Narrative strategy and death penalty advocacy

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 2, 1996, Pages 353-381

  Sarat, Austin ^a  

^a NONE

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EID: 0030519126     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (120)

1. David Luban, Difference Made Legal: The Court and Dr. King, 87 MICH. L. REV. 2152, 2154 (1989).
2. This quotation and others used in this Article are derived from in-person interviews I conducted with 40 death penalty lawyers in 10 states between 1993 and 1995. One of those states is in the East, three are in the Midwest, four are in the South or Southwest, and two are in the West. Some of the lawyers I interviewed practiced in private firms or in public interest settings, but most were employed in federally funded Death Penalty Resource Centers at the time of the interviews. Interviews were from one to three hours in length. In order to protect the confidentiality of my sources, I provide only minimal descriptive information about my respondents.
3. PETER BROOKS, READING FOR THE PLOT: DESIGN AND INTENTION IN NARRATIVE 3 (1984). There are almost as many definitions of narrative as there are discussions of it. Ewick and Silbey establish the following criteria: [T]o qualify as narrative, a particular communication must minimally have three elements or features. First, a narrative relies on some form of selective appropriation of past events and characters. Second, within a narrative the events must be temporally ordered . . . . Third, the events and characters must be related to one another and to some overarching structure, often in the context of an opposition or struggle. Patricia Ewick & Susan S. Silbey, Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative, 29 LAW & SOC'Y REV. 197, 200 (1995); see also HAYDEN WHITE, THE CONTENT OF THE FORM: NARRATIVE DISCOURSE AND HISTORICAL REPRESENTATION 1 (1987) (arguing that narrative provides a solution to "the problem of how to translate knowing into telling").
4. PETER BROOKS, READING FOR THE PLOT: DESIGN AND INTENTION IN NARRATIVE 3 (1984). There are almost as many definitions of narrative as there are discussions of it. Ewick and Silbey establish the following criteria: [T]o qualify as narrative, a particular communication must minimally have three elements or features. First, a narrative relies on some form of selective appropriation of past events and characters. Second, within a narrative the events must be temporally ordered . . . . Third, the events and characters must be related to one another and to some overarching structure, often in the context of an opposition or struggle. Patricia Ewick & Susan S. Silbey, Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative, 29 LAW & SOC'Y REV. 197, 200 (1995); see also HAYDEN WHITE, THE CONTENT OF THE FORM: NARRATIVE DISCOURSE AND HISTORICAL REPRESENTATION 1 (1987) (arguing that narrative provides a solution to "the problem of how to translate knowing into telling").
5. PETER BROOKS, READING FOR THE PLOT: DESIGN AND INTENTION IN NARRATIVE 3 (1984). There are almost as many definitions of narrative as there are discussions of it. Ewick and Silbey establish the following criteria: [T]o qualify as narrative, a particular communication must minimally have three elements or features. First, a narrative relies on some form of selective appropriation of past events and characters. Second, within a narrative the events must be temporally ordered . . . . Third, the events and characters must be related to one another and to some overarching structure, often in the context of an opposition or struggle. Patricia Ewick & Susan S. Silbey, Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative, 29 LAW & SOC'Y REV. 197, 200 (1995); see also HAYDEN WHITE, THE CONTENT OF THE FORM: NARRATIVE DISCOURSE AND HISTORICAL REPRESENTATION 1 (1987) (arguing that narrative provides a solution to "the problem of how to translate knowing into telling").
6. The ubiquity of narrative affirms our capacity and desire to tell what we know and to give value to our knowledge through its telling. See Hayden White, The Value of Narrativity in the Representation of Reality, 7 CRITICAL INQUIRY 5, 5-6 (1980). Roland Barthes observes that narrative is "simply there, like life itself." ROLAND BARTHES, Introduction to the Structural Analysis of Narratives, in IMAGE, MUSIC, TEXT 79, 79 (Stephen Heath trans., Noonday Press 1977) (1967).
7. The ubiquity of narrative affirms our capacity and desire to tell what we know and to give value to our knowledge through its telling. See Hayden White, The Value of Narrativity in the Representation of Reality, 7 CRITICAL INQUIRY 5, 5-6 (1980). Roland Barthes observes that narrative is "simply there, like life itself." ROLAND BARTHES, Introduction to the Structural Analysis of Narratives, in IMAGE, MUSIC, TEXT 79, 79 (Stephen Heath trans., Noonday Press 1977) (1967).
8. Ewick and Silbey note that "[s]torytelling does not occur randomly or evenly across social interactions. The social organization of narrative, or what some term the context of elicitation, determines among other things when a story is expected, demanded, or disallowed." Ewick & Silbey, supra note 3, at 206 (emphasis omitted).
9. "In law, both at trial and on appeal." Kim Scheppele notes, "all courts have is stories. Judges and jurors are not witnesses to the events at issue; they are witnesses to stories about the events." Kim L. Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2082-83 (1989). Robert Cover argues: [N]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for every decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. ROBERT COVER, Nomos and Narrative, in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 95, 95-96 (Martha Minow et al. eds., 1992) (citations omitted). For a general treatment of the place of narrative in law, see LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW (Peter Brooks & Paul Gewirtz eds., 1996). Moreover, narrative itself is inconceivable without law. Hayden White suggests: [T]he reality that lends itself to narrative representation is the conflict between desire and the law. Where there is no rule of law, there can be neither a subject nor the kind of event that lends itself to narrative representation . . . . Narrativity . . . presupposes the existence of a legal system against which or on behalf of which the typical agents of a narrative account militate. And this raises the suspicion that narrative in general . . . has to do with the topics of law, legality, legitimacy, or, more generally, authority. WHITE, supra note 3, at 12-13.
