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March 13, 2016

"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"

The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:

What if Walter White had been captured by the federal authorities?  Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him.  But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution.  Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.

This Essay explores the answer to the question of why we would spare Walter White from the death penalty.  Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.

Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands.  In fact, we were relieved that death came to him on his own terms.  And, if he had been captured, we would not have sent him to the death chamber.  Knowing Walt — understanding his “mitigation” — bent us towards mercy.

To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant.  After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II.  It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate.  Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.

Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end.  It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real.  Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all.  If we would spare Walter White, surely we would spare many others facing capital punishment.  But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys.  We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.

March 13, 2016 at 02:02 PM | Permalink

Comments

Oh my god, Walter White from breaking bad. What a bad ass.

Ok Hank said in regards to the initials WW, Woodrow Wilson, Willy Wonky, Walter White.

Walter should be nit prosecuted because he stole a barrel of that blue stuff and made blue meth. Whatever that is.

Also his cancer was the reason he did ut, to protect his family. Pay no attention to the man behind the curtain, back away. Ha ha. Diff movie oh well. Lets have fun.

Also, he whacked Tuco and got rid of that old bast@rd in the wheel chair that tapped on a bell. Also he ran the worlds largest meth lab ( what do I know ) and got rid of the dude that ran the fast food joint.

Now was I entertaining in a basic crude way. Yes, Yes..I resemble myself.. Oh well.

Posted by: MidWestGuy | Mar 13, 2016 9:12:45 PM

Mitigation is not, so much, the issue as is not being able to exclude jurors who oppose the death penalty, which is why I support 7-5 and above, for a death sentence.

The one juror exception, overwhelming the other 11 for death, is, by far, the most undemocratic practice in this republic. An 8% vote overwhelming the 92% vote.

. . . let's see how well that would work in a presidential election.

The verdict is a fact issue, the sentence an opinion issue.

And of course a 58% to 42% vote is considered a landslide (7-5).

Posted by: Dudley Sharp | Mar 14, 2016 11:05:56 AM

Mitigation is not, so much, the issue as is not being able to exclude jurors who oppose the death penalty, which is why I support 7-5 and above, for a death sentence.

The one juror exception, overwhelming the other 11 for death, is, by far, the most undemocratic practice in this republic. An 8% vote overwhelming the 92% vote.

. . . let's see how well that would work in a presidential election.

The verdict is a fact issue, the sentence an opinion issue.

And of course a 58% to 42% vote is considered a landslide (7-5).

Posted by: Dudley Sharp | Mar 14, 2016 11:19:56 AM

I AM POSTING THIS COMMENT FOR DUDLEY SHARP, WHO IS HAVING TECH ISSUES:

Mitigation is not, so much, the issue as is not being able to exclude jurors who oppose the death penalty, which is why I support 7-5 and above, for a death sentence.

The one juror exception, overwhelming the other 11 for death, is, by far, the most undemocratic practice in this republic. An 8% vote overwhelming the 92% vote.

. . . let's see how well that would work in a presidential election.

The verdict is a fact issue, the sentence an opinion issue.

And of course a 58% to 42% vote is considered a landslide (7-5).

Posted by: Doug B. | Mar 15, 2016 9:37:52 AM

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