in eight mitigation cases (half of which resulted in a life sentence) from Delaware. By using multiple cases, this study is able to look for patterns and trends in mitigation cases and allows for a comparison of the mitigation presented in life cases to that which is presented in death cases. Although a sample size of eight cases drawn from one state is not generalizeable, it presents a conceptual expansion on the existing knowledge of capital mitigation while still utilizing a detailed and in-depth narrative analysis that could not be completed with a large sample size.

The Hegemony of Individualism

As explained by Gramsci (1971), hegemony is a form of control in which the elites derive consent from the masses for policies that serve the interests of the elites. Gramsci (1971) believed that by controlling a culture’s messages, the elites could construct certain ideas as normal and natural. These messages would become absorbed into a culture’s collective commonsense and would therefore be immune from serious debate. In this way, the elites would not need to use coercion or force to get their way; the masses would willingly support policies that benefitted the elites at the expense of the masses because no other policy would make sense, given their taken-for-granted cultural assumptions. Dunn and Kaplan (2009) have argued that in American culture, the concept of individual responsibility is one of these hegemonic cultural messages. As they explain, “individualism is so deeply embedded in our social interventions and the law that it is practically impossible talk about particular subjects in capital cases without reinforcing and valorizing it, whatever the intent of the speaker” (Dunn & Kaplan, 2009, p. 339).

There are, of course, numerous different ways to conceptualize individualism, but in America, Dunn and Kaplan (2009) argue, individualism is a way of thinking focused on micro-level, internal explanations for behavior, such as free will or character. In this regard, criminal conduct is thought to be the result of evil persons with defective characters and who are fundamentally different from law-abiders. Scheingold (1984) refers to this as the “myth of crime and punishment.” There are numerous examples of this way of thinking in American social and political discourse that date back to the nation’s founding. Individual rights and the supremacy of the individual were the cornerstones of the American political experiment (Dunn & Kaplan, 2009), and they became enshrined in the US Constitution and Declaration of Independence. Therefore, American social institutions, especially the law and the media, give primacy to individual causal explanations, which causes most Americans to view the individual as the sole causal agent and to overlook the structural barriers and pressures that enable or restrict behavioral options.

Gramsci (1971) argued that the legal system serves an important role in constructing hegemonic stories because it educates the masses. In the United States, the legal culture is highly individualistic. Because it was formed during the nineteenth century when psychological individualism was the predominant intellectual paradigm and because it is designed to dispose of individuals on a case-by-case basis, the American court system typically relies upon an individualistic framework (Haney, 1982; Scheingold, 1991) that ends up achieving “a kind of radical individuation” (Ewick & Silbey, 1995, p. 217). This individualized structure ensures that legal battles are framed as a battle between two individuals and in which responsibility must be attributed to specific individuals rather than objective social conditions (Barton, 1998; Freeman, 1990). In this view, crime and civil liability are thought to be the result “of a voluntary and responsible agent who chooses between the lawful and the unlawful” (Haney, 1982, p. 209). Social circumstances that just happen to exist are not considered relevant. This individualistic view of human behavior is most starkly highlighted by the Supreme Court’s decision in McCleskey v. Kemp (1987). Despite the overwhelming statistical evidence that McCleskey presented to demonstrate how Georgia’s death penalty operated in a racially biased manner, the Court decided that McCleskey was not entitled to relief because he could not prove that a specific actor specifically singled him out because of his race. This decision mirrors anti-discrimination law in the US, which defines racial discrimination “as an instance of individual badness in an otherwise non-discriminatory realm. Thus, we cannot find violations of antidiscrimination law in objective social conditions, but only in the actions of identifiable perpetrators who have purposely and intentionally caused harm to identifiable victims …” (Freeman, 1990, p. 3).

The hegemonic power of individualism is so powerful that Dunn and Kaplan (2009) discovered that in the one case they studied, it even compelled the defense attorneys to decontextualize their client’s actions and to construct his problems as being internal ones. As they demonstrate, the helping agencies that intervened throughout the defendant’s life were often beholden to the “psy-complex,” which utilizes individualistic explanations that place fault and blame on individuals rather than social circumstances. This means that the records with which the defense attorneys were forced to work focused on the defendant’s individual pathology and not his social context. Therefore, even the defense’s attempts to contextualize their client’s behavior ultimately supported the hegemonic narrative of individual responsibility.