10. "In law, both at trial and on appeal." Kim Scheppele notes, "all courts have is stories. Judges and jurors are not witnesses to the events at issue; they are witnesses to stories about the events." Kim L. Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2082-83 (1989). Robert Cover argues: [N]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for every decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. ROBERT COVER, Nomos and Narrative, in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 95, 95-96 (Martha Minow et al. eds., 1992) (citations omitted). For a general treatment of the place of narrative in law, see LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW (Peter Brooks & Paul Gewirtz eds., 1996). Moreover, narrative itself is inconceivable without law. Hayden White suggests: [T]he reality that lends itself to narrative representation is the conflict between desire and the law. Where there is no rule of law, there can be neither a subject nor the kind of event that lends itself to narrative representation . . . . Narrativity . . . presupposes the existence of a legal system against which or on behalf of which the typical agents of a narrative account militate. And this raises the suspicion that narrative in general . . . has to do with the topics of law, legality, legitimacy, or, more generally, authority. WHITE, supra note 3, at 12-13.
11. "In law, both at trial and on appeal." Kim Scheppele notes, "all courts have is stories. Judges and jurors are not witnesses to the events at issue; they are witnesses to stories about the events." Kim L. Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2082-83 (1989). Robert Cover argues: [N]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for every decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. ROBERT COVER, Nomos and Narrative, in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 95, 95-96 (Martha Minow et al. eds., 1992) (citations omitted). For a general treatment of the place of narrative in law, see LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW (Peter Brooks & Paul Gewirtz eds., 1996). Moreover, narrative itself is inconceivable without law. Hayden White suggests: [T]he reality that lends itself to narrative representation is the conflict between desire and the law. Where there is no rule of law, there can be neither a subject nor the kind of event that lends itself to narrative representation . . . . Narrativity . . . presupposes the existence of a legal system against which or on behalf of which the typical agents of a narrative account militate. And this raises the suspicion that narrative in general . . . has to do with the topics of law, legality, legitimacy, or, more generally, authority. WHITE, supra note 3, at 12-13.
12. This argument is developed by Gretchen A. Craft, The Persistence of Dread in Law and Literature, 102 YALE L.J. 521 (1992). Yet it is clear that there is no one function of narrative. As Barbara Herrnstein Smith writes, we should "acknowledge and explore the multiplicity of functions that may be performed by narratives generally and by any narrative in particular." Barbara H. Smith, Narrative Versions, Narrative Theories, 7 CRITICAL INQUIRY 213, 235 (1980) (emphasis omitted).
13. This argument is developed by Gretchen A. Craft, The Persistence of Dread in Law and Literature, 102 YALE L.J. 521 (1992). Yet it is clear that there is no one function of narrative. As Barbara Herrnstein Smith writes, we should "acknowledge and explore the multiplicity of functions that may be performed by narratives generally and by any narrative in particular." Barbara H. Smith, Narrative Versions, Narrative Theories, 7 CRITICAL INQUIRY 213, 235 (1980) (emphasis omitted).
14. See Gérard Genette, Time and Narrative in A la recherche du temps perdu, in ASPECTS OF NARRATIVE: SELECTED PAPERS FROM THE ENGLISH INSTITUTE 93, 94-99 (J. Hillis Miller ed., 1971).
15. See James B. White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 698 (1985).
16. The value attached to "narrativity in the representation of real events arises out of a desire to have real events display the coherence, integrity, fullness, and closure of an image of life that is and can be only imaginary." WHITE, supra note 3, at 24.
17. James Boyd White suggests that through narrative human beings "perpetually imagine and reimagine the world." James B. White, Imagining the Law, in THE RHETORIC OF LAW 29 (Austin Sarat & Thomas R. Kearns eds., 1994). White notes that "part of the meaning of any text is its way of imagining the world and its actors, present and future; and part of the reading of the text is the imagining both of it and of the context out of which it emerged." Id. at 42. Those who craft narratives imagine the audience to whom their narrative is addressed and use stories to communicate and persuade. See Wolfgang Iser, The Reading Process: A Phenomenological Approach, in READER-RESPONSE CRITICISM: FROM FORMALISM TO POST-STRUCTURALISM 50, 68 (Jane R Tompkins ed., 1980).
18. James Boyd White suggests that through narrative human beings "perpetually imagine and reimagine the world." James B. White, Imagining the Law, in THE RHETORIC OF LAW 29 (Austin Sarat & Thomas R. Kearns eds., 1994). White notes that "part of the meaning of any text is its way of imagining the world and its actors, present and future; and part of the reading of the text is the imagining both of it and of the context out of which it emerged." Id. at 42. Those who craft narratives imagine the audience to whom their narrative is addressed and use stories to communicate and persuade. See Wolfgang Iser, The Reading Process: A Phenomenological Approach, in READER-RESPONSE CRITICISM: FROM FORMALISM TO POST-STRUCTURALISM 50, 68 (Jane R Tompkins ed., 1980).
19. See ELAINE SCARRY, THE BODY IN PAIN 4 (1985) ("Physical pain does not simply resist language but actively destroys it. bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.").
20. See COVER, supra note 6, at 203, 207.
21. Law is violent in numerous ways - in the ways it uses language and in its representational practices, in the silencing of perspectives and the denial of experience, and in its objectifying epistemology. The linguistic, representational violence of the law is inseparable from its literal, physical violence . . . . Law is thus built on representations of aggression, force, and disruption. Austin Sarat & Aaron Schuster, To See or Not to See: Television, Capital Punishment, and Law's Violence. 7 YALE J.L. & HUMAN. 397, 406-07 (1995). For an example of the way narrative is used in critique, see Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989).
