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.     

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.     

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.     

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.     

Predictors of Death Sentencing for Minority,Equal, and Majority Female Juries in Capital Murder Trials

The relatively small body of prior research investigating whether the sex composition of juries impacts sentencing decisions has produced equivocal results. Exploring this topic further, the current study used a large sample of capital cases from North Carolina (n = 675) to examine (a) whether jury sex composition predicted jury capital punishment sentencing decisions; and (b) whether there were different models of sentencing for male-majority, equal male-female, and female-majority juries. When we controlled for a number of legal and extralegal factors, our findings indicated that jury sex composition was independently related to sentencing outcomes. Specifically, equal male-female juries were significantly more likely and female-majority juries were significantly less likely to choose the death penalty versus a sentence of life in prison. In addition, different models (predictors) of sentencing were revealed for each of the jury sex compositions. Implications for future research and policy are discussed.     

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.     

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.”     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

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.     

VARIATION IN TRIAL PENALTIES AMONG SERIOUS VIOLENT OFFENSES*

We examine the differences in the sentencing of those who plead guilty and those convicted by jury trial among defendants convicted of serious violent offenses. Drawing from a focal concerns and court communities perspective on court decision making, we develop several hypotheses about jury trial penalties for serious violent offenders, and how such penalties may vary by offense characteristics, defendant characteristics, and court contexts. Our hierarchical models using Pennsylvania sentencing data from 1997 to 2000 reveal that defendants are substantially penalized if they exercise their right to a jury trial and then lose. Furthermore, this jury trial penalty is not evenly assessed, but depends on the seriousness and type of offense, defendant criminal history, and court contextual characteristics such as caseload, court community size, local violent crime rates, and the size of local black populations.     

故意伤害案件中赔偿影响量刑的机制

赔偿作为一种酌定情节,对量刑有重要影响。通过对近3000份故意伤害案件刑事裁判文书的实证研究发现:赔偿对主刑量刑结果和缓刑适用均有重要影响;随着案件严重程度的增加,赔偿对量刑的影响相对下降,谅解对量刑的影响相对上升;赔偿时间对主刑量刑结果的影响不显著,但可显著提高非羁押性强制措施和缓刑的适用率;谅解时赔偿数额的确定机制兼具理性与非理性的双重因素。受法院功利主义量刑思维的影响,故意伤害案件中赔偿影响量刑机制的运行存在失范风险,如赔偿谅解后“量刑剪刀差”的出现、赔偿谅解中的“贫富差距”问题、谅解时赔偿数额的确定中非理性因素的放大等。为防范上述风险,可从实体法和程序法两个层面,完善故意伤害案件中赔偿影响量刑的机制。     

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.     

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.     

美国死刑量刑程序的历史考察

美国死刑量刑程序经历了一个正当化的历史过程,早期的陪审团废法现象催生了死刑陪审团制度,死刑陪审团制度的建立又引发了死刑案件审判的两分式改革并使死刑量刑程序得以独立,特殊的"凌驾陪审团"规则体现出美国司法界力图保持死刑裁量中职业法官与平民陪审团间的权力制衡。     

Transplanting Jury Trials in South Korean Legal Soils: Comparative Analysis with Jury Trials in the United States

Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.     

The “Distance Traveled”: Investigating the Downstream Consequences of Charge Reductions for Disparities in Incarceration

Abstract

Relatively little work examines the impact that charging decisions exert on sentencing. We investigate this issue by estimating the “distance traveled” in charge bargaining, or the expected change in the likelihood of incarceration associated with reductions in charges across different stages of prosecution. Using data from New York County, we examine how the probability of incarceration shifts as a result of charging decisions and how this potentially contributes to social inequalities in incarceration. Findings indicate that charge reductions are associated with sizeable decreases in the probability of incarceration, particularly at the plea bargaining stage. On average, the “distance traveled” is substantially greater for female than male defendants and for White compared to Latino and Black defendants, even after accounting for a host of relevant punishment factors. Findings are discussed as they relate to contemporary theoretical perspectives on prosecutorial decision-making and social inequality in punishment.     

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.     

UNDERSTANDING THE INFLUENCE OF VICTIM GENDER IN DEATH PENALTY CASES: THE IMPORTANCE OF VICTIM RACE,SEX‐RELATED VICTIMIZATION,AND JURY DECISION MAKING*

Using data from the Baldus, Woodworth, and Pulaski (1990) study of Georgia's death penalty system, we examine the influence of victim gender in death penalty cases. Furthermore, to improve our understanding of the meaning of victim gender, we consider 1) the joint effects of victim gender and victim race, 2) victimization characteristics that might explain victim gender effects, and 3) the impact of victim gender at different decision‐making stages in the death penalty case process. We find that both victim gender and race are associated with death sentencing outcomes and that an examination of the joint effects of victim gender and race reveals considerable differences in the likelihood of receiving a death sentence between the most disparate victim race–gender groups. In particular, it seems that black male victim cases are set apart from all others in terms of leniency afforded to defendants. We also show that the effect of victim gender is explained largely by gender differences in the sexual nature of some homicides. An examination of prosecutorial and jury decision making reveals that although victim gender has little impact on prosecutorial decisions, it has a meaningful impact on jury decisions.     

Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions

Although the Victim’s Rights Movement has led to advances for victims of crime, the use of victim impact evidence in criminal trials remains controversial due to the suspicion that such evidence enhances punitive attitudes and arbitrariness in capital sentencing outcomes. Despite a growing body of literature in this area, it remains unclear if some victims are viewed more favorably than others, particularly from the perspective of judges. The current study examines the construction of victims by judges in capital cases and how this portrayal impacts sentencing outcomes in Delaware, which vests the final capital sentencing authority in judges rather than juries. In examining this gap in the literature, we consider if judges make distinctions between ideal and deviant victims, if these distinctions are associated with victim and offender characteristics, and if the construction of victims impacts offender sentencing. Findings from this study lend support to the idea that judges describe some victims as more “worthy” than others, that victims described in ideal ways are more likely to be white and female, and that “ideal victims” are more likely to result in death sentences.     

Capital Sentencing In Kentucky, 2000–2010

The current study attempts to build upon previous analyses of capital sentencing in Kentucky and other states. Using data compiled from official court records compiled by the Kentucky Department of Public Advocacy, we examined death eligible homicide cases for the years 2000–2010 for the state (N?=?359). Multivariate analysis determined that the death penalty in Kentucky was sought 3.17 times or 217 % more when the victim is female. It also found that cases featuring a black defendant and a white victim were 56 % less likely to result in a plea than cases featuring other defendant/victim racial combinations. Despite legal requirements, Kentucky fails to collect data to assess the factors that influence the seeking and imposition of the death penalty. Paper presented at the Second Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky on November 15, 2013 at the University of Kentucky Law School, Lexington, KY.