Subversive Stories

Although Dunn and Kaplan’s (2009) study offers an important contribution to the field by actually examining a mitigation case, their study lacks an exploration of the subversive potential of capital mitigation. After all, mitigation is supposed to present “a thickly contextual social biography” (Cheng, 2010, p. 39). The Supreme Court’s jurisprudence of death even places contextual evidence at the heart of the guided discretion statutes that were supposedly designed to ensure the death penalty operated without caprice (Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978; Penry v. Lynaugh, 1989; Rompilla v. Beard, 2005; Tennard v. Dretke, 2004; Wiggins v. Smith, 2003; Williams v. Taylor, 2000; Woodson v. North Carolina, 1976).

As Ewick and Silbey (1995) have discussed, stories are “socially organized phenomena” that are told in different ways at different times and with different goals. As such, the social and historical contexts in which stories are told have profound effects on how they are told, the meanings they generate, and the outcomes they produce (Ewick & Silbey, 1995). So while the stories we tell often “bear the imprint of dominant cultural meaning and relations of power” and help to produce “those meanings and power relations” (Ewick & Silbey, 1995, p. 211), narratives also provide an opportunity to challenge taken-for-granted assumptions. If a story is repeated often enough, it has the capacity to become part of a culture’s commonsense, but if the opportunity presents itself, stories also have the ability to weave tales that defy or discredit the existing master narrative.

Viewed in this light, stories are powerful social tools that can be used either to reinforce and validate existing power structures or to challenge the existing status quo, and “Capital mitigation presents a unique site for studying the law’s relationship to individualism and how that relationship might be disrupted and transformed” (Dunn & Kaplan, 2009, p. 363). Capital mitigation is a particularly useful phenomenon for examining the hegemonic and subversive potential of narratives for two reasons. First, courts play a powerful role in educating the public (Gramsci, 1971). As such, the stories told are crucial for understanding the production of cultural messages, particularly hegemonic ones, and the stories told in mitigation have additional influence because capital trials tend to attract more media attention and to pique the interest of more people. Secondly, capital mitigation presents “a rare opportunity to test the law’s commitment to individualism” (Dunn & Kaplan, 2009, p. 363). Defense attorneys are not only afforded wide latitidue in presenting mitigation, the Supreme Court actually expects contextualizing evidence to be presented during capital penalty trials. As the Court noted, when it struck down mandatory death penalty laws in Woodson v. North Carolina, there are “diverse frailities of humankind” that need to be considered before sentencing someone to death (1976, p. 304). The Court later elaborated by saying that no limits may be placed on the mitigating evidence defendants are allowed to present in capital cases (Lockett v. Ohio, 1978), that sentencing bodies must consider all relevant mitigating evidence (Eddings v. Oklahoma, 1982), including facts about the defendant’s background and upbringing (Penry v. Lynaugh, 1989), that capital defenders are expected to do a thorough investigation of their client’s past (Rompilla v. Beard, 2005; Wiggins v. Smith, 2003), and that mitigation does not need to have any nexus to the crime (Tennard v. Dretke, 2004). In the words of the ABA, capital defense attorneys must “illustrate and illuminate the factors that shaped and influenced the client’s behavior and functioning” including the “long-term consequences of deprivation, neglect and maltreatment during developmental years; social, cultural, historical, political, religious, racial, environmental and ethnic influences on behavior …” (2008, pp. 682–683). These are all contextual factors that contrast the story of autonomous individualism that is typically told by the court system. In this way, the entire concept of capital mitigation is specifically designed as an alternative to the typical individualistic focus of American courts; thus, it is especially poised to challenge individualism. The question is whether or not it does.