22. Law is violent in numerous ways - in the ways it uses language and in its representational practices, in the silencing of perspectives and the denial of experience, and in its objectifying epistemology. The linguistic, representational violence of the law is inseparable from its literal, physical violence . . . . Law is thus built on representations of aggression, force, and disruption. Austin Sarat & Aaron Schuster, To See or Not to See: Television, Capital Punishment, and Law's Violence. 7 YALE J.L. & HUMAN. 397, 406-07 (1995). For an example of the way narrative is used in critique, see Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989).
23. Because justice, as Drucilla Cornell rightly claims, "is precisely what eludes our full knowledge," we cannot "grasp the Good but only follow it. The Good . . . is a star which beckons us to follow." Drucilla Cornell, From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation, 11 CARDOZO L. REV. 1687 (1990). Justice and "the Good" live in narrative, in the stories told about possibilities and promises. David Luban points to social protest movements as particularly important in this regard: "It is the narrative of social protest and moments of 'creative tension' that remind us of unkept promises and of the moral emergency in which we live." Luban, supra note 1, at 2224.
24. See Jeremiah Donovan, Some Off-the-Cuff Remarks About Lawyers as Storytellers, 18 VT. L. REV. 751 (1994).
25. NATIONAL COALITION TO ABOLISH THE DEATH PENALTY, UNITED STATES EXECUTIONS (1995): 56 Executions This Year Are Most Since 1957, N.Y. TIMES, Dec. 30, 1995, at A28.
26. The number of people executed in 1995 "is a distinct increase from recent years. There were 31 executions in 1994, 38 in 1993, 31 in 1992, 14 in 1991 and 23 in 1990 . . . . [I]ndicators now point to a significant increase in the pace of executions." 56 Executions This Year Are Most Since 1957, supra note 17. But see Samuel R. Gross, The Romance of Revenge: Capital Punishment in America, 13 STUD. L. POL. & SOC'Y 71, 95-97 (1993) (arguing that the capital punishment system serves primarily to produce death sentences rather than executions and that the "floodgates" are unlikely to open).
27. The number of people executed in 1995 "is a distinct increase from recent years. There were 31 executions in 1994, 38 in 1993, 31 in 1992, 14 in 1991 and 23 in 1990 . . . . [I]ndicators now point to a significant increase in the pace of executions." 56 Executions This Year Are Most Since 1957, supra note 17. But see Samuel R. Gross, The Romance of Revenge: Capital Punishment in America, 13 STUD. L. POL. & SOC'Y 71, 95-97 (1993) (arguing that the capital punishment system serves primarily to produce death sentences rather than executions and that the "floodgates" are unlikely to open).
28. For a discussion of the differences between political and traditional lawyering, see Daniel A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976). See also DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 104-27 (1988).
29. For a discussion of the differences between political and traditional lawyering, see Daniel A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976). See also DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 104-27 (1988).
30. See generally MICHAEL MELTSNER, CRUEL AND UNUSUAL: THE SUPREME COURT AND CAPITAL PUNISHMENT (1973).
31. See generally WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES (1991).
32. See MELTSNER, supra note 20.
33. 408 U.S. 238, 257 (1972).
34. Quoted in MELTSNER, supra note 20, at 291; see also Philip B. Kurland, 1971 Term: The Year of the Stewart-White Court, 1972 SUP. CT. REV. 296-97 (arguing that Furman represented the Court's recognition of the fact that "[a] society with the aspirations that ours so often asserts cannot, consistently with its goals, coldly and deliberately take the life of any human being no matter how reprehensible his past behavior").
35. See FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 12-13 (1986).
36. Id. at 41.
37. 428 U.S. 153, 179 (1976).
38. Id. at 169. The Court applied a two-step analysis to its determination that capital punishment did not violate the Eighth Amendment. First, it asked whether the punishment was "acceptable to contemporary society." Id. at 183. Second, it asked whether such punishment, even if acceptable to contemporary society, violated "the basic concept of human dignity at the core of the Amendment." Id.
39. Michel Foucault notes: Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince . . . . Punishment, therefore, cannot be identified with or even measured by the redress of injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 47-48 (Alan Sheridan trans., Vintage Books 1979) (1975). The death penalty can be analogized to the right to make war, which is, by some accounts, both the ultimate measure of sovereignty and the ultimate test of political power. See Elaine Scarry, The Declaration of War: Constitutional and Unconstitutional Violence, in LAW'S VIOLENCE 23-76 (Austin Sarat & Thomas R. Kearns eds., 1992). John Locke wrote that political power consists of the "Right of making [l]aws with [p]enalties of [d]eath." JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 308 (Peter Laslett ed., New American Library 1965) (1698). Others note that "the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life." GEORGE KATEB, THE INNER OCEAN 192 (1992).
40. Michel Foucault notes: Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince . . . . Punishment, therefore, cannot be identified with or even measured by the redress of injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 47-48 (Alan Sheridan trans., Vintage Books 1979) (1975). The death penalty can be analogized to the right to make war, which is, by some accounts, both the ultimate measure of sovereignty and the ultimate test of political power. See Elaine Scarry, The Declaration of War: Constitutional and Unconstitutional Violence, in LAW'S VIOLENCE 23-76 (Austin Sarat & Thomas R. Kearns eds., 1992). John Locke wrote that political power consists of the "Right of making [l]aws with [p]enalties of [d]eath." JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 308 (Peter Laslett ed., New American Library 1965) (1698). Others note that "the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life." GEORGE KATEB, THE INNER OCEAN 192 (1992).
41. Michel Foucault notes: Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince . . . . Punishment, therefore, cannot be identified with or even measured by the redress of injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 47-48 (Alan Sheridan trans., Vintage Books 1979) (1975). The death penalty can be analogized to the right to make war, which is, by some accounts, both the ultimate measure of sovereignty and the ultimate test of political power. See Elaine Scarry, The Declaration of War: Constitutional and Unconstitutional Violence, in LAW'S VIOLENCE 23-76 (Austin Sarat & Thomas R. Kearns eds., 1992). John Locke wrote that political power consists of the "Right of making [l]aws with [p]enalties of [d]eath." JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 308 (Peter Laslett ed., New American Library 1965) (1698). Others note that "the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life." GEORGE KATEB, THE INNER OCEAN 192 (1992).
