Discrimination and Instructional Comprehension: Guided Discretion,Racial Bias,and the Death Penalty

This study links two previously unrelated lines of research: the lack of comprehension of capital penalty-phase jury instructions and discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. Dependent measures included a sentencing verdict (life without the possibility of parole or the death penalty), ratings of penalty phase evidence, and a test of instructional comprehension. Results indicated that instructional comprehension was poor overall and that, although Black defendants were treated only slightly more punitively than White defendants in general, discriminatory effects were concentrated among participants whose comprehension was poorest. In addition, the use of penalty phase evidence differed as a function of race of defendant and whether the participant sentenced the defendant to life or death. The study suggest that racially biased and capricious death sentencing may be in part caused or exacerbated by the inability to comprehend penalty phase instructions.     

Capital Jury Deliberation: Effects on Death Sentencing,Comprehension, and Discrimination

This study focused on whether and how deliberations affected the comprehension of capital penalty phase jury instructions and patterns of racially discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. The participants provided their initial “straw” sentencing verdicts individually and then deliberated in simulated 4–7 person “juries.” Results indicated that deliberation created a punitive rather than lenient shift in the jurors’ death sentencing behavior, failed to improve characteristically poor instructional comprehension, did not reduce the tendency for jurors to misuse penalty phase evidence (especially, mitigation), and exacerbated the tendency among White mock jurors to sentence Black defendants to death more often than White defendants.     

Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide”

This article examines the nature of racial bias in the death sentencing process. After reviewing the various general explanations for the continued significance of race in capital cases, we report the results of an empirical study in which some aspects of racially biased death sentencing are examined in depth. Specifically, in a simulated capital penalty‐phase trial setting where participants were assigned to small group “juries” and given an opportunity to deliberate, white male jurors were significantly more likely to sentence black defendants to death than were women and nonwhite jurors. This racialized pattern was explained in part by the differential evaluation of the case facts and the perceptions of the defendant that were made by the white male jurors. We discuss these findings in light of social psychological theories of contemporary racism, and we conclude that the demonstrated bias in capital jury settings should be understood as an interaction of several factors, including individual juror characteristics, group‐level demographic composition, and group deliberation processes.     

Death penalty beliefs and jurors' responses to aggravating and mitigating circumstances in capital trials

Two studies explored the relationship between attitudes toward the death penalty and support for or rejection of aggravating and mitigating circumstances in a capital trial. Jurors serving on jury duty voluntarily completed questionnaires in the jury lounge. In Study 1, jurors strongly opposed to the death penalty were significantly more receptive to mitigating circumstances than were the remaining jurors. In Study 2, jurors who would have been excluded for their opposition to the death penalty under theWitherspoon standard were significantly less receptive to aggravating circumstances than were the other jurors. It is suggested that the present system of death qualification in capital cases results in biases against the interest of the defendant at all stages of the trial process—jury selection, determination of guilt, and sentencing.     

Emotion,Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations

This article explores the role of emotion in the capital penalty‐phase jury deliberations process. It is based on the qualitative analysis of data from ninety video‐recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury's sentencing process, and deployed in penalty‐phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion‐based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.     

Comprehending life and death matters

Modern capital jurisprudence places special significance on judicial instructions to guide the discretion of the capital jury in reaching a penalty phase decision. Yet, previous social science research has raised doubts about the extent to which judicial instructions are generally understood by jurors and questioned their utility in producing intended effects. The present study measured the comprehension of the capital sentencing instruction employed in California. Data suggest widespread inability to define accurately the central concepts of aggravation and mitigation in use in virtually every state that currently has a death penalty statute, as well as the inability to distinguish properly the sentencing significance of the enumerated factors jurors are directed to use in reaching their life and death verdicts. In addition, an inordinate focus on the circumstances of the crime—to the exclusion of other potentially important factors—was identified, as well as special problems in comprehending the crucial concept of mitigation in constitutionally required ways.We would like to thank Suzanne Ban, Cori Nardello, and Maryanne Tagavilla for assistance in transcribing and content-analyzing the data.     

Jury decision making in the capital penalty phase

There are large bodies of research on the deterrent value of the death penalty and public attitudes towards capital punishment. However, little is known about how jurors decide whether a particular defendant should live or die. This article briefly summarizes the case law that attempts to guide the discretion of jurors in the penalty phase of capital murder trials, reviews empirical research on penalty decision making, suggests a methodological strategy for investigating the penalty phase, and identifies several promising directions for future research. Four broad categories of research are identified: the effects of guiding juror discretion, comparisons of juries that vote for life with those that vote for death, the relationship between guilt and penalty phases, and models of decision making in the penalty phase. Several testable hypotheses are proposed.     

