Vol. 31 No. 4 (April 2021) pp. 80-82AMERICAN ROULETTE: THE SOCIAL LOGIC OF DEATH PENALTY SENTENCING TRIALS, by Sarah Beth Kaufman. Oakland: University of California Press, 2020. 248 pp. Cloth $85.00. ISBN: 9780520344389. Paper $29.95. ISBN: 9780520344396.
Reviewed by Ryan Emery, Department of Political Science, University at Albany. Email: remery@albany.edu.
The scales of justice are lodged in one of the revolver’s chambers on the cover of Sarah Beth Kaufman’s AMERICAN ROULETTE. As she argues, the gun metaphor is an apt one because the premise of her book is that the American system of capital punishment oftentimes “misfires.” If this is the case, then what does it mean to hit the target? In a phrase she repeats often, it means that those who are sentenced to death are “the worst of the worst.” But the animating impulse of the book and the place from which it begins is her observation that “the murderers who seem to be the most morally despicable are not necessarily those who are sentenced to death row” (p. 2).
Why is this so? In formulating an answer, she draws on ethnographic observations made in courtrooms from across the country between 2007 and 2017. She uses this approach for good reason. Relying on legal transcripts for an answer is insufficient since they fail to capture the theatricality the courtroom thrives on. Although the capital punishment system affords the accused with protections not guaranteed to noncapital defendants (“super due process”), it still falls short of any sense of justice. In a sentence, then, her argument is that “capital sentencing reflects a legal system at the limit of its powers, locked into practices defined by adversary and performance rather than justice or compassion” (p. 4).
To make her case, Kaufman constructs a typology of capital trial defendants from her database of capital trials from 2005, 2012, and 2016. Four “master narratives” emerge from it: (1) a young, poor Black or Hispanic man who murders in public; (2) a poor man who commits murder after breaking into a house to burglarize; (3) a poor, older man who murders a sexual partner; and (4) someone who murders their own family members. That these narratives brush aside interpersonal violence along with violence at the hands of state and corporate leaders comes as no surprise to Kaufman who recognizes from the start that the worst type of violence is “ascribed to particular groups of deviants: those (mostly men) whose behavior is uncivilized or impossible to discern” (p. 36). Execution is not reserved as much for “the worst of the worst” as much as it is for those who deviate most from these norms. The way that these norms are covered up during the capital trial process serves as a foundation for the next part of the book.
Capital sentencing is part of the legal field, but it is also what Bourdieu calls a cultural field. These fields presuppose the unequal distribution of resources. From Kaufman’s perspective, this resource is the knowledge of what actions violate the law. More importantly, participants’ actions bespeak the production of this knowledge. It is at this point that her choice to study capital sentencing ethnographically becomes obvious; reading only newspapers and transcripts would have excluded the “meaning contained in the embodied interactions, voices, and [*81] gestures of the participants” (p. 66). This staging of course includes the prosecution (on the side of tradition) and defense teams (on the side of change) but extends to supporters of both who provide the moral authority for the stories both sets of lawyers tell. Juries, Kaufman argues, ultimately do not fulfill their theoretical role as democratic checks on trial judges. It is too easy to criticize how biased the selection of juries is based on the exclusion of Black or Hispanic Americans from them. Rather, Kaufman illustrates the bias that seeps into the process through the cultivation of a role she calls “punitive citizenship:” a role reserved for those who are “willing to be involved in the controversial process of deciding whether another citizen deserves to live or die” (p. 97). Punitive citizens are cultivated from the start. Questionnaires that breach the topic of feelings about the death penalty are distributed as the first part of the selection process, after which a winnowed-out group is questioned orally as part of the “death qualification” to further dismiss those unable to uphold the law. Though both stages at first appear only as procedural formalities, Kaufman notes how in the explanation of mitigating and aggravating circumstances, skilled prosecutors, for example, “slyly made fun of mitigating circumstances or chose fictitious mitigating circumstances that were so unlikely that any real ones would pale in comparison” (p. 108). Transcripts and newspaper articles fail to capture these complex performances and any influence they have among jurors. From her observations of the jury selection process, Kaufman concludes that since the law depends on rationality for its authority, stoicism is favored among jurors while emotional investments are discarded (p. 118).
