Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers PDF
Preview Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers
death penalty mitigation a handbook for mitigation specialists, investigators, social scientists, and lawyers This page intentionally left blank Death Penalty Mitigation A HANDBOOK FOR MITIGATION SPECIALISTS, INVESTIGATORS, SOCIAL SCIENTISTS, AND LAWYERS Jos é B. Ashford with Melissa Kupferberg 1 3 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 New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trademark 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 © Oxford University Press 2013 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 Ashford, José B. Death penalty mitigation : a handbook for mitigation specialists, investigators, social scientists, and lawyers / José B. Ashford, Melissa Kupferberg. pages cm Includes bibliographical references and index. ISBN 978–0–19–532946–9 (hardcover : alk. paper) 1. Capital punishment—United States. 2. Sentences (Criminal procedure)—United States. 3. Crime—Sociological aspects. 4. Criminal behavior—Social aspects—United States 5. Criminal psychology—United States. 6. Forensic psychology—United States. 7. Social work with criminals—United States. I. Kupferberg, Melissa. II. Title. HV8699.U5A84 2013 364.66—dc23 2013009043 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper Contents Foreword by Craig Haney vii Acknowledgements xi Introduction xv part one | foundation knowledge for mitigation practice 1 1. Mitigation practice in death penalty cases 3 2. History of mitigation of punishment 1 8 3. Mitigation professionals: Roles and responsibilities 33 4. Assessing culpability: Th e role of background and character 51 part two | concepts and frameworks for developing mitigation evidence 73 5. Th eoretical frameworks and concepts for guiding social history investigations 75 6. Assessing practical rationality and volitional concerns 1 04 7. Assessing character, criminal propensities, and sociocultural deprivation 135 8. Social frameworks and mitigation of criminal motivations 1 60 Conclusions and research needs 183 appendix 191 glossary 197 references 201 index 215 v This page intentionally left blank Foreword over the many years that I have studied capital punishment and testifi ed as an expert witness in death penalty trials, I have been guided by one simple but central assumption—namely that, under normal circumstances, normal people are not capable of rationally contemplating and calmly deciding to take the life of another person. In a sense, of course, this is exactly what a democratically administered sys- tem of death sentencing requires them to do. Normal, average people—m embers of the public who express support for capital punishment, voters who elect pro– death penalty politicians and enact referenda to retain and even expand capital punishment, and capital jurors who vote in favor of imposing a death sentence in a given case—must somehow be brought to the point where they are willing and able to violate otherwise deep-seated societal, moral, and religious prohibitions against taking a human life. One of the most eff ective ways in which this is accomplished is by portraying and perceiving those on whom the death penalty would be imposed as something other than actual persons. Obviously, the prohibition against taking the life of another person is not really being violated if the perpetrators of capital crime are not fully human. Th is psychologically useful distortion of the truth is aided and abetted by a pervasive process of demonization, one that seeks to rob capital defendants of their common humanity and sever their connections to the per- sons who ultimately must judge them. Indeed, the life stories of persons accused vii viii Foreword or convicted of capital crime are rarely told in complete or authentic ways in our society. To the contrary, a kind of “media criminology” dominates the all-pervasive news stories and fi ctional accounts of crime in which citizens are immersed. It typically selects the most sensationalistic, deviant, and unsympathetic qualities of the perpetrators of capital crime and arranges them into stereotypical portraits of criminal depravity. Media criminology relies on and supports a prevailing “crime master narrative” in which the causes of criminal behavior are thought to reside entirely within those who engage in it. Crime is depicted as the product of the totally free and morally blameworthy choices made by essentially “bad” persons who act unencumbered by their past history or present circumstances. Th rough the lens of this master crime narrative, violent criminals are typically depicted as utterly cold and crafty in the pursuit of their selfi sh and destructive ends, or as so inexplicably deranged that their violence seems all the more threatening because it is so unpredictable and uncontrollable. To underscore the fundamental “otherness” of capital defendants, in particular, as the perpetrators of the most extreme forms of violence in our society, the media typically encapsulates them in frightening portraits that reduce them to little more than pathological caricatures. Th us, citizens are encouraged to regard persons accused or convicted of capital crime as “stone killers” or “psycho- killers,” as “monsters,” or as just plain “evil.” In addition to the psychological role it plays in facilitating the use of the death penalty, this process of demonization serves another function. Th e death penalty itself derives much of its symbolic value as the expression of society’s ultimate condemnation by drawing the starkest possible contrasts between civil society and those who would threaten its ordered existence. Th e more outwardly evil the targets of capital punishment can be portrayed as, the more socially, politically, and legally necessary and legitimate this extreme form of state-sanctioned vio- lence seems, and the greater the national cathartic value it retains. Demonization “morally disengages” individual decision-makers and the body politic itself from the full implications of state-sanctioned killing. Whether ultimately “functional” or even necessary to the death penalty’s con- tinued existence, we argue here that these frightening and incomplete depictions of the nature of capital crime and the lives of capital defendants result in the broad mis-education of many members of the public, who are left to premise their views on the existence and application of capital punishment—including in their important decision-making roles as voters and even as capital jurors—on myth and misinformation. Elsewhere I have argued that our system of death sentencing depends on this collective bad faith, so that, as a rule, those who support capi- tal punishment the most actually know the least about how it actually operates. Foreword ix Albert Camus lamented the way that the true nature of the death penalty was kept smothered under “padded words” to keep the larger society from coming to terms with what it “really is.” Nowhere is the padding thicker than with respect to the lives of capital defendants and the nature of the societal and familial forces that helped to shape their life course and explain the actions in which they ultimately engaged. Ironically, but perhaps appropriately, the only place in our society where accu- rate, in-depth, and comprehensive analyses of the life histories of capital defen- dants are being regularly presented is inside a number of courtrooms across the country where death penalty trials are being competently conducted. It is the cul- mination of the Herculean eff orts that have been undertaken for decades now by death penalty lawyers and persons whom Jos é Ashford and Melissa Kupferberg call “mitigation professionals.” Nearly forty years ago, when the United States Supreme Court ruled that capital punishment could once again be implemented in states that chose to do so, the Court authorized attorneys to present evidence from a very broad scope of potenital “mitigation”—facts about the capital crime itself and, more often, about the “background and character” of the defendant— that might lead jurors to impose life rather than death sentences. But the Court provided very little guidance about exactly what kind of facts could and should be presented. Many attorneys had neither the training nor the inclination, let alone the resources, with which to uncover and analyze this mitigation and assemble it into eff ective mitigating narratives who jurors could appreciate and take into account. Much has changed since the early years in which dedicated death penalty law- yers, investigators, and mental health professionals collectively forged a new set of intellectual and practical tools, practices, and frameworks for uncovering, ana- lyzing, and presenting honest and compelling narratives about the traumas and tragedies that characterized their clients’ lives. It has now become a very special- ized and sophisticated area of legal practice, one where legal teams apply the most advanced scientifi c knowledge from diverse fi elds—including developmental, social, and clinical psychology, criminology, sociology, neuroscience, and psychia- try—and uncovering important, mitigating truths about individual capital clients as well as about the larger forces in our society that help to shape violent criminal behavior. Th is book is one of the fi rst written explicitly about the nature and mechan- ics of trailblazing capital mitigation investigation and analysis. It is essential reading both for people who do, or are thinking about doing, this kind of work. Dr. Ashford and Ms. Kupferberg remarkably manage to situate mitigation work in a larger intellectual context by grounding it in long-standing legal principles of
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