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http://dx.doi.org/10.1037/14462-017 APA Handbook of Forensic Psychology: Vol. 2. Criminal Investigation, Adjudication, and Sentencing Outcomes, B. L. Cutler and P. A. Zapf (Editors-in-Chief) Copyright © 2015 by the American Psychological Association. All rights reserved.

C H A P T E R 1 7

THE DEATH PENALTY Craig Haney , Joanna Weill, and Mona Lynch

The death penalty occupies a unique position in social science and law. Despite the fact that it directly affects only a relatively small number of people, it is one of the most extensively studied aspects of the criminal justice system. There are several reasons for this high level of scholarly interest, including the fact of what is at stake in death penalty cases could not be more profound—literally life and death. As Supreme Court Justice Potter Stewart expressed it in the landmark Furman v. Georgia (1972) case: “The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, fi nally, in its absolute renunciation of all that is embodied in our concept of humanity” (p. 306).

IMPORTANCE OF THE PROBLEM

Those high stakes and the extraordinary nature of the punishment help to account for the fact that death penalty cases have established many key legal prece- dents, establishing benchmarks for fairness and due process in the rest of the criminal justice system. In addition to their dramatic stakes and the signifi - cance of the legal precedents that they generate, capital cases often involve the highest profi le, most sensationalized case facts, sometimes attracting intense public, political, and media interest and, often, the corresponding attention of legal and social science scholars. Scholarly interest also has focused

on another unique aspect of capital punishment— the special set of psychological conditions that must obtain to enable a group of average citizens to ratio- nally authorize the death of another and the various psycho-legal mechanisms that govern this truly extraordinary decision-making process.

We have divided our review of capital punishment-related psychological research into three very broad areas. The fi rst pertains to the overall operation of the death penalty in the United States—more specifi cally, what our system of capital punishment tells us about the nature of criminal cul- pability and so-called death eligibility, whether and how the death penalty operates as a deterrent to capital crime, and whether capital punishment is imposed in a racially discriminatory manner. The second broad area of empirical research pertains to death penalty attitudes and the role that they play in the administration of capital punishment. Because capital punishment is both controversial and demo- cratically administered, relative levels of public support versus opposition have special legal and political signifi cance and have been extensively stud- ied. Third, and fi nally, we examine the operation of the capital jury—the site of a great deal of psycho- logical research. We focus on what is known about the way this unique legal institution is composed and how it functions, including the effects of the special procedures that are used to select capital juries, the unique conditions that are created in capi- tal trials that enable jurors to traverse an otherwise deep-seated moral prohibition against taking a life,

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and the unusual decision-making process in which, supposedly, the jury’s decision to render its life and death verdict is simultaneously preserved, yet legally guided. (for a review of research on mental health assessments in capital cases, see Volume 1, Chapter 7, this handbook).

RELEVANT PSYCHOLOGICAL THEORY AND PRINCIPLES

Research on capital punishment implicates a wide range of psychological theories that are often enmeshed with important principles of constitu- tional law. The theories include the nature of the legal and moral concept of culpability, as well as whether and how the discretion of key decision mak- ers can be regulated to ensure that judgments—in this case, judgments about whether a person is “culpable enough” to be sentenced to die—are made in a principled and constitutionally appropriate man- ner (see Volume 1, Chapter 4, this handbook, for a review of criminal responsibility). In addition, the death penalty raises important theoretical questions about the kinds of punishment that deter the most serious forms of criminal behavior and, in particular, whether capital punishment has a uniquely deterrent effect. Historically, the system of death sentencing in the United States also has highlighted important the- oretical questions about the persistence of racial prej- udice and its infl uence on legal decision making, specifi cally whether, how, and why the application of the ultimate punishment continues to occur in racially disparate ways. In addition, people’s attitudes and beliefs about the death penalty—who supports a capital punishment at any given time, how strongly, and why—are long-standing topics of study and have been extensively theorized and researched in the literature on public opinion, posing a number of important conceptual questions about how atti- tudes about crime and punishment are formed, are interrelated, and change over time. Finally, the spe- cial behavior of the capital jury—a group of citizens that is composed in an unusual manner, subjected to a special set of legal procedures, and called upon to engage in an extra ordinary decision-making process that is supposed to be guided and regulated by a set of judicial instructions—implicates a number of

psychological theories, including the phenomenon of moral disengagement, the relationship between attitudes and behavior, principles of small group behavior, and whether and how the discretion to select between life and death punishments can be reliably guided (includ- ing under conditions where instructional incomprehen- sion and racial discrimination may be implicated).

The Overall Operation of the Death Penalty In this section we address several psychological aspects of the overall operation of the death penalty, i.e., how it functions in the broadest possible terms, including the process of selecting the persons on whom it is imposed and with what overall societal effect. The fi rst overall aspect involves the way in which a system of capital punishment forces a soci- ety and its legal decision makers to address a criti- cally important preliminary or threshold issue: How should we go about identifying and selecting those persons who are eligible for or placed at risk of receiving the death penalty? Especially in a society such as ours in which the exercise of state power is restrained by a set of long-standing constitutional limits, the power to punish—here, to punish by death—cannot run afoul of the prohibition against imposing punishments that are “cruel and unusual.” Several approaches to this critical issue involve psy- chological principles and may be empirically evalu- ated. A separate aspect of the system of death sentencing involves whether and how it affects the rate of capital crime, which is one of its ostensible justifi cations. Finally, like all systems of democrati- cally administered punishment and social control, capital punishment is subject to the biases and pre- conceptions of those who implement it. In the United States, by far the greatest concern involves the racially discriminatory imposition of the death penalty and, appropriately, this is an issue on which much empirical research has been focused.

Culpability. Capital punishment raises important theoretical as well as ethical and moral questions in law and psychology about the nature of legitimate punishment, the basis on which the state is justi- fi ed in taking the life of one of its citizens, and the circumstances under which a punishment comes

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to be regarded as so extreme that it is seen as cruel and unusual in constitutional terms. Out of rec- ognition that “death is different”—in its extremity and fi nality—there is general recognition that truly extraordinary justifi cation must be provided for imposing a death sentence. For the most part, the legal consensus in the United States is that, if capital pun- ishment can ever be justifi ed, it must be reserved for “the worst of the worst.” Indeed, as one commentator summarized this consensus, “[l]ike the phrase ‘death is different,’ ‘the worst of the worst’ peppers death pen- alty literature” ( Note, 2001 ). The “worst of the worst” principle not only recurs in the death penalty litera- ture but also has been embraced by the United States Supreme Court, which has explicitly acknowledged that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst’” (Justice Souter, in Kansas v. Marsh , 2006 , p. 206).

Although identifying the way in which death, and therefore, the death penalty, is different is straightfor- ward and perhaps obvious, precisely and meaning- fully defi ning the category of the worst of the worst and doing so in a way that can be reliably imple- mented and applied by legal decision makers (includ- ing capital jurors) are much more challenging tasks. In fact, the Court concluded in the landmark Furman v. Georgia (1972) case that the nation’s system of death sentencing had failed to accomplish these very tasks, and that the resulting pattern of arbitrary and capri- cious imposition of the ultimate punishment was therefore unconstitutional.

Several different conceptual and procedural approaches have taken to operationalize the concept of worst of the worst, and each has embodied a some- what different set of psychological assumptions. The fi rst has been to signifi cantly narrow the class of cases or kinds of crimes for which defendants are eligible to be considered for the death penalty. In this sense, modern death penalty statutes are far more selective than their historical predecessors, and bear little relationship to laws that provided for capital punishment upon conviction for scores of even the most minor or petty offenses. In the post- Furman era, that narrowing process supposedly became much more refi ned, so that “worst of the worst” was defi ned in terms of the nature of the crime and the presumably heinous features it entailed.

For example, the Supreme Court prohibited the imposition of the death penalty for the crime of rape (e.g., see Coker v. Georgia , 1977 )—something for which capital punishment had been imposed many times in the past—because a majority of Supreme Court justices concluded that the punishment was categorically disproportionate to the heinousness of the offense. In a related way, the Court held that the death penalty should be reserved only for cases in which the crime itself refl ected “a consciousness materially more ‘depraved’ than that of any person guilty of murder” ( Godfrey v. Georgia , 1980 , p. 433) or, as the Supreme Court justices later summarized, “the culpability of the average murderer is insuffi - cient to justify the most extreme sanction available to the State” ( Atkins v. Virginia , 2002 , p. 319).

To ensure that the death penalty would be reserved for more than just any murder committed by a defendant with a merely average level of culpability, states passed capital punishment statutes that included threshold requirements making only certain kinds of murders “death-eligible” and excluded all others from consideration as capital cases. Under other kinds of statutory schemes, the narrowing function is accomplished on the basis of a judgment made by the capital jury, whose members are called upon to decide, for example, that at least one “aggravating circumstance” has been proven that allows the defendant to be considered for the death penalty. This part of the capital trial is sometimes referred to as an eligibility phase or stage, whose logic the Court explained this way: “It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury’s discretion to ensure that the death penalty is a proportionate pun- ishment and therefore not arbitrary or capricious in its imposition” ( Buchanan v. Angelone , 1998 , p. 275–276). In each instance, the narrowing aspects of the statute and eligibility determination are supposed to impose an “inherent restraint on the arbitrary and capricious infl iction of the death sentence” ( Godfrey v. Georgia , 1980 , p. 428). Other statutory schemes that are ostensibly designed to reduce the improper exercise of discretion and the arbitrary imposition of the death penalty provide for a postsentencing proportionality review in which judges examine individual death verdicts and

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compare them to others to determine whether some internal standard of proportionate punishment has been violated in any given case.

An entirely different approach, which refl ects another set of psychological assumptions, has been to exclude whole categories of persons from the death penalty on the basis of the fact that they pre- sumably cannot, by virtue of their status characteris- tics, be considered the worst of the worst. To date, there exist two such categories: defendants who are intellectually disabled and those who are juveniles (under the age of 18 years at the time they commit- ted the potentially capital crime). Thus, in Atkins v. Virginia (2002) the Supreme Court reversed an earlier position on whether mentally retarded defendants could be eligible for the death penalty, ruling that the cognitive and behavioral limitations of those deemed mentally retarded as well as their diffi culties in controlling their impulses meant that they were by defi nition less culpable than others for the commission of a potentially capital crime. Simi- larly, in Roper v. Simmons (2005) the Court reversed its previous position articulated a decade and a half earlier in Stanford v. Kentucky (1989) and ruled that “the diminished culpability of juveniles” (p. 571) precluded them from being punished by death. Specifi cally, because of their immature judgment, their greater susceptibility to peer infl uence, and the fact that their personality development was in process and incomplete, the Court found that defendants under the age of 18 at the time they committed the crime of murder were categorically ineligible for the death penalty.

A third and fi nal approach to defi ning worst of the worst in a capital punishment context involves providing the capital jurors with an instructional framework that is supposed to guide their discretion and regularize the capital decision-making process, in theory eliminating the infl uence of extralegal factors and ensuring that the death penalty is imposed only when it is legally proper or justifi ed. Thus, the sentencing instructions specify factors, circumstances, or characteristics of the crime and the defendant that jurors are supposed to at least consider or take into account in reaching their life or death sentencing verdicts. The list of factors or circumstances includes ones that supposedly weigh

either in favor of imposing the death penalty (aggravating circumstances) or life in prison (mitigating circumstances), and the jurors are instructed to weigh or balance the factors to choose what they believe is the most appropriate sentence. The restrictions on the amount of juror discretion exercised at this fi nal penalty or selection stage of a capital trial, however, must be balanced against the constitutional requirement that individualized determinations be made that pertain to the specifi c case and specifi c defendant. This precludes automatic death penalty statutes that mandate death sentences in particular kinds of cases (e.g., Woodson v. North Carolina , 1976 ), and it has also led the Supreme Court to allow defendants wide latitude in the mitigating evidence that they present (e.g., Lockett v. Ohio , 1978 ; and see, more generally, Haney, 2008a ). Thus, “in contrast [to the eligibility phase], in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigat- ing evidence to allow an individualized determina- tion” ( Buchanan v. Angelone , 1998 , p. 276).

In addition, a number of Supreme Court justices have, in a sense, “theorized” some of the psychological linkages that capital jurors should consider in mak- ing these individualized determinations, including the adverse effects that an abusive and traumatic background might have on a capital defendant’s life chances and adult behavior. They have suggested further that consideration of these adverse effects might well lead a capital jury to assess the defen- dant’s culpability differently and to decide not to sentence him or her to death. These assertions include Justice Powell’s statement that “there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emo- tional disturbance is particularly relevant” to jurors who are determining whether a capital defendant is culpable enough to be sentenced to death ( Eddings v. Oklahoma , 1982 , p. 115), Justice O’Connor’s state- ment that there is a “long held” societal belief that “defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpa- ble than defendants who have no such excuse” ( California v. Brown , 1987 , p. 545), and Justice Souter’s statement that “[i]t goes without saying”

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that evidence about an abusive background “taken as a whole, might well have infl uenced the jury’s appraisal of [a capital defendant’s] culpability” ( Rompilla v. Beard , 2005 , p. 393).

Deterrence. The alleged deterrent effect of the death penalty has long been debated. Justice Marshall wrote in Furman v. Georgia (1972) that “[t]he most hotly contested issue regarding capital punishment is whether it is better than life impris- onment as a deterrent to crime” (p. 345). Many researchers have sought to empirically determine whether and to what extent the death penalty deters potentially capital crimes, and whether the number of persons who receive the death penalty and are actually executed is offset (and therefore in some way justifi ed) by the number of potential victims whose lives allegedly would be saved by virtue of future perpetrators having been deterred ( Ehrlich, 1975 ; van den Haag, 1969 ).

Deterrence theory holds generally that potential lawbreakers rationally weigh the estimated costs and benefi ts of their actions and, accordingly, choose to engage in criminal behavior or not ( Bowers & Pierce, 1980b ). Theoretically, for an indi- vidual to be deterred from committing a crime, the expected punishment or cost of being caught must outweigh the profi t or pleasure/benefi t to be gained from committing the crime ( Bailey & Peterson, 1999 ). This means that when penalty increases, the number of offenses should decrease, and when penalty decreases, the number of offenses should increase ( Archer, Gartner, & Beittel, 1983 ).

Hjalmarsson (2009) proposed that three condi- tions must be met for the death penalty to have a deterrent effect: First, there must be a large enough probability that execution will actually occur; second, execution must be considered more severe than life in prison; and third, the person who is to be deterred must be aware of the probability of execution. Hjalmarsson’s fi nal criterion is in many ways at the crux of the deterrence debate. While deterrence assumes that people calculate the costs and benefi ts of committing a crime, many researchers claim that criminal acts, like murder, are, by their nature and their context, not rational. Most crimes of this nature are unplanned or impulsive ( Archer et al.,

1983 ), and they are often driven by emotion or occur when persons are under the infl uence of drugs or alcohol ( Lempert, 1981 ). In addition, Cochran, Chamlin, and Seth (1994) claim that it is simply impossible for laypeople to conduct an accurate cost–benefi t analysis of the possible consequences of their crimes. In Furman v. Georgia (1972) , which temporarily abolished the death penalty, Justice Brennan acknowledged the problematic nature of deterrence. He noted that the deterrence argu- ment “can apply only to those who think rationally about the commission of capital crimes” ( p. 302). Because it assumes rationality, many researchers have argued that deterrence theory is, at its core, illogical.

Racially discriminatory imposition. Capital punishment in the United States has been plagued by racial discrimination since its inception (see Volume 1, Chapter 15, this handbook, for a review of race and the justice system). Before the Civil War, punishments in many states differed based on the race of the defendant. For example, in pre-Civil War West Virginia, 70 crimes were pun- ishable by death for Black defendants while only one was punishable by death for White defendants ( Kennedy, 1997 ). Some of these punishments also differed based on race of the victim of the crime. An 1816 Georgia law required a death sentence if a Black defendant was found guilty of rape or attempted rape of a White victim ( Bowers & Pierce, 1980a ). The same punishment was not stipulated when there was a Black victim or when the perpetrator was White.

Although many of these explicitly racist death penalty laws were ended in the aftermath of the Civil War, Blacks still suffered starkly discriminatory treatment in the criminal justice system in general and with the death penalty in particular ( Bowers & Pierce, 1980a ). This included the practice of lynching, in which predominantly White citizens engaged in vigilante justice by executing alleged Black criminals, often as law enforcement and legal authorities stood by ( Banner, 2002 ; Skolnick & Fyfe, 1993 ).

Although overt racial discrimination has decreased and offi cial or de jure racism has been

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eliminated in more modern times, subtle forms of racial discrimination and race-based decision mak- ing persist ( Dovidio & Gaertner, 1986 ), including in the legal and criminal justice systems. This line of research suggests that contemporary discriminatory behavior is more likely when it can be rationalized as race-neutral and in situations involving unclear norms about an appropriate course of action ( Dovi- dio, Pearson, Gaertner, & Hodson, 2008 ). Indeed, there is a large body of research that suggests that implicit forms of racial bias are relatively wide- spread, while explicit forms are on the wane. Implicit stereotype biases have been demonstrated to affect perceptions and behavior in ways that are less overt than old-fashioned prejudice, rendering them diffi cult to recognize and contain (see Lynch & Haney, 2011 , for a review).

When the death penalty was temporarily ended in the United States in 1972, the Furman Court focused on the arbitrary and “freakish” way in which the death penalty was imposed. Although some justices had concerns about its racially dis- criminatory imposition, the issue was not determining factor in the Court’s decision In the years follow- ing Furman , a number of states developed new death penalty statutes that provided for guided discretion in the jury’s penalty phase decision making. Those statutes that structured the jury’s decision-making process by giving them factors or issues to consider in deciding whether a capital defendant should live or die were approved in Gregg v. Georgia (1976) . In theory, at least, those statutes should have resulted in a reduction in both arbitrary and discriminatory death sentencing, but there is extensive scientifi c evidence demonstrating that both persist (e.g., Baldus, Woodworth, & Pulaski, 1990 ). The discriminatory imposition of the death penalty was challenged directly in McCleskey v. Kemp (1987) , where the Court imposed a very high standard of proof on claims of discriminatory imposition and found that even stark aggregate or systemic patterns of apparent race-based decision making were not enough to render Georgia’s death penalty unconstitutional.

Research nonetheless continues to reveal racial disparities in the system of capital punishment, such that murder cases involving White victims are

especially likely to be pursued as capital cases and end in death, especially when the defendant is Black. If there were no arbitrariness or discrimination, one would expect similar treatment in similar cases, without regard to defendant or victim race ( Bowers, 1983 ). That these racial characteristics continue to infl uence charging and sentencing decisions in potentially capital cases implicates both implicit (if not explicit) individual biases as well as institutio nalized biases. These patterns have been explained, in part at least, as a function of differen- tial empathy, in that those making judgments are better able to identify with the loss suffered by victims who are similar to them, whereas they are likely to experience an empathic divide that separates them from capital defendants, particularly minority defendants, whose life experiences are starkly different ( Haney, 2004 ).

Attitudes About Capital Punishment Capital punishment generates a great deal of public debate and controversy. As social psychologists Vidmar & Ellsworth (1974) once noted, “[t]o some extent public opinion has always played a part in modern controversy about the death penalty” (p. 1246). In the United States, average citizens vote for politicians to reject or retain capital punishment and, in perhaps the most democratic of all criminal justice institutions, they sit on criminal juries that, in capital cases, decide not only whether a capital defendant is guilty of a crime for which the death penalty is possible but also determine whether, in fact, he should receive it. Until Ring v. Arizona (2002) was decided, a small number of states—Arizona and Colorado, for example—used judge sentencing in capital cases. Ring required that juries make the key factual determinations that are the basis for any death sentence, which means that literally every death sentence in the United States now must be handed down by a capital jury. Because the Ameri- can system of death sentencing is democratically administered in all of these ways, what citizens think about capital punishment (i.e., who supports and opposes it, how strongly, and why) matters a great deal. Attitudes about capital punishment therefore hold special legal and political as well as psychological signifi cance.

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Indeed, death penalty attitudes have played a major role in political decisions about capital punishment, helping to shape positions taken by many political candidates and elected offi cials, having an impact on key legislation that has been enacted into law, and indirectly infl uencing other political policymaking. For example, writing at a time when death penalty support was at an all-time high, Zeisel and Gallup (1989) observed, “[i]n any legislative debate on the death penalty, one is bound to hear that the great majority of the voters want it” (p. 287). Public opinion about the death penalty has directly affected capital jurisprudence as well. In various Eighth Amendment cases over whether and when the death penalty constitutes cruel and unusual punishment, the United States Supreme Court has made explicit reference to public opinion and has used it as one index of whether the death penalty offends what has been termed evolving stan- dards of decency.

The evolution of the legal doctrine connecting death penalty attitudes to the constitutionality of capital punishment began with Trop v. Dulles (1958) , when the Supreme Court ruled that the prohibition against cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (p. 101). As one commentator suggested, although Trop was not a capital case, the logic of the opinion “required the Court to assess punishments with society’s changing attitudes,” something that, in turn, “called into question, among other things, psy- chological effects of capital punishment, public opin- ion, the morality of the death penalty, and its possible deterrence against commission of other hei- nous crimes” ( Bigel, 1991 , p. 738).

The Court focused explicitly on attitudes toward capital punishment a decade later when, in Witherspoon v. Illinois (1968) , it described citizens who supported the death penalty as “a distinct and dwindling minority,” and cited public opinion poll data for the proposition that “in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of [death penalty sup- porters] cannot speak for the community” (p. 520). Public opinion was discussed at some length in fi ve of the nine separate opinions written in Furman v.

