Facts and furies: The antinomies of facts, law, and retribution in the work of capital prosecutors

• Pages: 135-159
• Date: 18 January 2008
• DOI: https://doi.org/10.1016/S1059-4337(07)00405-X
• Published date: 18 January 2008
• Author: Paul J. Kaplan

FACTS AND FURIES: THE

ANTINOMIES OF FACTS, LAW, AND

RETRIBUTION IN THE WORK OF

CAPITAL PROSECUTORS

Paul J. Kaplan

ABSTRACT

Recent trends against capital punishment raise the question of whether or

when the U.S. is going to abolish the death penalty. One way of

investigating this possibility is to study the work of capital prosecutors. In

this chapter I analyze California capital prosecutorsthrough a close reading

of trial transcripts and interviews. The results show that prosecutor

discourses evince a paradox – while instantiating powerful ideological

themes that may underlie state killing, prosecutors also assert the primacy

of ‘facts’ and ‘law.’ While thistension does not represent a strict measure of

capital punishment’s lifespan, its presence suggests that these types of

tensions are not enough to change the law, thereby hinting that while the

death penaltymay be weakened in the United States, it is not closeto dying.

Recent limitations placed on the practice of capital punishment by the U.S.

Supreme Court, the prominence of ‘miscarriages of justice,’ and court-based

moratoria in several states

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suggest that the death penalty’s days may be

Special Issue: Is the Death Penalty Dying?

Studies in Law, Politics, and Society, Volume 42, 135–159

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00405-X

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numbered in the United States. However, state lawmakers in some

jurisdictions have advocated – or actually passed – new laws expanding

the use of capital punishment to include death sentences for defendants

convicted of sexually assaulting children (see Hart, 2006).

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These conflicting

trends raise, once again, the question of whether or when the U.S. is going

to cease the practice of state killing.

One way of investigating capital punishment’s life or death in the U.S. is

to examine the practices and consciousnesses of persons who vociferously

promote its purported benefits-capital prosecutors. In this chapter, I analyze

the work of California capital prosecutors on the basis of a close reading of

trial transcripts and interviews with prosecutors from three large and diverse

counties. The results of this analysis show that prosecutor discourse and

consciousness evince a paradox of sorts – while instantiating powerful

ideological themes that may underlie state killing (such as retribution and

individualism) in trial discourses and also interviews, prosecutors also assert

the primacy of ‘facts’ and ‘law.’ Why is this paradoxical? It is firstly because

there is a tension between the formally rational, bureaucratic process

through which prosecutors narratively construct reality, and the profoundly

affective content of that constructed reality. Secondly, prosecutors’

commitment to and valorization of the formally rational ‘law’ is at odds

with their belief that the law’s purpose is to provide retribution on behalf of

the families of murder victims and also society in general. While this tension

does not represent a strict measure of capital punishment’s lifespan, its

enduring presence in the operation of the law suggests that these types of

tensions are not enough to change the law, thereby hinting that while the

death penalty may be weakened and may well continue to be whittled down

in the United States, it is not close to dying.

DATA AND METHODS

The data for this chapter consist primarily of: (a) the transcripts of the entire

record of death sentence resulting trials from 1996 to 2004 for three large

and diverse California counties (N=37) and (b) interviews with eight

prosecutors from those counties. I coded the transcripts using the software

program Atlas ti, which facilitated the process of constructing analytical

categories out of the data. This process entailed carefully reading the

transcripts and identifying passages that reflected analytical themes that I

had already identified prior to the analysis, and also identifying new and

sometimes unexpected themes that emerged from the data.

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PAUL J. KAPLAN136