论绝对确定性和死刑

近年来死刑误判案件的披露引起了人们对如何减少此类错误的重新关注。因此，建议提高死刑案件中陪审团成员对被告人罪行确定性的研究者们一致呼吁适用高于排除合理怀疑的证明标准。本文在第二部分列举了一些当前论证死刑案件中可以适用排除合理怀疑证明标准的理论．并说明这些理论是否能证明死刑案件的定罪阶段和量刑阶均应适用更高证明标准。但因为死刑案件仍相对较少．所以误判死刑案件对正当性造成的整体损害小于每年误判数以千计的非死刑案件造成的损害：2002年仅有159人被判处死刑，但2000年有近925000名成年人在州法院被判处重罪，其中45000人在审判中被定罪（其余为自己认罪）。如果在死刑案件中要求真正的绝对确定性．那么可能会因为没有陪审团成员能真正声称自己有“绝对的确定性”而导致无人会被判处死刑。     

A Review of Sex Disparities in the “Key Players” of the Capital Punishment Process: From Defendants to Jurors

Extralegal disparities between defendants sentenced to the death penalty and those who receive life without parole disturb even the most resolute advocates of capital punishment. Extensive bodies of research document extralegal factors influencing death penalty outcomes. Although studies largely focus on race and ethnicity, a growing body of research considers the impact of sex on the capital sentencing process. This paper reviews the extant research on the impact of the sex of the victim, defendant, attorney, juror, and judge on capital case outcomes. Women’s scarcity on death row and a previously documented “female victim effect” condemning male defendants who kill female victims, particularly for those committing crimes of sexual degradation, suggests that death row policies and their implementation chivalrously protect female defendants and victims. Conversely, a limited amount of research documents a “domestic discount,” or greater leniency for death-eligible crimes commonly victimizing women than for those victimizing acquaintances or strangers. Although opinion polls document greater support for the death penalty among men than women, juror sex inconsistently predicts sentencing outcomes in the literature. Minimal research on judge and attorney sex finds female judges more liberal in death penalty sentencing than male judges and inconclusive relationships between attorney sex and adjudication. Findings in the research on sex and death penalty outcomes support the existence of a “sex effect” and inform recommendations for future research to expand the body of literature.     

An Examination of Defendant Sex Disparity in Capital Sentencing: A Propensity Score Matching Approach

Although much prior work has examined the influence of extralegal factors on jury capital sentencing decision-making, the influence of defendant sex has been largely omitted from previous investigations. Using propensity score matching methods, the current study analyzes data from the North Carolina Capital Sentencing Project to examine whether “sex matters” in capital sentencing. Findings demonstrated that prior to matching there was a significant difference in the likelihood of receiving the death penalty for female and male defendant cases; however, after matching cases on an array of legal and extralegal case characteristics, these differences were no longer significant. Further results revealed that male defendants’ cases included different aggravating and mitigating factors than female defendants’ cases and that female defendants had limited “paths” to capital trials. Findings suggest that any apparent sex effects that are observed in capital sentencing stem from real differences in the case characteristics found in female and male defendants’ cases rather than any direct effects of defendant sex on jury decision-making. Study limitations and implications for death penalty research are also discussed.     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

The United States Supreme Court and the death penalty: The struggle for fairness

In the ten years sinceFurman v. Georgia, the United States has recognized the right of states to adopt and follow different capital sentencing schemes so long as they protect the defendant from arbitrary and capricious imposing of the death sentence. The sentence may not be disproportionate to the crime. Sentencing may be done by a judge or jury. Prospective jurors may not be challenged for cause merely because their deliberations would be affected because a death penalty was possible, but only if they could not fulfill their oath. Habeas corpus petitions in capital cases are not open invitations to avoid finality of judgment and execution of the sentence, but are to find constitutional errors.     

The effects of death qualification on jurors' predisposition to convict and on the quality of deliberation

This study provides a straightforward test of the proposition that people who are permitted to serve on juries in capital cases (death-qualified jurors) are more likely to convict a defendant than are people who are excluded from serving on capital juries due to their unwillingness to impose the death penalty (excludable jurors). A sample of 288 subjects classified as death-qualified or excludable under theWitherspoon standard watched a 2 1/2-hour videotape of a simulated homicide trial including the judge's instructions, and gave an initial verdict. Death-qualified subjects were significantly more likely than excludable subjects to vote guilty, both on the initial ballot and after an hour's deliberation in 12-person juries. Nine juries were composed entirely of death-qualified subjects (death-qualified juries), while 10 contained from 2 to 4 excludable subjects (mixed juries). On postdeliberation measures, with initial death-penalty attitudes controlled, subjects who had served on the mixed juries were generally more critical of the witnesses, less satisfied with their juries, and better able to remember the evidence than subjects from the death-qualified juries, suggesting that diversity may improve the vigor, thoroughness, and accuracy of the jury's deliberations.     