Georgia (1972) . This included Justice Brennan’s assertion that capital punishment “must not be unacceptable to contemporary society” (p. 277), Chief Justice Burger’s view that the courts should not intervene to end capital punishment because he felt it was the legislature that “responds to public opinion and immediately refl ects the society’s stan- dards of decency” whenever a particular punishment becomes “basically offensive to the people” (p. 383), and Justice Blackmun’s willingness to endorse the proposition that the operative defi nition of whether the death penalty was cruel and unusual “may acquire meaning as public opinion becomes enlightened by a humane justice” (p. 409) as well as his corresponding concern over “the suddenness of the Court’s perception of progress in the human attitude” (p. 410). Although Justice Powell wrote that he found public opinion polls to be “of little probative relevance” (p. 441), he used them to but- tress his argument about the existence of widely divided public views about the death penalty, sug- gesting that “however one may assess the amor- phous ebb and fl ow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of public opinion is essentially a legislative, not a judicial, function” (p. 443). Powell also asserted that “the fi rst indicator of the public’s attitude” in a demo- cratic society “must always be found in the legislative judgments of the people’s elected representatives” (pp. 436–437) and that an “even more direct source of information refl ecting the public’s attitude toward capital punishment” (pp. 439–440) existed in the form of the behavior of the capital juries and their willingness to return death verdicts.

Whether at the core or periphery of the judicial process in constitutional cases, or something that is better assessed by legislatures or, notwithstanding the skepticism of various justices, more accurately and reliably measured by scientifi c opinion polls, the amorphous ebb and fl ow of people’s attitudes toward capital punishment continues to be a signifi cant con- sideration in our nation’s system of death sentenc- ing. Some of the many theoretical and conceptual issues that are implicated in the study of death penalty-related attitudes are discussed below.

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Death penalty attitude structure and change. First, public opinion about the death penalty raises ques- tions about the nature of attitude formation and change, particularly in the emotionally charged and politically volatile arena of crime and punish- ment policy. As noted above, the death penalty in particular has been an especially polarizing topic in American society, dividing many citizens along religious lines as well as serving as the focal point in political debates over crime control. The fact that death penalty attitudes are so legally and politi- cally signifi cant has also meant that they have been carefully studied over time, revealing a historical pattern of change and fl uctuation (rather than a con- sistent evolution). This pattern, in turn, has raised questions both about the underlying structure and stability of death penalty attitudes as well as the methodology used to measure them.

Public support for the death penalty tends to be presented in the media, in public discussions, and political debates as unidimensional (i.e., people are typically depicted as either favoring or supporting the death penalty or as opposing it). The fact that the public’s beliefs about the death penalty have most often been measured with a single question also raises the distinct possibility that these beliefs are represented as more unequivocal and indiscrimi- nate than, in fact, they are (cf. Ellsworth & Ross, 1983 ; Fox, Radelet, & Bonsteel, 1991 ; Murray, 2003 ; O’Neil, Patry, & Penrod, 2004 ). As one public opin- ion poll expert put it: “Categorizing people as favor- ing or opposing the death penalty does not take into account the vast heterogeneity of views underlying this simple dichotomy” ( Harris, 1986 , p. 433).

In addition, surveys rarely collect data that address the strength of respondents’ support for the death penalty, or whether that support is based on misunderstanding or misinformation about how the system of capital punishment actually operates. In fact, it was not until 1985 that the Gallup polling organization, which fi rst conducted a national survey that asked a death penalty question as far back as 1936, included a measure of general attitude strength (very strongly or not very strongly), as well as a few additional questions about the reasons for respondents’ death penalty support or opposition, belief in deterrence, and whether their support or

opposition would vary in response to information about deterrence and the alternative sentence of life without parole ( Zeisel & Gallup, 1989 ). Similarly, few studies of death penalty attitudes examine the circumstances under which generalized public support translates into a preference to actually impose the death penalty in particular cases or categories of cases.

The bases and sources of death penalty opinion. The formation and underlying bases for people’s death penalty attitudes have been explained by reference to individual-level, social-contextual, historical, and media variables. Thus, some scholars and research- ers have suggested that the views that people hold about capital punishment are an extension of other personal characteristics, such as particular personality traits, and belief systems to which they ascribe, such as their broader political orientation, personal prejudices (especially racial prejudice), and certain religious beliefs (e.g., Barkan & Cohn, 1994 ; Dovidio, Smith, Donnella, & Gaertner, 1997 ; Harvey, 1986 ; Miller & Hayward, 2008 ), as well as specifi c demographic characteristics such as gender and race ( Cochran & Chamlin, 2006; Cochran & Sanders, 2009 ).

Other scholars have suggested that there are immediate social contextual variables at work in the creation and maintenance of death penalty attitudes, such as the perceived threat of criminal victimiza- tion (including actual crime rates, publicity about crime, and neighborhood characteristics that citizens believe are associated with crime). For example, Thomas and Foster (1975) theorized that the public’s perception of increasing crime rates should translate directly into support for punitive criminal justice sanctions, including the death pen- alty: “Under such circumstances, it is quite logical to suppose that the more the public comes to fear victimization, the more it will demand what it believes will be an effective deterrent” (p. 645). Some researchers have hypothesized that certain social contextual variables, such as living in areas with high homicide rates, might be indirectly associated with death penalty support, especially when combined with a conservative political climate (likely to channel fear of crime into punitive

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responses), a relatively large minority population, and high levels of income inequality ( Baumer, Messner, & Rosenfeld, 2003 ).

In addition, historical forces, traditions, and legacies may shape and condition the death penalty views of individuals (e.g., Banner, 2002 ), as well as help create lasting cultural or subcultural pockets of support in certain regions of the country (e.g., Borg, 1997 ; McFeely, 2000 ; Poveda, 2006 ). Thus, some scholars have suggested that death penalty support and opposition in some areas of the coun- try might be explained by exposure to and social- ization into traditions of vigilantism, ones in which the death penalty is perceived not only as a legiti- mate action for the state to take, but also one that individual aggrieved citizens could properly partic- ipate in and support, as in the case of Southern lynchings (e.g., Brundage, 1993 ; Zimring, 2003 ). Obviously, this is an historical legacy that would be expected to create diametrically opposed reactions as a function of race, helping explain support among Whites from the regions in which these out- rageous practices were once normalized, and oppo- sition among Blacks whose ancestors were their tragic victims.

In modern society, the mass media wield much infl uence over whether and how people react to crime, what they understand to be the nature of the “crime problem” in their community, and what particular conclusions they draw about how that problem can best be solved. The process by which the media highlight certain issues around which there is heightened public awareness, debate, and concern has been described as its agenda-setting function and has spawned a substantial amount of academic writing and empirical research (e.g., McCombs & Shaw, 1972 ; Protess & McCombs, 1991 ; for a review of research on media and the law, see Volume 1, Chapter 17, this handbook).

The tendency of the media to sensationalize crime news and crime drama and to demonize its perpetrators has been identifi ed as one source of the public’s emotional reaction to crime that helped fuel the punitive trends in crime policy that have been pursued over the last several decades, including the increased use of the death penalty (e.g., Beckett, 1997 ). As one researcher described the phenomenon

during the height of the “tough on crime” era, terrorists and domestic criminals alike were depicted as “isolated from their historical and social context, denied legitimacy of conditions or cause, and por- trayed as unpredictable and irrational, if not insane” so that they came to “symbolize a menace that ratio- nal and humane means cannot reach or control,” ( Gerbner, 1992 , p. 96). Television drama, at least, “rarely invited the viewer to look for problems within himself. Problems came from the evil of other people, and were solved . . . by confi ning or killing them” ( Barnouw, 1975 , p. 214).

Crime news coverage and crime-related drama may have especially powerful effects on the public. As researchers have noted, “[b]ecause most people do not have direct experience with the serious vio- lent crimes that they most fear, the role of the media in generating such fear becomes particularly impor- tant” ( Cook & Skogan, 1991 , pp. 205–206). Because there are so few other sources of information to which the public can turn in attempting to make informed death penalty–related decisions, it is reasonable to think that collective immersion in mass media–based images and storylines leads many persons to develop distorted but infl uential views of violent crime and criminal defendants. These views, in turn, are likely to affect how subsequently obtained information is processed, including infor- mation that is presented as supporting evidence for crime-and-punishment–related political positions and even evidence that is introduced as the basis for capital jury verdicts.

Indeed, some have speculated that media mes- sages about crime are so ubiquitous, consistent, and problematic that many citizens have internalized a form of media criminology that systematically mise- ducates them about the nature of criminality ( Haney, 2008b ). Precisely because “the public’s role in actual capital case decision making is truly unparalleled,” the “fl awed criminological curricu- lum and overall media miseducation” may play a role in the administration of the death penalty ( Haney, 2008b , p. 691).

The Marshall hypothesis. Justice Thurgood Marshall’s concurring opinion in Furman v. Georgia (1972) focused very directly on potentially fl awed or

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misinformed public opinion about the death pen- alty, and did so in a way that spawned a great deal of empirical research. Justice Marshall argued that public opinion about the death penalty was critically important, asserting that even a punish- ment that served a valid legislative purpose and was otherwise not excessive could still violate the Eighth Amendment if “popular sentiment abhors it” (p. 332). Marshall concluded in Furman that the death penalty did in fact violate the Eighth Amendment on precisely these grounds because it had become “morally unacceptable to the people of the United States at this time in their history” (p. 360). He argued, however, that this conclusion about “moral unacceptability” was based on the “opinion of an informed citizenry” (rather than on popular opinion in general). Specifi cally, he sug- gested that “whether or not a punishment is cruel and unusual depends, not on whether its mere mention ‘shocks the conscience and sense of justice of the people,’ but on whether people who were fully informed [emphasis added] as to the purposes of the penalty and its liabilities would fi nd the penalty shocking, unjust, and unacceptable” (p. 361).

Marshall argued that if the general public were accurately informed about the workings of the death penalty and were made aware of the evidence con- cerning its discriminatory imposition and ineffec- tiveness as a deterrent to murder, then “the great mass of citizens” would conclude it was “immoral” (p. 363). In Marshall’s view, because no public opinion poll to date had been able to fully inform its respondents about the actual operation and effects of the death penalty, the results of such polls could not really address the issues in the way that he had posed them. He also suggested that, among the rationales that people had for supporting capital punishment, retribution was nonutilitarian in nature and, therefore, relatively impervious to new or more accurate information. The notion—seemingly a dis- tinctly minority view at the time of Furman —that the death penalty should be imposed simply because certain people deserved to be executed, no matter the cost or consequence, was based on a belief that seemed diffi cult to change, at least with data alone.

Many social scientists have attempted to evaluate the several separate components of what has come to be called the Marshall hypothesis. Thus, they have examined whether persons who were better informed about capital punishment were more likely to reject it, whether providing people with more accurate information about the overall system of death sentencing in the United States made them less willing to support it, and whether the retribu- tive rationale for supporting the death penalty was largely impervious to information-based change.

The Nature and Functioning of the Capital Jury Capital juries, whose members hear evidence in a criminal trial in which the death penalty is a possi- ble outcome, are an unusual and much studied insti- tution in the American legal system. Because they are empowered to render a sentencing verdict that can result in taking the life of a fellow citizen—a unique and daunting power—they are selected in a manner unlike all other juries, and they proceed in response to procedures and instructions that differ from those used in other kinds of cases (for a review of research on jury research in general, see Chapter 8, this volume).

Moral disengagement. Viewed from one per- spective, the death penalty represents an apparent inconsistency or contradiction. As Justice Brennan observed, “[f]rom the beginning of our Nation, the punishment of death has stirred acute public con- troversy . . . . The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental incon- sistency, follow the practice of deliberately putting some of its members to death” ( Furman v. Georgia , 1972 , p. 296). This tension between the value mod- ern society places on life on the one hand, and the practice of authorizing and implementing the execu- tion of its citizens on the other, must be resolved if ordinary people are to be regularly called upon to violate the powerful societal prohibition against killing by taking steps that are designed to lead to the death of another. Some scholars have suggested that this tension requires “mechanisms of moral disengagement” ( Bandura, 1990 , 2002 ; Bandura,

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Barbaranelli, Caprara, & Pastorelli, 1996 ; Castano, 2011 ) to be used to systematically distance or dis- engage citizens, voters, and especially capital jurors from the nature and moral implications of the death sentencing process ( Haney, 1997b ). In a related way, Cobb (1989) has observed that the “bureaucratiza- tion” of capital punishment can seemingly exempt individual decision makers from ever having to con- front the personal question of whether and how to extend mercy to capital defendants by “afford[ing] everyone involved in capital sentencing the illu- sion that no one has decided that any given indi- vidual should die; in doing so, it poses the question whether we want a ‘headless and soulless’ institution sending people to their deaths” (p. 404).

The mechanisms by which this moral distancing is accomplished might include invoking or asserting an apparent moral justifi cation for the actions in question (e.g., the belief that the death penalty, and only the death penalty, is called for), encouraging the dehumanization of the target of the action in ques- tion and emphasizing his defects and defi ciencies (in this case, the defendant on whom the death sentence would be imposed), desensitizing jurors to the nega- tive consequences of their actions or encouraging them to disregard or distort those consequences (by refusing to fully acknowledge that they will result in the death of another), and diffusing responsibility (e.g., seeing oneself as merely following the law rather than making a personal, moral choice).

Jury selection and death qualifi cation. Although criminal juries in the United States are composed of average citizens, they are selected through a process of voir dire in which attorneys and judges question potential jurors. There are a limited number of peremptory challenges that attorneys may use to exclude persons at their discretion. In addition, those persons who hold disqualifying atti- tudes may be legally eliminated from participation “for cause.” For the most part, those disqualifying attitudes are limited to views or points of view commonly understood as bias, perspectives that would prejudice or compromise potential jurors’ ability to fairly and impartially judge the facts or the law. The latter kind of bias—bias toward the law—includes an expressed unwillingness to

ascribe to and apply basic legal tenets, such as the presumption of innocence. In practice, the effec- tiveness of the process may be limited by the fact that many of the persons who harbor the greatest bias and deepest prejudice believe their views to be normative or commonsensical. Other prospec- tive jurors may be aware that they hold problematic counter-normative views, but they are reluctant to express them in open court (e.g., Suggs & Sales, 1981 ). Finally, people are often unaware of whether and how their beliefs actually shape and affect their judgments, decisions, and behavior (e.g., Nisbett & Wilson, 1977 ).

In death penalty cases, the voir dire process is modifi ed in an unusual way that appears to have important psychological implications for the way in which the resulting juries are composed and function. The special screening process that is used in capital cases is called death qualifi cation; it is controversial and has been carefully studied (e.g., Haney, 1984a , 1984d ). The perceived need for death qualifi cation is based in part on the fact that jurors in capital cases may be called upon to per- form a sentencing function (as well as to decide guilt or innocence), and because moral and religious opposition to the death penalty in the United States has existed on a substantial and organized basis since colonial times. Thus, courts have chosen to qualify all prospective capital jurors by excluding by law those whose attitudes towards the death penalty deem them unfi t.

A series of United States Supreme Court cases— Witherspoon v. Illinois (1968) , Wainright v. Witt (1985) , Lockhart v. McCree (1986) , and Morgan v. Illinois (1992) —established the consti- tutional standards that govern this practice. Consti- tutional law permits the exclusion of persons who are very strongly opposed to the death penalty (i.e., who could never vote to impose it or whose opposition would prevent or substantially impair their ability to function as jurors) as well as also those who are very strongly in favor (i.e., who would always vote to impose it when given the option or whose support would prevent or substan- tially impair their ability to function as jurors). However, in actual practice there are many more people excluded on the basis of their opposition

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than support (e.g., Kadane, 1984 ). The group of death-qualifi ed jurors that remains typically con- tains few if any death penalty opponents.

The psychological implications of this practice extend beyond the obvious fact that such a group will be composed of persons who are much more inclined to render death than life sentences. This is because death penalty attitudes are correlated with demographic characteristics, measures of racial bias, and a number of other attitudes about criminal jus- tice and social issues. As a consequence, systemati- cally eliminating people on the basis of their beliefs about capital punishment necessarily alters the demographic mix of potential jurors and changes the distribution of the criminal justice attritudes that are represented in the remaining jury pool. This narrowing of the demographic and attitudes range of persons available to be selected may bias the kinds of juries that are seated in capital cases and render them less fair, at least in comparison to the kinds of juries that sit in every other kind of criminal case (i.e., juries from which these distinct groups of people have not been excluded). In addition, the nature of the process by which death qualifi cation is implemented may have its own biasing effects on potential jurors. The unique form of questioning that involves sometimes lengthy discussions with prospective jurors about punishment—indeed, their capacity to impose the death penalty in the case—well in advance of them having heard any evidence or reached any verdict may shape and infl uence the way they think about the case and their expectations about the likely outcome ( Haney, 1984b , 1984c ).

The United States Supreme Court did consider a direct constitutional challenge to death qualifi cation that was premised on the psychological data that addressed these conceptual issues. In Lockhart v. McCree (1986) , the Court decisively rejected the claim that death qualifi cation compromised the fair trial rights of capital defendants. Essentially apply- ing a standard that seemed impossible for any researcher to ever realistically meet—namely, that controlled studies use “actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual capital defendant” ( Lockhart v. McCree , 1986 , p. 172)—Justice

Rehnquist’s majority opinion questioned the validity of all of the data that had been adduced on the effects of death qualifi cation. In addition, Rehnquist’s opinion took the further step of ruling that, even if scientifi cally valid, such research would not be considered to be dispositive of the constitu- tional issue at hand. This was because juries biased in the ways that death-qualifi ed juries appeared to be could have arisen by chance. In other words, “it is hard for us to understand the logic of the argu- ment that a given jury is unconstitutionally partial when it results from a State-ordained process, yet impartial when exactly the same jury results from mere chance” ( Lockhart v. McCree , 1986 , p. 178). Thus the practice of death qualifi cation continues to operate in virtually every capital case tried in the United States despite all of the attendant biasing effects, which we discuss in the research review por- tion of this chapter.

Instructional comprehension. We noted earlier that one of the ways in which constitutional con- cerns over the arbitrary and capricious imposition of the death penalty are addressed is by providing capital juries with a set of specially tailored judicial instructions that are intended to guide the discre- tion of the capital juries in rendering their penalty phase verdicts. These instructions have taken one of several forms, but in each instance they ostensibly provide jurors with a set of factors, issues, or ques- tions that the jurors are instructed to think about, consider, and take into account when they deliberate and decide what penalty to impose.

A number of theoretical or conceptual questions have been raised that address whether and how these instructions are actually comprehended and applied by jurors, and whether they really do reduce the vast degree of discretion exercised by capital juries that was identifi ed as unconstitutional in Furman v. Geor- gia (1972) . Scholars have reasoned that instructions must be comprehended before they can function to affect behavior ( Cho, 1994 ; Diamond, 1993 ; Haney & Lynch, 1994 ). A body of research conducted by psychologists and linguists on jury institutions more generally (e.g., Buchanan, Pryor, Taylor, & Strawn, 1978 ; Charrow & Charrow, 1979 ; Elwork, Sales, & Alfi ni, 1982 ; Lieberman & Sales, 1997 )

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has provided some clues as to why capital penalty instructions have proven so diffi cult for laypersons to understand and apply. As detailed later in this chapter, there is also a robust body of research assessing the nature and consequences of these lin- guistic diffi culties for capital jury decision making. Some of the key problems include the vocabulary used in standard instructions, which is often legalis- tic and unfamiliar to laypersons. The sentence structure of the instructions is also problematic, frequently riddled with double negatives, passive phrasing, and convoluted organization ( Charrow & Charrow, 1979 ). Additionally, the mode and timing of delivery adds to comprehension problems, in that they are typically read out loud by a judge and deliv- ered after all of the evidence in the case has been pre- sented. As a consequence, jurors are not aware of the law that frames their decision until after they have heard disjointed and sometimes lengthy presenta- tions of evidence ( V. Smith, 1991 ).

Jury dynamics. In addition to the unique challenges posed by capital jury selection and the distinct diffi culties that attend to penalty phase instructions, a number of important social sciences questions revolve around the unique dynamics of the capital jury as a decision-making body (e.g., Bowers, 1995 ; Haney, 1984b ; Haney & Weiner, 2004 ). The interaction of the factors and forces that drive capital jury composition and its operational parameters—the joint effects of death qualifi cation, intergroup (especially racial) relations and dynamics, instructional comprehension, and decision-making processes and rules—has led to a signifi cant amount of empirical research in which these cross cutting theories and concepts are explored (e.g., Connell, 2009 ; Haney, 2005 ; Lynch, 2009 ). Psychological research on the behavior of the capital jury has begun to evolve from examinations of intrapersonal cognitive processes (i.e., how individuals perceive, make sense of, and judge case factors as a function of their preexisting dispositions and characteristics, cognitive capacities, and affective responses) to the group-level processes that infl uence penalty phase decision making. This includes the persuasive tech- niques that infl uence jury deliberations, whether and how the racial and gendered dynamics of the

jury unit affect the verdicts that are rendered and how they are arrived at, and the role of cognition and emotion in the decision-making process. As we will highlight in the research sections, insights about these phenomena are derived from interview-based studies of former capital juries as well as experimen- tal studies that include small group deliberations and decision making.

