Naming as doing: Identities, positioning, and ideologies in capital trials

Adopting a socio-pragmatic view on linguistic choices, this study aims to show how proper names come to function as an ideologically-significant resource for identity construction, impression management, and the negotiation of meaning-making. Drawing upon twelve opening addresses from the penalty phase of capital trials, the research identifies the forms, functions and frequencies of the naming choices that the prosecution and defense use to reference the defendants and victims. The findings reveal characteristic patterns in the two sides’ speeches both in terms of the naming choices and purposes for which such choices are (not) used. It is argued that, despite the defense’s attempts to neutralize the damaging effects, this value-laden practice potentially construes distance and exaggerates differences between the person on trial and the victims, and shapes the relationship between the defendant and jury in such a way that hinders empathy and understanding, thereby becoming one of the aggravating factors itself.

Shrinking the Accountability Deficit in Capital Charging

The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes—the rate of serious reversible error and wrongful convictions has steadily increased during the same time period. The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants. It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense. Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective. Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty. This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

The problem of humanization: Affect and investigative mindset in U.S. capital mitigation

This article has two goals. First, I demonstrate the challenges that “humanization” poses for the defense as an ideal of sentencing mitigation in U.S. capital trials. Capital case procedure largely neutralizes the sympathetic effects of humanization with jurors. In addition, potential mitigation witnesses inhabit affective environs that undermine any inclination to help the defense through sympathetic testimony. Second, I explain how defense advocacy responds to humanization’s challenges. Practitioners adopt an investigative mindset that focuses on forging the conditions to cultivate relationships with mitigation witnesses. This intensive affective labor translates back into the realm of procedure through strategic maneuvers intended to avoid trial and the performance of humanization.