42. Michel Foucault notes: Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince . . . . Punishment, therefore, cannot be identified with or even measured by the redress of injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 47-48 (Alan Sheridan trans., Vintage Books 1979) (1975). The death penalty can be analogized to the right to make war, which is, by some accounts, both the ultimate measure of sovereignty and the ultimate test of political power. See Elaine Scarry, The Declaration of War: Constitutional and Unconstitutional Violence, in LAW'S VIOLENCE 23-76 (Austin Sarat & Thomas R. Kearns eds., 1992). John Locke wrote that political power consists of the "Right of making [l]aws with [p]enalties of [d]eath." JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 308 (Peter Laslett ed., New American Library 1965) (1698). Others note that "the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life." GEORGE KATEB, THE INNER OCEAN 192 (1992).
43. See ZIMRING & HAWKINS supra note 25, at 31.
44. State v. T Makwanyane and Another, 3 S. Afr. L. Rep. 391 (C.C. 1995). The United Nations Commission on Human Rights recently cited the United States's continued use of capital punishment as a source of concern. See United Nations Commission on Human Rights, U.N. Doc. CCPR/C/79, Add 50, paragraph 14 (1995).
45. See Transcript of Motions Proceedings at 224, State v. Moore, Superior Court of Monroe County, McDonough, Georgia (Sept. 28, 1995) (No. 77CR-8676) (citing as persuasive authority the Constitutional Court of South Africa in its holding that the death penalty is unconstitutional in South Africa): see also Supplemental Memorandum in Support of Motions to Bar the Death Penalty Because of Racial Discrimination. Arbitrariness, and the Cruel, Unusual, and Degrading Nature of the Punishment at 29. Moore (No. 77CR-8676) (reminding the court that "South Africa, like Georgia, has had capital punishment as part of its 'harsh legal heritage' . . . . Yet South Africa is moving forward to a new day, while Georgia remains tied to an outdated, racist and discredited form of punishment.").
46. See Robert Weisberg. Deregulating Death, 1983 SUP. CT. REV. 305: see also Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 HUM. RTS. 14 (1987). Perhaps the most important rebuff to the "wholesale" approach occurred in McCleskey v. Kemp when the Court refused to invalidate the death penalty even in the face of statistical evidence of systemic racial disparities in the administration of capital punishment. 481 U.S. 279, 313 (1987); see also William Bowers, Capital Punishment and Contemporary Values: People's Misgivings and the Court's Misperceptions, 27 LAW & SOC'Y REV. 157, 158 (1993) (noting that the "Court's ruling in McCleskey meant that the kind of evidence that would suffice to save McCleskey's job could not save his life").
47. See Robert Weisberg. Deregulating Death, 1983 SUP. CT. REV. 305: see also Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 HUM. RTS. 14 (1987). Perhaps the most important rebuff to the "wholesale" approach occurred in McCleskey v. Kemp when the Court refused to invalidate the death penalty even in the face of statistical evidence of systemic racial disparities in the administration of capital punishment. 481 U.S. 279, 313 (1987); see also William Bowers, Capital Punishment and Contemporary Values: People's Misgivings and the Court's Misperceptions, 27 LAW & SOC'Y REV. 157, 158 (1993) (noting that the "Court's ruling in McCleskey meant that the kind of evidence that would suffice to save McCleskey's job could not save his life").
48. See Robert Weisberg. Deregulating Death, 1983 SUP. CT. REV. 305: see also Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 HUM. RTS. 14 (1987). Perhaps the most important rebuff to the "wholesale" approach occurred in McCleskey v. Kemp when the Court refused to invalidate the death penalty even in the face of statistical evidence of systemic racial disparities in the administration of capital punishment. 481 U.S. 279, 313 (1987); see also William Bowers, Capital Punishment and Contemporary Values: People's Misgivings and the Court's Misperceptions, 27 LAW & SOC'Y REV. 157, 158 (1993) (noting that the "Court's ruling in McCleskey meant that the kind of evidence that would suffice to save McCleskey's job could not save his life").
49. See Franklin E. Zimring. Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7 (1992). See generally Jack Greenberg, Capital Punishment as a System, 91 YALE L.J. 908 (1982) (discussing the costs of the procedural safeguards required in the administration of the death penalty).
50. See Franklin E. Zimring. Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7 (1992). See generally Jack Greenberg, Capital Punishment as a System, 91 YALE L.J. 908 (1982) (discussing the costs of the procedural safeguards required in the administration of the death penalty).
51. The Court's decisions have made it increasingly difficult for federal courts to reach the merits of a defendant's habeas claims. See Wainwright v. Sykes, 433 U.S. 72 (1977) (habeas corpus review will be barred when a defendant waived objection to the admission of a confession at trial); see also McCleskey v. Zant, 499 U.S. 467 (1991) (defendant barred from filing subsequent habeas claims if the government proves that he or she has abused the writ); Rose v. Lundy, 455 U.S. 509 (1982) (dismissing a state prisoner's habeas corpus petition containing both unexhausted and exhausted claims). These decisions comport with the Court's long history of altering the scope of federal habeas review without new legislation. See Wainright, 433 U.S. 72, 81 (referring to Court's "historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged").
52. See Teague v. Lane, 489 U.S. 288. 299-310 (1989); see also Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989) (reiterating the Teague plurality's holding that habeas claims must be based on violations of the federal law in force at the time of the original state proceedings).
