The Situation of Criminality – Abstract

Craig Haney posted a terrific situationist article, “Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation” (forthcoming in Hofstra Law Review, Vol. 36, No. 3, 2008) on SSRN. Here’s the abstract.

* * *

The article builds on converging lines of research in the social sciences that have constructed a framework which conceptualizes the roots of violent behavior as extending beyond the personality or character structure of those people who perform it, connecting it historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which their violence transpires.

The piece explains how to translate these insights into the collection and presentation of mitigation evidence in capital cases. It describes in detail the various factors in a person’s social and physical environment that are demonstrably likely to lead to criminal behavior, and how, in the context of an adversary system, these general findings can be persuasively woven into the mitigation case to be made on behalf of a particular client to an audience whose pre-disposition is to be unreceptive if not outright hostile.

A capital defense team that is performing effectively in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue will engage in a continuous iterative process between the assembly of a psychologically-oriented social history in which key developmental stages and relevant family and social experiences are analyzed together and the construction of a mitigating counter-narrative that incorporates a capital defendant’s social history and immediate life circumstances. If properly conceived and supported this narrative will provide a more satisfying account than the one the prosecution is certain to offer – an account confined to the defendant’s crime, which is presented as entirely the product of his free autonomous choice-making and constitutes both the full measure of the defendant’s life and the primary justification for ending it.

* * *

Haney’s article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases. The complete text of the issue, which also contains the Guidelines themselves, is available online here.

The Blame Frame – Abstract

Situationist Contributors Jon Hanson and Kathleen Hanson recently posted their article, “The Blame Frame: Justifying (Racial) Injustice in America” (Harvard Civil Rights-Civil Liberties Law Review, Vol. 41, 2006) on SSRN. Here is the abstract.

* * *

This Article attempts to elucidate how our forebears, who were presumably as devoted to justice and liberty in their times as we are in ours, failed to condemn behaviors that are today widely viewed as patently oppressive, unfair, and even evil.

Our argument unfolds in several Parts. Part II summarizes evidence from social psychology and related fields that helps explain how people who imagine themselves fair and just routinely blame the victims of inequities and excuse the perpetrators or passive observers through blame frames.

Because humans crave justice, salient suffering or inequalities activate an injustice dissonance within us. Too often, we alleviate that dissonance, not by addressing the injustice, but by creating an illusion of justice through assumptions, arguments, or stereotypes about the blameworthiness of the victim. Part II then describes three powerful blame frames that have coexisted, while alternating in dominance, throughout American history: the God frame, the nature frame, and the choice frame.

Part III elucidates through a few prominent examples how blame frames have operated throughout history to relieve our forebears’ injustice dissonances and to perpetuate systems of oppression. The motivated attributions underlying those blame frames acted to legitimate laws, customs, and practices that today – with the benefit of hindsight and the lens of a new frame – are recognized as clearly unjust.

Part IV argues that we suffer an equally great confusion today, but the injustices that haunt our generation are soothed less by the God and nature frames and more by conceptions of choice. Choicism attributes disparities to the preferences and character of individuals and their groups. Although choicism purports to be colorblind and non-discriminatory, it is, unfortunately, just the latest cloak veiling racism and other groupisms while allowing us to blame victims and excuse non-victims. Part IV, by examining public reactions to Hurricane Katrina and her aftermath, then shows how Americans experienced an unusually powerful and intractable injustice dissonance when the winds, water, and desperation exposed inequalities that choicism could not readily justify. For at least a moment, Americans faced what seemed to be strong evidence of racial injustice. Part IV reveals some of the ways that a set of overlapping and largely camouflaged blame frames obscured and confused the public discourse regarding Katrina and the injustice dissonance she wrought.

Finally, this Article argues that only by understanding the sources and effects of blame frames can we ever hope to end oppression and thereby live according to the fundamental values we espouse.

* * *

To download the article for free, click here. For related Situationist posts, see “‘Situation’ Trumps ‘Disposition’- Part II” and “Black History is Now.”