RESEARCH REVIEW

As we have tried to show, the death penalty system implicates a number of theoretical propositions and conceptual assumptions, many of which derive as much or more from legal principles and standards as they do from psychological theory. Death sentencing is subject to a complex set of special processes and procedures that raise a number of empirically test- able questions about culpability, deterrence, and dis- crimination, about the relationship between public opinion and legal practice and policy, and about the unique role of the jury in deciding whether someone lives or dies. An extensive amount of research has been conducted on these interrelated theoretical, conceptual, and practical issues and problems.

The Overall Operation of the Death Penalty

Culpability. Empirical research has provided decidedly mixed support for the ability of various approaches to operationalize the worst of the worst, narrowing criteria to do what they are supposed to do in order to maintain a constitutional death pen- alty process. The different methods of narrowing the categories of cases and defendants that are eligible to receive the death penalty have achieved decidedly different results. Categorical exclusions by offense types (such as exclusion for the crime of rape) accomplish what they set out to do—reduce the number and range of cases and defendants who can be considered for capital punishment—when they are clearly defi ned and not subject to interpretation.

In the case of the Supreme Court’s categorical exclusions from death eligibility based on the reduced culpability of classes of defendants, the criteria for exemption may or may not be as

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straightforward. In the case of the exemption of juveniles, the Roper Court articulated a clear delin- eating line for determination—whether the offense in question happened before the defendant’s eigh- teenth birthday. The Court made three psychologi- cally based empirical assertions on which it premised its decision about the reduced culpability of juveniles. The Court asserted that juveniles’ “lack of maturity” and “underdeveloped sense of responsi- bility” were more likely to “result in impetuous and ill-considered actions and decisions” ( Roper v. Simmons , 2005 , p. 569); that they were more “vul- nerable and susceptible to negative infl uences and outside pressures” (p. 569), including pressures from peers, and simultaneously less able “to escape negative infl uences in their whole environment” (p. 570); and that their characters were “not as well formed” as those of adults and that, therefore, there was a greater likelihood their “character defi ciencies will be reformed” (p. 570). Although the Court did not explicitly cite it, there is an extensive body of psychological research to support these propositions.

Psychologists Thomas Grisso, Elizabeth Scott, Laurence Steinberg, and their colleagues have both conducted an extensive amount of this primary research themselves and also provided integrative summaries of the larger literature on juvenile culpability (e.g., Scott & Steinberg, 2003 ; Stein- berg & Scott, 2003 ; see Volume 1, Chapter 12, this handbook). For example, Scott and Grisso (1997) have identifi ed a number of the ways in which ado- lescent decision-making processes vary from those of adults, Scott, Reppucci, and Woolard (1995) have underscored the tendency of juveniles to conform and comply with peers, and Scott (2000) has explained the well-known tendency for delinquent and criminal behavior to decrease as juveniles move into young adulthood “as a predictable part of the maturation process” (p. 291).

In the case of the intellectually disabled, while the exclusion was explicitly premised on psycholog- ical grounds, the Atkins Court largely eluded the question of how exactly to determine who belongs in the category of those who are exempt. Thus, the Court decided that, “[b]ecause of their impair- ments,” mentally retarded defendants had

“diminished capacities to understand and process information, to communicate, to abstract from mis- takes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others” ( Atkins v. Virginia , 2002 , p. 318). These defi ciencies, the Court said, did not exempt them from punishment, but did diminish their personal culpability to such a degree that they should not be punished by death (see Volume 1, Chapter 4, this handbook, for a review of research on criminal responsibility, and Volume 1, Chapter 5, this handbook for a review of research on crimi- nal competence).

The Court cited psychological and legal literature that addressed the ways in which intellectual disability compromised defendants’ ability to cogni- tively process information and thereby undermined their capacity for self-regulation, decision making, and moral reasoning (e.g., Ellis & Luckasson, 1990 ; McGee & Menolascino, 1992 ; Whitman, 1990 ). The Court also relied on research that addressed the ways in which intellectual disability undermined a person’s cognitive capacity to comprehend basic legal concepts, led to heightened suggestibility, and increased vulnerability to external pressure (e.g., Everington & Fulero, 1999 ; Levy-Shiff, Kedem, & Sevillia, 1990 ), as well as the special challenges mentally retarded defendants faced in communicating with others and assisting in their own defense in a criminal proceeding (e.g., Appel- baum & Appelbaum, 1994 ). All of these things, the Court said, collectively “make these defendants less morally culpable” ( Atkins v. Virginia , 2002 , p. 320).

While the Court was clear on its reasoning for the exemption of the mentally disabled, it provided neither substantive criteria to determine who fi ts into the category of those exempted, nor any direc- tive as to how the exemption should be determined as a procedural matter. Consequently, states have individually determined their own standards and procedures, resulting in a signifi cant number of sub- stantially cognitively disabled persons who have nonetheless been sentenced to death and face execution ( Blume, Johnson, & Seeds, 2009 ).

Approaches to operationalizing the worst of the worst cases—what the Court has called the “consti- tutionally necessary narrowing function” ( Pulley v.

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Harris , 1984 , p. 50)—by identifying a list of factors or features that render them eligible for the ultimate punishment have proven even less successful. For one, there is really no theoretical underpinning to structure the nature of the narrowing process. In addition, and perhaps because of this, the narrowing principles are diffi cult to formulate and implement in ways that achieve their ostensible goal. Indeed, the year before Furman was decided, Justice Harlan famously opined in McGautha v. California (1971) that

[t]hose who have come to grips with the hard task of actually attempting to draft means of channeling capital sentenc- ing discretion have confi rmed the les- son taught by [history] . . . . To identify before the fact those characteristics of criminal homicides and their perpetra- tors which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing author- ity, appear to be tasks which are beyond present human ability. (p. 214)

In the face of this seemingly impossible task, and not ready to declare the death penalty unconstitu- tional, Harlan was willing to continue “committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases” ( McG- autha v. California , 1971 , p. 207), apparently no matter the patterns of arbitrariness and capricious- ness that the exercise of such discretion was producing.

The Court reversed itself just a year later, of course, declaring the nation’s system of death sen- tencing unconstitutional in Furman , but the justices seemed to ignore Harlan’s warning about the diffi - culty of the task of channeling capital sentencing discretion when it decided Gregg v. Georgia (1976) and many subsequent death penalty cases, ones in which the Court repeatedly authorized states to address the arbitrary and capricious imposition of the death penalty by passing statutes that, in Harlan’s words, attempted to “identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty”

(McGautha v. California, 1971, p. 214) Research seems to have confi rmed Harlan’s earlier skepticism, if not his preferred solution.

Empirical studies of the actual operation of the statutes that attempt to narrow application of the death penalty to only those cases in which it is at least potentially deserved have found them ill-suited to the task. Research shows that very little narrow- ing actually takes place, so that only a minute pro- portion of fi rst-degree murders in some jurisdictions are not death-eligible (e.g. Shatz & Rivkind, 1997 ); extralegal variables such as race, gender, and geogra- phy continue to signifi cantly infl uence the process of death sentencing, so that the penalty is still ineq- uitably imposed (e.g., Hindson, Potter, & Radelet, 2006 ); and, in the fi nal analysis, the schemes that are in operation in numerous states fail to effectively narrow the class of death-eligible murders (and, therefore, death-eligible defendants) from all others, so that “there is no meaningful way to distinguish who is eligible for the penalty and the very few who receive it” ( Marceau, Kamin, & Foglia, 2013 , p. 1074).

The California death sentencing statute is a useful, illustrative example. For a narrowing stat- ute to operate properly in this context, it is sup- posed to reduce the larger group of persons found guilty of murder to a much smaller group com- posed of only those likely to be judged the worst of the worst who are supposedly deserving of the death penalty. This means that, once the narrowing has occurred, there should be a fairly high percent- age of persons in the remaining group—those who are now eligible to receive the death penalty—who actually do deserve the death penalty (because, by defi nition, they have been selected by the statute as likely candidates). In Furman , for example, the Supreme Court was troubled by the fact that only 15%–20% of defendants who were eligible for the death penalty actually received it, because this sug- gested that the group at risk of being executed included large numbers of people who should not have been considered among the worst of the worst at all. The Court thought that the failure to narrow the eligible group had helped unleash the unbri- dled discretion of the jury that rendered the death sentencing process unconstitutional.

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The California statute attempted to accomplish the necessary post– Furman narrowing by requiring that any one of a list of special circumstances must be found true before a capitally charged defendant could be eligible for a death sentence. There is, how- ever, such a large number of these special circum- stances written into the statute—including all forms of felony murder—that more than 30 “distinct cate- gories of fi rst-degree murderers” are actually eligible for the death penalty ( Shatz & Rivkind, 1997 , p. 1318). Beyond the sheer number of categories, the breadth of the cases that they include (especially the fact that any kind of felony murder qualifi es and that another special circumstance—lying in wait—is interpreted so broadly that almost every premedi- tated murder is arguably covered) means that very few—according to Shatz and Rivkind’s (1997) empirical analysis, no more than about 1 in 8—fi rst-degree murders in California are noncapital. Thus, a large number of defendants have been placed at risk of receiving the death penalty who presumably should not be. Shatz and Rivkind (1997) found that between 1988 and 1994 fewer than 10% of fi rst-degree murder convictions in the state resulted in death sentences (well below a 15%–20% nationwide fi gure that had troubled the Furman Court more than two decades earlier, before any special narrowing statutes had been put in place). As Shatz and Rivkind concluded their empirical analysis of the effect of this statute: “Succinctly stated, the special circumstances per- form no substantial narrowing function” (p. 1327).

The same conclusions have been reached in empirical studies conducted on the actual effects of the narrowing statutes implemented in a number of other states. Studies of judicial proportionality review of death verdicts to determine whether individual death verdicts rendered in a particular case are disproportionate relative to other cases indi- cate that they too have proven ineffective (e.g., Bal- dus, Woodworth, Grosso, & Christ, 2002 ). This is in part because there are few courts that actually conduct such reviews in a meaningful way. In fact, there is no widely agreed upon logic or metric that courts employ in reaching their judgments about proportionality, and reviewing courts almost never fi nd the existence of disproportionality, suggesting

an overall failure to provide rigorous, meaningful review (e.g., Baldus, 1996 ; Bienen, 1996 ; Durham, 2004 ; Kaufman-Osborn, 2008 ).

The prosecutor’s decision as to whether to seek a death sentence is another critical decision point in the narrowing process. In most jurisdictions, prose- cutors actually seek death in fewer cases than are potentially eligible, but research indicates that the process by which that selection happens falls short of the narrowing ideals. Thus, evidence suggests that those charging decisions signifi cantly over-value White victims (e.g., Baldus et al., 1990 ; Paternoster et al., 2003 ; Songer & Unoh, 2006 ), and that death notice fi lings appear to be used to compel guilty pleas ( Ehrhard, 2008 ; Thaxton, 2013 ).

Finally, capital jurors play a central role in the narrowing process because they ultimately must determine whether they believe that the convicted defendant is culpable enough to be sentenced to death. In the modern era of the death penalty—since Gregg v. Georgia (1976) to the present—if there is a conviction in a potentially capital case and a determi- nation made that some aspect of the case renders it death- eligible, the case enters a separate penalty, selection, or sentencing phase. In this phase, capital jurors are typically presented with a wide range of evidence presented by both the prosecution and defense. Pros- ecutors present aggravating evidence (such as egre- gious aspects of the crime, prior criminal acts committed by the defendant) that are intended to secure a death verdict, while defense attorneys pres- ent mitigating evidence (such as sympathetic aspects the defendant’s background or social history, or posi- tive contributions he has or is likely to make in the future) that is intended to secure a life sentence. Under the statutes in operation in most states, judges instruct jurors that they are to consider and take into account both aggravating and mitigating factors, engage in some sort of weighing or balancing pro- cess, and reach a sentencing verdict with this evi- dence in mind. By structuring the decision-making process in this way at this fi nal stage of the capital trial process, the capital jury’s discretion is supposed to be properly guided and regularized.

From a psychological perspective, one of the most interesting components of the penalty phase process is the centrality of the defendant’s

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background or social history to the decision-making task. That is, juries are explicitly encouraged to con- sider the role that the defendant’s social history and circumstances have played in shaping or infl uencing his life trajectory and adult behavior. Moreover, they are instructed to take this information into account in assessing his overall culpability and render a sentencing verdict. This kind of inquiry is rarely even permitted in noncapital criminal cases, much less made the centerpieces of the trial. Research confi rms the theoretically soundness of both the social historical inquiry itself (i.e., past events do play an important role in shaping and infl uencing present and future behavior) and also the relevance of this kind of analysis to the capital jury’s task at hand (i.e., jurors can and do use this information to assess culpability). More specifi cally, much capital mitigation is based on an analysis of the particular criminogenic background factors and forces that helped to shape the capital defendant’s life. In addi- tion, research shows that providing decision makers (in this case, capital jurors) with information about these external factors and forces can shift the attri- butional frame away from purely individual or inter- nal causes, thereby allowing them to contextualize the defendant’s behavior and render more informed (and often more lenient) judgments about his fate.

In fact, extensive research has documented the powerful role of criminogenic risk factors in con- tributing to delinquent, criminal, and violent behavior. Masten and Garmezy (1985) summarized the early research on these issues: “Children who pursue delinquent careers may have been exposed to very severe stresses and harmful life events, genetic disadvantage, inappropriate parental models, selective reinforcement by parents of the child’s mal- adaptive behavior, and chronic low self-esteem” (p. 25). The consequences of exposure to multiple risk factors, aggregated over a long period of time, can negatively shape and affect adult behavior. Broad “contexts of maltreatment” have profound and long-lasting effects over a person’s life course (e.g., Belsky, 1993 ; Briere, 1992 ; Dutton & Hart, 1992 ). The fi eld of developmental criminology has relied on many of these social historical and contextual insights to reach conclusions about the origins of criminal behavior (e.g., Loeber, 1996 ;

Rowe & Farrington, 1997 ). As Sampson and Laub (1993) noted, “the connection between offi cial childhood misbehavior and [negative] adult out- comes may be accounted for in part by the structural disadvantages and diminished life chances accorded institutionalized and stigmatized youth” (p. 137). The direct application of these psychological insights to understand and explain capital crime has been summarized in a number of publications (e.g., Haney, 1995 , 2008a ).

Although the psychological connection or link between early traumas and risks and later criminality is empirically well supported, the role that such evidence plays in capital sentencing depends on whether and how jurors use it in assessing a capital defendant’s culpability. As we noted earlier, mem- bers of the U.S. Supreme Court have suggested over the years—in cases such as Eddings v. Oklahoma (1982) , California v. Brown (1987) , and Rompilla v. Beard (2005) —that evidence of a capital defendant’s abusive and traumatic background and its adverse effects on his life chances and adult behavior might well lead a capital jury to assess his culpability dif- ferently and decide not to sentence him or her to death. Much of the research that implicitly supports the justices’ assertions about how such evidence is understood is derived from attribution theory. Attribution theory, which dates back to the 1960s, is the notion that people regularly make causal attributions about the behavior they witness others engage in (or when they hear evidence about behav- ior that has already been engaged in; e.g., Heider, 1958 ; Jones et al., 1987 ; Kelley, 1967 , 1973 ; Kelley & Michela, 1980 ; Ross & Nisbett, 1991 ).

It is well established in the application of attribu- tion theory to legal settings that jurors engage in a process of analyzing the causes of a defendant’s behavior, his intentions in the course of that behav- ior, and the outcome of the behavior itself in the course of attributing blame, gauging blameworthi- ness, and assessing culpability. More specifi cally, depending on whether jurors attribute the causes of the behavior in question to the internal dispositions or willful choices of the actor, or to external circum- stances and conditions over which the actor has less control, they judge the behavior and the actor very differently. The nature of the causal attribution

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affects judgments about the moral quality of the act and the moral culpability of the actor, which then affects perceptions about the nature and severity of the punishment that jurors conclude he deserves (e.g., Albonetti, 1991 ; Anderson, 1990 ; Bell, 1989 ; Cullen, Clark, Cullen, & Mathers, 1985 ; Hawkins, 1981 ; Shaver, 1985 ; Shultz, Schleifer, & Altman, 1981 ).

Thus, the process of assessing culpability by taking into account the social historical factors and forces that have played a criminogenic role in the lives of capital defendants is grounded in psychological theory and data. There is solid empirical support for the justices’ proposition—one that has now become a bedrock principle of capital jurisprudence—that an appreciation of these kinds of mitigating explana- tions can lead jurors to put capital defendants’ lives in context, understand them better, and treat them more leniently. In actual practice, however, the operation of this process and the capital jury’s per- formance in this regard has been extremely uneven and often highly problematic. Here, too, a process that in theory should result in a more rational and principled narrowing of the category of persons on whom the death penalty is actually imposed can and too often does falter at the point of implementation. Obviously, if attorneys fail to discharge their respon- sibility of competently and conscientiously develop- ing these social historical narratives and effectively presenting them to jurors, then the jurors in turn will lack the information that they need to engage in the most relevant and informed attributional analy- sis of culpability. In a later section of this chapter we discuss the reasons why this may be so, including the diffi culties jurors have in comprehending the instructions that are intended to guide their sentenc- ing discretion and the failure of attorneys to effec- tively frame and present social historical explanations of their client’s lives that correspond- ingly bear on culpability.

Deterrence. In the early years of death penalty deterrence research, there was a general consensus among researchers that the death penalty did not deter future crimes ( Sellin, 1967 ; van den Haag, 1969 ). In 1975, however, economist Isaac Ehrlich reached the opposite conclusion when he applied

econometric modeling (assuming rationality and the ability of persons to make a cost–benefi t analysis) to some of the same data that past researchers had analyzed. In fact, Ehrlich (1975) suggested that each execution deterred seven or eight future murders. Given the timing of Ehrlich’s study and his claims about deterrence, which reinvigorated debates about deterrence, U.S. Supreme Court Justice Potter Stewart was able to declare in Gregg v. Georgia (1976) —the case that permitted states to reinstitute capital punishment—that there was “no convincing empirical evidence either supporting or refuting” (p. 185) the deterrent effect of capital punishment.

Although the Court did not refute the validity of Ehrlich’s conclusions, the research community did. The critical response was swift and vehement. Many researchers identifi ed a number of method- ological problems with Ehrlich’s analysis (e.g., Bey- leveld, 1982 ; Fox & Radelet, 1989 ; Knorr, 1979 ). Perhaps the most signifi cant critique was published by the National Academy of Science ( Blumstein, Cohen, & Nagin, 1978 ). The 1978 National Acad- emy of Science report expressed skepticism about numerous aspects of Ehrlich’s research, including doubts about whether the econometric model he used was appropriate in this context. The report pointed out that the model neglected to incorporate important crime-related variables and demon- strated sensitivity to small technical violations, and it stated that Ehrlich’s fi ndings were not replicable. The debate over Ehrlich’s work also indirectly spurred a number of new studies that demonstrated the lack of a deterrent effect for the death penalty ( Archer et al., 1983 ; Bailey, 1978 , 1980 , 1983a , 1983b ; Forst, 1983 ).

More recently, another round of deterrence studies was conducted by economists using econo- metric modeling techniques similar to Ehrlich’s, and the research again claimed to demonstrate a signifi cant deterrent effect ( Cloninger & Marche- sini, 2001 ; Dezhbakhsh, Rubin, & Shepherd, 2003 ; Mocan & Gittings, 2003 ; Shepherd, 2004 , 2005 ; Zimmerman, 2004 ). They, too, were met with a new set of studies more defi nitively demonstrating the lack of deterrent effect ( Berk, 2005 ; Cochran & Chamlin, 2000 ; Donohue & Wolfers, 2005 ; Fagan, Zimring, & Geller, 2006 ; Hjalmarsson, 2009 ; Katz,

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Levitt, & Shustorovich, 2003 ; Stolzenberg & D’Alessio, 2004 ).

Some of the discrepancies in the results can be attributed to variations in the methods and forms of measurement used (e.g., Knorr, 1979 ). For example, many of the researchers who have demonstrated a deterrent effect have used aggregated national data ( Ehrlich, 1975 ; Mocan & Gittings, 2003 ), whereas other researchers have claimed that these data incor- rectly assume that executions in jurisdictions with the death penalty affect crime rates in states without a death penalty ( Bailey & Peterson, 1989 ; Knorr, 1979 ). When more focused jurisdictions are utilized in these studies, however, sample sizes can become very small ( Donohue & Wolfers, 2005 ; Land, Teske, & Zheng, 2009 ; Lempert, 1983 ). In addition, different researchers choose to control for different variables, often neglecting variables that are known correlates of crime, such as length of prison sen- tence and gun accessibility ( Blumstein et al., 1978 ), while including invalid predictors, such as percent- age of people who voted Republican in recent elec- tions ( Donohue & Wolfers, 2005 ).

An alternative approach to testing the deterrence hypothesis is to compare homicide rates in states that have the death penalty with neighboring or contiguous states that do not, or to look at single states over time and compare homicide rates in periods when the death penalty was authorized by state law versus rates when it was not ( Bailey & Peterson, 1999 ). These kinds of studies have found no evidence of a deterrent effect for capital punishment ( Archer et al., 1983 ; Bailey, 1983a ; Decker & Kohfeld, 1990 ).