The Present Study

In order to evaluate the hegemonic and subversive potential of capital mitigation, this study performs an in-depth content analysis of eight mitigation cases (four that ended with a life sentence and four that ended with a death sentence) that were presented in Delaware from 2001 to 2005. Delaware was chosen as the research site for a variety of reasons. The most important reason is that Delaware assigns final sentencing authority in capital cases to a judge rather than a jury; the jury’s role is predominantly advisory. This means that capital defenders are actually making their arguments to a judge who should be highly trained in the law, understand the purpose of mitigation, and have had prior experience with defendants from deprived backgrounds. Furthermore, unlike the judges in Florida and Alabama, the other two judge override states, judges in Delaware are not elected. They are appointed by the governor through a merit selection process to 12-year terms, and they do not face retention elections (American Judicature Society, n.d.). This should insulate Delaware judges from the pressures of public opinion and give them the independence to truly consider contextualizing messages. Therefore, if any court system in the nation is to be open to subversive stories in capital mitigation, it is likely to be Delaware’s. Additionally, Delaware is a border state that exhibits a mixed geographic and political structure that causes it to have some features that are characteristic of more conservative, southern states and other features that are more compatible with liberal, northeastern states (Kleinstuber, 2011). This heterogeneous makeup likely makes Delaware more open to competing mitigation narratives than more homogenous states.

Sampling Procedure

Because trial transcripts acquired from the court reporter’s office in Delaware are prohibitively expensive ($2 per page and most trials were more than 1,000 pages long), it was necessary to rely on secondary sources to acquire transcripts. Therefore, the time period 2001–2005 was selected for this study in order to maximize the number of cases that had completed the appeals process but were still new enough that the transcripts might be able to be located. During this time period in Delaware, there were 25 defendants who were convicted of first-degree murder and against whom the state sought the death penalty. Eleven of them were sentenced to death. Of these 25 cases, 6 were excluded from the analysis for various reasons. Three death cases were excluded because the sentences were overturned on appeal, and a fourth death case was excluded because the defendant refused to allow his attorneys to present any mitigating evidence. Because they differed dramatically from the typical capital case, two life cases were also excluded. One was excluded because the defendant was a juvenile when the crime was committed, and this was the only case in this time period involving a juvenile offender. Furthermore, during the time period between the end of the penalty hearing and the pronouncement of the sentence, the U.S. Supreme Court barred the execution of juvenile offenders (Roper v. Simmons, 2005), so it is not clear what sentence the judge would have imposed had she been permitted to impose a death sentence.¹ A second life case was excluded because the jury failed to find the existence of a statutory aggravator that would have made the defendant death eligible. This is the only defendant within this time period against whom the prosecution sought the death penalty and secured a conviction for first-degree murder but failed to prove the existence of a statutory aggravator. As such, these two cases are outliers for this population and were excluded.

Of the remaining 19 cases, 8 were selected by convenience due to transcript availability. Because of the cost of reproducing transcripts and the fact that life sentences cannot be appealed, it was rare for life trials to have available transcripts. Two life transcripts were available from appellate counsel, and two were available in the court file in the Office of the Prothonotary. The two available from the Prothonotary could not be photocopied, so they were read and coded in the Prothonotary’s Office. These are the only four life transcripts that could be located without paying the court reporter. Four death transcripts were available from the Philadelphia Federal Defenders Office, which was handling the appeals in these four cases. Because the ratio of life to death cases since 1991, when Delaware changed its law to give judges final sentencing authority in capital cases, is roughly one to one (Fleury-Steiner, Dunn, & Fleury-Steiner, 2009; Kleinstuber, 2014a), a one to one ratio of life to death cases in the sample was considered desirable. Furthermore, since it is likely that the evidence presented in life cases differs from the evidence presented in death cases and it is important to compare the types of arguments made in life cases to those made in death cases to see if they convey different messages and stories, it made methodological sense to have an equal number of life and death cases. As such, the existing sample of four life and four death cases was considered acceptable. All eight defendants in this sample are male. Five of them are African Americans, two are non-Hispanic Whites, and one is Hispanic. Two of the defendants were convicted of double murder, five were convicted of a single murder committed during a robbery, and the eighth defendant was convicted of killing his wife (the only female victim in this sample) in order to collect the insurance policy on her life. Five different judges presided over these eight trials; all five of them are White males.

Coding

Coding of the transcripts entailed identifying whether the reasons offered by the defense team for sparing the defendant’s life were hegemonic or subversive in nature. Hegemonic arguments were those focused on individual responsibility—that is, factors inside the defendant (such as mental capacity or psychological problems) or factors within his or her control (such as the decisions that he or she made, his or her free will, or his or her culpability for the crime)—without any discussion of why the defendant may have been more likely than most to make the choices he or she did. An example of a hegemonic argument would be to claim that the killing was an accident or that a co-perpetrator was more responsible. Subversive arguments, on the other hand, included any argument that attempted to place the defendant’s behavior in a larger social context by talking about causal forces external to the defendant and beyond his or her control (such as a history of abuse, chronic poverty, or high levels of exposure to violence) and discussing how these factors increased the chances of the defendant being violent. An example of a subversive argument would be to claim that the defendant was abused as a child and then present evidence that being abused increases one’s risk of being involved in violent crime. This argument challenges the individualistic hegemonic narrative because if human actions were simply a matter of free will, abused children would be no more likely than other children to be involved in violence as adults.

