Slow Law: Temporal Logics in US Death Penalty Mitigation Investigations

Abstract

From arrest to sentencing, cases in which the defendant is charged with capital murder in the United States take substantially longer to resolve than homicide cases in which prosecutors choose not to seek the death penalty. One might reasonably attribute the slowness of capital trials to heightened procedural safeguards that attend the potential deprivation of life. In this article, I suggest that this explanation, straightforward as it is, glosses over more probing and analytically interesting truths about the complex temporal dimensions of death penalty trials. Based on my experiences as both a former defense advocate and an ethnographic researcher of capital defense practices, the slowness of capital cases revolves in large measure around the investigative pursuits of sentencing mitigation. Mitigation investigation's knowledge practices are informed by distinct temporal operations whose interrelations feed into a deeper logic to capital defense advocacy. This article parses out and traces the connections between these inner workings, using social theory on time to articulate the processes by which mitigation's temporal logics produce the characteristically slow pace of death penalty cases. I conclude with brief thoughts speculating how the temporal analysis experimented with here might be extended to processes of US criminal adjudication more broadly.