Researchers also have tried to isolate and under- stand the specifi c mechanisms that comprise the deterrence model in tests of the theory. For instance, researchers have asked whether relative certainty of execution predicts a deterrent effect. States that have existing death penalty statutes vary in terms of whether and how frequently it is actually carried out. Thus, in states that operate what has been termed a de facto system of capital punishment, exe- cutions are regularly carried out as the law pre- scribes, in contrast to states that operate a de jure system of capital punishment, where executions are rarely carried out even though the law allows it

( Archer et al., 1983 ). Again the fi ndings are inconsistent. Some studies have found that execu- tions appear to deter homicide ( Cloninger & Marchesini, 2001 ; Ehrlich, 1975 ; Shepherd, 2004 ; Zimmerman, 2004 ), while others continue to fi nd no signifi cant evidence for deterrence theory ( Bailey, 1978 , 1980 , 1983a ; Decker & Kohfeld, 1986 , 1990 ; Donohue & Wolfers, 2005 ; Lempert, 1983 ).

Similarly, researchers have examined whether the time-to-execution matters for deterrence. In the context of deterrence, celerity refers to the swiftness with which punishment is expected to be applied. Some research suggests that reducing the amount of time between arrest and punishment will lead to lower homicide rates ( Bailey & Peterson, 1999 ). Again, fi ndings are inconsistent, with studies simul- taneously fi nding that homicides are decreased both by a shorter time on death row ( Shepherd, 2004 ) and by a longer time there ( Bailey, 1980 ). A survey of a group of criminology experts indicated that 73.2% disagreed or strongly disagreed with the statement that reducing time spent on death row would reduce homicides ( Radelet & Akers, 1996 ).

Deterrence theory also asserts that for a punish- ment to deter, it must be known to the population that is to be deterred. This suggests that well publi- cized executions should have a stronger deterrent effect because of the increased number of persons who will be aware of them ( Bailey, 1990 ; Hjalmarsson, 2009 ; Stack, 1987 ). Several studies have examined this possibility, with some fi nding that highly publicized executions had no deterrent effect ( McFarland, 1983 ) and others reporting that a relationship between execution publicity and subsequent offending did exist ( Cochran & Chamlin, 2000 ; Cochran et al., 1994 ). Direct comparisons between well and poorly publicized executions yielded similarly inconsistent results, with some support found for a deterrent effect when the executions were more highly publicized ( Phillips, 1980 ; Stack, 1987 , 1994 ) and others fi nding no such effect ( Bailey, 1980 , 1990 , 1998 ; Stolzenberg & D’Alessio, 2004 ). One study ( Bailey, 1998 ) even suggests that execution publicity may increase the number of homicides.

Finally, some researchers have concluded that, far from deterring future homicides, executions may

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actually increase them through what has been termed a brutalization effect. Bowers and Pierce (1980b) suggested that state-sanctioned executions represent an offi cial public statement that devalues life and demonstrates to potential perpetrators that it is appropriate to kill someone who has engaged in wrongdoing. While deterrence theory assumes that potential murderers will identify with the person being executed, and therefore be deterred, brutaliza- tion theory suggests that they are more likely to identify with the executioner. Although brutaliza- tion, like deterrence, has had inconsistent support, a number of studies have found some evidence of a possible brutalizing effect ( Archer et al., 1983 ; Bailey, 1998 ; Cheatwood, 1993 ; Cochran & Chamlin, 2000 ; Cochran et al., 1994 ; Forst, 1983 ; Neumayer, 2003 ).

A number of researchers have proposed that the inconsistencies found in the empirical data on the deterrent effect of capital punishment stem from dif- ferences in the locations, persons, and types of crime being studied. For example, some have suggested that a deterrent effect may exist for capital punish- ment in Texas, but that these data skew the results for the rest of the country, where no such deterrent effect occurs ( Berk, 2005 ; Cloninger & Marchesini, 2001 ). Cochran and his colleagues have suggested that there is a deterrent effect for some types of mur- ders but not others. Specifi cally, his research indi- cated that when the death penalty was fi rst used after a lapsed time, a brutalization effect seemed to occur in the form of a sudden and permanent increase in the number of murders of strangers ( Cochran & Chamlin, 2000 ; Cochran et al., 1994 ). However, there appeared to be a corresponding deterrent effect as well, resulting in a reduction in the number of felony-murders of nonstrangers ( Cochran & Chamlin, 2000 ). On the other hand, Shepherd (2004) found no evidence of deterrence or brutalization for stranger murders, although she did fi nd evidence for deterrence in crimes of passion, which are typically thought to be the type of mur- ders that are least likely to be deterred. In many of the studies that parsed out different locations or types of murders, the combined effect tends to be no deterrent effect ( Cochran & Chamlin, 2000 ; Forst, 1983 ; Land et al., 2009 ).

Another possible explanation for the inconsistent fi ndings was suggested in an analysis conducted by Shepherd (2005) . She found that when initial execu- tions are conducted in a jurisdiction, the fi rst nine have a brutalizing effect; however, after passing that threshold there will begin to be a deterrent effect. Far from encouraging more executions, Shepherd warns of the devastating numbers of homicides that may occur after an initial execution; in Oregon, she found that one execution might have led to as many as 175 murders.

In sum, although the deterrence hypothesis has been tested in multiple ways and across many differ- ent time periods and places, there is no defi nitive proof that executions have any deterrent effect. Consequently, in its 2012 follow-up report on deterrence and the death penalty, the National Research Council concluded that “research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death pen- alty on homicide” ( Nagin & Pepper, 2012 , p. 102).

Racially discriminatory imposition. The possibility that racial discrimination infl uences the decision-making processes that produce death ver- dicts remains central to the debate over capital pun- ishment (e.g., Kotch & Mosteller, 2010 ). Research that has examined outcomes of capital cases in the post- Furman era, having controlled for extraneous variables and taken extralegal and other factors into consideration, continue to fi nd race-based dispari- ties (see Chapter 15, this volume). The distinctive patterns involve the race of the victim as well as that of the defendant. In particular, capital cases in which the victims are White are more likely to result in death sentences than those in which vic- tims are non-White, irrespective of the race of the defendant ( Baldus et al., 1990 ; Paternoster et al., 2003 ). These fi ndings are consistent with Sundby’s (2003) suggestion that capital jurors place murder victims in a hierarchy of intrinsic worth or value, such that the deaths of certain kinds of victims deserve to be vindicated with more serious

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punishment (i.e., the death penalty), and others deserve less (see also, Kennedy, 1988 ; Paternoster, 1984 ). Baldus and his colleagues found that a race-of-defendant effect—e.g., Black defendants are treated more punitively and given the death penalty more often than White defendants—typically only occurred when there was a White victim ( Baldus et al., 1990 ). Others have also found that cases in which there are Black defendants and White victims are more likely than any other racial combination to result in death verdicts ( Paternoster & Brame, 2008 ). Some researchers have suggested that these kinds of interracial cases cross certain racial barriers for predominately White jurors ( Bowers & Pierce, 1980a) and play on their perceptions of Black men as more dangerous than others ( Bowers, Sandys, & Brewer, 2004 ).

In addition to the racially disparate patterns of death sentencing, racially discriminatory decision making may occur at earlier stages of a capital case, including the many pretrial and trial decision points at which discretion—and therefore discrimination or bias—may be exercised ( Baldus, Woodworth, Zuckerman, & Weiner, 1998 ). For example, police offi cers must decide whom to arrest, prosecutors must decide how to charge a defendant and whether to seek the death penalty; judges and jurors must determine whether the defendant is guilty and, under many capital sentencing statutes, decide a threshold question about whether he is eligible to be considered for a death sentence ( Thomson, 1997 ). In addition, there are discretionary decisions that are made after the trial has been concluded and a death verdict rendered, including appellate and habeas review by courts that must evaluate the fair- ness of the legal proceedings, and sentencing authorities and executive offi cers who must decide whether to carry out an execution or grant clemency ( Thomson, 1997 ).

A number of studies have identifi ed the impor- tance of prosecutorial discretion in contributing to race-based disparities in death sentencing ( Paternos- ter et al., 2003 ; Thomson, 1997 ). Prosecutors must decide who is most worthwhile to prosecute—and to prosecute capitally—with the limited resources they have available ( Radelet & Pierce, 1985 ). These decisions are typically not publicly explained and

are technically not legally reviewable. This means that they may be infl uenced by a range of possible factors, including prosecutors’ own reactions to the racial dynamics of the case. They may also be affected by their interpretation of public outcry over what the community regards as an egregious crime, an especially despised alleged perpetrator, or a particularly sympathetic victim. These community reactions (as well as prosecutors’ interpretations of them) may be infl uenced by racial sentiments (e.g., Paternoster, 1984 ).

In one study, Baldus et al. found that prosecuto- rial decision making was signifi cantly associated with victims’ race and that death was more likely to be sought in cases with White victims ( Baldus et al., 1990 ). Others have found that prosecutors in cases with White victims were more likely to charge defendants with capital homicide ( Lee, 2007 ), as well as to notify the defense that they would seek the death penalty, to proceed to trial as a death penalty case, and to advance the case to a penalty phase ( Paternoster, 1984 ; Paternoster et al., 2003 ).

One archival study found evidence of prosecuto- rial discrimination based on race of the defendant ( Baldus et al., 1998 ); however, mirroring the fi ndings from research done on discrimination in the death sentencing process overall, prosecutorial racial bias was based on the interaction of the defendant’s and victim’s races. That is, in cases in which defendants were Black and victims White, prosecutors were more likely to charge defendants with capital mur- der ( Paternoster & Brame, 2008 ), upgrade police classifi cation of cases ( Radelet & Akers, 1996 ), fi le death notices (indicating that they would seek the death penalty at trial), and continue to pursue the death penalty through subsequent stages of the case ( Paternoster et al., 2003 ).

These overall patterns suggest that although jurors appear to value White victims more overall, race of victim matters even more in a Black defen- dant case than one in which the defendant is White ( Paternoster, 1984 ). These discrepancies were most pronounced in cases where there was a single aggra- vated felony, suggesting that there may be a lower threshold to seek the death penalty when there is a Black defendant and a White victim ( Paternoster, 1984 ). Cases with Black defendants and

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Black victims seem to attract the least attention from prosecutors, with fewer of these cases being charged capitally ( Paternoster, 1984 ) and fewer death notices being retained as the cases proceed ( Pater- noster et al., 2003 ).

Prosecutors and defense lawyers also have infl u- ence on later decision points by choosing which individuals will sit on the jury. Research has found that capital jury pools are likely to be less racially diverse than the communities from which they are drawn. Blacks are already less likely to be on the voter and automobile registration lists from which prospective jurors are typically summoned ( Baldus et al., 1998 ). In addition, they are more likely to be removed by death qualifi cation ( Haney, 2004 ; Haney, Hurtado, & Vega, 1994 ). Finallly, additional racial skewing may occur when trial lawyers choose the jurors they believe will benefi t their sides of the case.

Race-based decision making can affect another crucial aspect of a capital trial. During voir dire , or jury selection, trial lawyers are allowed a limited number of discretionary peremptory challenges to eliminate potential jurors and they can do so for almost any reason. One exception is the use of peremptory challenges to strike potential jurors on the basis of their race, a practice that was deemed unconstitutional in Batson v. Kentucky (1986) . Some research has shown that Batson has not entirely elim- inated this race-based practice ( Baldus, Woodworth, Zuckerman, Weiner, & Broffi tt, 2001 ), in part because lawyers who are questioned about their use of peremptory challenges can claim that their strikes were made for other reasons. In examining how race affects jury selection, Baldus et al. (2001) found that prosecuting attorneys strike disproportionate num- bers of Black potential jurors, while defense lawyers strike disproportionate numbers of non-Black jurors.

The strikes also specifi cally varied as a function of the races of the defendant and victim, suggesting that lawyers on both sides considered how the jurors’ race might interact with the racial dynamics of the case. These patterns had a much greater impact in reducing the number of potential Black jurors available to serve on a criminal jury (includ- ing a death penalty jury). That is, Baldus et al. found that the reduced number of possible Black jurors in

the initial jury pool ( Baldus et al., 1998 ), combined with the prosecutors’ tendency to strike Black potential jurors (particularly young Black men), typically resulted in a jury that did not represent the community and was not made up of the defen- dant’s peers ( Baldus et al., 2001 ). For example, in a study of one Pennsylvania jurisdiction, Baldus et al. (2001) found that young Black men, who made up 65% of the capital defendants, had no “closest peer” on their jury in 79% of cases.

The presence of Black peers on the jury matters greatly, as Black jurors have been found to perceive cases differently than White jurors ( Bowers, Steiner, & Sandys, 2001 ). Black jurors feel more empathy, particularly for Black defendants ( Garvey, 2000 ), are more likely to identify with the defendant, their situation, and their family ( Bowers et al., 2001 ), and are less likely to give a death sentence ( Lynch & Haney, 2009 ). Although jurors were more likely to generally agree when they were dominated by White men, more confl ict and questioning tended to arise when Black jurors were present ( Bowers et al., 2001 ).

A fi nal component of race-based death sentenc- ing involves the potential effect of what has been termed biographical racism ( Haney, 2004 , 2005 ). The continued signifi cance of race in the United States means that Black defendants are more likely to have experienced a greater number of accumu- lated criminogenic risk factors over longer periods of time than other groups. These risk factors may include poverty, child abuse, differential treatment in schools, special education, and confi nement in the juvenile justice system (e.g., Haney, 1995 , 2008a ). Black capital defendants are more likely to have been exposed to a greater number of these risk factors and are therefore more likely to have had their life course affected in these adverse ways ( Haney, 2005 ). These patterns of differential expo- sure to criminogenic risk factors should serve as a form of built in or structural mitigation that is con- sidered at the sentencing phase of a capital trial, resulting in a greater number of life sentences rather than death sentences ( Haney, 2004 ). However, the racial differentials that continue to occur in the overall rates of death sentencing suggest that these mitigating factors are not having this effect, perhaps because they are fully understood or appreciated, or

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perhaps because attorneys are failing to properly develop effective mitigating narratives in which bio- graphical racism is highlighted and using them to overcome the empathic divide that otherwise sepa- rates Black defendants from the typically White jurors who judge them ( Haney, 2004 ).

Attitudes About Capital Punishment For all of the reasons that we previously described, public opinion is especially important in the adminis- tration of the death penalty and, not surprisingly, has been extensively studied. Although people’s attitudes about capital punishment tend to be reported in the media as largely uncomplicated, unidimensional, and stable, they are in fact quite complex, multifaceted, and subject to change. They are also related to a num- ber of demographic characteristics, to other values and beliefs, and to external conditions and infl uences, including the infl uence of more accurate information designed to correct some widely held misconceptions about capital punishment.

Death penalty attitude structure and change. As two researchers have noted, “[p]ublic opinion on the death penalty in America over the last 50 years has vacillated” ( Radelet & Borg, 2000 , p. 44). Actually, this vacillation in death penalty attitudes may have lasted for considerably longer, although it is diffi cult to be certain. The Gallup organization did not conduct nationwide polls on capital punishment between the mid-1930s and the mid-1950s, so there were few if any reliable national estimates. In the mid-1950s, when regular nationwide polling began again, the percent of the public in favor of the death penalty started a modest but consistent decline. The lowest level of support occurred in 1966, when only 42% of the public supported capital punishment for persons convicted of murder. In fact, this was the only year in which Gallup estimated that the per- centage expressing opposition to the death penalty (47%) exceeded those in favor.

This trend soon reversed itself. Reasonably steady increases in death penalty support occurred throughout the 1970s and 1980s. In 1989, for exam- ple, the nationwide Gallup Poll reported that nearly 4 out of 5 citizens—what was characterized as the “highest in Gallup annals”—favored capital punish- ment for persons convicted of murder ( Gallup Poll,

1989 ). Gallup’s estimates of death penalty support plateaued at around that time and then, in the mid-1990s, began another modest but consistent decline. According to Gallup, death penalty support reached a 39-year low in 2011, with 61% of respon- dents to a nationwide survey in favor, and has stabi- lized at around that number to the present time ( Newport, 2011 ).

What appears to be the most rapid and signifi - cant period of change in recent history—the thirty percentage point increase in death penalty support that occurred between 1966 and 1994—coincided with general political campaigns to get tough on criminals by increasing the harshness of the penal- ties they received. As two commentators put it at the start of this trend of increasing death penalty support: “Support for capital punishment seems to be strongly correlated with ‘law and order’ cam- paigns by local, state, and national politicians. It is one stark means a candidate has of displaying that he will ‘do something about crime’ if elected” ( Gelles & Straus, 1975 , p. 599).

From the early 1970s until well into the 1990s, very little visible, organized opposition or public debate about the death penalty occurred on a national level in the United States. Moreover, the death penalty continued to serve as an especially potent political symbol. During those decades, as Gross (1998) accurately observed, a “new status quo” had been reached in which the death penalty was regarded as less controversial than at any time in the past and had become simply “an accepted part of our criminal justice system” (p. 1453). Indeed, capital punishment was an issue about which there was little public or political controversy or confl ict in part because, as Gross (1998) put it in the late 1990s, “the sides are so severely mismatched” (p. 1453).

In fact, some of the momentum for the new sta- tus quo in which the death penalty came to be so widely and unproblematically accepted in the United States may have come from news reporting suggesting that this was the case. That is, to the extent that “[p]eople learn about public opinion from media coverage, and particularly the coverage of public opinion polls” ( Gunther, 1998 , p. 487), the American public learned a great deal about their

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own attitudes toward the death penalty during the 1980s and 1990s. These were times when headlines announcing the high levels of support for the death penalty were commonplace in newspapers across the country. Niven (2002) demonstrated that the media’s typically unrealistic and simplistic coverage of public opinion about the death penalty suggesting that it was unequivocally supported by large majori- ties had an impact on individual attitudes and “bolster[ed] a sense of inevitability” about capital punishment. It likely “helped to construct a social reality that support for capital punishment is intrac- table” ( Unnever, Cullen, & Roberts, 2005 , p. 187).

As we noted earlier, however, failing to analyze the strength of respondents’ support of the death penalty conveyed an all or nothing quality to public sentiments that may have masked signifi cant, underlying ambivalence. As Harris (1986) put it, “[c]ategorizing people as favoring or opposing the death penalty does not take into account the vast heterogeneity of views underlying this simple dichotomy” (p. 433). Neglecting to specify the circumstances under which public support would translate into a recommendation that the death penalty actually should be imposed conveyed an impression of broad, generalized support that may not have extended to all or even most cases in which capital punishment was a possibility. Indeed, in spite of the apparent one-sidedness of public opin- ion, and perhaps, in an odd way, because of it, it was easy to miss the softness and complexity that char- acterized at least some people’s support of capital punishment. Those complexities were drowned out by all the apparent public enthusiasm and political promotion over the last several decades.

Thus, a number of public opinion surveys showed that, even at the highest point of nation- wide support for capital punishment, there were large numbers of people who would not impose it for many kinds of crimes that were technically death-eligible. More specifi cally, many death penalty supporters nonetheless endorsed a variety of com- mon mitigating factors that they indicated would lead them to impose life rather than death sentences in an actual case, and substantial numbers of those in favor of the death penalty actually preferred a life without parole sentence if it was offered as a

genuine and meaningful alternative to capital pun- ishment (e.g., Bowers, 1993 ; Fox et al., 1991 ; Haney, Hurtado, & Vega, 1994 ).

Bases and sources of death penalty opin- ion. Numerous studies have attempted to uncover the individual-level variables that appear to infl u- ence and direct people’s death penalty attitudes. Researchers have identifi ed two demographic characteristics—gender and race—that are consis- tently related to people’s death penalty attitudes. Specifi cally, studies show that women are signifi - cantly less likely to support the death penalty (e.g., Lester, 1998 ; Stack, 2000 ). As Cochran and Sanders (2009) summarized, “[a]mong the various known correlates of death penalty support, one of the strongest and most persistent predictors has been respondent’s gender” (p. 525). They found that the tendency for women to favor capital punishment signifi cantly less than men has been both enduring and robust, persisting even after controlling for a number of other variables.

Racial differences are equally long-standing and robust and, if anything, even larger (e.g., Bobo & Johnson, 2004 ; Cochran & Chamlin, 2006 ; Johnson, 2008 ; Unnever & Cullen, 2007 ). For example, Maggard, Payne, and Chappell (2012) found that race was an overriding determinant of death penalty attitudes, with Whites supporting cap- ital punishment in far greater numbers than Blacks, even when a number of other variables were con- trolled for. Johnson (2008) has reported that this substantial and long-standing racial difference in punitive attitudes may be explained by differences in racial prejudice among Whites, perceived injus- tice among Blacks, and each group’s “social struc- tural location vis-à-vis the criminal justice system” (p. 204). Indeed, there is evidence that Whites’ support of the death penalty actually strengthens when they learn of its discriminatory nature ( Hurwitz & Peffl ey, 2010 ).

Studies that examined the period of increasing crime rates in the United States—the late 1960s and into the early 1970s—suggested that rising crime and perceptions of threat are instrumentally related to death penalty support (e.g., Rankin, 1979 ; Thomas and Foster, 1975 ). Other researchers, however, found

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that death penalty support appeared to be less an instrumental response to crime and more a symbolic attitude held as part of a commitment to a larger set of political and social beliefs ( Ellsworth & Gross, 1994 ; Tyler & Weber, 1982 ). That is, supporters are more likely to have a political and social commitment to punitiveness in general, of which support for the death penalty is merely a component.