Findings

The analysis of these eight transcripts found that most of the mitigation cases did not adopt a single explanatory frame; rather, most of the attorneys employed a strategy that both individualized their clients’ behaviors and presented evidence to challenge the hegemonic individualistic narrative. In what appears to be an extension of the arguments presented in the guilt phase, the defense teams in all eight trials tried to downplay the defendants’ culpability by focusing on residual doubt or the actions of a coconspirator. However, in addition to discussing culpability, defense attorneys in six of the eight trials presented evidence of the defendants’ upbringing, and in five of those, mitigation experts were utilized to contextualize the defendants’ behaviors and demonstrate the powerful influence of external forces on individual behavior by presenting evidence that exposure to such factors increases the probability of being involved in violence later in life. The defendants’ life histories, therefore, played a prominent role in these mitigation cases. Therefore, overall, the mitigation cases were more individualizing (hegemonic) than contextualizing (subversive), but not radically so, and they certainly did not present an all-encompassing hegemonic narrative. Rather, there was an attempt to subvert the individualistic narrative by offering contextualizing stories of external causation.

Hegemonic Tales: Lack of Culpability

Despite their attempts to offer contextualizing stories, the hegemonic power of individualism appears to have compelled the defense attorneys to adapt their mitigation stories to fit within the dominant cultural narrative and thus support the hegemonic discourse. Due to the focus on individualism in American culture, it makes sense that the defense attorneys would try to find ways to diminish their clients’ culpability. Considering this is likely the first thing the decision makers consider, efforts to reduce the defendant’s culpability have the potential to have the most influence, a fact that creates a dilemma for defense attorneys. In order to maximize their chances of saving their clients’ lives, they are compelled to support the very individualism that supports capital punishment in the first place. Unsurprisingly, therefore, defense attorneys in all eight cases extended their guilt phase arguments into the penalty phase to suggest that regardless of whatever external factors may have influenced their clients’ behaviors, their clients were simply not culpable enough to be put to death.

One such culpability-focused strategy employed by defense attorneys in three of the eight trials was to try to raise some doubt about their client’s state of mind. For example, Ted² was convicted of killing a man during a botched robbery in which one of the two victims resisted. During the ensuing struggle, the victim was shot in the chest and killed. The other victim was chased down and pistol whipped but survived. Using these facts to his advantage, the defense attorney stated:

But [Ted], as you will remember, and I know that you will, was charged with not an intentional killing, not a reckless killing, but with negligently causing the death during the commission of a robbery.

If [Ted] were the danger[ous], cold, calculating killer that is so feared, why let [surviving robbery victim] go?

Ultimately, the judge’s doubts as to Ted’s intent led him to conclude Ted should not be sentenced to death.

A second hegemonic, culpability-minded strategy used by defense attorneys in five of the eight trials was to try pointing the finger at a co-perpetrator. For example, Donald was identified by two co-perpetrators as the shooter in a robbery–homicide, but a surveillance video of the killing was inconclusive as to the killer’s identity. Donald argued that he was just the getaway driver. At trial, Donald was convicted of felony murder but was acquitted of intentional murder.³ In the penalty hearing, the defense maintained their position that Donald was not the shooter and used the jury’s clear indecision to their advantage, arguing:

We hope that you’ve spoken volumes about the role you feel [Donald] played in this homicide. We hope that that will have, because it should, an impact on your recommendation during the penalty phase; that is, that if you feel that he wasn’t the actual killer, that if you feel he was involved, but more as an accomplice, we hope that it will have an impact on you to know that you sit in judgment over whether he dies or not because he was an accomplice and the actual killers will ultimately get out of jail, or he lives the rest of his life in jail.

Donald also received a life sentence, and the judge cited doubts as to Donald’s culpability as his primary rationale for sparing Donald.

