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.

Intellectual Disability, Criminal Justice, and the Death Penalty

This chapter introduces the reader to key cases analyzing claims of intellectual disability, describes the current clinical definition and diagnosis, and provides an overview of recurring issues in capital litigation. In 2002, the U.S. Supreme Court ruled that individuals with intellectual disability may not be executed. The Court subsequently clarified that current medical standards must be used in assessing claims of intellectual disability in capital cases. The clinical diagnosis requires assessing three factors: (a) deficits in intellectual functioning; (b) deficits in adaptive behavior; and (c) the onset of deficits during the developmental period. Courts must be informed by current medical standards regarding issues that arise, including the standard error of measurement in IQ scores, the problems of offsetting weaknesses in adaptive behavior with perceived strengths, and other clinical topics. The principle that the death penalty must not be imposed on individuals with intellectual disability signals important responsibilities for social work practitioners.

Jury Considerations in Capital Cases

This chapter examines the types of special consideration that jurors provide in capital cases. This includes not only the instructions provided by the court, but also the weight given to aggravating and mitigating circumstances, as mandated by the decision in Gregg v. Georgia (1976). This chapter explores the issues around juror consideration from a multifaceted lens, examining whether instructions to jurors in capital cases are appropriately effective, given their legal, historical, and empirical context. Particular attention is paid to the context in which jurors consider evidence, testimony, and argument in the bifurcated trial proceedings mandated by Gregg, as well as varied application of the procedural mandates from state to state, and the influence of different legal frameworks. The chapter concludes with a lengthy discussion of the possible human rights and social work implications of juror instructions and provides a terse review of the literature on advocacy for procedural justice reform.

Body Count Politics: Quantification, Secrecy, and Capital Punishment in China

As quantification has become socially ubiquitous, the disclosure of numerical data emerges as a key feature of legal reform and global governance. Scholars document how seemingly value-neutral statistical indicators shape, and are shaped by, institutional interests. Although less attention has been paid to cases where states resist numerical disclosure, prohibitions on the disclosure of such indicators also produce social effects. This article extends scholarship on the governance effects of quantification to include secrecy by exploring the case of capital punishment data in China, which is reportedly the world’s leading executioner state. Amid a major death penalty reform effort, China steadfastly refuses international calls to publicly disclose relevant statistics. I analyze capital cases and draw on seventy-three interviews with legal insiders in China’s death penalty system to identify the impact of state efforts to conceal capital punishment indicators while undertaking reforms in three areas: transparency; legal representation; and criminal procedure. I show how tension between the disclosure and nondisclosure of death penalty numbers does not simply suppress data; it also shapes and becomes data, influencing both policy and action in the legal sphere in ways that are seemingly far removed from quantification.

‘In His Passionate Way’: Emotion, Race and Gender in Cases of Partner Murder in England and Wales, 1900–39

This article examines 10 capital cases of men of colour sentenced to death in England and Wales for intimate murders of white British women during 1900–39. It argues that such cases enable analysis of the prevailing emotional norms of this era and the ways in which these were shaped by race, gender and class. Perceptions of intimate relationships as legitimate or illegitimate—judgments about who should feel what about whom—‘is’ related to understandings of citizenship. In revealing the emotional norms at play in cases of murder, it is possible to illustrate how the criminal justice system governed through emotion.

Slow Law: Temporal Logics in US Death Penalty Mitigation Investigations

From arrest to sentencing, cases in which the defendant is charged with capital murder in the United States take substantially longer to resolve than homicide cases in which prosecutors choose not to seek the death penalty. One might reasonably attribute the slowness of capital trials to heightened procedural safeguards that attend the potential deprivation of life. In this article, I suggest that this explanation, straightforward as it is, glosses over more probing and analytically interesting truths about the complex temporal dimensions of death penalty trials. Based on my experiences as both a former defense advocate and an ethnographic researcher of capital defense practices, the slowness of capital cases revolves in large measure around the investigative pursuits of sentencing mitigation. Mitigation investigation’s knowledge practices are informed by distinct temporal operations whose interrelations feed into a deeper logic to capital defense advocacy. This article parses out and traces the connections between these inner workings, using social theory on time to articulate the processes by which mitigation’s temporal logics produce the characteristically slow pace of death penalty cases. I conclude with brief thoughts speculating how the temporal analysis experimented with here might be extended to processes of US criminal adjudication more broadly.

Conclusion: Clemency’s Place

The Conclusion, after briefly summarizing the respective country positions and restating the three-part hypothesis outlined in Chapter 7, considers what Southeast Asia’s ‘natural experiment’ on clemency means for policymakers, NGO staff, and legal practitioners working on death penalty cases in the region. The four national case studies, together with Chapter 7’s comparative hypothesis, suggest various practical means of boosting each Southeast Asian jurisdiction’s clemency rate within finalized capital cases. The Conclusion also considers what implications the comparative findings outlined in Chapter 7 have for the broader criminal justice literature in other parts of the world (particularly concerning the relationship between discretion exercised at different stages of a criminal case, the relationship between extrajudicial and judicial sanctions, the impact of democratization on criminal justice policies, and the influence of delay on criminal justice decision-making). Finally, the Conclusion suggests a future research agenda, including quantitative studies to ‘test’ the accuracy of the book’s three-part hypothesis in other parts of the retentionist world. The chapter ends with several predictions regarding the future of capital clemency in the four Southeast Asian jurisdictions under analysis (Thailand, Singapore, Malaysia, and Indonesia).

Federation of Malaysia

As with Chapters 3 and 4, the case study on Malaysia begins with a thorough description of the country’s death penalty laws and practice, and Malaysia’s publicly known clemency practice over the period under analysis (1991–2016). Thereafter, for both the Malaysian (Chapter 5) and Indonesian (Chapter 6) cases, the potential explanatory factors for clemency incidence are more complex than for Thailand and Singapore, given these two jurisdictions’ more moderate rates of capital clemency and fluctuating political policies on capital punishment over time. Available statistics suggest that Malaysia’s clemency rate is moderately high, at between 55 and 63 per cent of finalized capital cases. Malaysia is a federal state where pardons are granted by the hereditary rulers or appointed state governors in state-based cases, or by the Malaysian king (Yang di-Pertuan Agong) in federal and security cases, all on the advice of specially constituted Pardons Boards. Chapter 5 presents the following two explanations for Malaysia’s restrictions on death penalty clemency: prosecutorial/judicial discretion and detention without trial in capital cases, and the Federal Attorney-General’s constitutional role on the State and Federal Pardons Boards. As to why Malaysia’s clemency rate has not then fallen to the miniscule level seen in neighbouring Singapore (with both nations closely comparable, as they were once part of the same Federation of Malaya), Chapter 5 points to the relevant paperwork placed before each Pardons Board, the merciful role played by the Malay monarchy, and the impact of excessively long stays on death row before clemency decisions are reached.