Mitigation Evidence and the Ethical Role of a Defense Attorney in a Capital Case

In 1972, the U.S. Supreme Court decided Furman v. Georgia. This landmark case changed the death penalty in the United States. In Gregg v. Georgia (1976), the Supreme Court made it clear that mitigating factors were to be heard before sentencing to ensure individualized sentencing. Every defendant has a story, a family, a childhood, trauma, and celebration—a reason their life should be spared from execution. In a capital case, a defense attorney’s ethical role is to craft that story and articulate it in a way that enables the jury to have a complete picture of the defendant’s background and character as they decide his punishment. Mitigating factors are not an excuse for the defendant’s behavior, but rather an insight into who the defendant is and what has shaped his life. A defense attorney’s ethical duty in a capital case is to argue the case on all legal points and to present a thorough investigation of mitigating evidence. A thorough investigation of all such evidence is required by case law and explained by the standards set forth by the ABA guidelines.     

Perceptions of domestic violence and mock jurors' sentencing decisions

The purpose of the investigation was to examine the influence of the victim's provocation and hopefulness on the sentencing of a husband convicted of domestic violence. It was hypothesized that mock jurors would assign less-severe sentencing if the victim was provoking and hopeful. Mock jurors read one of four factorial court case combinations of provocation and hopefulness and rendered an individual predeliberation sentence and a group postdeliberation sentence. Analyses revealed a significant effect of provocation, indicating that participants reduced the sentencing for the defendant when the wife was provoking relative to when she was not provoking. The analyses also revealed an effect of gender on predeliberation sentencing, with women delivering more-severe sentences than men. The effect of gender was not present in the postdeliberation sentencing, indicating that deliberation produced a sentencing compromise between women and men. The implications of these findings are discussed.     

The Impact of the Rape/Sexual Assault Statutory Aggravating Factor on Death Sentencing Decision Making in Capital Murder Trials in North Carolina (1977–2009): A Propensity Score Matching Approach

It was not too many decades ago that rape was a crime for which the death penalty was a permissible punishment in the United States, particularly in death penalty states in the South. Relatedly, historical and contemporary death penalty research almost always focuses on the role of the race of the defendant and, more recently, the race of the victim and defendant–victim racial dyads as being relevant factors in death penalty decision making. As such, the current study employs data from official court records for the population of capital trials (n = 954) in the state of North Carolina (1977–2009) to evaluate the effect of the rape/sexual assault statutory aggravating factor on jurors’ decision to recommend the death penalty. Results suggest that cases in which rape is an aggravating factor had a significantly greater odds of receiving a death penalty recommendation, and these results are robust after also considering the independent effects of defendant–victim racial dyads, even following the application of propensity score matching to equate cases on a host of defendant and victim characteristics, legal and extralegal confounders, and case characteristics. Study limitations and implications are discussed.     

Putting kids to death: Specifying public support for juvenile capital punishment

Using a statewide sample of 539 Tennessee residents, we explored the extent to which the public supports the death penalty for juveniles. The analysis revealed that a majority of respondents favored juvenile capital punishment, often for young offenders. The respondents, however, were less supportive of juvenile than of adult execution. Most important, as an alternative to juvenile capital punishment, nearly two-thirds of the sample favored life in prison without the possibility of parole (LWOP); four-fifths favored a life sentence with work and restitution requirements (LWOP+W/R). Notably, even among those who endorsed capital punishment for juveniles, a clear majority supported LWOP+W/R. Taken together, these findings reveal that although the public is willing to execute juveniles who commit first-degree murder, they prefer alternative sentencing options that avoid putting youths to death.     

Religious Characteristics and the Death Penalty

Using one mock trial scenario, this study investigated whether religious and demographic factors were related to death penalty attitudes and sentencing verdicts. Those who favored the death penalty differed from those who had doubts about the penalty in gender, affiliation, fundamentalism, evangelism, literal Biblical interpretism, beliefs about God’s attitudes toward murders, and perceptions of how their religious groups felt about the death penalty. These relationships generally held after mock jurors were death qualified. Gender, fundamentalism, literal interpretism, beliefs about God’s death penalty position, and perceptions of how one’s religious group felt about the death penalty predicted death penalty sentencing verdicts. Future research could determine whether using peremptory challenges to exclude potential jurors based on religion can help lawyers choose a more favorable jury. The present research was supported by the National Science Foundation award number 0351811, the Society for the Psychological Study of Social Issues, the American Psychology-Law Society, and the University of Nebraska Law-Psychology Program. This research was presented at the 2006 conference of the American Psychology-Law Society. The authors are grateful for the research assistance of Nick Fanning and Beth Herschlag and for the helpful comments from Brian Bornstein, Rich Wiener, Bob Schopp, Dick Dienstbier, and several anonymous reviewers.     

Informing Jurors of Their Nullification Power: A Route to a Just Verdict or Judicial Chaos?

The current studies sought to test whether explicitly informing jurors of their power to nullify the law does invite chaos, defined by jurists as undisciplined and biased juror judgment. A series of four studies examined juror biases predicated on defendant status, remorse, gender, national origin, penalty severity, and extenuating circumstances. None, however, were amplified by nullification instructions, providing little evidence that such instructions invite chaos with respect to the biases examined in these studies. To the contrary, several results suggested that nullification instructions simply encourage jurors to nullify when the strict application of the law would result in an unjust verdict. Limitations of the studies and public policy issues are discussed.