This strategy was not always effective as two defendants who were sentenced to death also tried to shift blame onto a co-perpetrator. In Steve’s case, the attorneys argued that Steve did not pull the trigger, and that the co-perpetrator was the driving force behind the murders: “You are being asked to execute someone who probably did not pull the trigger, who probably did not come up with this murderous idea, who probably would not have been involved in this case were it not for [co-perpetrator].”

Lastly, in three cases, the attorneys argued that mental disabilities made the defendant “less morally culpable than ‘normal people’ because he carries ‘problems’—neurological impairments and emotional disturbance—within his person” (Dunn & Kaplan, 2009, p. 360). For example, Ted’s defense attorney even went as far to say “that [Attention Deficit Hyperactivity Disorder] is not just caused by your environment. There’s an actual brain defect.” The defense psychologist in Ted’s case verified this line of thinking by stating, “But there are serious mental-health problems which interferes [sic] with this man’s ability to function at all times,” and explaining that “you tend to be born with this. We don’t know why. It seems to be a genetic link.… It’s got to do with some wiring that’s not the same as the normal person.”

Subversive Stories: Life History

Although there is quite a bit of mitigation narrative that reaffirms the hegemonic story of individual responsibility, mitigation appears to be a complex and multifaceted phenomenon that is also capable of subverting the hegemonic story by offering contextualizing narratives that place defendants within social environments that influence their behaviors. In six cases (three life and three death), there was an attempt by the defense to explain the defendant’s murderous behavior as the result of forces beyond his control, and five of these cases used the testimonies of mitigation experts to try to make this connection explicit. Several of the mitigation experts even relied upon the Department of Justice’s (DOJ) Child Delinquents: Development, Intervention, and Service Needs study, which identifies risk factors for future violence, states that social environments influence subsequent behavior, and mentions how the exact combination of risk factors differs from child to child (Loeber & Farrington, 2001). The report even includes a statistical analysis of how much more likely those who experience each factor are to become violent than those who do not have the same experience. This statistical analysis is critical for constructing a subversive story because it helps to demonstrate the complexity of social causation and show that sociological evidence is not equivalent to environmental determinism. If defense attorneys and mitigation experts are to challenge hegemonic individualism successfully, they need to offer a usable alternative to the dominant narrative, and a perception of environmental determinism is not useful because it is easy to find examples of people who experience certain risk factors but do not become criminals. It is for this very reason that statistical evidence is critical. Because of the significantly higher statistical likelihood of smokers developing cancer, very few people question the notion that smoking causes cancer even though some smokers never get cancer and some cancer victims never smoked. Therefore, by offering statistical evidence and saying that risk factors increase the statistical likelihood of future violence but do not guarantee it, the DOJ study helps to construct a usable subversive story.

Donald’s trial offers an example of this strategy. Two social workers testified on his behalf. Using the DOJ report, they discussed numerous risk factors Donald experienced in his life in their attempt to paint a picture of Donald as someone who was led down the wrong path by factors that were “not in [his] control.” Donald’s defense attorneys book ended this testimony with similar arguments in their opening and closing statements. In the opening, they stated:

And these risk factors are factors that are outside the control of the person who is at risk. They’re things that he didn’t have any control over. And as I said, they’re not excuses. They’re offered to help you understand why this person might be in a situation he’s in as opposed to another person. (emphasis added)

In their summation, they argued “that people just aren’t plain evil; that otherwise good kids can end up being at risk to do violence from many factors outside their control …. (emphasis added)

The experts in Roger’s trial also utilized the DOJ report. Again, two social workers testified as to all of the risk factors Roger experienced, and one of them opined, “I strongly believe that what happens to you when children is—is critical in understanding how you turn out as an adult.” Significantly, unlike the defendant in Dunn and Kaplan’s (2009) study, the problems with Roger and Donald were described as being external rather than internal. None of the problems discussed were the result of psychological or internal problems. On the contrary, as Roger’s attorneys put it in their summation:

Was it [Roger]’s fault that his mother was a 16-year-old teenager without an education or money or stable home? Was it his fault that his biological father rejected him his entire life … ? Or is it [Roger]’s fault that he was a witness and the victim of domestic abuse? Is it his fault that the vast majority of his relatives were drug abusers, criminals, or both; that by the time he was 13, he lived in 15 different places; and that, in the first eight years of his schooling, he attended six different schools? Is it his fault he grew up in … a high crime city, where the school quality was so low, that the State had to come in and take over? Can you understand how, under those circumstances, he [had] trouble making the right friends, develop[ing] meaningful positive relationships?

