Forgetting the future

Abstract

This article aims to push the boundaries of definitions of capital cause lawyering to include a more potentially radical ‘cause’ that takes on one key ideological underpinning of state killing: individualism. This article studies whether and how capital trial lawyers take up a ‘radical’ cause by challenging individualism. To the extent that they oppose state killing and illuminate social inequality, the defenders studied in this project engage in something beyond the parameters of their particular trials, and thus fall partially within current definitions of cause lawyering. However, considering that they are unaware of, avoid, or suppress subversive arguments within the expansive discursive space afforded by penalty phase proceedings, they may be ‘forgetting the future’ precisely so that their clients may avoid a death sentence. Rather, defenders construct narratives that portray a liminal conceptualization of the influence of social forces on human free will, a concept known in the defense bar as ‘diminished autonomy’.