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.     

Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions

This research examined the effects of several versions of capital penalty phase instructions on juror comprehension. Study One documented the impact of California’s recently implemented “plain language” instruction. It showed that although the new instruction has clear advantages over the previous version, significant comprehension problems remain. Study Two evaluated several modified instructions designed to enhance comprehension. Participants heard either a standard patterned instruction or one of two alternatives—a psycholinguistically improved instruction, or a “pinpoint” instruction using case-related facts to illustrate key terms—in a simulated death penalty sentencing phase. Persons who heard modified instructions demonstrated higher levels of comprehension on virtually every measure as compared to those in the standard instruction condition.     

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.     

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.     

Playing the race card: Making race salient in defence opening and closing statements

Purpose. Researchers have reported that making a Black defendant's race salient reduces White jurors' tendency to find Black defendants guilty ( Sommers & Ellsworth, 2000 ). We examined whether making race salient by including racially salient statements in the defence attorney's opening and closing statements (i.e., ‘playing the race card’) reduced White jurors' racial bias against a Black defendant. Method. We obtained scores on racial attitudes for 151 White college students who participated in an experiment where defendant race (Black, White) and race salience (not salient, salient) were manipulated in a between‐subjects design. Participants read one of four trial stimuli and completed dependent measures. Results. ‘Playing the race card’ reduced White juror racial bias as White jurors' ratings of guilt for Black defendants were significantly lower when the defence attorney's statements included racially salient statements. White juror ratings of guilt for White defendants and Black defendants were not significantly different when race was not made salient. This effect was separate from jurors' level of prejudice (as measured by racial attitudes) as high prejudice participants were more likely than low prejudice participants to find the Black defendant guilty, independent of the race salience manipulation. Conclusion. Our study indicated that an explicit attempt by a defence attorney to ‘play the race card’ was a beneficial trial strategy a defence attorney could use to reduce White jurors' bias towards Black defendants. However, the beneficial effect of such a strategy may not reduce White jurors' bias towards Black defendants for all White jurors.     

The Powell Hypothesis: Race and non-capital sentences for murder in Kentucky, 1976–1991

The 1987 U.S. Supreme Court decision McCleskey v. Kemp ruled, in part, that the findings of the Baldus study, offered by the petitioner to support a claim of racial bias in death penalty cases, were insufficient to demonstrate unconstitutional discrimination under the Fourteenth Amendment. Justice Lewis Powell offered additional justification for the ruling when he wrote, “If we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. ” This statement has become labeled as the “Powell Hypothesis. ” This paper tests the “Powell Hypothesis” to determine whether race has an impact on sentences levied in noncapital murder cases in Kentucky between 1976 and 1991. The results indicate racial factors influenced sentence length in these cases.     

Life or death decisions

The penalty phase deliberation experiences of capital jurors guided by the “special issues” sentencing instructions were investigated. These instructions ask jurors to consider three specific issues to determine whether a defendant should receive a sentence of life imprisonment or the death penalty: whether the crime was committed deliberately; whether there is a probability that the defendant would pose a continuing threat to society; and whether the conduct of the defendant was unreasonable in light of any provocation on the part of the victim. In-depth interviews with 27 jurors explored the organization of the penalty deliberation, the topics discussed, influential factors in the decision-making process, the impact of sentencing instructions, the importance of the possibility of parole, and the stress associated with capital jury service. Jurors relied heavily on sentencing instructions to guide their deliberations and to determine their responsibilities. Future dangerousness and the possibility of parole were critical considerations in deciding between life and death. Although jurors found the capital trial to be stressful, most believed that the life or death decision should be made by jurors. Findings are discussed in light of constitutional concerns about the administration of the death penalty.     

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.     

A Critical Examination of the “White Victim Effect” and Death Penalty Decision-Making from a Propensity Score Matching Approach: The North Carolina Experience

Purpose

Death penalty research has rather consistently demonstrated a statistically significant relationship between defendant race and victim race in general, and for the Black defendant/White victim race dyad specifically. The bulk of this evidence has been derived from correlational studies and from cases over relatively condensed time frames.

Methods

The current study uses data from North Carolina (n = 1,113) over several decades (1977–2009) to evaluate the link between defendant/victim racial dyad and jury death penalty decision-making.

Results

Results suggest that there is an apparent “White victim effect” that can be observed in death penalty decision-making in traditional logistic regression models. Yet, once cases are matched via propensity score matching on approximately 50 case characteristics/confounders including the type of aggravators and mitigators accepted by the jury in addition to the number of aggravators and mitigators accepted, the relationship is rendered insignificant. Furthermore, these results hold for a defendant of any race killing a White victim and for the “most disadvantaged” situation for Black defendants (e.g., cases with White victims).

