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Frontloading Mitigation: The “Legal” and the “Human” in Death Penalty Defense


  • Jesse Cheng

  • Financial support for ethnographic fieldwork was provided by National Science Foundation Grant #SES-0548835, the Department of Anthropology, the School of Social Sciences, and the Center for Ethnography at the University of California, Irvine. Research activities were approved under IRB protocol HS#2005-4484 by the UC Irvine Office of Research Administration.

Jesse Cheng, a cultural anthropologist and lawyer, researches the life histories of capitally charged defendants. He thanks Bill Maurer, George Marcus, and Diego Vigil for their feedback on earlier drafts, as well as the many members of the national capital defense community who have generously contributed their insights and time to this research.
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The bifurcation of capital trials into determinations of guilt and sentencing presents defense advocates with what seem to be two distinct domains of knowledge—one apparently “legal” in character, the other “human.” But this epistemological division is actually not so clear in practice. This article dissects the procedural and strategic mechanisms through which these two domains unsettle and reconstitute the other. I provide a historical, empirically grounded account that explicitly articulates the connections between developments in legal procedure, prevailing standards of care concerning the need to conduct humanistic investigations of mitigating factors, and the on-the-ground trial practice of “frontloading” as a defense strategy. Drawing from documentary research, interview data with leading capital defense practitioners, and analytical observations based on my own experience as a mitigation specialist, this article presents itself as a case study of the processes of mutually constitutive rupturing that reconfigure the categories of the legal and the human.