53. See Butler v. McKellar, 494 U.S. 407, 414 (1990).
54. See Stringer v. Black, 503 U.S. 222, 227-37 (1992).
55. See James S. Liebman, More Than "Slightly Retro": The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. REV. L. & Soc. CHANGE 537 (1990/91); see also Steven M. Goldstein, Chipping Away at the Great Writ: Will Death Sentenced Federal Habeas Corpus Petitioners Be Able to Seek and Utilize Changes in the Law?, 18 N.Y.U. REV. L. & Soc. CHANCE 357 (1990/91). So hostile have the courts become to extended litigation in capital cases that, in one case where there had been repeated last minute requests for a stay of execution in several different courts, the Supreme Court, usurping the legal prerogatives of the lower courts, took the unprecedented step of ordering that no further stays be granted. Vasquez v. Harris, 503 U.S. 1000, 1000 (1992); see also Stephen Reinhardt. The Supreme Court, The Death Penalty, and The Harris Case, 102 YALE L.J. 205 (1992). The Court has found even new evidence of innocence inadequate as a basis for challenging a death sentence. See Herrera v. Collins, 113 S. Ct. 853, 860 (1993). In response to Herrera, Justice Blackmun charged the Court with coming "perilously close to murder." Id. at 884.
56. See James S. Liebman, More Than "Slightly Retro": The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. REV. L. & Soc. CHANGE 537 (1990/91); see also Steven M. Goldstein, Chipping Away at the Great Writ: Will Death Sentenced Federal Habeas Corpus Petitioners Be Able to Seek and Utilize Changes in the Law?, 18 N.Y.U. REV. L. & Soc. CHANCE 357 (1990/91). So hostile have the courts become to extended litigation in capital cases that, in one case where there had been repeated last minute requests for a stay of execution in several different courts, the Supreme Court, usurping the legal prerogatives of the lower courts, took the unprecedented step of ordering that no further stays be granted. Vasquez v. Harris, 503 U.S. 1000, 1000 (1992); see also Stephen Reinhardt. The Supreme Court, The Death Penalty, and The Harris Case, 102 YALE L.J. 205 (1992). The Court has found even new evidence of innocence inadequate as a basis for challenging a death sentence. See Herrera v. Collins, 113 S. Ct. 853, 860 (1993). In response to Herrera, Justice Blackmun charged the Court with coming "perilously close to murder." Id. at 884.
57. See James S. Liebman, More Than "Slightly Retro": The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. REV. L. & Soc. CHANGE 537 (1990/91); see also Steven M. Goldstein, Chipping Away at the Great Writ: Will Death Sentenced Federal Habeas Corpus Petitioners Be Able to Seek and Utilize Changes in the Law?, 18 N.Y.U. REV. L. & Soc. CHANCE 357 (1990/91). So hostile have the courts become to extended litigation in capital cases that, in one case where there had been repeated last minute requests for a stay of execution in several different courts, the Supreme Court, usurping the legal prerogatives of the lower courts, took the unprecedented step of ordering that no further stays be granted. Vasquez v. Harris, 503 U.S. 1000, 1000 (1992); see also Stephen Reinhardt. The Supreme Court, The Death Penalty, and The Harris Case, 102 YALE L.J. 205 (1992). The Court has found even new evidence of innocence inadequate as a basis for challenging a death sentence. See Herrera v. Collins, 113 S. Ct. 853, 860 (1993). In response to Herrera, Justice Blackmun charged the Court with coming "perilously close to murder." Id. at 884.
58. Evan Caminker & Erwin Chemerinsky, The Lawless Execution of Robert Alton Harris, 102 YALE L.J. 225, 226 (1992). "[T]he Court's desire to expedite the process of death . . . has now accrued a life of its own." Id. at 253; see also Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 IND. L.J. 817 (1993).
59. Evan Caminker & Erwin Chemerinsky, The Lawless Execution of Robert Alton Harris, 102 YALE L.J. 225, 226 (1992). "[T]he Court's desire to expedite the process of death . . . has now accrued a life of its own." Id. at 253; see also Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on the U.S. Supreme Court's Continuing Problems with Federal Habeas Corpus and the Death Penalty, 68 IND. L.J. 817 (1993).
60. 42 Since Gregg reinstated the death penalty in 1976, 314 people have been executed. NATIONAL COALITION TO ABOLISH THE DEATH PENALTY, supra note 17.
61. For a discussion of the nature of public opinion about the death penalty, see Bowers, supra note 33: Austin Sarat & Neil Vidmar. Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. REV. 171.
62. One important example of how this fear of being tainted by the death penalty debate influences the behavior of politicians is provided by Marshall Frady's discussion of President Clinton's 1992 campaign. Marshall Frady. Death in Arkansas. NEW YORKER, Feb. 22, 1993, at 105.
63. See, e.g., Michael Oreskes, The Political Stampede on Execution, N.Y. TIMES, Apr. 4, 1990, at A16. There are, of course, occasionally visible and sometimes successful campaigns to prevent an execution. One example is the recent effort on behalf of Mumia Abu-Jamal, who is under death sentence in Pennsylvania. Such campaigns, however, serve as triage rather than as a sustained abolitionist movement.
64. On April 24, 1996, President Bill Clinton signed into law an antiterrorism bill that includes provisions imposing tight time limits on habeas corpus appeals and requiring defendants to meet higher threshold requirements before being able to file habeas petitions. See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C.A. §§ 2244, 2253, 2261-2266 (1996)); see also Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. See generally Steven M. Goldstein, Expediting the Federal Habeas Corpus Review Process in Capital Cases: An Examination of Recent Proposals, 19 CAP. U. L. REV. 599 (1990) (discussing various legislative proposals to restrict federal habeas).