In more recent research, many scholars and researchers have suggested that support for capital punishment is based on people’s commitment to a broad personal worldview, including one premised on authoritarianism, fundamentalism and, especially, retributivism (e.g., Bohm, 1987 ; Finckenauer, 1988 ; Grasmick, Davenport, Chamlin, & Bursik, 1992 ). The tendency to cite retribution as an ideological basis for death penalty support has grown during the tough on crime era, while the use of instrumen- tal justifi cations to explain prodeath penalty senti- ments have decreased since 1981 ( Ellsworth & Gross, 1994 ). In a related vein, Harvey (1986) found that persons who supported the death penalty tended to ascribe to the most concrete functioning of the four belief systems he measured. Barkan and Cohn (1994) found that support for the death pen- alty was associated with political conservatism, antipathy for Blacks, and racial stereotyping. Miller and Hayward (2008) found that a number of per- sonal characteristics were associated with death pen- alty attitudes, including religious beliefs. Unnever and Cullen (2006) have reported that the relation- ship between religion and support for the death penalty is far more complex than originally thought, requiring a careful disentangling of specifi c and potentially countervailing denominational beliefs.

Perhaps not surprisingly, a number of sophisti- cated analyses have found that death penalty atti- tudes are infl uenced by a complicated combination of variables, including demographics, broad values and worldviews, and contextual factors. For exam- ple, as Soss, Langbein, and Metelko (2003) con- cluded from their analysis of White support for the death penalty, “[n]o single factor, taken alone, can explain why most White people support capital punishment or why a dissenting minority stands in opposition” (p. 411). They found that support for the death penalty among White respondents was

infl uenced by commitment to a broader set of values and perspectives (i.e., trust in government, belief in individual responsibility, order, and deference) and varied signifi cantly by racial prejudice, but that these tendencies were moderated by contextual vari- ables. That is, “[t]wo individuals with similar char- acteristics can be expected to respond differently [to the death penalty] depending on their surrounding social environments” (p. 414).

Similarly, others have found that although racial differences in death penalty support are very power- ful in their own right, they also moderate the effects of a broad historical context (such as a tradition of vigilantism) and contemporary conditions (such as distrust of government) on death penalty support ( Messner, Baumer, & Rosenfeld, 2006 ). However, it is also important to note, that as Unnever, Cullen, and Jonson (2008) concluded in a recent review of empirical studies conducted from the 1980s through the 2000s, “racial animus is one of the most consistent and robust predictors of support for the death penalty. Whites who harbor racial animus toward [Blacks], particularly those who endorse the new form of racism—that is, who are symbolic racists—are signifi cantly more likely to support capital punishment” (p. 69).

Death penalty attitudes also appear to be related to a number of specifi c legal and criminal justice values and beliefs. Fitzgerald and Ellsworth (1984) studied the ways in which death penalty supporters and opponents systematically differed in their fun- damental criminal justice and constitutional values. Using a dichotomy fi rst developed by Packer (1968) , which juxtaposed a “due process” perspective that emphasized “the fallibility of the criminal process in correctly apprehending, trying, and convicting law- breakers” ( Fitzgerald & Ellsworth, 1984 , p. 33) with a “crime control” perspective that emphasized a belief “that the most important function of the crim- inal justice system is repressing crime” (p. 34). Fitzgerald and Ellsworth (1984) demonstrated that death penalty supporters were far more likely to be aligned with a crime control perspective, in contrast to death penalty opponents, who were more likely to endorse due process values.

A decade later, when overall support for the capital punishment was at an all-time high, Haney,

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Hurtado, and Vega (1994) found much the same thing—that persons who supported the death pen- alty tended to embrace crime control points of view over the due process perspective that was more likely to be held by death penalty opponents. For example, respondents who disagreed with the basic tenet of American jurisprudence that it is better for society to let some guilty people go free than to risk convicting an innocent person were signifi cantly more likely to support the death penalty, as were those who disagreed with the exclusionary rule and believed that the insanity defense was little more than a loophole that allowed too many guilty per- sons to go free.

As we noted earlier, in addition to individual-level factors that help account for death penalty attitudes and beliefs, much attention has been paid to the role of external infl uences, including regional differences that appear to stem from cultural and subcultural practices and norms. Although little psychological research has been conducted to directly explain this phenomenon, a number of researchers have found very reliable and signifi cant geographical variations in both support for the death penalty and in actual death penalty practices (i.e., numbers of persons sentenced to death and numbers of persons actually executed). For example, Borg (1997) found that, although there was little overall difference between southerners and non-southerners in terms of death penalty support, there were very signifi cant differ- ences in regional conditions that translated into much higher percentages of persons who supported capital punishment in some communities or areas than others. To explain these localized differences within a region of the country ordinarily associated with death penalty support, she emphasized the importance of understanding “not only the contex- tual nature of ‘southern violence’ but also the vari- ability of ‘southern identity,’” (p. 25) from one place to another.

Liebman and Clarke (2011) have found that the variations are much more dramatic when, in addi- tion to attitudes about the death penalty, actual death sentences are taken into account. As they put it: “[N]otwithstanding broad public and statutory support” for capital punishment, “the vast bulk of death sentences are imposed on behalf of a small

minority of Americans.” Indeed, a “given defendant’s likelihood of receiving a sentence of death depends greatly on the county in which he was tried” (p. 265). The small minority of communities that actually use the death penalty were characterized by their high levels of parochialism, or a “tendency to feel embat- tled from ‘outside’ infl uences, including crime” (p. 270) and by their libertarianism, or “a vigilante streak—a willingness to take the law into one’s own hands and out of the untrustworthy hands of government” (p. 274).

The mass media are another especially powerful external force that helps to explain death penalty attitudes (see Volume 1, Chapter 17, this handbook, for a review of research on media and the law). Researchers have confi rmed the ways in which the media signifi cantly infl uence how people “frame” and react to certain kinds of criminal justice events, and how they feel about certain crime-related policies. For example, we know that pretrial public- ity can shape how people feel about a particular crime, criminal case, and criminal defendant (e.g., Moran & Cutler, 1991 ; Otto, Penrod, & Dexter, 1994 ; Sandys & Chermak, 1996 ). Sherizen (1978) concluded that the “world view or public belief system developed by the media limits the perspec- tives of the audience to certain limited aspects of the crime phenomena and, in the process of limiting its coverage, certain features of considerable impor- tance are excluded from comprehension” (p. 207).

Studies have documented the relationship between the amount of news coverage that is given to particular topics and the signifi cance that the public subsequently attaches to these same topics (e.g., Iyengar, Peters, & Kinder, 1982 ; K. Smith, 1987 ). For example, studies have demonstrated a direct relationship between the amount of newspa- per space devoted to violent crime and the likeli- hood that neighborhood residents selected crime as their community’s most serious problem (M. Gordon & Heath, 1991 ).

With these issues in mind, Haney and Greene (2004) content-analyzed the newspaper coverage of a representative sample of California death penalty cases. They found that the press tended to concen- trate more heavily on cases in which a death verdict ultimately was returned (even though, statistically,

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life verdicts are more common), focus their coverage mostly on the beginning stages of the cases—when little information about the background or social history of the defendant was available—and that the overwhelming majority of the “facts” reported in news stories were details about the crime itself. They also found that the press relied overwhelmingly on the police and other law enforcement agencies as the sources cited for the information contained in the articles that were coded—the so-called subsidized news aspect of crime reporting—and also that the many repeated references to the crime routinely focused the reader’s attention on its heinous aspects or features, often with carefully crafted language that further dramatized already emotionally charged events. The stories almost never included even remotely sympathetic background information that might have conveyed an explanation of the defen- dant’s criminal behavior in terms of past trauma, an especially deprived or abusive upbringing, or some other social contextual factors.

Media crime coverage like this not only shapes public perceptions by heightening concerns over the nature and frequency of victimization and the magnitude of the crime problem, but also may infl u- ence the judgments that people make about whether to support largely or exclusively punitive strategies (including the death penalty) in order to address these issues. For example, in one study, researchers compared sentencing views among persons who reviewed several case-related court documents with another group who reviewed several newspaper articles about the same case. Those who read the newspaper articles were more than three times as likely to regard the sentence meted out to the defen- dant as too lenient ( Roberts & Doob, 1990 ). In a separate but related study, Roberts and Edwards (1989) found that crime-related publicity increased participants’ recommended levels of punishment even when the crime for which they rendered a sentence (e.g., theft) was very different from the one they read about (e.g., homicide). As one litera- ture review concluded: “[P]references for highly punitive sanctions in the criminal justice system are one consequence of the media’s predilection for covering violent and sensational crimes” ( Hans & Dee, 1991 , p. 142).

Although no researcher has systematically studied whether exposure to media criminology ( Haney, 2008b ) per se has a direct effect on death penalty attitudes and decision making, Holbert, Shah, and Kwak (2004) conducted a national cross-sectional survey that found that support for the death penalty was positively related to viewing police reality shows and television crime drama. Similarly, Slater, Rouner, and Long (2006) found that viewing a law and order–oriented crime drama suppressed the infl uence of preexisting liberal ideol- ogy among viewers and led them to favor the death penalty and attach greater importance to public safety and crime reduction. More recently, using state-level survey data from Nebraska, Kort-Butler and Hartshorn (2011) found that nonfi ction reality crime television viewing signifi cantly contributed to fear of crime and distorted views of crime preva- lence, while viewing crime drama television pro- gramming directly and signifi cantly predicted support for capital punishment.

One apparent shift in sentiments about capital punishment emerged at a time when support for the death penalty was at or nearing an all-time high. The shift illustrates the potentially complex inter- play between political and media infl uences, general values, and attitudes about the death penalty. Part of the law-and-order political campaigns that were mounted throughout the United States beginning in the 1970s included an intensifi cation of the media’s coverage of crime (e.g., Beckett, 1997 ). The public became increasingly concerned in response, and their anger toward the perpetrators of crime intensi- fi ed. By the end of the decade, Warr and Stafford (1984) identifi ed an emerging relationship between a belief in retribution as a justifi cation for punish- ment in general and support for the death penalty in particular: “Retribution is by far the most frequently cited justifi cation of punishment . . . those who view retribution as the most important purpose of pun- ishment overwhelmingly favor capital punishment” (p. 104). A short time later, Harris (1986) reported much the same thing: “[P]oll data are consistent in showing that support for the death penalty is largely a matter of emotion: revenge is a more powerful rationale than any of the utilitarian justifi cations” (p. 453).

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As the decade of the 1990s began, Fox et al. (1991) suggested that “Americans now are unashamed, and perhaps even proud, to verbalize their desire for retribution” (p. 512), and noted that their support for capital punishment was one impor- tant way that they were able to give voice to these newly legitimated desires. At around the same time, Ellsworth and Gross (1994) similarly reported that most people’s views on capital punishment were now based more on emotional than rational grounds, and that people not only had little accurate knowledge about the death penalty but also were not particu- larly interested in acquiring more. Near the end of the 1990s, just before support for capital punishment began its slow but steady decline, Simon (1997) cor- rectly observed that the death penalty was no longer being advocated or defended on the basis of its instrumental or social utilitarian value—what it could accomplish—but rather as an “invocation of vengeance” that took the form of a “satisfying per- sonal experience for victims and a satisfying gesture for the rest of the community” (p. 13).

This phenomenon also appeared to be subject to media-driven change. For example, Fan, Keltner, and Wyatt (2002) content-analyzed a very large sample of newspaper stories published about the death penalty between 1977 and 2001, and corre- lated changes in the content of the reporting to overall changes in public opinion about capital pun- ishment. They found not only that “support for the death penalty could be predicted with good accuracy from press coverage of the death penalty” (p. 446) but also that, as press coverage in the late 1990s shifted the reporting frame to concentrate much more heavily on the wrongful conviction of persons who had been sentenced to death, the shift in cover- age was strongly related to a corresponding decrease in nationwide support for capital punishment.

The Marshall hypothesis. Recall that there were essentially three components to the hypothesis that Justice Thurgood Marshall advanced concerning death penalty opinions: the public in general lacks accurate information about capital punishment; a large majority of an informed citizenry would defi nitively reject the death penalty; and support for the death penalty that was based in whole or

in large part on retribution would be relatively impervious to the infl uence of accurate information (e.g., Sarat & Vidmar, 1976 ; Vidmar & Ellsworth, 1974 ). There have been a number of studies of these seemingly straightforward and empirically testable propositions, and they have yielded a somewhat complicated pattern of results.

There is much research that substantiates Marshall’s view that the public in general is unin- formed or misinformed about capital punishment (e.g., Haney, 2005 ), relying on what one scholar has called folk knowledge rather than actual facts ( Steiner, 1999 ). Perhaps the most consistently studied and identifi ed misconception is the one that pertains to the prevailing alternative to a death sentence—life in prison without possibility of parole. Numerous studies have shown that not only survey respondents but even actual capital jurors misconstrue the meaning of a life without parole sentence. For example, one early study found that some 70% of citizens in a national sam- ple did not believe that defendants sentenced to life without parole would remain in prison for the rest of their lives ( Bennack, 1983 ). Other researchers have noted that “[p]rospective jurors often main- tain the common misconception that a life sentence is not, in reality, a life sentence” ( Dayan, Mahler, & Widenhouse, 1989 , p. 166). They high- light one study suggesting that the average juror believed that a life sentence meant the person would be released in seven or eight years. Focusing on actual capital jurors, Paduano and Stafford-Smith (1987) concluded that “the typical juror at the sentencing phase of a capital trial per- ceives the imposition of a sentence of ‘life imprisonment’ to mean there is a good chance that the capital defendant will in fact be released from prison on parole” (p. 211). Similarly, the Capital Jury Project, whose research- ers interviewed a sample of persons who had actually served as jurors in capital cases in Califor- nia and 13 other states, reported that only a small percentage—18.4% of the 152 jurors they interviewed—believed that capital defendants who got life without parole sentences actually would spend the rest of their lives in prison ( Bowers & Steiner, 1999 , p. 653).

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This particular misconception is especially important to Marshall’s view that misinformation is at the core of much death penalty support. As the Capital Jury Project researchers explained: “Embed- ded in contemporary cultural common sense about crime and punishment is the tenet of early release, which holds that state policy is too lenient and so ineffective that murderers not condemned to death will be back in society far too soon, even before they actually become eligible for parole” ( Steiner, Bow- ers, & Sarat, 1999 , p. 496). Indeed, both having and understanding the option of life without possibility of parole appears to signifi cantly reduce death pen- alty support. For example, in the 1985 Gallup Poll, nationwide support for the death penalty fell from 72% overall to 56% when respondents were given life without possibility of parole as an explicit alter- native ( Paduano & Stafford-Smith, 1987 ). Zeisel and Gallup (1989) aggregated the results of 1985 and 1986 nationwide Gallup polls and showed a slightly larger drop in death penalty support (from 71% to 52%) when the life without parole option was explicitly provided. Similar and in many instances even larger shifts in support (some result- ing in sizable majorities favoring life over death) were reported in a number of other studies when this option was given and understood (e.g., Fox et al., 1991 ; Haney, Hurtado, & Vega, 1994 ).

A number of studies have suggested that Mar- shall’s second and in many ways key assertion—that knowing more about capital punishment would lead people to support it less—is fundamentally although not uniformly correct (e.g., Bohm, Clark, & Aveni, 1991 ; Sarat & Vidmar, 1976 ; Vidmar & Dittenhof- fer, 1981 ). Although one study found that increased information actually polarized people and led them to become even more extreme in their preexisting views ( Lord, Ross, & Lepper, 1979 ), and another showed that short-term information-based changes were not necessarily preserved over much longer terms ( Bohm & Vogel, 2004 ), most studies, includ- ing those cited above that focused on life without parole, have indicated that dispelling certain mis- conceptions about capital punishment—creating an “informed citizenry” on the issue—leads to a decrease in death penalty support. For example, Murray (2003) found that death penalty attitudes

were multidimensional and unstable, and that support for capital punishment was reduced when respondents were merely asked a series of questions about how fairly it was being administered. The study by Lambert, Camp, Clarke, and Shanhe (2011) provided nuanced support for Marshall’s prediction, showing that accurate information about the death penalty differentially reduced support depending on the demographic characteristics of the recipients and their level of preexisting knowledge about capital punishment.

The fi nal component of the Marshall Hypothesis— that persons who support the death penalty on a pri- marily or exclusively retributive basis are unlikely to change their views based on new information—was especially relevant in the late 1980s and early 1990s when, as we noted above, high levels of death pen- alty support were increasingly associated with retrib- utive rationales or justifi cations for capital punishment. Interestingly, however, a new issue in the death penalty debate emerged at roughly that same time to eventually undermine the nature of that support: wrongful conviction (e.g., Bedau & Radelet, 1987 ; Gross, Jacoby, Matheson, Montgomery, & Patil, 2005 ; Huff, 2002 ; Radelet, Bedau, & Putnam, 1992 ; Radelet, Lofquist, & Bedau, 1996 ; Scheck, Neufeld, & Dwyer, 2000 ). Because the retributive rationale requires that persons unequivocally deserve their punishment, highly publicized cases of death row exonerations of persons convicted and sen- tenced to death for crimes that they did not commit seemed to call people’s confi dence in this rationale into question. Studies done more recently, after these exonerations drew increased scrutiny to capital pun- ishment (e.g., Baumgartner, de Boef, & Boydstun, 2008 ; Tabak, 2001 ), indicate that even death penalty supporters who base support on retribution are sus- ceptible to information-based change ( Cochran & Chamlin, 2005 ). Current research also indicates that having knowledge about the risk of convicting and executing innocent persons is associated with lower levels of death penalty support ( Bobo & Johnson, 2004 ; Unnever & Cullen, 2005 ), and that providing persons with information about innocence per se can lead to reductions in number of persons who report favoring capital punishment (e.g., Fan et al., 2002 ; Lambert et al., 2011 ).

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The Nature and Functioning of the Capital Jury As a unique institution in the American legal system and the focus of much constitutional jurisprudence, the capital jury has been extensively studied. A vari- ety of different research methods have been used in studies conducted over many decades. The methods used include case studies, analysis of trial transcripts and other archival data, experimental or simulation research, and interview studies of persons who pre- viously served as actual capital jurors.

In the case of interview studies, one major, coordinated research project deserves special men- tion; its data will be cited extensively in the review below. The Capital Jury Project is an interdisciplin- ary research project begun in 1991 and composed of research teams in 14 different states selected for their geographical diversity and the representative- ness of the capital sentencing statutes and processes (e.g., Bowers, 1995 ; Bowers, Fleury-Steiner, & Anto- nio, 2003 ; Eisenberg & Wells, 1993 ). The project’s core data come from lengthy, semistructured inter- views conducted with actual capital jurors. They were sometimes supplemented with data from trial transcripts, interviews with judges, defense attor- neys, and prosecutors (e.g., Bowers, 1995 ), surveys (e.g., Bowers, 1993 ), and jury simulations ( Garvey, Johnson, & Marcus, 2000 ). By 2002, some 1200 interviews with persons who had served as capital jurors had been completed, and numerous aspects of the jury’s decision-making process had been explored and analyzed.

Below we summarize and discuss four broad areas of the psychological research that has been conducted on the capital jury—moral disengage- ment, jury selection and death qualifi cation, instruc- tional comprehension, and jury dynamics (for more general research on juries, see Volume 1, Chapter 8, this handbook).

Moral disengagement. In its most basic form, the death penalty requires people to transcend a fundamental prohibition against taking a life. Because the death penalty is democratically administered—average citizens are required to make decisions about whether someone lives or dies— “mechanisms of moral disengagement” ( Bandura,

1990 ) appear to play a role in facilitating the death sentencing process:

Because, under ordinary circumstances, a group of twelve normal, law-abiding persons will not calmly, rationally, and seriously discuss the killing of another, nor will they eventually decide that the person in question should, in fact, die, and then take actions designed to bring that death about, this unique set of con- ditions is crucial to allow the process of death sentencing to go forward. ( Haney, 1997b , p. 1447)

Mechanisms of moral disengagement can change the moral tenor of the decision making in which capital jurors engage, minimize their awareness or appreci- ation of the full range of consequences that are likely to follow from their actions, and reduce jurors’ own sense of personal agency by lessening or displacing responsibility elsewhere. Bandura (1990) has articulated a number of different, specifi c mech- anisms of moral disengagement, and many of them appear to be at work in the death-sentencing process. In fact, Bandura and colleagues have dem- onstrated the ways in which these mechanisms operate to facilitate not just the legal decision mak- ing that makes death sentences possible, but also the actual execution process in which those sentences are fi nally carried out ( Osofsky, Bandura, & Zimbardo, 2005 ).

One such morally disengaging mechanism is dehumanization. As Bandura put it, “[p]eople sel- dom condemn punitive conduct—in fact, they cre- ate justifi cations for it—when they are directing their aggression at persons who have been divested of their humanness” ( Bandura, 1990 , p. 181). The process of dehumanization begins well in advance of a capital trial and pervades mass media depictions of criminal defendants in general. For example, Sloop (1996) analyzed the media’s portrayals of criminal offenders over the 40-year period from 1950 to 1993. He found evidence of a dramatic shift away from depicting offenders as redeemable or amenable to personal growth and change. Instead, there was a growing tendency to show prisoners as irrational, predatory, dangerous, and beyond being reformed.

