'Everyone has choices': Constructing individualism in the cultural and institutional life of capital mitigation

Capital mitigation is a severely understudied area of the law. This study addresses that void by exploring the capital mitigation process through a qualitative analysis of four data sources: capital penalty trial transcripts, interviews with former capital jurors, trial judges' capital sentencing opinions, and newspaper coverage of capital cases. Haney (2005) argues that the structure of capital trials encourages death sentences because of their focus on the heinous acts of the defendants, the ordering of the evidence, and the jurors' pre-dispositions to focus on individual responsibility. Dunn and Kaplan (2009) argue that individualism is so embedded in American culture that is has become hegemonic, meaning most people will defer to it uncritically. Studies of the media suggest that they too are complicit in the construction of individualism as a commonsense narrative, especially when it comes to explaining criminal conduct.;This study examines the mitigation cases presented in eight capital trials (four life and four death), the rationales capital jurors and trial judges used to justify their sentences in those eight trials, and the narratives used by a local newspaper in its coverage of those eight cases. The results indicate that capital defenders use four primary tactics in their mitigation cases: presenting contextualizing life history evidence, attempting to diminish their clients' culpability, reminding jurors that the alternative penalty is life without parole, and humanizing their clients. The interviews with capital jurors suggest, however, that their primary concern was determining the defendant's culpability. They were mostly unconcerned with the defendant's upbringing. The judges' opinions reveal a similar pattern. Their primary sentencing motivations focused on culpability. Lastly, the local newspaper's narratives were highly individualizing, focusing more on the facts of the crime and only paying superficial attention to the defendants' backgrounds. In none of these sources were issues of racial or class inequality addressed. These findings suggest that the American legal system is so fundamentally individualizing that even capital mitigation acts as a site for the construction of individualistic explanations of behavior that ignore and perpetuate existing racial and structural inequities.