Abstract
This article offers an epistemologically focused descriptive account of the “social history” in American death penalty defense advocacy. Under British scientific empiricism, sufficient investigation forms the basis for representations that aspire to be adequate to investigated realities. As defense advocates see it, however, the very idea of humanity resists the goal of epistemological finality that comes with empiricist adequation. I argue that the social history investigation instrumentalizes this aesthetic of investigation-then-representation, allowing advocates to affirm to themselves the humanity of their clients while sidestepping the goal of adequation.
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Notes
These decisions followed Furman v. Georgia (1972), in which a highly fractured Supreme Court had come to the conclusion that capital jurors, under the statutory schemes that then existed, enjoyed an impermissible level of discretion in administering death sentences. Furman resulted in a nationwide moratorium on executions. The Woodson ruling, which called for separate trials for guilt-innocence and sentencing, was one of five decisions in 1976 that allowed for the death penalty's reinstatement by establishing provisions to control juror discretion.
Historians of science have explained the conceptual development of fact by situating the construction of knowledge within the social conditions of seventeenth century scholarship (see, e.g., Daston 1991; Shapin 1994; Shapin and Schaffer 1985). These were acrimonious times for intellectual debate. Sensing the paralyzing effects of such bitter rivalries, scholars came to believe that some foundational type of knowledge—one that everyone could accept to be theoretically impartial—was necessary in order to establish a space for civil dialogue. "Facts" became a kind of consensus knowledge, buttressed by the approval of a community of gentleman witnesses, on which scholarly exchange could then proceed.
Well before these debates in the academic circles of natural philosophy, Anglo jurisprudence had established the idea of fact as a particular event whose fact-uality was determined by an impartial group of peers. Shapiro (1991, 2000) offers a textured account of how the category of fact evolved through law's effects on philosophy, and vice versa.
Although the American Bar Association is a professional organization for the nation's legal community in general, and not a legislative or judicial body, its guidelines for capital defense lawyers (see American Bar Association 2003) have arguably taken on the force of law with the Supreme Court's ruling in Wiggins v. Smith (2003). There, the majority observed that the court's justices "long have referred" to the ABA criteria as "well-defined norms" with respect to quality of representation (p. 524).
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Legal Cases
Ake v. Oklahoma, 470 U.S. 68 (1985).
Barefoot v. Estelle, 463 U.S. 880 (1983).
Furman v. Georgia, 408 U.S. 238 (1972).
Lockett v. Ohio, 438 U.S. 586 (1978).
Rompilla v. Beard, 545 U.S. 374 (2005).
Skipper v. South Carolina, 476 U.S. 1 (1986).
Tennard v. Dretke, 542 U.S. 274 (2004).
Wiggins v. Smith, 539 U.S. 510 (2003).
Williams v. Taylor, 529 U.S. 362 (2000).
Woodson v. North Carolina, 428 U.S. 280 (1976).
Acknowledgments
Thanks are due to Bill Maurer and George Marcus for their feedback on earlier drafts of this piece, as well as to the numerous capital defense advocates who lent me their valuable insights during my fieldwork. Financial support for ethnographic research was provided by National Science Foundation grant #SES-0548835, and the Department of Anthropology, the School of Social Sciences, and the Center for Ethnography at the University of California, Irvine.
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Cheng, J. The Social History in Death Penalty Defense Advocacy. Crit Crim 17, 125–139 (2009). https://doi.org/10.1007/s10612-009-9076-x
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DOI: https://doi.org/10.1007/s10612-009-9076-x