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Violent offenders, in particular, tended to be shown as having “animalistic and senseless” characteristics that stemmed from their “warped personalities” (p.142). Similarly, Pillsbury (1989) observed that when media messages encourage the public to “assign the offender the mythic role of Monster,” they help simplify the diffi cult task of assigning moral blame (including the task of condemning to death), making it easier “to ignore the moral complexities [inherent in the process of judging another] and declare the person and his act entirely evil,” which in turn “justifi es harsh treatment and insulates us from moral concerns about the suffering we infl ict” (p. 692). In this context, it becomes justifi able “to kill those who are monsters or inhu- man because of their abominable acts or traits, or those who are ‘mere animals’ (coons, pigs, rats, lice, etc.) . . .” because they have been excluded “from the universe of morally protected entities” ( Williams, 1981 , p. 34).

The capital trial process builds upon preexisting stereotypes about the inhumanity of persons con- victed of murder and helps jurors erect psychological barriers between themselves and the defendant that further this dehumanization. Some of these barriers stem from the formality that attaches to legal lan- guage and court proceedings generally. As one legal commentator has noted, “the emotional, physical, and experiential aspects of being human have by and large been banished from the better legal neighbor- hoods and from explicit recognition in legal discourse . . .” ( Henderson, 1987 , p. 1575). Because of the way that the capital trial process is structured, opportunities to humanize the capital defendant are typically delayed until the very last phase of the trial itself. As one lawyer put it: “While the state has often presented the evidence in the guilt phase that argu- ably makes the homicide especially heinous, the pen- alty phase is usually the defense’s fi rst opportunity to present to the factfi nder the personal aspects of the defendant’s life . . . . [I]t would be an unusual case where the defendant’s family history and character were introduced in the guilt phase” ( Carter, 1987 , p. 101).

Beyond the timing of the defendant’s humanizing narrative, other aspects of the capital trial make it diffi cult to overcome the dehumanization that has preceded it. Thus, “[w]hile the defense will seek to

have the jury empathize with the defendant, the defense narrative—unattached to legal form—is a diffi cult one to convey, and the legalistic formula can provide sanctuary from moral anxiety” ( Hender- son, 1987 , p. 1590). As another legal commentator put it,

The prosecution will tell a story designed to provoke anger; the defense will respond with one to evoke sympathy. The sentencer must choose between or among them. As the law now stands, this gives the prosecution a signifi cant advan- tage at the punishment stage. The law’s sanction of retribution and the fact of criminal conviction give weight and legit- imacy to the prosecution’s angry appeal. The defense needs a similar, legally authorized, emotional appeal to check that anger, to keep the debate within moral bounds. ( Pillsbury, 1989 , p. 607)

Another mechanism of moral disengagement involves minimizing, distorting, or ignoring the full range of consequences that one’s actions are likely to bring about. Thus, Bandura (2002) noted that “[i]t is easier to harm others when their suffering is not visible and when destructive actions are physi- cally and temporally remote from their injurious effects” (p. 108). The death qualifi cation process, as discussed in the above section, may contribute to this in several ways. At the very outset of the capital trial—before any evidence has been presented or decisions made, and certainly before any humaniz- ing evidence has been introduced about the defendant—it requires prospective jurors to discuss, refl ect on, and imagine a possible execution. In some cases, they are questioned about this issue repeatedly and at length, and in every case they must willingly agree to play some direct role in it if called upon to do so. That is, in order to qualify, prospective jurors must at least express their will- ingness to impose the death penalty in what they regard as an appropriate case; otherwise they are deemed ineligible to serve and are excused by the judge. This process may desensitize them to the implications of a death sentence because contem- plating the imposition of the death penalty—and in

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some jurors’ minds agreeing to it—is a psychological barrier that they have already traversed at the very outset of the trial. It may also lead them to infer that death is the preferred legal outcome because anyone who could not agree to at least consider imposing it has been prohibited from being a capital juror ( Haney, 1984b , 1984c ).

Capital trials also present jurors with skewed or incomplete narratives of the consequences of vio- lence. On the one hand, a death penalty trial appro- priately focuses the jurors’ attention on the violence of the defendant. Indeed, as Sarat (1995) put it, “[t]he state compels the juror to view . . . graphic representations [of the defendant’s violence] and to grasp the death-producing instrumentalities which are given special evidentiary value in the state’s case against the accused” (p. 1124). In addition, the U.S. Supreme Court has sanctioned so-called victim impact testimony in capital penalty trials that allows prosecutors to go even farther and, essentially, to require capital jurors to directly confront and con- sider the full range of terrible consequences that the defendant’s violence has produced ( Payne v. Tennes- see , 1991 ). On the other hand, however, the law sys- tematically and explicitly prevents capital jurors from learning anything comparable about the violence of the punishment they are being asked to help infl ict. For example, as stated in one court’s representative ruling on this issue: “Evidence of how the death pen- alty will be performed, as well as the nature and qual- ity of life for one imprisoned for life without the possibility of parole, is properly excluded” from the jury’s consideration ( People v. Fudge , 1994 , p. 1117).

Thus, capital jurors are exposed to—indeed, they are required to view—vivid narratives of the defen- dant’s violence and are systematically excluded from any exposure to the violence that they are being invited to infl ict (e.g., Sarat, 1993 ). The one-sided way in which the law makes one set of consequences salient and another invisible operates to disengage jurors from the full moral implications of their actions. As one legal commentator noted, “[t]he pain of the victims should be brought home to a juror asked to make a moral determination as to appropriate punishment; so should the pain of the defendant, and the violence of the execution being contemplated” ( Howarth, 1994 , pp. 1393–1394).

In fact, research with capital jurors also shows that not only are the details of the execution ritual systematically hidden from them but that many believe it is unlikely ever to occur. For example, one study of capital jurors in California and Oregon found that verdict skepticism—disbelief that the sen- tencing decisions they reached actually would be imposed—pervaded the deliberation process. As one of the jurors put it,

We talked about the fact that if you have a hard time voting for the death penalty, are you really not just voting for life imprisonment? Because there hasn’t been an execution in over 20 years in Califor- nia. And so, you know, is it really more a statement than it is an actuality? ( Haney, Sontag, & Costanzo, 1994 , p. 171)

Similarly, Sarat (1995) found that capital jurors in Georgia were skeptical about whether death actually meant death or, as one of them said: “[T]hey don’t put you to death. You sit on death row and get old” (p. 1133).

Another mechanism of moral disengagement involves diffusing or displacing responsibility for one’s own actions to others. That is, “[p]eople will behave in ways they normally repudiate if a legiti- mate authority accepts responsibility for the effects of their conduct” ( Bandura, 2002 , p. 106). This can take several forms in a capital trial. Research tells us generally that “[t]hrough convoluted verbiage, destructive conduct is made benign and people who engage in it are relieved of a sense of personal agency” ( Bandura, 1990 , p. 170). As we will discuss later in this chapter, the convoluted verbiage of the capital jury instructions distances jurors from the realities of the decision they are being called upon to make, confuses many of them about the critical concept of mitigation upon which all life verdicts essentially depend, and fails to provide them with an intellectual or moral framework—or even an orderly cognitive process—by which life verdicts can be consistently reached (e.g., Geimer, 1990–1991 ; Haney & Lynch, 1994 , 1997 ; Haney, Sontag, & Costanzo, 1994 ; Weisberg, 1984 ). As one scholar observed: “Under the pre- Furman system, the jury rendered a moral decision; it reached into

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its gut to decide whether death was the appropriate punishment for the defendant. Now, however, the jury is sometimes torn between rendering a moral decision and applying a legal formula they don’t quite understand” ( White, 1987 , p. 69).

Weisberg (1984) suggested that capital jurors might “artifi cially distance themselves from choices by relying on legal formalities” to help dictate their verdicts (p. 391), and several studies have indicated that they do. For example, one study of Indiana cap- ital jurors uncovered not only “juror misperception of the responsibility for the death sentencing func- tion” ( Hoffman, 1995 , p. 1138), but also widespread diffi culty among jurors in accepting responsibility for the defendant’s fate. A study of capital jurors in South Carolina found that penalty instructions not only created false expectations about alternatives to the death penalty but also confused jurors about burdens of proof in the sentencing phase of a capital case ( Eisenberg & Wells, 1993 ). Because of jurors’ strong initial inclination to sentence to death follow- ing the typical guilt-phase trial, this signifi cantly increased the likelihood that a death verdict would be reached. Indeed, the authors concluded that “[t]he default sentence in a capital case is death . . . . [T]he tilt towards death suggests that a defendant with a confused jury may receive a death sentence by default, without having a chance to benefi t from legal standards designed to give him a chance for life” ( Eisenberg & Wells, 1993 , p. 12).

Thus, many capital jurors readily acknowledge the sense in which condemning someone to death is “not really my decision, it’s the law’s decision,” and they come to believe that they are not personally sentencing someone to die but rather are simply following legal orders—whether in the form of “just weighing the factors” provided in the instructions that prevail in most death penalty states or “just answering the questions” posed in special-issues states like Texas and Oregon ( Haney, Sontag, & Costanzo, 1994 , pp. 166–167). Similarly, a number of capital jurors in the Indiana study tended to believe inaccurately that,

[T]he judge’s sentencing instructions were intended to defi ne a legally “cor- rect” capital sentencing outcome. These

jurors tended to see the sentencing deci- sion as analogous to the guilt–innocence determination. They interpreted the judge’s instructions as eliminating most of their own personal moral responsi- bility for choosing life or death for the defendant. ( Hoffman, 1995 , p. 1152)

Jury selection and death qualifi cation. Perhaps because the capital jury’s role is so important and unusual, the process by which its members are selected has been subjected to extensive empiri- cal study and analysis. As we noted earlier, jury selection proceeds with prosecution and defense attorneys lodging challenges to prospective jurors that can be either peremptory (essentially, at their discretion) or for cause (alleging a specifi c legal reason that the person cannot be fair). Although most of the empirical research has focused on the particular cause challenge that is unique to capital cases—death qualifi cation and the elimination of potential jurors on the basis of their death penalty attitudes—the peremptory challenge process has also been studied.

Winick (1982) was among the fi rst to observe that the unique focus on the death penalty attitudes of prospective jurors during capital jury selection allowed for the use of peremptory challenges to bias the composition of the jury that was ultimately selected. He noted that questioning prospective jurors about their death penalty attitudes provided attorneys—in particular, prosecutors—with an opportunity to use peremp- tory challenges to eliminate persons moderately opposed to the death penalty but otherwise legally qualifi ed to serve. He concluded that this tendency in essence “deprives capital defendants of their due process right to an impartial jury on sentence” ( Winick, 1982 , p. 82), because even persons moder- ately opposed to or ambivalent about the death pen- alty could (and often would) be eliminated. When considered in conjunction with the effects of the exclusions that occur as a result of death qualifi ca- tion (as discussed in more detail below), Winick (1982) concluded that this “produces capital juries that are signifi cantly more prone to convict than would be neutral juries, thereby depriving the

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capital defendant of his due process right to an impartial jury on guilt” (p. 82).

In a later analysis, Baldus and colleagues reached a number of similar conclusions, including the fact that prosecutors had a signifi cant comparative advantage over defense attorneys in using peremptory chal- lenges to shape the composition of capital juries. Spe- cifi cally, Baldus et al. (2001) found that prosecutors used this advantage to eliminate larger numbers of Blacks (who are less likely in general to support the death penalty) and that the racial composition of the jury—whether produced by the discriminatory effects of death qualifi cation or the discriminatory use of peremptory challenges—made a difference in death sentencing rates, especially for Black defendants. Thus, although predominately Black juries (with fi ve or more Black members) were signifi cantly less likely to render death sentences than predominately White juries (with four or fewer Black members), the jury selection process ensured that predominately Black juries were very diffi cult to obtain.

Most of the research on jury selection in capital cases has focused on death qualifi cation, i.e., the practice of excusing persons for cause because of their strong opinions about capital punishment. The early research done on the effects of death qualifi ca- tion focused on the legal standard that was estab- lished in Witherspoon v. Illinois (1968) and that was in operation in capital cases until 1985. In Wither- spoon , the United States Supreme Court authorized courts to preclude persons from sitting on capital juries if they expressed an unwillingness to impose the death penalty in any case, no matter the facts and circumstances. In Wainwright v. Witt (1985) , the standard was changed to exclude persons who said that their death penalty attitudes would prevent or substantially impair them from performing their duties as jurors.

Wainwright appeared to broaden the basis or standard by which a prospective juror could be found excludable, beyond the one articulated in Witherspoon , and to correspondingly limit the num- ber of persons whose death penalty attitudes ren- dered them qualifi ed. Thompson (1989) noted at the time that Wainwright “expands the class of indi- viduals who may be excluded from capital juries because of their feelings about the death penalty”

(p. 186), and he and other scholars and researchers expressed concern over the implications of this expansion. Also, by the time Wainwright was decided, most states had begun to provide for the exclusion of persons who were so strongly in favor of the death penalty that their extreme views meant that they, too, could not be fair. Although this was ostensibly intended to balance the attitudes repre- sented on the jury, the number of persons excluded on the basis of their extreme support for the death penalty never remotely approximated the number who were disqualifi ed by virtue of their opposition and did not appear to signifi cantly reduce bias (e.g., Kadane, 1984 ; Luginbuhl & Middendorf, 1988 ).

In any event, a number of studies have shown that death qualifi cation has a number of deleterious effects overall. It reduces the representativeness of the resulting jury pool, changes its attitudinal mix or composition in ways that render it more oriented toward law enforcement and less sensitive to the due process rights of defendants, and produces a group that is more likely to convict on the basis of the same set of facts and circumstances. In addition, exposure to the process of death qualifi cation itself creates a number of problematic tendencies and expectations, including guilt-proneness. In short, research shows that death qualifi cation creates capital juries that are different from the kind of jury that sits in every other kind of criminal case, and different in ways that are adverse to the interests of capital defendants. As two researchers summarized these studies overall: “At all stages of the trial—jury selection, determination of guilt or innocence, and the fi nal judgment of whether the defendant lives or dies—death qualifi cation results in bias against the capital defendant of a nature that occurs for no other criminal defendant” ( Luginbuhl & Middendorf, 1988 , p. 279).

More specifi cally the composition effects of death qualifi cation arise from the fact that people’s atti- tudes about the death penalty are correlated with other things about them. Because persons who strongly oppose the death penalty have many other characteristics and attitudes in common, any proce- dure that eliminates them also will disproportion- ately exclude those other characteristics from being represented in the jury pool. Thus, one important

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way in which the composition of the capital jury is compromised by death qualifi cation concerns the representativeness of the group of eligible, prospec- tive jurors that it creates, and especially the fact that women and Blacks, who are historically more likely to oppose the death penalty than other groups (e.g., T. Smith, 1976 ; Ziesel & Gallup, 1989 ), are therefore signifi cantly more likely to be excluded from the cap- ital jury pool. As a result, a process that selects eligi- ble jurors essentially on the basis of their death penalty support will exclude disproportionately greater numbers of women and Blacks (e.g., Bronson, 1970 , 1980 ; Fitzgerald & Ellsworth, 1984 ; Haney, Hurtado, & Vega, 1994 ). In addition, because Blacks are already underrepresented on the jury lists in many parts of the country (e.g., Alker, Hosticka, & Mitchell, 1976 ; Fukurai, Butler, & Krooth, 1993 ; Fukurai & Krooth, 2003 ), death qualifi cation may act to compound a preexisting problem.

Studies show that death qualifi cation also biases the composition of the capital jury by skewing atti- tudinal make-up. Any process that systematically eliminates persons with strong feelings about the death penalty is likely to leave behind a group that differs on a host of other interrelated criminal jus- tice attitudes. Fitzgerald and Ellsworth (1984) cap- tured many of these differences in research that showed that death-qualifi ed jurors were more likely to favor crime control perspectives on criminal jus- tice issues, as opposed to persons excluded by the then-operative Witherspoon standard, who tended to endorse a host of due process–related attitudes. Among the beliefs that the death-qualifi ed respon- dents were signifi cantly more likely to hold are that the failure of a defendant to testify at trial is indica- tive of guilt, the insanity plea is a loophole, and that defense attorneys “need to be watched.”

More recent studies that used the newer Wain- wright standard, and accounted for the exclusion of extreme prodeath penalty prospective jurors (the requirement in all capital cases after Morgan v. Illinois , 1992 ), found that some attitudinal and other effects were attenuated, but a number of others remained. For example, one study ( Haney, Hurtado, & Vega, 1994 ) using these newer constitutional standards found that, compared to those persons who would be excluded from sitting on a capital jury,

death-qualifi ed persons were less likely to be women or minorities, less concerned about convicting the innocent, more likely to endorse punishment-related polices in general, more likely to fi nd a number of key case facts as aggravating and less likely to fi nd a number of others as mitigating. Death-qualifi ed per- sons were also less knowledgeable about the system of death sentencing itself (including being signifi - cantly less likely to believe that life without parole really meant that a prisoner would not be released from prison), and they had fewer concerns about potential fl aws in the system of death sentencing (including being less concerned that innocent peo- ple might too often be convicted of capital crimes, or that the death penalty might be unfair to minorities).

In a series of studies regarding the characteristics of death-qualifi ed persons versus those who would be excluded from capital jury service under current legal practices, Butler and colleagues have found that death-qualifi ed jurors are more likely to be male, White, moderately well-educated, politically conservative, Catholic or Protestant, and middle class ( Butler & Moran, 2002 ). Like other research- ers (e.g., Cowan, Thompson, & Ellsworth, 1984 ; Moran & Comfort, 1986 ; Thompson, Cowan, Ells- worth, & Harrington, 1984 ), Butler found that death-qualifi ed persons are more likely to fi nd capi- tal defendants guilty and, of course, to sentence them to death (the basis on which they are selected). Butler and colleagues also found the death qualifi ed to be more likely to express racist, sexist, and homo- phobic views ( Butler, 2007a ), and to hold what social psychologists have described as a “belief in a just world” that renders them more punitive in capi- tal cases (perhaps because they believe that bad things should always happen to people who have themselves done bad things; Butler & Moran, 2007a ). In addition, these jurors are more suscepti- ble to drawing fl awed conclusions from fl awed sci- ence ( Butler & Moran, 2007b ), are more likely to be skeptical of defenses involving mental illness (including the insanity defense; Butler & Wasser- man, 2006 ), more likely to be infl uenced by the kind of potentially prejudicial pretrial publicity that often surrounds capital cases ( Butler, 2007b ), and more likely to be affected by the victim impact

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statements that may be introduced during the sen- tencing phase of capital trials ( Butler, 2008 ).

One of the most well-documented and problem- atic effects of death qualifi cation on the composition of the capital jury pertains to what researchers have termed its conviction proneness. By limiting capital jury participation to only those persons who, among other things, share a pro-prosecution and crime-control perspective and hold more favorable (often erroneous) beliefs about how the system of death sentencing actually functions, death qualifi ca- tion ensures that the evidence presented at trial will be fi ltered through a particular set of juror predispo- sitions. Surely there are some cases in which the weight of the evidence will completely determine the outcome of the case, and no amount of bias or predisposition will alter the verdict. In other cases, however, even jurors who take seriously their responsibility to base decisions on the evidence and nothing else may be infl uenced in subtle ways by preexisting attitudes and expectations. Thus, death-qualifi ed jurors may literally see a different case and be “perceptually ready” ( Bruner, 1957 ) to perceive incriminating evidence, give greater credi- bility and weight to prosecution witnesses, and apply different standards of reasonable doubt and the presumption of innocence than jurors who are more impartial. Ultimately, as the effects of these biases and predispositions accumulate throughout the trial, they may well make their presence felt in changing the likelihood of conviction.

The basic proposition that death-qualifi ed juries might be conviction-prone was fi rst suggested more than 50 years ago ( Oberer, 1961 ). Numerous studies done since then have confi rmed this (e.g., Bronson, 1970 , 1980 ; Goldberg, 1970 ; Jurow, 1971 ). For example, Thompson et al. (1984) found that trial testimony is not only evaluated differently by death-qualifi ed and excludable jurors, but that “death-qualifi ed jurors perceive confl icting, ambigu- ous testimony in a way that follows the prosecu- tion’s version of events, perhaps because that version corresponds to a script that is readily avail- able to them” (p. 111). They also found that death-qualifi ed jurors showed a willingness to con- vict on a lesser showing of guilt than persons excluded by the death qualifi cation process. Perhaps

not surprisingly, Cowan et al. (1984) found that death-qualifi ed jurors were half as likely as those excluded by death qualifi cation to vote not guilty (22.1% vs. 46.7%) on predeliberation ballots in a potential capital case scenario, and nearly a third as likely to acquit after deliberation had taken place (13.7% vs. 34.5%). Other researchers have reached similar conclusions. In fact, a meta-analysis of stud- ies done through the late 1990s concluded simply: “The results indicate that the more a person favors the death penalty, the more likely that person is to vote to convict a defendant” ( Allen, Mabry, & McK- elton, 1998 , p. 724). Thus, to the extent that death qualifi cation selects jurors on the basis of their will- ingness to impose the death penalty, it is also likely to produce juries that are conviction-prone.

Death qualifi cation also biases the death-sentencing process is an obvious way: By ensuring that the only jurors who are allowed to decide whether a capital defendant lives or dies are ones that have been selected on the basis of their willingness to impose the death penalty, a capital jury is more likely to actually impose the death penalty than one selected through non–death-qualifying voir dire . Several studies have looked beneath the surface of this obvi- ous fact to explore some of the specifi c mechanisms by which this occurs, fi nding that death qualifi ca- tion in essence also selects for persons who are dif- ferentially responsive to certain mitigating and aggravating circumstances of the sort that are com- monly presented in the penalty phase of a capital trial. That is, death-qualifi ed jurors are not only more in favor of the death penalty in the abstract, but they are also less likely to attend positively to certain mitigating facts about the defendant and are more likely to react negatively to certain aggravating facts about him or his crime (e.g., Haney, Hurtado, & Vega, 1994 ; Luginbuhl & Middendorf, 1988 ; Moran & Comfort, 1986 ). Together these studies suggest that death-qualifi ed jurors not only start out more in favor of the death penalty but, because of their differential sensitivity to different kinds of potential penalty phase evidence, are less likely to be persuaded that life imprisonment is an appropriate sentence.

