Attorneys’ Use of Hegemonic Tales and Subversive Stories in the Presentation of Capital Mitigation

• Published date: 01 March 2016
• Date: 01 March 2016
• DOI: http://doi.org/10.1177/0734016815611726
• Subject Matter: Articles

Article

Attorneys’ Use of Hegemonic

Tales and Subversive Stories

in the Presentation of Capital

Mitigation

Ross Kleinstuber

1

Abstract

It has been theorized that American culture is so individualistic that it compels defense attorneys in

capital cases to rely upon and reinforce the very individualism that sustains the death penalty. Yet,

stories also have the potential to be subversive, and because mitigation is specifically designed to

present a contextualized view of a defendant and his or her social history, mitigation seems espe-

cially poised to offer a challenge to the hegemonic worldview that privileges individualistic causal

explanations. Yet, the subversive potential of capital mitigation has never been examined. This study

attempts to bridge this gap in the literature by analyzing eight mitigation cases from Delaware. The

results confirm that while defense attorneys do utilize and reinforce individualistic causal explana-

tions, most of them also attempted contextualizing stories that subverted the dominant cultural

narrative, indicating that capital mitigation is an arena of social contest where both hegemonic and

subversive stories can be told. The implications and limitations of these findings are discussed.

Keywords

capital punishment, mitigation, individualism, hegemony

Introduction

It has been pointed out by Ewick and Silbey (1995) that narratives have the capacity to be hegemonic

and support existing power structures or to subvert them by offering contradictory tales that chal-

lenge the dominant cultural narrative. Nowhere does this observation seem more applicable than

in the area of capital mitigation. After all, American culture is highly individualistic and privileges

individual-level causal explanations, especially when it comes to crime (Dunn & Kaplan, 2009;

Haney, 1995, 1997; Scheingold, 1984). Yet, both the US Supreme Court (Rompilla v. Beard,

2005; Wiggins v. Smith, 2003; Williams v. Taylor, 2000) and the American Bar Association (ABA;

2003, 2008) have stressed the importance of contextualizing evidence derived from a defendant’s

1

Division of Social Sciences, University of Pittsburgh at Johnstown, Johnstown, PA, USA

Corresponding Author:

Ross Kleinstuber, Division of Social Sciences, University of Pittsburgh at Johnstown, 101 Krebs Hall, 450 Schoolhouse Road,

Johnstown, PA 15904, USA.

Email: rkleins@pitt.edu

Criminal Justice Review

2016, Vol. 41(1) 41-54

ª2015 Georgia State University

Reprints and permission:

sagepub.com/journalsPermissions.nav

DOI: 10.1177/0734016815611726

cjr.sagepub.com