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The very contextual nature of most mitigating evidence runs counter to America’s individualistic culture. Prior research has found that capital jurors are unreceptive to most mitigating circumstances, but no research has examined the capital sentencing decisions of trial judges. This study fills that gap through a content analysis of eight judicial sentencing opinions from Delaware. The findings indicate that judges typically dismiss contextualizing evidence in their sentencing opinions and instead focus predominately on the defendant’s culpability. This finding calls into question the ability of guided discretion statutes to ensure the consideration of mitigation and limit arbitrariness in the death penalty.

This chapter examines the 1999 trial of Aaron McKinney for the murder of Matthew Shepard, a gay student at the University of Wyoming whose death propelled forward an incipient movement to legislate against hate crimes. It explores the competing ways in which Aaron McKinney was conjured as a legal persona, defined through the opposing lenses of gay panic and of homophobic hate. It situates those personae in conflicting narratives of criminal culpability emerging out of indeterminate legal doctrines and definitions (the unwritten law; the meaning of ‘malice’), and argues that in conjuring them, adversarial criminal trials necessarily destabilise the ‘default legal person’. In doing so, trials performatively reconstruct the past in ways that both mark and mask a past events. In the McKinney case, contests over his culpability emerged against a backdrop of loss, both epistemological and affective, generating a projective reckoning with Shepard’s death in ways that enabled a politically transformational mourning process.

The International Criminal Court has institutionalized the concept of individual responsibility for human rights violations. The jurisprudence of international criminal law has developed along with the institution. Affirmative defenses in the mitigation of punishment or avoidance of responsibility are becoming increasingly important in international criminal procedure. We contend that diminished culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. Of the variety of affirmative defenses, emerging neuroscience-based defense provide the most challenging set of choices for the international legal community. The Esad Landzo case at the ICTY brings these challenges into focus. We discuss the difficult choices the International Criminal Court will have to make to balance the rights and needs of the victims and the due process rights of the accused.

Public trust in institutions in Iceland plunged after the country’s banking sector collapsed. The political system wobbled under outrage and anger when the general public took to the streets. The Parliamentary Special Investigation Commission conducted a ground-breaking crisis-induced investigation, delivering a report that was a milestone in Iceland’s history of politics and public administration. Yet, despite this endeavour and the fact that subsequent investigations have disclosed ample information intended to restore trust in institutions, public trust remains unsteady. This chapter addresses the following questions: How has public trust in institutions progressed after the crash? Why is it taking so long for trust to return? In Chapter 3 in this volume, we examine data on public trust in Icelandic institutions from Gallup surveys over the 15 years from 2002 to 2017 in order to identify and explain patterns of trust in the aftermath of the crisis. Our interpretation of theory in this chapter suggests that elements of mistrust inherent in the principal–agent approach to accountability in public administration, implemented in previous New Public Management reforms, undermined the creation of a climate of trust necessary to ensure effective accountability mechanisms. We argue that in the absence of a climate of trust, accountability mechanisms of culpability that conflict with mechanisms of answerability, combined with a succession of post-crisis scandals, mainly explain the slow return of the public’s trust.

This chapter provides a genealogy of the Gladue–Ipeelee principle of special consideration of Indigenous circumstances at sentencing. The principle is codified in the 1996 statutory requirement that “all available sanctions other than imprisonment … should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (s. 718.2e of the Criminal Code of Canada). Using the Foucaultian genealogy method to produce a “history of the present,” this chapter eschews normative questions of how s. 718.2e has “failed” to reduce Indigenous over-incarceration to instead focus on how practices of “special consideration” reproduce settler-state paternalism. This chapter addresses three key components of the Gladue–Ipeelee principle: the collection of circumstances information, the characterization of those circumstances, and finally their consideration at sentencing. Part one focuses on questions of legitimacy and authority and explicates how authority and responsibility to produce Indigenous circumstances knowledge was transferred from the Department of Indian Affairs (DIA) to Indigenous Courtworker organizations in the late 1960s/early 1970s. Part two identifies how authority shapes problematization by examining the characterization of Indigenous circumstances in the two eras, finding that present-day Gladue reports articulate an Indigenous history and critique of colonialism as the root cause of Indigenous criminalization, whereas DIA reports prior to 1970 generally characterized this criminalization as a “failure to assimilate.” Part three focuses on the structural reproduction of power relations by exploring historical continuities in judicial and executive-branch consideration of Indigenous circumstances, suggesting that the Gladue–Ipeelee principle reinscribes a colonial “mercy” framework of diminished responsibility. The author discusses how the principle operates in the shadow of Indigenous over-incarceration as a form of state “recognition” and a technique of governance to encourage Indigenous participation in the settler justice system and suggests that the Gladue–Ipeelee principle produces a governing effect that reinforces settler-state authority by recirculating colonial practices and discourses of settler superiority.

Purpose – It is often difficult to assign blame to youthful violent offenders, and journalists may be uncertain how to determine the moral culpability of performers of horrific crimes such as school shootings.

Methodology/approach – In order to examine journalists’ assignation of moral responsibility for school shooting events, this article examines the sequencing dynamic (i.e., the order in which elements of news reportage appear) present in article lead sections from 112 New York Times articles about nine rampage school shootings occurring in the United States between 1997 and 2001.

Findings – Analysis revealed that journalists initially tended to select sequences that more clearly assigned blame. Over time journalists tended to rely on details that highlighted the contextual elements, rhetorically reducing the moral responsibility of the perpetrators. School shootings may ultimately be remembered as horrible events, but the youthful nature of the offenders and other contexts of the events will tend to mitigate the shooters’ moral culpability.

Originality/value of chapter – This study is the first to apply Cerulo's (1998) concept of sequencing to glean information about the moral decision-making process involved in the production of news content about school shootings.

The Edmund Edelman Children’s Court is a juvenile dependency courthouse in Los Angeles designed with bright murals, open play spaces, and modified courtrooms to be “child-sensitive” and “family-friendly.” Through a recounting of the political and cultural forces at play building up to its construction, I argue that the decisions to build a “child-sensitive” court confirm the carceral containment of the culpable black adult. This article represents an inquiry into the cultural logic of the court’s construction, revealing the relationship between raced constructions of innocence and guilt. This study draws from five months of fieldwork conducted in the Edelman Children’s Court.