Finally, Haney (1984b , 1984c ) found that merely exposing persons to the unusual and suggestive

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process of death qualifi cation in which, as we have noted, they are asked to contemplate the defendant’s conviction and make a public commitment to be willing to at least consider voting to authorize his execution has independent biasing effects. Haney found that exposure to the process led jurors to be more conviction-prone, to infer that the other major trial participants believed that the defendant was guilty (which would account for their focus on his punishment) in advance of evidence having been presented, and that the law “disapproves” of death penalty opposition (perhaps because death qualifi ca- tion results in those persons who express disap- proval being excluded from participating as jurors).

Recall that, in Lockhart v. McCree (1986) , the United States Supreme Court considered a substan- tial amount of the research that documented the biasing effects of death qualifi cation and nonetheless refused to prohibit the practice. As one commenta- tor soberly concluded about the decision: “A more complete repudiation of social science research could hardly have been accomplished” ( Acker, 1993 , p. 76). The decision in effect guaranteed that, at least for the immediate future, death sentences would continue to be meted out by a carefully selected group of jurors who differed along a num- ber of important and problematic dimensions, including being less representative and more guilt- and death penalty–prone than those who decide other kinds of criminal cases.

Instructional comprehension. At least since Gregg v. Georgia (1976) , the United States Supreme Court has relied very heavily on the use of judicially admin- istered sentencing instructions to attempt to control the previously unbridled and unconstitutional dis- cretion with which capital jurors once acted (e.g., Furman v. Georgia , 1972 ). These instructions are a central feature of the overall system of capital pun- ishment to which the Court has given its approval and continued to confer legitimacy for nearly 40 years. As we have explained, under the post- Furman model of death sentencing, if and when a defendant has been convicted of a potentially capital crime, jurors enter a second stage of the trial—a penalty or selection phase—in which they are asked to deter- mine whether the defendant should be sentenced to

death or life in prison without possibility of parole. At this stage, under the sentencing statutes in place in the great majority of jurisdictions, jurors are per- mitted to hear evidence on both aggravating and mitigating factors or circumstances that are intended to infl uence them in favor of returning, respectively, either a death or a life verdict. Statutes commonly identify specifi c aggravating factors that narrow the scope of what can be considered but allow a very broad range of mitigating factors to be introduced and taken into account. Jurors are instructed to con- sider, take into account, and be guided by this evi- dence and, usually through some kind of a weighing process, are to a render sentencing verdict by select- ing one of the two possible punishments.

Unfortunately, there is much evidence that this guided discretion model does not work as the Court intended. In addition to the way that many statutes fail to adequately narrow the range of death-eligible cases, as we discussed earlier, studies show that capi- tal jury verdicts are still plagued by continued arbi- trariness and even racial discrimination. Direct attempts to explain these patterns have focused heav- ily on the nature and effect of the instructions them- selves, especially the extent to which they are poorly comprehended by the persons whose behavior they are supposed to guide. Numerous studies have docu- mented the incomprehensibility of different versions of the capital sentencing instructions that are in use in various jurisdictions across the United States ( Dia- mond, 1993 ; Diamond & Levi, 1996 ; Haney & Lynch, 1994 ; Haney, Sontag, & Costanzo, 1994 ; Levi, 1993 ; Luginbuhl & Howe, 1995 ; Tiersma, 1995 ; Wiener, Pritchard, & Weston, 1995 ; Wiener et al., 2004 ). Because it seems unlikely that jurors can be properly guided by instructions that they are unable to comprehend, this research has raised seri- ous questions about the fairness and reliability of the life-and-death decisions that have been rendered by capital juries in the modern era of death sentencing.

Aside from the limited utility of any instruction that cannot be properly understood by the persons whose discretion is supposed to be guided by it, two additional aspects of this problem bear emphasis. The fi rst is that even confused jurors must render a penalty phase verdict. Their confusion may mean that they are more easily infl uenced by irrelevant

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peripheral cues, more likely to fall back on simple judgment heuristics, or more willing to rely on a brand of commonsense justice that includes preexisting stereotypes and prejudices that are scarcely different from the unbridled discretion condemned in Furman —save its appearance of having been sanitized by judicial instructions ( Haney, 1997a ).

The second problematic aspect concerns the asymmetry of the comprehension errors that studies show jurors make. Recall that the penalty-phase instructions in use in most jurisdictions juxtapose two central categories or kinds of evidence— aggravating and mitigating circumstances—and that jurors are supposed to take into account and weigh this opposing evidence to reach their sentencing deci- sions. These key terms and the weighing process itself are what most studies show jurors simply fail to understand. The errors that occur, however, are much more serious and widespread in the case of one of the key terms—mitigation. In several studies done in California, for example, after having heard the sen- tencing instructions read several times, not only were comparatively few people able to defi ne the term miti- gation in even a partially correct manner, but the defi - nitions they did correctly provide tended to relate only to aspects of the crime rather than to the defen- dant (the opposite of the kind of mitigation that is presented in a typical capital penalty phase). In con- trast, the term aggravation—the evidence that leads jurors to favor death verdicts—was not only much better understood overall but it was also understood in exactly the crime-related ways in which such evi- dence typically is introduced at trial ( Haney & Lynch, 1994 , 1997 ; Lynch & Haney, 2000 ).

The crime-focused understanding of these key sentencing terms may help explain the tendencies that were identifi ed by the Capital Jury Project in their postverdict interviews with actual capital jurors. Project researching described an “obsessive focus on the defendant’s guilt of the crime” that car- ried over into the penalty trial and distorted the jurors view of mitigation. As the author put it,

The jurors do not appear to have grappled with the notion that, despite the defen- dant’s clear guilt of an aggravated

murder, they could decide that he deserved a sentence other than death. What is missing from these interviews is any real recognition of a separate choice, an independent decision about whether this defendant should suffer the ultimate pen- alty of death. ( Bentele & Bowers, 2001 , p. 1031)

Recall that the Supreme Court mandated that “all relevant mitigating evidence” ( Buchanan v. Angelone , 1998 , p. 276) be allowed to be introduced into the penalty or selection phase of a capital trial in order to ensure the fairness and reliability of the individu- alized sentencing process. Yet the value of this opportunity to present a wide range of potential mitigation may be compromised by the fact that penalty-phase instructions fail to properly defi ne and explain the meaning of mitigation; jurors unclear on the concept are unlikely to know whether and how to properly make use of whatever mitigating evidence they do receive. These problems may well contribute to what has been called “wrongful condemnations” ( Haney, 2006 )—the penalty-phase analogue of wrongful convictions in which a capital defendant, sentenced to death, should have and would have been sentenced to life instead if the available mitigation in his case had been effectively presented to a jury that fully comprehended its mitigating signifi cance under applicable constitutional standards.

Finally, we should note that there have been a lim- ited number of attempts to correct at least some of the problems with instructional comprehension by using psycholinguistic principles to rewrite the penalty-phase instructions in ways that are intended to make them clearer and, in some instances, not just easier to understand and to be guided by but also to connect the instructions to the specifi c facts of the case at hand (e.g., A. Smith & Haney, 2011 ; Wiener et al., 2004 ). To date, these attempts have pro- duced limited but promising results. However, they have been used in only a limited number of jurisdic- tions and typically without any systematic empirical evaluation of whether and how well they are working.

Jury dynamics. Capital juries operate as small groups, ones charged with a unique legal task and

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daunting moral responsibility. As the Supreme Court itself observed, a “capital sentencing jury is made up of individuals placed in a very unfamil- iar situation and called on to make a very diffi cult and uncomfortable choice” ( Caldwell v. Mississippi , 1985 , p. 242). In fact, researchers have documented some of the emotional impact of serving as a capital juror and discharging these extraordinary duties. Indications of the immense mental and physical strain experienced by capital jurors appear in reports of posttrial personal problems, nightmares, regret, fear, physical illness, and even drug abuse ( Antonio, 2006 , 2008 ).

The behavior of the capital jury has been studied not only through the lens of the extraordinary reason for which they have been assembled but also the legal rules that are intended to govern the deci- sions they make, the composition and characteris- tics of the jury members who make them, the kind of evidence that is brought to bear on the decision-making process, and the characteristics of the victims and defendants in the cases where a sentencing verdict must be rendered. Because the capital jury’s unique legal task and daunting moral responsibility are concentrated primarily in the penalty phase of a capital trial, most of the research focuses on the dynamics and decision making which occur at that stage of the case.

It is worth noting, however, that the Capital Jury Project has found that in some states approximately half of the jurors they interviewed reported discussing punishment during the guilt phase of the trial ( Sandys, 1995 ), and approximately half also revealed that they had personally decided on an appropriate penalty during that fi rst phase ( Bowers, Sandys, & Steiner, 1998 ). Those who had a penalty preference before the penalty phase of the trial com- menced were signifi cantly more likely to support a death sentence ( Sandys, 1995 ). In addition, evi- dence from the guilt phase was not only used in the penalty phase, but many jurors based their penalty decisions largely or exclusively on the facts of the crime or the mere fact that the defendant had been convicted in the fi rst phase of the case ( Ben- tele & Bowers, 2001 ). Of course, if penalty decisions are made before the presentation of any mitigating and aggravating evidence has occurred, and in

advance of jurors being instructed on how and why such evidence is relevant to and should be consid- ered in making their life-and-death decision, its constitutionally mandated signifi cance will be thwarted (e.g., Bowers et al., 1998 ).

Consistent with what we said earlier about the role of moral disengagement in the death-sentencing process, the Capital Jury Project also has found that many jurors absolve themselves of personal responsibility for the death verdicts they have rendered by telling interviewers that they felt pressured into voting in favor of the death penalty because they (erroneously) believed that the law required this sentence whenever certain aggravating circumstances had been proven (e.g., Bentele & Bowers, 2001 ; Garvey et al., 2000 ). In addition to reporting that the law had somehow compelled them to reach a death verdict, many also explicitly shifted the responsibility for the decision away from themselves and attributed it to others, including the assertion that they were following judicial and even religious mandates (e.g., Bowers, 1995 ; Bowers, Foglia, Giles, & Antonio, 2006 ; Hoffman, 1995 ).

As we noted earlier, in discussing the asymme- try of the narratives of violence that occur in the typical capital trial, the U.S. Supreme Court has permitted the introduction of victim impact testi- mony into the penalty or selection stage of a capital case, allowing family members and others deeply affected by the victim’s death to describe that impact to the jury. Much of the research conducted on the nature and effect of victim impact testimony has suggested that jurors are indeed infl uenced by it (e.g., Greene, 1999 ; Luginbuhl & Burkhead, 1995 ). Although it is not necessarily determinative of the outcome of a capital trial, independent of other features of the case and additional evidence that is presented (e.g., T. Gordon & Brodsky, 2007 ), studies show that victim impact testimony generally generates sympathy and empathy toward victims, and that it provokes anger, hostility, and vengeful feelings toward capital defendants that can lead to increased levels of death sentencing (e.g., Paternoster & Deise, 2011 ).

Jurors also seem to be infl uenced by aspects of victim impact testimony that technically should not signifi cantly infl uence their judgment of the

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defendant’s culpability or death worthiness. That is, the power of victim impact testimony to persuade jurors to return death verdicts turns in part on how respectable (e.g., Greene, Koehring, & Quiat, 1998 ) or valuable (e.g., Eisenberg, Garvey, & Wells, 2003 ) or innocent as opposed to troubled (e.g., Sundby, 2003 ) the jurors perceive the victim(s) to be. Specifi cally, the more respectable or valuable or innocent jurors perceive the victim, the more seri- ous the crime and the more death-worthy the defen- dant are regarded. Critics have argued that because the potentially emotionally infl ammatory nature of victim impact testimony combines with this ten- dency of jurors to focus on the social value of the victims in judging the defendant’s death-worthiness, its use in capital penalty trials actually exacerbates the very kind of arbitrary death sentencing that the Supreme Court has otherwise sought to avoid (e.g., Logan, 1999 ; Myers & Greene, 2004 ).

A signifi cant amount of research has been done on the ways in which the composition of the capi- tal jury and the resulting decision-making dynam- ics affect sentencing outcomes. By looking at the interaction of a number of variables that have been shown separately to infl uence jury decision making, researchers have gained insights into the way in which the death-sentencing process unfolds and with what consequence. For example, the Capital Jury Project and others have con- ducted a number of such studies on the racial dynamics that are generated both by the racial dimensions of the case facts (in particular, the race of the defendant and victim) and the demo- graphic characteristics of the jurors. Among other things, they found that the racial make-up of the jury has a large impact on jury dynamics and sen- tencing decisions (e.g., Bowers et al., 2001 ), par- ticularly in cases with Black defendants and White victims. In one study, for example, Eisenberg, Garvey, and Wells (2001) found that Black jurors were less likely than Whites to choose death in the fi rst vote taken during penalty deliberations and, although Black and White jurors did not dif- fer by the time of fi nal vote, the fi rst vote was crit- ically important: the proportion of life to death votes at fi rst ballot was the single largest predictor of fi nal sentence.

As we have noted, mitigation plays a special role in capital penalty-phase deliberations because it provides the jurors with crucial information about the defendant’s background and character that allows them to more fairly and meaningfully assess his culpability ( Haney, 1995 ; 2008a ). A number of studies have examined whether there are racial dif- ferences in the way in which this important kind of evidence is handled by jurors. Researchers have reported that Black jurors in general are more likely to feel empathy for the defendant (e.g., Garvey, 2000 ), potentially making them more sensitive to mitigating evidence (e.g., Bowers et al., 2004 ; Brewer, 2004 ). In another study of capital jury dynamics, Baldus et al. (1998) examined whether and how capital juries handled mitigating evidence as a function of the race of the defendant. They found that capital juries were much more likely to give credence to mitigating evidence that was offered on behalf of non-Black defendants, whereas they gave little weight to such evidence when the defendant was Black. The same kind of discounting of mitigation occurred in those cases where there were non-Black victims.

Another capital jury sentencing dynamic that Capital Jury Project researchers have uncovered was termed the White male dominance effect. Spe- cifi cally, they found that the presence of fi ve or more White male jurors on a jury was associated with a signifi cantly higher rate of death sentencing in those cases in which a Black defendant was being punished for having killed a White victim ( Bowers et al., 2004 ). On the other hand, a so-called Black male presence effect occurred when one or more Black male jurors were present in the same kinds of cases, which substantially reduces the chances of a death verdict ( Bowers et al., 2004 ). Their interview data suggested that these overall patterns were a function of the fact that White and Black men typically came to very different conclusions about what they perceived to be the Black defendant’s remorsefulness, danger- ousness, and his cold-bloodedness (pp. 1531–1532). Moreover, as Brewer (2004) also found, the Black men in this study reported being more empathic toward the defendants in these cases than did any other category of jurors.

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In another Capital Jury Project study, Garvey (2000) found that the role that emotion played in death sentencing varied as a function of the race of the jurors. He reported that White jurors expressed much more anger toward defendants overall than Black jurors did, irrespective of the defendants’ race. Garvey also found that Black jurors were more able to fi nd something likable about the defendant and to empathize with the defendant than their White counterparts, and concluded that Black jurors were much more likely to “keep the sin separate from the sinner” ( Garvey, 2000 , p. 47) in both Black and White defendant cases.

Haney and Lynch approached some of these issues with a fundamentally different research method but reached many of the same conclusions. Examining the sentencing implications of their ear- lier studies ( Haney & Lynch, 1994 , 1997 ) showing that capital jury sentencing instructions were diffi - cult to comprehend overall and that the least under- stood concept in the instructions appeared to be mitigation—the kind of evidence that leads jurors to life sentences rather than death sentences—Haney and Lynch conducted several simulation studies to explore whether instructional comprehension was related to racially discriminatory death sentenc- ing. In the fi rst study, individual jury-eligible, death-qualifi ed adults rendered individual verdicts after viewing one of four simulated penalty trials in which race of defendant and victim were orthogo- nally varied ( Lynch & Haney, 2000 ). In a follow-up study ( Lynch & Haney, 2009 ), a hundred small group juries comprised of four–seven jurors were randomly assigned to one of the same four condi- tions and, after viewing the same simulated penalty trial tape, were given an opportunity to deliberate to verdict.

In both studies, Black defendants were signifi - cantly more likely to be sentenced to death than White defendants (although in the second study, this occurred only after deliberation), jurors who demonstrated poor comprehension of the instruc- tions were more likely to be infl uenced by race, and although the understanding of mitigation was poor overall, mitigating evidence was less likely to be given its appropriate weight and actually was more likely to be improperly used in the cases in which a

Black defendant was being judged. In the delibera- tion study, the postdeliberation effect appeared to be driven primarily by the White men on the jury. This White male dominance effect was primarily a function of the divergent ways in which they used the mitigating evidence that was presented to make attributions about the defendant’s character as a function of the defendant’s race. The researchers concluded that, in addition to racial animus that certain jurors may bring to a capital trial, the jury’s inability to cross an “empathic divide” and take into account the life struggles of a Black defendant also appear to be a function of group-level processes and dynamics that occur in the course of deliberation. Those processes and dynamics seemed to activate and exacerbate rather than neutralize or contain preexisting biases.

PRACTICE AND POLICY ISSUES

Capital punishment remains an extremely contro- versial and intensely criticized practice in the United States and throughout most of the rest of the world. After several decades of successful international abo- litionist activity, there are only a very few modern democracies that still retain the practice—notably, the United States, India, and Japan (e.g., Hood, 2001 ; Hood & Hoyle, 2008 ). Public opinion in the United States remains extremely divided on the issue of the death penalty, as it has throughout most of the nation’s history. Over the last few decades, there has been a trend toward decreased use of the death penalty and, in some places, outright aboli- tion. Fewer death sentences are being returned by capital juries and, at present, only a small percent- age of counties in the United States continue to actively utilize capital punishment. These trends appear to be based on a number of factors, including the high cost of the death penalty (especially relative to the minimal or nonexistent return in increased public safety), the surprisingly frequent number of miscarriages of justice that have surfaced in capital cases in recent decades, and the persistence of evi- dence of arbitrariness and unfairness in the applica- tion of the death penalty. The gap appears to be narrowing between the popular and political fi ctions about capital punishment and what the public and

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politicians now more accurately understand about its empirical realities.

Most of the research that we have reviewed in this chapter has raised fundamental questions about the utility or purpose of the death penalty and criti- cally examined the manner in which it is adminis- tered in the United States. The existence of extensive research that consistently and systematically docu- ments such fundamental fl aws and imperfections in our system of death sentencing inevitably raises questions about its moral as well as legal underpin- nings. The problems that have been identifi ed with the administration of capital punishment are basic and widespread. For this reason, as we will suggest, they do not lend themselves to piecemeal or partial solutions. Indeed, we believe that this body of research leads very clearly to the conclusion that the death penalty must either be reformed in truly fun- damental and comprehensive ways, or it must be abandoned entirely (e.g., Haney, 2005 ).

In fact, many scholars, researchers, and legal ana- lysts have concluded that the issues and problems that we have identifi ed in the nature and administra- tion of capital punishment simply cannot be addressed effectively enough to ensure fair and equi- table administration, and have recommended its abolition. Indeed, Justice Harry Blackmun, who often voted to uphold the death penalty against sys- temic constitutional challenges during his tenure on the Supreme Court, fi nally declared that he would “no longer . . . tinker with the machinery of death” ( Callins v. Collins , 1994 , p. 1145) because, after decades of carefully and closely examining the sys- tem of death sentencing, he had fi nally come to the conclusion that “capital punishment cannot morally or constitutionally be imposed” ( McFarland v. Scott , 1994 , p. 1264).

Without presuming to take a moral position on the resolution of these issues, in this section of the chapter we examine the policy implications and rec- ommendations for reform that follow from the empirical study of the system of death sentencing. Moving from the least to most expansive proposals, we fi rst consider attempts to reform especially dys- functional components of the system, then turn to calls for more comprehensive overhaul, and fi nally to advocacy of outright abolition. Our policy

suggestions take seriously the challenge to “make law modern” by incorporating “a contemporary con- textual, situational, or social–psychological model of behavior [that] will have profound consequences for both the form and substance of our law and legal apparatus” ( Haney, 2002 , p. 4)

One general set of policy implications and rec- ommendations that emerge from the empirical liter- ature on capital punishment is the need to address the broader context of myth and misinformation in the system of death sentencing. Public opinion is plagued by a relative lack of accurate knowledge about how the death penalty actually is adminis- tered and with what consequences. This is all the more problematic because, as Finckenauer (1988) observed, “[p]ublic opinion certainly seems to play a role in the setting of criminal justice policy, including (and perhaps especially) policy regarding capital punishment” (p. 83). Quite apart from what has been empirically documented about the Mar- shall Hypothesis and the prediction that accurate knowledge invariably leads people to reject capital punishment, it seems clear that, if criminal justice policy is to be shaped by public opinion at all, it should be infl uenced by public opinion that is well informed rather than based on erroneous factual predicates.