65. On April 24, 1996, President Bill Clinton signed into law an antiterrorism bill that includes provisions imposing tight time limits on habeas corpus appeals and requiring defendants to meet higher threshold requirements before being able to file habeas petitions. See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C.A. §§ 2244, 2253, 2261-2266 (1996)); see also Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. See generally Steven M. Goldstein, Expediting the Federal Habeas Corpus Review Process in Capital Cases: An Examination of Recent Proposals, 19 CAP. U. L. REV. 599 (1990) (discussing various legislative proposals to restrict federal habeas).
66. See Harvey Berkman, Costs Mount for Indigent Defense, NAT'L L.J., Aug. 7, 1995, at A18 (House Appropriations budget for fiscal year 1996 zeroed out funding for capital resource centers).
67. For an interesting general discussion of the politics of crime and punishment in the United States, see MICHAEL TONRY, MALIGN NEGLECT - RACE, CRIME, AND PUNISHMENT IN AMERICA (1995).
68. See, e.g., Gomez v. United States, 503 U.S. 653 (1992) (castigating legal tactics of defense in death penalty appeals). For an important response, see Charles M. Sevilla & Michael Laurence, Thoughts on the Cause of the Present Discontents: The Death Penalty Case of Robert Alton Harris, 40 UCLA L. REV. 345 (1992) (arguing against criticism of defense lawyers' alleged delay tactics by pointing to the numerous factual and constitutional issues involved and contending that justice should not be sacrificed for the sake of speedy proceedings).
69. This image is developed by Michael Mello, Facing Death Alone: The Post-Conviction Attorney Crisis on Death Row, 37 AM. U. L. REV. 513 (1988). Mello argues: The post-conviction process has become an integral part of the system of capital punishment. The post-conviction component of the system is necessary because it exposes injustices . . . . It is necessary to the integrity of a legal system that strives to tame the death penalty within the rule of law. In turn, lawyers are essential to the integrity of the capital post-conviction process. Id. at 606.
70. Cf. Eric L. Muller, Note, The Legal Defense Fund's Capital Punishment Campaign: The Distorting Influence of Death, 4 YALE L. & POL'Y REV. 158 (1985) (discussing the Legal Defense Fund's difficulties when it came to mustering financial and emotional support for death penalty advocacy). There is, of course, another side to this story. Death penalty lawyers still hold a place of relative honor in the bar. They are powerful reminders of the ideal of lawyer as champion of the downtrodden. I am grateful to David Wilkins for this argument.
71. See Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643 (1993); see also Nancy Levit, Expediting Death: Repressive Tolerance and Post-Conviction Due Process Jurisprudence in Capital Cases, 59 UMKC L. REV. 55 (1990).
72. See Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643 (1993); see also Nancy Levit, Expediting Death: Repressive Tolerance and Post-Conviction Due Process Jurisprudence in Capital Cases, 59 UMKC L. REV. 55 (1990).
73. See Richard L. Abel, Law and Politics, in LAWYERING ON THE LEFT: RIGHTS, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart Scheingold eds., forthcoming 1997); see also Ronen Shamir, Litigation As a Consummatory Action: The Instrumental Paradigm Reconsidered, 11 STUD. L. POL. & SOC'Y 41, 61 (1991) (arguing that in conditions of oppression, petitioners turn to courts to express their grievances and their desire for justice).
74. See Richard L. Abel, Law and Politics, in LAWYERING ON THE LEFT: RIGHTS, POLITICS, AND PROFESSIONAL RESPONSIBILITY (Austin Sarat & Stuart Scheingold eds., forthcoming 1997); see also Ronen Shamir, Litigation As a Consummatory Action: The Instrumental Paradigm Reconsidered, 11 STUD. L. POL. & SOC'Y 41, 61 (1991) (arguing that in conditions of oppression, petitioners turn to courts to express their grievances and their desire for justice).
75. See THE ARABIAN NIGHTS (Husain Haddawy trans., Alfred A. Knopf 1990) (1814).
76. "When I go to the king," Scheherazade told her sister. "I will send for you, and when you come and see that the king has finished with me, say, 'Sister, if you are not sleepy, tell us a story.' Then I will begin to tell a story, and it will cause the king to stop his practice [execution], save myself, and deliver the people." Id. at 16.
77. This is a form of what Cover calls "redemptive constitutionalism." Redemption occurs within a scheme that assumes: (1) the unredeemed character of the current reality: (2) the fundamentally different reality that could exist; and (3) the possible replacement of one with the other. See COVER, supra note 6. at 132.
78. For a discussion of realism, see WHITE, supra note 3, at 101-02. Realism, White argues, does not consist exclusively in narration or description any more than it does in either analysis or synthesis. The essence of . . . realism . . . [lies] in the representational practice, which has the effect of constituting an image of current social praxis as the criterion of plausibility by reference to which any given institution, activity, thought, or even life can be endowed with the aspect of "reality." Id.; see also ROBERT SCHOLES & ROBERT KELLOGG, THE NATURE OF NARRATIVE 85 (1966).
79. SCHOLES & KELLOGG, supra note 57, at 250.
80. See SHOSHANA FELMAN & DORI LAUB, TESTIMONY: CRISES OF WITNESSING IN LITERATURE, PSYCHOANALYSIS, AND HISTORY 101 (1992). Death penalty lawyers provide the testimonial bridge which, mediating between narrative and history, guarantees their correspondence and adherence to each other. This bridging between narrative and history is possible since the narrator is both an informed and an honest witness . . . . All the witness has to do is to efface himself, and let the literality of events voice its own self-evidence. "His business is only to say: this is what happened, when he knows that it actually did happen." Id. at 101 (referring to "narrator as eyewitness" in Albert Camus's The Plague). "To testify - before a court of law or before the court of history and of the future," as Felman argues, "is more than simply to report a fact or an event or to relate what has been lived, recorded and remembered. Memory is conjured here essentially in order to address another, to impress upon a listener, to appeal to a community." Id. at 204.
