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Mourners in the Court: Victims in Death Penalty Trials, through the Lens of Performance

Published online by Cambridge University Press:  27 December 2018

Sarah Beth Kaufman
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Abstract

This article presents findings from ethnographic research in death penalty trials around the United States, focusing on the role of victims and their supporters. Victim impact testimony (VIT) in death penalty sentencing has received intense legal scrutiny during the past thirty years. The ruling jurisprudence allows VIT with the explanation that it deserves parity with testimony about the defendant's background. Drawing on observations and interviews with participants in 15 death penalty trials, I demonstrate that this framing confuses the central role of victim supporters in the courtroom. Victim supporters function as mourners, which grants them a socially elevated position in the courtroom. I argue that the consequences of the institutionalization of VIT can only be understood through this lens.

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Articles
Information
Law & Social Inquiry , Volume 42 , Issue 4 , Fall 2017 , pp. 1155 - 1178
Copyright
Copyright © American Bar Foundation, 2017 

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References

References

Acker, James, and Karp, David R., eds. 2006. Wounds that Do Not Bind: Victim‐Based Perspectives on the Death Penalty. Durham, NC: Carolina Academic Press.Google Scholar
Acker, James, and Mastrocinque, Jeanna Marie. 2006. Causing Death and Sustaining Life: The Law, Capital Punishment, and Criminal Homicide Victims' Survivors. In Wounds that Do Not Bind, ed. Acker, James and Karp, David R., 141–60. Durham, NC: Carolina Academic Press.Google Scholar
Alexander, Jeffrey. 2006. Cultural Pragmatics: Social Performance between Ritual and Strategy. In Social Performance: Symbolic Action, Cultural Pragmatics, and Ritual, ed. Alexander, Jeffrey, Giesen, Bernhard, and Mast, Jason, 29–90. Cambridge: Cambridge University Press.Google Scholar
Allen, Howard, and Clubb, Jerome. 2008. Race, Class, and the Death Penalty: Capital Punishment in American History. Albany: State University of New York Press.Google Scholar
Arendt, Hannah. 1963. Eichmann in Jerusalem. New York: Penguin.Google Scholar
Arrigo, Bruce, and Williams, Christopher. 2003. Victim Vices, Victim Voices, and Impact Statements: On the Place of Emotion and the Role of Restorative Justice in Capital Sentencing. Crime and Delinquency 49:603–26.Google Scholar
Austin, J. L. 1975. How to Do Things with Words, 2nd ed. Cambridge, MA: Harvard University Press.Google Scholar
Baldus, David, Pulaski, Charles, and Woodworth, George. 1990. Equal Justice and the Death Penalty. Boston, MA: Northeastern University Press.Google Scholar
Baldus, David, and Woodworth, George. 2003. Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on Post‐1990 Research. Criminal Law Bulletin 39:194–226.Google Scholar
Bandes, Susan. 1996. Empathy, Narrative, and Victim Impact Statements. University of Chicago Law Review 63:361–412.Google Scholar
Bandes, Susan. 1999, ed. The Passions of Law. New York: New York University Press.Google Scholar
Bandes, Susan. 2009. Victims, Closure, and the Sociology of Emotion. Law and Contemporary Problems 72:1–26.Google Scholar
Barker, Vanessa. 2007. The Politics of Pain: A Political Institutionalist Analysis of Crime Victims' Moral Protests. Law and Society Review 41:619–64.Google Scholar
Bright, Steven. 1994. Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer. Yale Law Journal 103:1835–83.Google Scholar
Bright, Steven. 1995. Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty. Santa Clara Law Review 35:433–83.Google Scholar
Burawoy, Michael. 2000. Introduction: Reaching for the Global. In Global Ethnography: Forces, Connections, and Imaginations in a Postmodern World, ed. Burawoy, Michael, Blum, Joseph A., George, Sheba, Gille, Zsuzsa,and Thayer, Millie, 1–40. Berkeley, CA: University of California Press.Google Scholar
Clifford, James, and Marcus, George. 1986. Writing Culture: The Poetics and Politics of Ethnography. Berkeley, CA: University of California Press.Google Scholar
Cooley, Craig 2004. Reforming the Forensic Science Community to Avert the Ultimate Injustice. Stanford Law and Policy Review 15:381–87.Google Scholar
Cooley, Craig 2005. Mapping the Monster's Mental Health and Social History: Why Capital Defense Attorneys and Public Defender Death Penalty Units Require the Services of Mitigation Specialists. Oklahoma City University Law Review 30:23–41.Google Scholar