Conclusions

The “White victim effect” on capital punishment decision-making is better considered as a “case effect” rather than a “race effect.”     

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.     

Static and Dynamic Indicators of Minority Threat in Sentencing Outcomes: A Multi-Level Analysis

Designation as a “Habitual Offender” is an enhanced form of punishment which unlike, “Three Strikes” or “10-20-Life,” is entirely discretionary. We use Hierarchical Generalized Linear Modeling to assess the direct effects of race and Latino ethnicity on the designation of Habitual Offenders as well as the effect of both static and dynamic indicators of racial and ethnic threat on those outcomes. Our data include 26,740 adults sentenced to prison in Florida between 2002 and 2004 who were statutorily eligible to be sentenced as Habitual. The odds of receiving this designation are significantly increased for black and Latino defendants as compared to whites, though race and ethnicity effects vary substantially by crime type, being strongest for drug offenses and negligible for violent crimes. Static measures of group level threat (% black and % Latino) have no cross-level effect on sentencing by race or Latino ethnicity. However, increasing black population over time increases the odds of being sentenced as Habitual for both black and Latino defendants. Increasing Latino population increases the odds of Habitual Offender sentencing for Latinos, but decreases it for blacks. The prospect of engaging dynamic as opposed to static measures of threat in future criminal justice and other social control research is discussed.     

Assessing Cumulative Disadvantage against Minority Female Defendants in State Courts

Abstract

Prior sentencing research, especially research on cumulative disadvantage, has mainly focused on the treatment of male defendants. Little attention has been paid to female defendants, particularly minority female defendants. Drawing on the selective chivalry, evil women, and focal concerns perspectives and using data from the 1990–2009 State Court Processing Statistics (SCPS), this paper investigates the impact of race/ethnicity for female defendants across individual and successive stages in the sentencing process. The results indicate that ethnicity does not operate via indirect or direct pathways, and therefore no evidence of cumulative disadvantage against Hispanic female defendants was detected. The results, however, do suggest that race operates through direct and indirect pathways to cause more punitive sentencing outcomes for Black female defendants compared to White female defendants, thus providing evidence of cumulative disadvantage against Black female defendants. Theoretical, research, and policy implications are discussed.     

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.     

A comparison of bail amounts for hispanics, whites, and african americans: A single county analysis

Using 1996 data on defendants accused of felony offenses derived from a district court in a Midwestern jurisdiction, the authors employ bivariate and multivariate analyses to examine for significant differences between Hispanics and other racial and ethnic groups in the dependent variable, bail amount set by judge. To predict differences in the bail amount set by judges for Hispanic and other defendants, the multiple regression controls for two independent “legal” variables, prior arrest and seriousness of the instant offense, and for the “extra-legal” variables of age, gender, type of attorney, residency, and race. Our research shows that Hispanics receive higher bail amounts than White or African Americans; leading the authors to cast doubt on the tenets of “legal theory” which has gained attention as a model for explaining why members of racial or ethnic minorities receive harsher treatment at various stages of the criminal and juvenile justice system.     

Race and Jurors' Receptivity to Mitigation in Capital Cases: The Effect of Jurors', Defendants', and Victims' Race in Combination

This paper examines the variation in receptivity to mitigation evidence by capital jurors as it varies by the race of the juror, defendant, and victim individually and in combination. Attitudinal and racial characteristics from 865 respondents in the Capital Jury Project were used in the analysis. Using a generalized form of multiple regression, the respondent's receptivity to mitigation evidence was predicted and changes in receptivity were calculated as the race of the main trial participants (juror, defendant, and victim) were varied. Statistical controls were put in place for gender of respondent; respondent's perception of the dangerousness of the defendant, heinousness of the crime, and view of the defense attorney; respondent's formation of a premature sentencing decision; and whether the trial took place in a southern state jurisdiction. Results indicate that Black jurors in cases where a Black is charged with killing a White victim are chiefly responsible for the observed variance in receptivity to mitigation.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

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.     

Juror Sensitivity to the Cross-Race Effect

Black and White mock jurors' sensitivity to the cross-race effect was investigated by varying the race of the eyewitness in a simulated murder trial of a Black defendant. Participants heard an audiotape of a trial after which they rendered a verdict and rated the credibility of the witnesses. White participants found the prosecution witnesses (including the eyewitness) more credible, and the defense witness less credible, than did Black participants; they were also more likely to find the defendant guilty. The Black eyewitness was perceived as more credible than was the White eyewitness, but eyewitness race had no effect on verdict. These results are consistent with the literature indicating that jurors of different races reach different verdicts, and also that jurors are relatively insensitive to factors that affect eyewitness testimony, such as the cross-race effect.