81. See JACQUES LE GOFF, HISTORY AND MEMORY 97-99 (Steven Rendall & Elizabeth Claman trans., Columbia University Press 1992) (1977).
82. See Pierre Nora, Between Memory and History: Les Lieux de Memoire, 26 REPRESENTATIONS 7 (1989). As Nora argues, "Modern memory is, above all, archival. It relies entirely on the materiality of the trace, the immediacy of the recording, the visibility of the image." Id. at 13.
83. As Ewick and Silbey explain: "[S]torytelling is strategic. Narrators tell tales in order to achieve some goal or advance some interest . . . . With purposes in mind we consciously construct our stories around the rules, expectations, and conventions of particular situations." Ewick & Silbey, supra note 3, at 208: see also Jay Watson, Making Do in the Courtroom: Notes on Some Convergences Between Forensic Practice and Bricolage, 14 STUD. L. POL. & SOC'Y 124 (1994).
84. See, e.g., Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal, 105 YALE L.J. 449, 481 (1995).
85. See Bernard S. Jackson, Narrative Models in Legal Proof, in NARRATIVE AND THE LEGAL DISCOURSE: A READER IN STORYTELLING AND THE LAW 158, 163 (David R. Papke ed., 1991).
86. See Jim Thomas, Prisoner Cases as Narrative, in NARRATIVE AND THE LEGAL DISCOURSE, supra note 64, at 237, 243.
87. Id. at 243-44.
88. SCHOLES & KELLOGG, supra note 57, at 13.
89. Id.; see also WHITE, supra note 3, at 20. White suggests that "[t]he authority of the historical narrative is the authority of reality itself; the historical account endows this reality with form and thereby makes it desirable by the imposition upon its processes of the formal coherency that only stories possess." Id.
90. "The main plot forms of empirical narrative . . . are (a) the historical form . . .; and (b) the biographical form, taking its shape from the birth, life, and death of an actual individual." SCHOLES & KELLOGG, supra note 57, at 214.
91. "[E]fective lawyering," Richard Sherwin argues, "requires sound narrative analysis. Examples include choice of imagery, and the associations that one's images conjure; choice of genre, and the narrative expectations that the genre produces; choice of role for one's audience . . . . [T]hese and other strategic narrative considerations are hardly self-evident." Richard K. Sherwin, The Narrative Construction of Legal Reality, 18 VT. L. REV. 681, 709 (1994).
92. See generally White, supra note 9 (describing the role of rhetoric in law).
93. See Robert Scholes, Language, Narrative, and Anti-Narrative, 7 CRITICAL INQUIRY 204, 210 (1980).
94. See Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. ILL. L. REV. 323, 361; see also James Doyle, The Lawyers' Art: "Representation" in Capital Cases, 8 YALE J.L. & HUMAN, (forthcoming 1996) (unpublished manuscript at 7-9, on file with author).
95. See Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. ILL. L. REV. 323, 361; see also James Doyle, The Lawyers' Art: "Representation" in Capital Cases, 8 YALE J.L. & HUMAN, (forthcoming 1996) (unpublished manuscript at 7-9, on file with author).
96. See WILLIAM E. CONNOLLY, THE ETHOS OF PLURALIZATION (1995). Connolly claims that the desire to punish is the result of the coalescence of images of responsibility and images of the criminal as monster. Id. at 45.
97. The emphasis on fact-intensive investigation is typically greatest in the context of efforts to obtain habeas corpus relief. Only by arguing that the mitigation stage was constitutionally deficient can death penalty lawyers assert the relevance of the new facts which their factual investigations so frequently turn up. They retell the story of the client to show the inadequacies of the story as it was originally presented to the sentencing jury.
98. Plotting is concerned with the activity of shaping a narrative, giving it a line of intention and a progress toward meaning. See BROOKS, supra note 3, at xiii.
99. One difficulty for death penalty lawyers is that, in telling their clients' stories, they must be careful to walk a fine line such that those clients are not made to appear so damaged as to be beyond redemption.
100. Here there are striking resemblances between appellate and postconviction work and the kind of lawyering that goes on in the penalty phase of capital trials. Many death penalty lawyers describe the crucial part of their work as coming in the process of relitigating the case in habeas review after the exhaustion of direct appeals. They note that in making habeas claims under ineffective assistance claims they must reinvestigate the entire case to discover what the trial counsel overlooked and to show its material connection to the result at trial. For them, the process of making a convincing argument for habeas relief is not unlike trying a case, with its attention to the vivid details of lives lived and choices made. See Austin Sarat, Speaking of Death: Narratives of Violence in Capital Trials, 27 LAW & SOC'Y REV. 19, 39 (1993) (discussing the importance of narrative in the penalty phase); see also Weisberg, supra note 33, at 361 (arguing that the "overall goal of the defense [in the penalty phase] is to present a human narrative, an explanation of the defendant's apparently malignant violence as in some way rooted in understandable aspects of the human condition").
101. For discussions of the history and meaning of sentimentality as a narrative device, see BARBARA M. BENEDICT, FRAMING FEELING: SENTIMENT AND STYLE IN ENGLISH PROSE FICTION, 1745-1800 (1994), and LOUIS I. BREDVOLD, THE NATURAL HISTORY OF SENSIBILITY (1962). The capacity to effect the genre shift from horror to sentiment is, of course, deeply influenced by racial and gender considerations in the stories death penalty lawyers tell. For example, a young black man raping an "innocent" white woman does not easily fit into the genre of sentimentality. See THE CULTURE OF SENTIMENT: RACE, GENDER, AND SENTIMENTALITY IN NINETEENTH-CENTURY AMERICA (Shirley Samuels ed., 1992).