They go on to argue:

… A person’s free will should only be judged in the context of the person’s life. We are, to a large extent, the products of our environment.… To think that, because other people have overcome obstacles, we should kill [Roger] because he didn’t, is fundamentally unfair. Not everyone reacts the same to obstacles.

Ted’s mitigation case involved the testimony of a psychologist who discussed how adult decisions can be influenced by childhood experiences. According to the psychologist’s testimony, some of Ted’s problems were the result of his “chaotic” childhood because we are a combination “of our experiences and our heredity.” One example utilized by the psychologist was his opinion that Ted’s paranoia was at least partially the result of witnessing his father repeatedly abusing his mother and living in an impoverished area characterized by high levels of street crime. To supplement this testimony, a forensic nurse who investigated Ted’s upbringing testified to describe the horrific conditions of Ted’s childhood. In her testimony, she indicated the depths of abuse, neglect, and maltreatment that Ted experienced and that subsequently led him into a life of crime. Because of his troubled childhood, he was skipping school and spending nights on the streets by age 11 and feeling as if no one loved him. He was never given medication for his Attention Deficit Hyperactivity Disorder (ADHD), which caused him to struggle and act up in school. Upon discovering his son’s misbehavior in school, Ted’s father would beat Ted with a belt. Ted was so terrified of his father that he allowed a burn he received on his leg when he spilled scalding soup on himself to go untreated for two days because he feared the consequences of admitting that he had snuck out of bed to make the soup. Ted was also “really impacted” by an experience of parental rejection when he was 11 years old. At the time, he was living with his mother, his grandmother, his recently deceased sister’s children, and his sister in a cramped one bedroom apartment in a bad neighborhood with nowhere to sleep. Ted’s mother decided to take Ted to his father’s house to have him live there, but Ted’s father refused to take him and left him alone on the porch in the rain. Despite this incident, child protective services returned Ted to his mother’s custody, but instead of sleeping on the floor with the mice, the 11-year-old Ted would tell his mother he was going to a friend’s house when in reality he was spending his nights on the streets. He would then skip school and sneak back home during the day to sleep. He began using marijuana as a teenager, and by the age of 17, he was kicked out of school for truancy and failing grades, which is when he began abusing alcohol. Shortly thereafter, he left his mother’s crowded residence and began living on the streets or staying with friends. This caused him to descend into a life of crime. Importantly, the social worker did not frame the decisions Ted made as caused by his own propensities and desires. Rather, he made forced choices, caused by external conditions over which he had no control, and “perhaps other people couldn’t have made different decisions.”

Donald, Roger, and Ted were each sentenced to life, which clearly distinguishes them from the case studied by Dunn and Kaplan (2009). However, three of the defendants who were sentenced to death also presented some form of life history evidence, and two of them utilized experts to paint a picture of external causation similar to the way the three who were sentenced to life did. Just like the life cases, these failed mitigation cases offered subversive stories about how the defendants’ choices were affected by prior experiences.

Steve’s defense included the testimonies of a social worker and a psychologist. According to one of his attorneys, the goal of these testimonies was to help the judge and jury “understand how a child at risk, a childlike [sic] [Steve] is molded into [someone] who makes horribly wrong choices.” As in Donald’s and Roger’s trials, the social worker utilized the DOJ risk factor study to show that Steve experienced numerous risk factors and to demonstrate that, in her words, “what happens to people when they are children matters tremendously as to how they turn out as adults.” She went on to describe a world in which Steve received very little love or support until he met the person who would become his coconspirator in the murders in question. Steve had no father figure in his life and no male role models until he met the man who would eventually convince him to assist in killing three people (two of whom were the victims in the trial in this study).