Similar recommendations can be made about the U.S. Supreme Court’s analyses of death penalty– related constitutional issues. The Court’s long-standing reluctance to rely on and reference social science research has been especially glaring in the case of capital punishment. Although the land- mark Furman v. Georgia (1972) case was a clear exception to this long-standing tendancy, the Court’s record since then has been mixed and prob- lematic. For example, Acker (1993) reviewed some 28 Supreme Court death penalty decisions that were decided between 1986 and 1989 and concluded that “social science evidence had little infl uence on the Court’s death penalty decisions. Lead opinions brushed aside convincing empirical evidence . . . and refused to consider social-scientifi c evidence relevant to capital punishment” (p. 82). Sometime later, other commentators reached essentially the same conclusion: “Supreme Court justices rarely take into account empirical research when making

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decisions, and they seem particularly opposed to incorporating social-scientifi c scrutiny of the death penalty” ( Clarke, Lambert, & Whitt, 2000–2001 , p. 309). Although the situation improved in the case of two more recent decisions (notably, Atkins v. Vir- ginia and Roper v. Simmons ), there is little to suggest that those cases marked a new commitment to empirical jurisprudence in constitutional decision making about the death penalty.

Turning to more issue-specifi c policy reforms, attempts to operationalize the legal category of the worst of the worst in order to better defi ne death-eligible levels of culpability have yielded decid- edly uneven results, with the Court’s research-based categorical exclusions for juvenile defendants (in Roper v. Simmons ) succeeding in creating a workable, bright-line rule where other approaches to narrow death eligibility have not. One simple and conceptu- ally straightforward solution to the problem of over-breadth in death-eligibility would be the imple- mentation of statutory reform in those jurisdictions (such as California) whose laws are over-inclusive. This would entail drastically reducing the number of death-eligible crimes to include only limited, well-defi ned acts that are signifi cantly more egre- gious than common murders (e.g., Alarcón & Mitch- ell, 2010 ). At the other end of the death-sentencing process, it would require that enhanced and truly meaningful proportionality reviews be conducted, in which death verdicts are carefully scrutinized to ensure that they have been returned only in cases that are unequivocally regarded as the worst of the worst. Although these reforms appear to be concep- tually simple, the strategies that would be required to successfully navigate the complex political dynamics that stand in the way of implementing them seem challenging (but are beyond the scope of our empiri- cally oriented social science analysis. )

With respect to the critical and perennially debated issue of the deterrent effect of the death penalty, as we noted, no conclusive evidence has been produced demonstrating that such an effect exists. We have alluded to the basic psychological reasons why this may be so. At the most fundamen- tal theoretical level, the core assumption that poten- tial lawbreakers are even capable of the complex decision-making processes on which deterrence

depends—let alone whether they actually use them—appears to be misguided. In addition to the questionable psychological assumptions on which it is based, there are seemingly insurmountable meth- odological limitations to manner in which the deter- rent effect of capital punishment can be studied. As Knorr (1979) has suggested, the proper question may not be whether the death penalty deters, but whether researchers have the ability to determine if it does. Either way, an important policy implication of the existing state of research on this question is that capi- tal punishment cannot and should not be justifi ed on the basis of an effect that can only be presumed (i.e., one that empirical research not only has never defi ni- tively demonstrated but also never will or can). Moreover, it remains unclear whether and how, in practical terms, such a deterrent effect could actually be created or improved upon. In light of this, a seem- ingly wiser and empirically more defensible approach to the reduction of capital crime might well be to divert some or all of the substantial resources that are devoted to our system of death sentencing and to invest them instead in efforts aimed at reducing the criminogenic forces—especially exposure to child- hood trauma and risk factors—that we now know are so strongly associated with serious violent crime.

Similarly, persistent patterns of racially discrimi- natory death sentencing provide evidence that the legal system continues to be plagued by the taint of individual and institutional racism. Researchers have effectively documented the myriad and com- plex ways that race matters in capital cases. To date, however, these insights have been largely ignored, as exemplifi ed by McCleskey v. Kemp (1987) . Until McCleskey’s requirement that a successful equal pro- tection claim required proof of an individual intent to discriminate is overturned, systemic remedies to racial discrimination in the administration of capital punishment may have to be pursued in venus beyond or outside the courts. For example, it seems more reasonable at this juncture to seek legislative remedies—perhaps in the form of so-called racial justice acts in which capital defendants are explicitly permitted to use statistical data to establish broad patterns of racially discriminatory charging or death sentencing as the basis for claims of unconstitution- ality (e.g., Chemerinsky, 1995 ). North Carolina’s

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Racial Justice Act also provided some remedy to the problem of race-based jury selection by allowing county-based challenges based on the patterns of peremptory challenges that are exercised by prosecu- tors ( O’Brien & Grosso, 2013 ). Admittedly, however, such legislative reforms are also susceptible to politi- cal trade-offs and uncertainties; compromises in the drafting of these kinds of laws and threats to repeal them can drastically limit enforcement mechanisms and render them impermanent. At another level, a number of other changes in death penalty procedure and practice that we will discuss below—such as lim- iting or eliminating death qualifi cation, rewriting capital sentencing instructions to improve their com- prehension, and emphasizing the more effective use of mitigation—may have salutary effects on racially discriminatory patterns of death sentencing. Yet many of the race-related problems that continue to plague the administration of capital punishment are widespread, endemic, and seemingly intractable.

With respect to public opinion about the death penalty, the problem for which a policy-related solution seems appropriate and, frankly, long over- due is one to which we have already alluded: even abstract death penalty support tends to be premised on a lack of knowledge or understanding about how the system of capital punishment actually operates. A number of studies have indicated that persons who know the least about how the system of death sentencing actually functions are likely to support it most. We would argue that it is diffi cult to defend any legal and public policy that is pre- mised so much on widespread ignorance, especially when it is a policy that places individual lives in jeopardy. Thus, the continued collection and analy- sis of accurate information about the system of death sentencing by social science researchers and the increasingly widespread public dissemination of these fi ndings seem essential. Campaigns of public education that examine and discuss the realities of death sentencing can enhance the general level of debate over whether and how capital punishment should be modifi ed and preserved, and can better ensure that these realities are taken honestly and accurately into account in public policy initiatives. The Marshall Hypothesis notwithstanding, contin- ued public support for the preservation of the death

penalty must at least be predicated on accurate views of the way the system actually functions. Otherwise, we belive that it is hard to justify its continued existence.

Death penalty laws may be infl uenced by myth and misinformation in another way. There is some research to suggest that state lawmakers overesti- mate the public’s demand for capital punishment and then adapt their legislative preferences to those distorted perceptions ( Sandys & McGarrell, 1994 ). Such misperceptions may have catalyzed and facili- tated the widespread political manipulation of capi- tal punishment, elevating its stature as a wedge issue in the 1980s and 1990s ( Pierce & Radelet, 1990 ). This possibility underscores the importance of ensuring that lawmakers are optimally informed about a range of death penalty–related topics and issues. They should be targeted by educational cam- paigns that accurately portray the realities of capital punishment, sensitizing these key decision makers to the true nature of the system of death sentencing they fund and help administer, and keeping them accurately informed about the nature of public opin- ion on which they ostensibly rely.

Turning to the capital jury, as we have noted, a sub- stantial amount of research has documented numer- ous, persistent problems in the death-sentencing process. A number of studies—many of them con- ducted by Capital Jury Project researchers—have underscored the failure of the constitutionally man- dated reforms that became the hallmark of the mod- ern system of death sentencing following Furman v. Georgia . The fi ndings are so consistent and so damning that they have deepened concerns over whether the challenge of creating a fair and reliable system of death sentencing can ever be achieved. For example, as one commentator concluded, “The best available evidence shows that arbitrariness still runs rampant more than three decades after Furman v. Georgia ” ( McCord, 2005 , p. 806) and that, as a result, “much of [the Court’s] capital jurisprudence over the last three decades has been a colossal mis- take” (McCord, 2005, p. 868). Another argued that “the best description of the capital sentencing pat- tern the Court’s doctrine currently requires . . . is virtually identical to the pattern Furman ruled unconstitutional” ( Liebman, 2007 , p. 12).

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Unfortunately, the magnitude and seriousness of these problems are not matched by the promise of available policy-oriented solutions. For example, although there are a number of things that could be done to address the morally disengaging aspects of the capital trial process, these very mechanisms may be part of the foundation on which the viability of capital punishment depends (e.g., Haney, 2005 ). Possible remedies include broadening the scope of permissible guilt-phase testimony by the defense that humanizes the defendant, providing the defense with the option to request that evidence in the pen- alty trial be presented in a more chronological sequence, so that the defense could open and per- haps close the penalty trial, balancing the current asymmetries of violence in penalty-phase testimony by permitting capital juries to hear graphic evidence about the realities of both of the sentencing options (life in prison without parole and the death penalty) that they are asked to choose between, explicitly acknowledging the importance of compassion in the meting out of justice by permitting or requiring judges to provide a pre-instruction at the outset of the penalty trial that acknowledges the value that the law requires jurors to attach to the defendant’s personhood (e.g., Haney, 2005 , p. 228–231). Although these kinds of reforms are likely to have a moderating effect on a number of the problems that we have identifi ed with existing capital trial proce- dures, they are unlikely ever to be adopted without signifi cant, corresponding shifts in capital jurispru- dence. We are left instead with a set of largely practice-oriented implications derived from the research, i.e., attorneys should be trained to effec- tively overcome moral disengagement and to reduce the empathic divide that separates the jurors from their capital clients. These things may be accom- plished by providing jurors with extensive humaniz- ing information about the defendant, emphasizing the commonalities that connect rather than distance them from the personhood of the defendant, and underscoring the deeply personal nature of the deci- sion the jurors are individually responsible for making.

Research has also documented the broad nega- tive consequences of death qualifi cation. The prac- tice signifi cantly skews the composition of the jury

panel in ways that make it less representative, balanced, and fair, and the process itself has a biasing effect on those jurors who pass through it. Separately and in combination, these effects appear to facilitate the conviction of capital defendants and the imposition of death sentences. As one commen- tator put it, “Death qualifi cation as currently prac- ticed tilts the jury fi rst towards guilt and then towards death, both by removing too many of cer- tain kinds of people from the pool, and by affecting the expectations and perceptions of those who remain” ( Rozelle, 2002 , p. 699). Moreover, because the extent of disqualifying death penalty attitudes varies over time and across jurisdictions, the size of the group challenged for cause on this basis will vary, at any given time and in any given case, so that, ironically, when support for the death penalty wanes, more prospective jurors are likely to be excluded from participation at the outset of trial. Here, too, viable remedies are not diffi cult to con- ceptualize but are nearly impossible to implement under current law and policy. They certainly include the outright elimination of death qualifi cation of the guilt-phase jury (for example, by death qualifying the penalty jury if and only if the defendant has been convicted of a death-eligible crime). In addition, much greater emphasis could be placed on what has been called life qualifi cation—ensuring that that jurors not only understand mitigation and are willing to consider it in their penalty phase decision-making but also that they “are empowered to react to mitigating evidence in accordance with the dictates of their conscience, even in the face of adverse reactions from other jurors” ( Blume, Johnson, & Threlkeld, 2001 , p. 1215).

The empirically documented problems with capi- tal jury sentencing instructions are especially vexing given the signifi cance the U.S. Supreme Court seemed to attach to them when it reinstituted the death penalty in 1976. Yet the Court itself has acknowledged that its faith in these instructions was as much a pragmatic necessity as anything else: “The rule that juries are presumed to follow their instruc- tions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the

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defendant in the criminal justice process” ( Richardson v. Marsh , 1987 , p. 211). As we noted earlier, the valid- ity of that practical accommodation has been systemat- ically deconstructed in numerous studies documenting the widespread incomprehension of the various jury instructions that govern capital penalty trials in a num- ber of jurisdictions and underscoring the serious con- sequences that can follow from it. As we also noted, there are a number of promising psycholinguistically inspired revisions of these instructions already in exis- tence, and some have shown a demonstrated potential for improving comprehension. The fact that so few of these science-driven modifi cations have been attempted or implemented, and none to our knowl- edge that have been pursued in conjunction with a programmatic and empirical evaluation to document their effects, suggests that the problem of instructional incomprehension is likely to persist (even though potential solutions exist).

Because the capital trial process unfolds sequen- tially, many of the problematic forces and factors to which capital jurors are exposed will have accumu- lated by the time the penalty phase and the fi nal jury deliberation stage are reached. As we have noted, this is the stage at which researchers have uncovered what is often a complicated and very troublesome decision-making dynamic at work, one that impli- cates the moral disengagement that characterizes the proceedings generally, and the continued use of uncorrected myths and misinformation by the previ- ously death-qualifi ed jurors, many of whom fail to fully understand crucial sentencing instructions that are supposed to guide their discretion. The end result is too often unreliable—based on extralegal considerations and erroneous assumptions—and can result in racially discriminatory outcomes.

One doctrinal bright spot in this area of law can be found in the Supreme Court’s willingness to broaden the scope of admissible evidence in capital penalty phases, permitting capital juries to consider the back- ground and character of the defendant whose fate they decide (e.g., Lockett v. Ohio , 1978 ; Eddings v. Oklahoma , 1982 ; Wiggins v. Smith , 2003; Rompella v. Beard, 2005 ). This important doctrinal innovation provided lawyers with an opportunity to educate jurors in a more comprehensive way about the lives of their clients, to broaden and deepen the psychological

analyses to which jurors are exposed that explain the factors and forces that infl uenced the capital defen- dents whose fate they must decide, and to provide jurors with accurate knowledge and important insights about the social historical roots of violence by drawing on a growing body of research on the origins of criminal behavior of the sort that can eventually lead to capital murder (e.g., Haney, 2008a ).

There are serious problems with the way in which this doctrine is implemented in a number of actual capital cases and, correspondingly, numerous ways that it can and should be improved in practice. Thus, although capital attorneys are now required to conscientiously assemble available mitigation in capital penalty trials, some states still fail to provide attorneys with the level of resources that are neces- sary to competently investigate, analyze, and present such evidence. In some instances capital cases are tried by attorneys who present only a small portion of the mitigation that actually exists. Indeed, wrong- ful condemnations—sentencing capital defendants to death who would likely have received life if their cases had been handled competently at the time of trial and adjudicated in a fairer and more just man- ner ( Haney, 2006 )—most often occur when attor- neys fall short of their duty to effectively educate the jury about their client’s social history and fail to provide the jurors with suffi cient available informa- tion on which to premise a life rather than death sentence. Given the importance of this kind of evi- dence in deciding the fate of a capital defendant, it would not be unreasonable to require in advance (rather then waiting to correct wrongful condemn- tions years later on appeal) that a reasonably com- plete mitigation case be presented in all cases before the jury is permitted to render a death verdict.

In addition, as we have discussed at length, the courts have still done little to insure that capital jurors truly understand the judicial instructions that are supposed to legitimate their use of mitigating evidence. Instead, many capital defendants watch their cases be decided by jurors who have not learned the full truth about the social historical and contextual factors that helped to shape their lives and infl uence their criminal behavior, and many capital jurors are allowed to muddle through this life and death decision-making process, mired in

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faulty media-based stereotypes and confused about what if any relevance mitigating evidence has to the issues at hand.

Finally, it is important to acknowledge the many practical and political obstacles to truly fundamental reform that remain in this area of law. Many of the seemingly straightforward policy-related implica- tions of the extensive empirical research that has been done on capital punishment have been effec- tively resisted to date in a historically conservative legal system where change of any kind is notoriously diffi cult to bring about. Moreover, the proposals that have the greatest likelihood of being adopted are, frankly, most often mere palliatives—the very kind of “tinkering” that Justice Blackmun warned against. Indeed, many scholars, researchers, and legal ana- lysts have examined the same body of research that we have reviewed in this chapter and reached the conclusion that the problems with our system of death sentencing are so fundamental, endemic, and interconnected that only a truly fundamental and comprehensive program of reform would have any possibility of adequately addressing them.

A number of the policy recommendations that we have made in this concluding section are embod- ied in various statements by professional organiza- tions concerned with injustices in our nation’s system of death sentencing. Many have recom- mended further that a moratorium should be declared on all executions in the United States until and unless these systemic problems are effectively addressed. Thus, the American Bar Association in 1997 called for a moratorium on executions in order to “ensure that death penalty cases are administered fairly and impartially in accordance with due pro- cess” and to “minimize the risk that innocent per- sons may be executed” ( American Bar Association, 1997 ). A few years later, the American Psychological Association’s Council of Representatives ( American Psychological Association, 2001 ) called upon “each jurisdiction in the United States that imposes capital punishment not to carry out the death penalty” until it had implemented “policies and procedures that can be shown through psychological and other social science research to ameliorate the defi cien- cies” that plague the system of death sentencing. Many of the defi ciencies that were listed by the

Council have been discussed in this chapter. As Haney (2005) has argued, however, the effective reform of those policies and procedures that make up the system of capital punishment cannot be accomplished on a piecemeal basis. Rather “[t]he fact that these overarching problems are structural and systemic and that they operate cumulatively and in tandem means that they must be addressed in kind (i.e., through a set of interlocking reforms designed to remedy the entire system of death sentencing rather than one or another faulty component)” ( Haney, 2005 , p. 214).

In fact, a number of commentators and profes- sional organizations, including the Society for the Psychological Study of Social Issues (2001) , have reached the conclusion that it is infeasible to ever bring about a set of structural and systemic reforms that is comprehensive enough to effectively solve the numerous interconnected problems that plague the administration of capital punishment. They have called instead for the abolition of the death penalty, largely on the grounds that its many fl aws are sim- ply insurmountable.

SUMMARY AND CONCLUSIONS

Extensive research has been conducted on various aspects of the death penalty. The intense scholarly attention given to this topic is based in part on the magnitude of what is at issue in capital cases, the benchmark status of the legal and constitutional standards that are set in this area of law, and the sig- nifi cance of the moral, societal, and politic issues posed when the state seeks to take the life of one of its citizens. As our review of this literature has underscored, much of the research has focused on the fl aws and failures in the system of death sentenc- ing. The empirical realities repeatedly fall short of the symbolic images and aspirations that surround the death penalty, and the constitutional principles that are supposed to govern the application of this extraordinary punishment too often fail to function as they should. There are few if any areas of the criminal justice system that have been subjected to such careful social scientifi c scrutiny and, corre- spondingly, few if any parts of the larger system that have been found so consistently wanting.

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Capital punishment is thus, in the words of Lieb- man, Fagan, and West (2000) , a “broken system,” and the myriad ways that it regularly breaks down have been extensively documented. Much of that research has been reviewed in this chapter, includ- ing the various attempts to reliably, meaningfully, and fairly defi ne and refi ne the nature and amount of personal culpability that warrants a sentence of death, whether and under what circumstances capi- tal punishment achieves the deterrent effect that supposedly provides its most rational and perhaps most often cited justifi cation, the continued legacy of racial discrimination that has plagued this form of punishment throughout its history, the unusually important yet complicated and at times contradic- tory nature and role of public opinion about the death penalty, and the nature and functioning of the unique and often problematic institution of the capi- tal jury. Even the research that is neutral and dispas- sionate in tone typically documents the problematic nature of whatever aspect of capital punishment is under study, and our review of this literature has refl ected from eprical facts and that perspective.

As we have noted, many of the problems that plague the system of death sentencing are fundamen- tally psychological in nature. Numerous intra- and interpersonal processes are implicated in the problems that we have described, including unreliable determi- nations of culpability and deservedness by legislators, prosecutors, and capital jurors, the misperceptions about crime and punishment that shape key judg- ments that are structured into the death sentencing process, and the operation of bias and error that occurs in the course of emotionally daunting decision-making tasks that are unfamiliar to jurors and for which often incomprehensible instructions provide little useful guidance. There are inherent limi- tations to the extent to which changes in legal policy and practice alone can effectively resolve these issues.

In fact, as our discussion of policy implications and potential reforms indicates, the many problems that have been empirically documented in the administration of capital punishment do not lend themselves to simple solutions. In some instances, the complexity of the challenge comes about because of political as well as conceptual obstacles that must be overcome. In others—as in the case of

moral disengagement of jurors—the very problem at issue may be instrumental to the preservation of the system of death sentencing itself. That is, imple- menting policies and practices that truly ensure that individual jurors both fully accept the humanity of a capital defendant and fully appreciate the moral gravity and implications of a decision to sentence that defendant to death would also likely ensure that very few death verdicts are ever rendered. To take a different but related example, as long as perceptions about criminal culpability and victim worthiness are cognitively connected to racial stereotypes and biases—among the general public as well as for key legal decision makers—it is diffi cult to envision a simple policy directive or legal reform that would effectively neutralize the underlying psychological associations that create and maintain the problem.

These realizations, practicalities, and conun- drums help explain why many scholars and profes- sional organizations have concluded that even a comprehensive set of reforms is likely to accomplish no more than modest improvements in the reliabil- ity and quality of justice dispensed by our nation’s system of death sentencing. The exorbitant costs that are necessary to maintain this system, as com- pared to its questionable benefi ts, have led many— even some who support the idea of the death penalty in abstract philosophical terms—to recommend its abolition. In any event, the long and well-documented empirical record of fl aws and shortcomings have led scholars and professional organizations to call not only for solutions to the most immediate and glaring problems that plague the death penalty but also for an overarching and systematic overhaul of the system of capital punish- ment, a moratorium until this kind of comprehen- sive reform can be completed or, in the alternative, for the abolition of the punishment itself.

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