102. For discussions of the history and meaning of sentimentality as a narrative device, see BARBARA M. BENEDICT, FRAMING FEELING: SENTIMENT AND STYLE IN ENGLISH PROSE FICTION, 1745-1800 (1994), and LOUIS I. BREDVOLD, THE NATURAL HISTORY OF SENSIBILITY (1962). The capacity to effect the genre shift from horror to sentiment is, of course, deeply influenced by racial and gender considerations in the stories death penalty lawyers tell. For example, a young black man raping an "innocent" white woman does not easily fit into the genre of sentimentality. See THE CULTURE OF SENTIMENT: RACE, GENDER, AND SENTIMENTALITY IN NINETEENTH-CENTURY AMERICA (Shirley Samuels ed., 1992).
103. For discussions of the history and meaning of sentimentality as a narrative device, see BARBARA M. BENEDICT, FRAMING FEELING: SENTIMENT AND STYLE IN ENGLISH PROSE FICTION, 1745-1800 (1994), and LOUIS I. BREDVOLD, THE NATURAL HISTORY OF SENSIBILITY (1962). The capacity to effect the genre shift from horror to sentiment is, of course, deeply influenced by racial and gender considerations in the stories death penalty lawyers tell. For example, a young black man raping an "innocent" white woman does not easily fit into the genre of sentimentality. See THE CULTURE OF SENTIMENT: RACE, GENDER, AND SENTIMENTALITY IN NINETEENTH-CENTURY AMERICA (Shirley Samuels ed., 1992).
104. Robert Gordon indicates that lawyers may frame the injustices they seek to record in one of three narrative styles. Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY (Austin Sarat & Thomas R. Kearns eds., forthcoming) (manuscript at 2, on file with author). Gordon calls the first style "narrow agency." Narrow agency narrative treats the injustices of the present as wrongs "done by specific perpetrators to specific victims." Id. It stays within the framework of the law and describes present injustice in terms of the remedies that law itself, should it be willing, could easily supply. The second style of narrative also stays within the legalist mode though it involves what Gordon calls "broad agency." In this narrative, the history of injustice is a history of collective action taken by one group against another. Id. at 3-5. The third style of narrative - the "structural" approach - attributes injustice to "bad structures [rather] than bad agents . . . . [This] historical enterprise takes the form of a search for explanations rather than a search for villainous agents and attribution of blame." Id. at 5. In this third narrative style, lawyers broaden the scope of inquiry by linking the particular injustices to which they are opposed with broader patterns of injustice and institutional practice.
105. Louis O. Mink, The Autonome of Historical Understanding, 5 HIST. & THEORY 24, 30-33 (1966).
106. As Scheppele claims: "[T]he 'we' constructed in legal accounts has a distinctive selectivity, one that tends to adopt the stories of those who are white and privileged . . . . [T]he stories of outsiders are systematically ignored." Scheppele, supra note 6, at 2083-84.
107. All narratives can be conceived of as "part of a social transaction . . . [in which] [a]ny narrator's behavior will be constrained in part by various assumptions he will have made concerning his present or presumed audience's motives for listening to him." H. Smith, supra note 7, at 232, 234.
108. White, supra note 9, at 692.
109. [N]o one will deny that literary texts do contain a historical substratum, but the manner in which literature takes it up and communicates it does not seem to be determined by merely historical circumstances . . . . That is why we often have the feeling, when reading works of past ages, that we are actually transported back into those times and moving in historical circumstances as if we belonged to them or as if the past were again the present. Wolfgang Iser, Indeterminacy and the Reader's Response in Prose Fiction, in ASPECTS OF NARRATIVE, supra note 8, at 1, 5.
110. Hayden White, The Narrativization of Real Events, 7 CRITICAL INQUIRY 793, 794 (1981).
111. Id. at 794.
112. See WHITE, supra note 3, at 20 (arguing that it is the fact that events can always be "ordered otherwise, in an order of narrative, that makes them, at one and the same time, questionable as to their authenticity and susceptible to being considered as tokens of reality").
113. I am grateful to Lawrence Douglas for suggesting this way of thinking about the narrative strategy of death penalty lawyers.
114. For a similar argument about the effect of including dissenting opinions in appellate court decisions, see Lawrence Douglas, Constitutional Discourse and Its Discontents: An Essay on the Rhetoric of Judicial Review, in THE RHETORIC OF LAW 257 (Austin Sarat & Thomas R. Kearns eds., 1994).
115. Luban, supra note 1, at 2152-53.
116. As one relatively new Resource Center lawyer said: What I do is sort of making a narrative. I'm telling a story with page after page of facts which are put together to show the richness and complexity of my client's life, of the crime, and of the injustices of his trial . . . . This is the best way to win in court, and it is the best way to make sure that the story is not just pushed aside and forgotten. And if enough of these narratives get produced then maybe they won't be ignored when, say fifty years from now, people try to figure out why we were executing the people we were executing in the way we were doing it.
117. Furman v. Georgia, 408 U.S. 238, 361 (1972) (quoting United States v. Rosenberg, 195 F.2d 583, 608 (2d Cir. 1952), cert. denied, 344 U.S. 838 (1952)).
118. Id. at 363.
119. The reference here is to Justice Blackmun's opinion in Callins v. Collins, 114 S. Ct. 1127, 1130-31 (1994) (mem.) (explaining his opposition to the death penalty despite his dissent in Furman and concurrence in Gregg v. Georgia, 428 U.S. 153 (1976)).
120. See Paul Ricoeur, Narrative Time, 7 CRITICAL INQUIRY 169 (1980). "[N]arrativity and temporality are closely related . . . . Indeed, I take temporality to be that structure of existence that reaches language in narrativity and narrativity to be the language structure that has temporality as its ultimate referent." Id.