Dickson‐Swift, Virginia, James, Erica L., Kippen, Sandra, and Liamputtong, Pranee. 2009. Researching Sensitive Topics: Qualitative Research as Emotion Work. Qualitative Research 9:61–79.Google Scholar
Durkheim, Émile. [1915] 1965. The Elementary Forms of the Religious Life. New York: The Free Press.Google Scholar
Eisenberg, Theodore, Garvey, Stephen, and Wells, Martin T. 2003. Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases. Cornell Law Review 88:306–43.Google Scholar
Engle, M. 2000. Due Process Limitations on Victim Impact Evidence. Capital Defense Journal 13:55–83.Google Scholar
Falzon, Mark‐Anthony, ed. 2009. Multi‐Sited Ethnography: Theory, Praxis and Locality in Contemporary Research. Aldershot, UK: Ashgate.Google Scholar
Fleury‐Steiner, Benjamin. 2004. Jurors' Stories of Death: How America's Death Penalty Invests in Inequality. Ann Arbor, MI: University of Michigan Press.Google Scholar
Galanter, Marc. 2004. The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Journal of Empirical Legal Studies 3:459–570.Google Scholar
Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.Google Scholar
Garvey, Stephen. 2000. The Emotional Economy of Capital Sentencing. New York University Law Review 75:26–73.Google Scholar
Gershowitz, Adam. 2010. Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty. Vanderbilt Law Review 63:307–59.Google Scholar
Goffman, Erving. 1959. The Presentation of Self in Everyday Life. New York: Anchor Books.Google Scholar
Goffman, Erving. 1961. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. New York: Doubleday Anchor.Google Scholar
Goodrum, Sarah. 2013. Bridging the Gap Between Prosecutors' Cases and Victims' Biographies in the Criminal Justice System Through Shared Emotions. Law & Social Inquiry 38:257–87.Google Scholar
Haney, Craig. 2003. Mitigation and the Study of Lives: On the Roots of Violent Criminality and the Nature of Capital Justice. In America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, ed. Acker, James, James, Robert Bohm, and Lanier, Charles, 7–14. Durham, NC: Carolina Academic Press.Google Scholar
Haney, Craig. 2004. Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathetic Divide. DePaul Law Review 53:1557–90.Google Scholar
Haney, Craig. 2005. Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press.Google Scholar
Hockney, Jenny. 2001 . Changing Death Rituals. In Grief, Mourning and Death Ritual ed. Hockey, Jenny, Katz, Jean, and Small, Neil, 185–211. Buckingham, UK: Open University Press.Google Scholar
Hostettler, John. 2006. Fighting for Justice: The History and Origins of Adversary Trial. Winchester, UK: Waterside Press.Google Scholar
Hostettler, John. 2009. A History of Criminal Justice in England and Wales. Winchester, UK: Waterside Press.Google Scholar
Hubbard, Gill, Backett‐Milburn, Kathryn, and Kemmer, Debbie. 2001. Working with Emotion: Issues for the Researcher in Fieldwork and Teamwork. International Journal of Social Research Methodology 4:119–37.Google Scholar
Hume, Lynne, and Mulcock, Jane, eds. 2004. Anthropologists in the Field: Cases in Participant Observation. New York: Columbia University Press.Google Scholar
Johnson, Sherri Lynn. 2003. Speeding in Reverse: An Anecdotal View of Why Victim Impact Testimony Should Not Be Driving Capital Prosecutions. Cornell Law Review 88:555–68.Google Scholar
Karp, David, and Jarrett, Warshaw. 2006. Their Day in Court: The Role of Murder Victims' Families in Capital Juror Decision Making. in Wounds that Do Not Bind: Victim‐Based Perspectives on the Death Penalty, ed. Acker, James and Karp, David R., 275–95. Durham, NC: Carolina Academic Press.Google Scholar
Karstedt, Susanne. 2002. Emotions and Criminal Justice. Theoretical Criminology 6:299–317.Google Scholar
Langbein, John H. 2003. The Origins of the Adversary Criminal Trial. Oxford: Oxford University Press.Google Scholar
Lofquist, William. 2001. Putting Them There, Keeping Them There, and Killing Them: An Analysis of State‐Level Variations in Death Penalty Intensity. Iowa Law Review 87:1505–57.Google Scholar
Logan, Wayne. 1999. Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials. Arizona Law Review 41:143–92.Google Scholar
Logan, Wayne. 2000. Opining on Death: Witness Sentence Recommendations in Capital Trials. Boston College Law Review 41:517–47.Google Scholar
Logan, Wayne. 2006. Victims, Survivors, and the Decisions to Seek and Impose Death. In Wounds that Do Not Bind: Victim‐Based Perspectives on the Death Penalty, ed. Acker, James, and Karp, David R., 161–77. Durham, NC: Carolina Academic Press.Google Scholar
Luhrmann, Tanya. 1989. Persuasions of the Witch's Craft: Ritual Magic in Modem Culture. Cambridge, MA: Harvard University Press Google Scholar
