Academic journal article The University of Memphis Law Review

The Role of Culture in Guantanamo's Capital Cases

Academic journal article The University of Memphis Law Review

The Role of Culture in Guantanamo's Capital Cases

Article excerpt

I. Introduction ...................................................936

II. Culture in This Context .......................................938

A. What Is Culture? ................................................938

B. Culture in Capital Case Law .................................939

III. Standards for Treatment of Detainees ....................942

A. Standard of Care in the ABA Guidelines ................942

B. Standard of Care in the Military Commissions Act of 2009 ...........................................................946

IV. Relevance of Culture to Legal Claims ........................948

V. The Role of Culture in Claims Arising from Torture .................................................................950

A. Consequences of Torture, Maltreatment, and Trauma ..............................................................955

B. Relevance of Torture in Capital Litigation ........................958

C. Investigating Claims of Torture .............................959

VI. Conclusion ...........................963

I. INTRODUCTION

The central organizing principle of the defense on behalf of capitally charged Guantanamo detainees should be the cultural context of their lives and actions that creates the framework of other meritorious claims. Defense teams should be mindful of anthropologist Clifford Geertz's words that "there is no such thing as a human nature independent of culture."1 Culture shapes how human nature expresses itself in perceptions, notions of responsibility and duty, expectations of the future, relationships with others, values and beliefs about family life, role-related behavior, decisionmaking patterns and understanding, and expressing mental illness. "Culture is an all-pervasive medium," inextricably linked to the narrative and uniqueness of every human.2 Any competent and reliable investigation on behalf of any individual capital client necessarily requires insight, understanding, and analysis of the client's culture and its impact on his behavior and functioning over time. Particularly, culture affects every aspect of the capital cases brought against Guantanamo detainees. Domestic case law, professional standards of care for attorneys, and international human rights standards place culture at the core of judicial proceedings against Guantanamo detainees.

Capital proceedings in Guantanamo must abide by wellestablished principles in law that recognize that the death penalty is different than other prison sentences and places a greater burden on courts, prosecution, and defense in protecting fundamental rights. The United States Supreme Court has recognized that "death is different" in kind, rather than degree.3 In Woodson v. North Carolina, the Court found that,

Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.4

Because death is different, representation of the capitally charged defendant is different. Capital cases recognize that the mere fact of whether the defendant committed the crime - as is the question in non-capital criminal cases - is not sufficient to sentence one to death. Mitigating factors - the person that is the defendant - provide critical information when considering death.

Part II of this Article discusses the definition of culture through an anthropological lens. Using anthropologist Clifford Geertz's work as the framework to define culture, culture is, at times, an individualized, evolving force that shapes our relationship to our environment. This Part also provides the constitutional baseline for the inclusion of cultural investigation and analysis in capital cases. The Supreme Court requires individualized sentencing in capital cases and thus has found that effective defense counsel must inquire into their client's uniqueness through a variety of means, including a social or life history. …

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