Using this backdrop, the defense psychologist explained that “all experiences can have an impact on us as we go through life.” He testified that the “chaotic environment” in which Steve was raised was hugely influential for how he turned out and how susceptible he was to the influence of the co-perpetrator in this particular case. According to the psychologist, Steve would probably not have been involved in a murder at all if it wasn’t for the tremendous influence of the co-perpetrator who is the only person who ever showed Steve any sense of love or support. Unfortunately, that validation “was in part based on him doing very, very awful things.” Although Steve’s accomplice had him do terrible things, the psychologist explained, “It is hard to run from the person [from] whom you get your emotional sustenance.” Furthermore, the psychologist testified that Steve was so susceptible to the emotional pull of the co-perpetrator because his past experiences made it harder for him to feel secure, to feel loved, or to have a positive self-image. Because of these features, with which Steve was not born but developed because of his environment, Steve required “a lot of evidence that this good picture he has painted of himself is really the true one …” Therefore, he was more “dependant [sic] upon the validation and affirmation of other people who are important to him.” Thus, when he received validation from the co-perpetrator by committing horrific acts of violence, he was more inclined to engage in those behaviors in order to receive validation than those who were not raised in such environments or did not develop as strong of a need for external validation.

Charlie’s case was the final one to offer subversive expert testimony. In his trial, mitigation experts and defense attorneys tried to portray a world of external causation by showing that Charlie would have benefitted from interventions that were denied to him. As Charlie’s attorney worded it, “Is [Charlie] an evil person that was begotten evil and is evil to this day, or is [Charlie] somebody who … to a large extent was neglected and never got what was required for him?” According to the testimony of a social worker, Charlie “functioned as sort of an unwanted child” who lacked emotional supports and was deeply impacted upon discovering that his stepfather was not his biological father. She explained that this discovery occurred “at a fairly impressionable age” and that when Charlie was taken to meet his real father, he “glamorized … the perception of a criminal lifestyle …” Along with other occurrences in Charlie’s life, this event crystallized his belief that everyone hated him, which caused Charlie to begin associating with the wrong crowd and getting into trouble. The social worker concluded that she was “inclined to think it would have made a difference if he had had a sounder environment that supported his needs and found constructive ways for him to identify himself.”

The defense’s psychiatrist supported this position by testifying that external factors, such as lack of emotional support and feelings of betrayal caused by the discovery that his stepfather was not his biological father, played an important role in shaping Charlie’s subsequent behaviors. This testimony was summed up by Charlie’s lawyer as:

[Charlie] was not born a natural-born killer. [Charlie] became the person he is through his life experiences. He was a person who had a lot of limitations. He was a person who had a lot of difficulties. He was a person who experienced some things as a child over which he had no control, no control whatsoever. (emphasis added)

These five cases all demonstrate the ability of mitigating evidence to challenge the taken-for-granted story by offering tales of external causation in which our behaviors are at least partially influenced by factors over which we have no control.

Discussion and Conclusions

According to Gramsci, courts serve “a repressive and negative educative function” (1971, p. 258) for constructing hegemonic discourses, and the messages being conveyed by capital penalty trials are particularly relevant for understanding the cultural narratives that courts construct. For one, the public tends to pay greater attention to capital penalty trials than to less sensational criminal trials, but perhaps more importantly, the death penalty has symbolic importance. While individualism certainly helps fuel support for capital punishment, capital punishment also reinforces the philosophy of individualism (Sarat, 2005). Furthermore, while the American legal system as a whole is centered on questions of individual responsibility, capital mitigation is supposed to be an exception to this rule. As such, it is the ideal place for studying the law’s commitment to individualism, and the findings of this study are particularly relevant for understanding the cultural messages being conveyed by American courts. The findings also suggest that while Dunn and Kaplan’s (2009) framework is incredibly useful, it needs to be expanded to include examinations of both the hegemonic and subversive potentials of capital mitigation.

The eight transcripts analyzed in this study indicate that while the power of the dominant cultural narrative likely compelled defense attorneys to inadvertently support the very ideology that fuels the death penalty in the first place, mitigation is also a complex and multifaceted phenomenon that provides defense attorneys with an opportunity to offer subversive stories that challenge taken-for-granted assumptions about individual responsibility. On the one hand, by focusing the judge’s attention on the defendant’s lack of culpability, the mitigation narratives created by these defense attorneys supported and reinforced the hegemonic story of individual responsibility. On the other hand, by telling contextual stories about external social forces that influenced the defendants’ behaviors, defense counselors also subverted the dominant cultural narrative. Interestingly, there was no difference noted between the life and death cases. The strategies utilized and messages portrayed in both types of cases were the same. All eight cases discussed culpability, and three life and three death cases also attempted to contextualize the defendant’s behavior by focusing on external causal forces.