Luginbuhl, James, and Burkhead, Michael. 1995. Victim Impact Evidence in a Capital Trial: Encouraging Votes for Death. American Journal of Criminal Justice 20:1–16.Google Scholar
Myers, Bryan, and Arbuthnot, Jack. 1999. The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors. Journal of Offender Rehabilitation 29:95–112.Google Scholar
Nadler, Janice, and Rose, Mary. 2002. Victim Impact Testimony and the Psychology of Punishment. Cornell Law Review 88:419–56.Google Scholar
Ogletree, Charles. 2002. Black Man's Burden: Race and the Death Penalty in America. Oregon Law Review 81:15–38.Google Scholar
Phillips, A. K. 1997. Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing. American Criminal Law Review 35:93–118.Google Scholar
Pratt, John. 2000. Emotive and Ostentatious Punishment: Its Decline and Resurgence in Modern Society. Punishment and Society 2:417–41.Google Scholar
Redick, William, MacLean, Bradley, and Truett, Matthew. 2008. Pretend Justice: Defense Representation in Tennessee Death Penalty Cases. University of Memphis Law Review 38:303–463.Google Scholar
Reed, Mark D., and Blackwell, Brenda Sims. 2006. Secondary Victimization among Families of Homicide Victims: The Impact of the Justice Process on Co‐Victims' Psychological Adjustment and Service Utilization. In Wounds that Do Not Bind: Victim‐Based Perspectives on the Death Penalty, ed. Acker, James and Karp, David R., 253–73. Durham, NC: Carolina Academic Press.Google Scholar
Rosenblatt, Paul, Walsh, Patricia, and Jackson, Douglas. 1976. Grief and Mourning in Cross‐Cultural Perspective. New York: Human Relations Area Files Press.Google Scholar
Sarat, Austin. 1998. Between (the Presence of) Violence and (the Possibility of) Justice: Lawyering Against Capital Punishment. In Cause Lawyering: Political Commitments and Professional Responsibilities, ed Sarat, Austin and Scheingold, Stuart, 317–47. New York: Oxford University Press.Google Scholar
Sarat, Austin. 2001. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press.Google Scholar
Schechner, Richard. 1993. The Future of Ritual: Writings on Culture and Performance. London: Routledge.Google Scholar
Scheper‐Hughes, Nancy. 1992. Death without Weeping: The Violence of Everyday Life in Brazil. Berkeley, CA: University of California Press.Google Scholar
Sherman, Lawrence. 2003. Reason for Emotion: Reinventing Justice with Theories, Innovations, and Research—The American Society of Criminology 2002 Presidential Address. Criminology 41:1–37.Google Scholar
Simon, Jonathan. 2007. Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. New York: Oxford University Press.Google Scholar
Smith, Dorothy. 1974. The Conceptual Practices of Power: A Feminist Sociology of Knowledge. Boston, MA: Northeastern University Press.Google Scholar
Strauss, Anselm. 1977 . Social Worlds and Their Segmented Processes. In Studies in Symbolic Interaction, ed. Denzin, Norman, 23–39. Greenwich, CT: JAI Press.Google Scholar
Sundby, Scott. 2003. The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims. Cornell Law Review 88:343–81.Google Scholar
Tabak, Ronald J., ed. 1994. The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases. Houston Law Review 31:1105–20.Google Scholar
Ulysse, Gina. 2007. Downtown Ladies: Informal Commercial Importers, a Haitian Anthropologist and Self‐Making in Jamaica. Chicago: University of Chicago Press.Google Scholar
Vick, Douglas W. 1995. Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences. Buffalo Law Review 43:329–460.Google Scholar
Weed, Frank. 1995. Certainty of Justice: Reform in the Crime Victim Movement. New York: Aldine de Gruyter.Google Scholar
White, Welsh. 2006. Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. Ann Arbor, MI: University of Michigan Press.Google Scholar
Williams, Marian, Demuth, Stephen, and Holcomb, Jefferson. 2007. Understanding the Influence of Victim Gender in Death Penalty Cases: The Importance of Victim Race, Sex, Sex‐Related Victimization and Jury Decision Marking. Criminology 45:865–91.Google Scholar
Booth v. Maryland, 482 U.S. 496 (1987).Google Scholar
Hurst v. Florida, 577 U.S. __ (2016).Google Scholar
Payne v. Tennessee, 501 U.S. 808 (1991).Google Scholar
South Carolina v. Gathers, 490 U.S. 805 (1989).Google Scholar
Woodson v. North Carolina, 428 U.S. 303 (1976).Google Scholar
Booth v. Maryland, 482 U.S. 496 (1987).Google Scholar
Hurst v. Florida, 577 U.S. __ (2016).Google Scholar
Payne v. Tennessee, 501 U.S. 808 (1991).Google Scholar
South Carolina v. Gathers, 490 U.S. 805 (1989).Google Scholar
Woodson v. North Carolina, 428 U.S. 303 (1976).Google Scholar