The trial itself functions on performance as much as jury selection does. What the jury decides at this stage is whether the evidence related to the defendant’s upbringing, past, and future justifies execution or life imprisonment. The defense more so than the prosecution must convince the jury of a causal relation between the mitigating evidence and the defendant since most jurors conceive crime as an “individual rather than social, and immediate rather than proximate” event (p. 141). Presentations of expert witnesses and family members help with this frame through friendly introductions and educational (but not condescending) testimony. These presentations have the effect of teaching jurors what to take from them. When a doctor called to the stand is “surprised and a little stricken” at the line of questioning the defense attorney pursues, the distrust of the attorney brewing among the jurors is palpable, Kaufman notes in one observed trial (p. 137). Credibility thus in question, the prosecution exploits it. Weak and vague presentations, in other words, whether through arcane terminology or ineffective framing leave the prosecution a strong hand.
Though prosecutors face less hurdles than defense attorneys, they still must perform convincingly, and Kaufman calls their performance “empowered revulsion.” By disputing mitigating evidence (both the facts and culpability) and establishing evil in the defendant through rhetorical strategies and physical gestures, prosecutors paint the defendant as nonhuman and evil. In states like Texas and Oklahoma that make “future dangerousness” an explicit issue at sentencing, prosecutors have even argued that execution is sometimes the only logical track for some since violence toward other prisoners is always possible.
In the last chapter Kaufman homes in on the role of victims’ supporters. Through descriptions of their pain and reenactments of it on the witness stand, supporters [*82] drew “almost universal empathy from the people in the courtroom and were not transcribed” (p. 174). As part of their elevated status as mourners, they were “free to walk into and out of the front stage like one of the clerks or judge’s clerks” which becomes problematic considering that Kaufman “never saw defense advocates given these types of privileges” (p. 180). Beyond the fact that slight movements like these evade transcription lies the thorny implication that they “culturally compel spectators to support victims’ family members” and present problems for the idea of equal protection under the law (pp. 182-83).
Though her practical conclusion—to abolish the death penalty—is not new, the way her book reaches it through the incorporation of outside concepts and even developing some of her own, is. I found especially helpful her conceptualization of the process by which the 17,250 criminal deaths in 2016, for example, were funneled into 56 capital cases as a “narrowing structure.” This process depends on norms existing outside the law: the “notion of individual responsibility, the shared assumptions about ‘horror,’ [and] the ‘part of society’ the prosecutor refers to” (p. 26). Just as problematic is the “necropolitics,” or politics of death, that these norms are steeped in. Extending Foucault’s idea of social control to the state’s decision of life or death, necropolitics help to explain how “the worst of the worst” sometimes escape execution. When the prosecutors aim for execution, however, Kaufman’s idea of “punitive citizenship” helps to understand how they increase their odds of cultivating a jury able to issue it.
Given the emphasis on norms, it is surprising that there is no discussion of how differences among them affect the quality of the performances these various courtroom actors must put on. For example, the difficulty a prosecutor in California faces in sending someone to death row is surely different than that of a prosecutor in Mississippi. And since only three states are responsible for over half the executions in the United States since 1976, there are certainly differences to account for in terms of these norms and courtroom performances (p. 48). Though Kaufman weaves together a story that emphasizes the similarities among the various courtrooms she visits, I wonder what differences she observed, especially in a state like Texas? This minor criticism aside, Kaufman’s book is an illuminating and eye-opening account of capital trials that will appeal to scholars and non-scholars alike.
© Copyright 2021 by author, Ryan Emery.