It is important to note that these conclusions are not intended as a criticism of defense attorneys who are in all likelihood doing everything in their power to try to save their clients’ lives. Rather, these conclusions illuminate the institutional constraints placed on defense attorneys. Even when they attempt to offer contextualizing narratives, the cultural and institutional arrangements in which they operate prevent them from being able to offer fully contextualizing stories. For example, it has been demonstrated that judges and jurors tend to be uninterested in contextualizing mitigation (Bowers, Fleury-Steiner, & Antonio, 2003; Garvey, 1998; Haney, Sontag, & Costanzo, 1994; Kleinstuber, 2013, 2014b; Sandys & McClelland, 2003; Sarat, 1995). As such, defense attorneys may be handcuffed in their ability to make truly contextualizing arguments. This possibility demonstrates the true power of hegemonic discourses: they are self-perpetuating because they force even those who may disagree with them to adapt their stories to fit within the hegemonic framework. Capital defense attorneys have an ethical and a legal obligation to do everything in their power to save their clients’ lives by any means they can, and since the decision makers are likely predisposed to favor individualistic causal explanations, this often means attorneys must support the individualism that validates the death penalty in the first place.

Given this reality, it may not seem relevant whether defense attorneys present contextualizing arguments or not. However, due to the educative function of courts, the stories told by defense attorneys have the potential to educate the public about causation and thus to construct or overthrow hegemonic narratives. Therefore, these findings are sociologically relevant because they help to demonstrate how certain cultural messages, worldviews, and policy perspectives are produced or maintained even if no one is deliberately intending this outcome. Secondly, understanding the arguments presented by defense attorneys is important for figuring out how to improve those arguments. Defense attorneys might not be interested in prevailing cultural values, but the ways in which they present their cases can influence their outcomes. Based upon the findings of this study, there is cause for optimism, but there also remains room for improvement. Despite the institutional constraints placed on capital defense attorneys, most of the mitigation cases in this sample at least attempted to offer contextualizing stories that challenged the dominant cultural narrative. As such, there appears to be hope for creating narratives that subvert hegemonic individualism, that educate the public about alternative theories of human behavior, and offer a possibility for competing policy perspectives to be heard and considered. Yet, this study did not find a difference between life and death cases in terms of subversive evidence, so it is not clear if this evidence has any impact. However, none of the cases studied used the testimony of a sociologist to explain the relevance of demographic trends and social patterns. Considering sociologists make their living explaining the importance of social structure to others, it is possible that their testimony could have helped to educate the jurors and the judge as to the relevance of contextualizing mitigation, made them more receptive to such evidence, and enabled them to see the defendant through a different lens, which may have made them more likely to vote for a life sentence. Therefore, the findings of this study suggest that future capital defenders should employ the testimony of sociological experts in order to increase the impact of contextual mitigation and reduce the odds of a death verdict.

It should be noted that the findings of this study are based on eight mitigation cases from one border state. As such, the results cannot be generalized to the nation as a whole. In order to reach more definitive conclusions about what is happening on the ground in capital mitigation, future studies need to be conducted in other states with different sentencing procedures and from different parts of the nation. Without attempting to replicate or add on to this study, there is no way of knowing if the findings of this study are representative. Furthermore, this study does not examine what evidence was available, so it cannot examine the decisions made by defense attorneys as to what evidence to present. It is possible they simply presented all the mitigating evidence they could find whether it was individualizing or contextualizing. Alternatively, it is possible they made a conscious decision to focus more on one type of evidence than the other. Without either interviewing trial counsel or looking at all the available evidence, there is no way to know how much the attorneys were influenced by hegemonic individualism as opposed to the available evidence. Similarly, as Dunn and Kaplan (2009) suggest, the evidence that is available to defense attorneys may itself be influenced by hegemonic individualism. Therefore, more studies, including the ones that interview capital defenders in order to get their perspective, are needed before any definitive conclusions about the hegemonic and subversive potential of capital mitigation can be reached.

Footnotes

Acknowledgments

The author would like to thank Keisha Hudson of the Philadelphia Federal Defenders Office; Sharon Agnew, Shawn Lavalee, Mike Monti, and the rest of the staff at the New Castle County Prothonotary’s Office; Michael Modica; and Jennifer Kate Aaronson for access to trial transcripts.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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