Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers

253 Pages·2013·2.174 MB·English

by  Jose B. Ashford, Melissa Kupferberg

death penalty mitigation
a handbook for mitigation specialists, investigators,
social scientists, and lawyers
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Death Penalty Mitigation
A HANDBOOK FOR MITIGATION SPECIALISTS,
INVESTIGATORS, SOCIAL SCIENTISTS, AND LAWYERS
Jos é B. Ashford
with
Melissa Kupferberg
1
3
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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
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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