Abstract
Two opposite visions of the decision to impose capital punishment govern the American psyche, even in this era of its slow demise: one values the death penalty for distinguishing the “worst of the worst” by their heinous crimes and the other critiques it for crystalizing race and class divides. Sarah Beth Kaufman’s American Roulette offers a third path. Relying on extensive ethnographic observations of 16 capital trials, spanning ten years and encompassing various jurisdictions, Kaufman argues that “capital sentencing reflects a legal system at the limit of its powers, locked into practices defined by adversary and performance rather than justice or compassion” (p. 4). Characterized by theatricality that transcripts fail to capture, capital trials’ ostensible adherence to heightened due process standards belies the arbitrary basis for life and death decisions: performative devices such as “recruiting ‘punitive citizens’ as jurors, narrating defendant’s childhoods, predicting their future acts, and witnessing the mourning of victims’ family and friends” which “hold little value for separating the ‘worst’ defendants from those who deserve mercy” (pp. 186–187).
Kaufman’s chronology begins much earlier, with divergent murder solving rates in different locations, and then with the arbitrary catalogue of aggravated homicides. Then, prosecutors exercise discretion, opting for capital trials in “the most culturally perverse [cases], rather than those that might best serve crime control interests.” Relying on a self-compiled database, Kaufman identifies four templates: (1) a young, poor African American or Latino man committing homicide in public, e.g., in the course of a robbery; (2) a poor man killing during a home invasion; (3) an older, poor, often white man committing a sexual act in conjunction with a murder; or (4) murder of intimate family members.
After describing the peculiar conventions of the Bordieuan “field” of capital litigation (defense teams, resource centers, capital prosecutor organizations), Kaufman explains its characteristic performativity: prosecutors and victim supporters, seeking to uphold tradition (and judges, albeit to a lesser degree), as well as defense attorneys and defendant supporters, seeking to deviate from tradition, perform a piece of interpretive art—stage-setting, narrative reconstruction, storytelling, and emotional manipulation—to the jury. The capital jury selection process produces an audience of “punitive citizens” through invasive questionnaires, screens for various socioeconomic indicators, and the constitutional requirement to exclude “death-unqualified” jurors. Kaufman observes repetitive patterns in the explanation of aggravating and mitigating circumstances to the jury (likely skills acquired through experience and training): prosecutors slyly mock mitigating circumstances and defense attorneys discredit arguments of future dangerousness. The parties also engage in “reverse-questioning”—feigning sympathy with the other side’s worldviews to gauge not only whether juries agree (and thus should be dismissed), but whether they can stick to their moral judgment and argue against opposite opinions. The voir dire and instructions are crafted to winnow out emotional involvement and encourage stoicism.
The heart of the trial features two contrasting performances, starting with mitigation evidence from the defense. Because of the bifurcated nature of the criminal trial, defense attorneys who deny their client’s involvement and losing at the guilt phase face hostility at the sentencing phase. Kaufman demonstrates the importance of “telling a [mitigating] story” in an effective, persuasive manner, by vetting witnesses, staging the production, and teaching the audience what to make of the performance. One performative key to success is effective framing of family members’ testimony through an introductory friendly and educational (but not patronizing) presentation from an expert witness. The key is to replace theories of individual responsibility with a persuasive link between environmental deprivation, criminal culpability, and the appropriate punishment—a task that might require many days and careful orchestration. When such extensive, documented mitigation evidence is presented, the parties seldom disagree on the defendant’s circumstances; they part as to whether these should explain (or excuse) his actions. On the other hand, weak framing, accompanied by nonverbal, vague presentation or the use of unexplained terms, can easily be mocked by the prosecutor through aggressive cross examination accompanied by dismissive nonverbal cues.
The prosecutorial counterstrategy is encapsulated in Kaufman’s term, “empowered revulsion.” Through a rejection of either the mitigating evidence or its implications as to culpability, via both rhetorical appeal to the individual accountability theory or nonverbal cues of disgust, prosecutors seek to portray the defendant as inhuman, i.e., deserving of death. In an interesting rhetorical twist, prosecutors perform care for the prison population by making an argument that the defendant, if not executed, is bound to be dangerous to others in prison.
In most of the trials that Kaufman describes, the contribution of victims—overall more numerous and better organized than defense supporters—to the process cannot be reduced to the transcript of their testimonies. Rather, their public performance of mourning—both on the stand and through their presence at trial–gives moral weight to the prosecution’s case. Kaufman finds that the intended emotional content of co-victim testimony does not necessarily correspond with the audience’s reaction. Moreover, the venerated status of victims leaves their accounts unchallenged by the defense.
Kaufman’s methodology evinces a complicated data gathering project, unsupported by centralized databases. Her reflections on her observations reveal honesty and thoughtfulness about positionality that credit her as a sensitive, honest, ethical researcher. Her method enabled her to see details such as the informal closeness between the judges and prosecutors in “off the record” moments, as well as to participate in revealing exchanges while sharing the restroom with victim families.
Undergirding the book is the unwritten (and unproblematized) assumption that “death is different” from life without parole. This is certainly true procedure-wise—capital trials are bifurcated, receive automatic appeals, and feature sentencing by jury through “guided discretion.” But in terms of the outcome, the stakes of the performance vary between states in which executions are more common and states in which death sentences are merely expensive versions of life without parole. Kaufman explicitly strives to portray the commonalities in her geographically diverse ethnographic sites; devoting more room and thought to the differences could enrich her narrative. But this is a minor quibble against this important book, whose insights fill a gap in our understanding of the death penalty and will be of immense value not only to scholars and practitioners in the field, but to all potential “punitive citizens.”
