By Keith Atkinson
A man had been convicted of murder. He sat in the
courtroom waiting for the jury to render its second judgment, that of his
sentence. The jury had been unable to reach a decision once. Now it returned
to the courtroom again. When the room was quiet, the leader of the jury
rose to speak.
"Your honor, if we vote for life in prison,
does that mean he will serve the rest of his natural life in prison?"
The judge sighed to himself. It was the same question
the jury had asked a few hours earlier.
"I cannot answer that question. Does that
satisfy the lawyers?"
"It doesn't satisfy me!"
"Did you understand that I have to abide by
the law, and I have given you all the law I can give in this case, ma'am?"
"May I say something, please? May I state
a question to the court?"
"I am the court!"
"As jurors are we not allowed to know the
law on parole in murder cases?"
The judge leaned forward on his desk and folded
his hands.
"Let me instruct you one more time. I cannot
comment on that question."
Everyone knew his role, but only the judge and
the lawyers knew the rules. For the jury to be told the law about parole
was against the law.
They were to deliberate in the darkness of ignorance, which is no excuse
when committing a crime, but is required when deciding a sentence of life
or death.
The forewoman was frustrated, almost pleading. "We just want to
know when a man is eligible for parole or pardon when serving a life sentence."
"I don't know," said the judge. "Those things are regulated
by the Pardon and Parole Board, which can change the rules as often as
they wish. What the rule is at this particular time I do not know, and
if I did know, I would not be allowed to tell you, and if I could tell
you, there would be no reason in the world why it would be the same next
week, next month, or next year."
"Can we give the sentence of life without the possibility of parole?"
"Not in the state of Georgia."
Since they weren't allowed to give the defendant life, twenty minutes
later the jury voted for death, with the indisputable reasoning that dead
men can't return to repeat their offense. But "erring on the safe
side" can turn out to be a fatal mistake. And there have been a lot
of mistakes. Within the past twenty-five years, seventy people have been
released from death row after having been proved innocent. Twenty-three
of those releases have occurred since 1993. These statistics add a great
degree of risk to capital cases in the approximately twenty states where
it's against the law for the jurors to be apprised of parole rules.
The practice of not telling juries about the law on parole before they
begin deliberations started in the 1950s, when it was shown that some prosecutors
played on the fear of early release to frighten juries into choosing the
death penalty and ensuring that defendants would not soon be free to repeat
their crimes. But while the intent of those reforms was to make for fairer
sentencing decisions, a major national study headed by a Northeastern researcher
has found instead that jurors now base their verdicts on seriously mistaken
impressions.
The Capital Jury Project (CJP), begun eight years ago by William Bowers,
the principal research scientist at N.U.'s College of Criminal Justice,
has employed teams of university-based investigators in fifteen states
to interview more than 1,000 jurors in cases involving the death penalty.
The interviews, typically lasting three to four hours each, are taped and
the responses coded.
Bowers's analysis of the findings shows that capital sentencing often
falls far short of the ideal. For example, a majority of jurors interviewed
believed that prison terms were far shorter than is actually the case.
In only two states were most of the jurors' estimates within a ten-year
interval of the actual time required. The jurors who were the most mistaken
were also the ones who opted for the death penalty the most.
"Many jurors chose the death penalty not because they believed
the defendant deserved it," Bowers says, "nor because they thought
it was the most appropriate punishment, but because it was preferable to
what they thought the alternative would be." One juror interviewed
in Kentucky said all the members of his jury wanted to vote for life without
parole, but they didn't know if that was possible, so they imposed the
death penalty.
The CJP has found that misconceptions on sentencing aren't limited to
parole rules. "It is disturbing," write James Luginbuhl and Julie
Howe, CJP researchers in North Carolina, "that roughly one-fourth
of the jurors felt that death was mandatory when it was not, and approximately
one-half of the jurors failed to appreciate those situations which mandated
life."
These misunderstandings are ironic in light of jurors' true feelings
about state execution, Bowers says. The CJP shows that "citizens acknowledge
the unrivaled harshness of the death penalty [and] they regard alternatives
that include life without parole as 'best for all concerned' and 'closest
to [their] personal ideal of justice.' The surveys also show that life
without parole together with work in prison for restitution to victims'
families is preferred to the death penalty by wide margins of at least
two to one," he says.
Bowers started the Capital Jury Project in 1990 in an attempt to understand
how jurors make these sentencing decisions in capital cases. The prompting
for the project came in 1987 when the U.S. Supreme Court decided that "statistical
evidence of racially disparate sentencing in capital cases did not impeach
the performance of jurors," he says. Bowers's proposal for a study
drew the attention of the National Science Foundation, which has funded
the CJP from the start.
A social psychologist and the author of Legal Homicide: Death as Punishment
in America, 18641982-a history of capital punishment in the U.S. published
in 1974 and reissued by Northeastern University Press in 1984-Bill Bowers
is a tall, slim, soft-spoken man who came to N.U. in 1966, right after
receiving a doctorate from Columbia University. An avowed opponent of capital
punishment, he has spent years studying the practical and psychological
effects of the death penalty in a nation that has held onto it long after
it has been abolished in most Western countries.
Since the death penalty first started coming under state control in
1864, more than 6,000 people have been electrocuted, poisoned, gassed,
hanged, or shot in the United States, with juries deliberating for periods
ranging from five minutes to five days. The U.S. Supreme Court abolished
capital punishment in 1972 when deciding the historic Furman v. Georgia
case, in which several judges criticized the "freakish," "wanton,"
"whimsical," "capricious," "discriminatory,"
and "arbitrary" manner in which jurors exercised their sentencing
discretion. But the Supreme Court brought back the death penalty in 1976
under capital statutes that provide for a trial divided into two stages,
the first for determining guilt and the second for deciding punishment.
Today, thirty-eight states have the death penalty, and in recent years
political slogans like "tough on crime" have amplified the voices
of those who say it is not used often enough. But when the traditionally
liberal state of Massachusetts almost brought back capital punishment last
autumn, Bowers pointed out in an article he wrote for the Boston Globe
that-despite the U.S. Supreme Court's contention that sentencing procedures
have improved greatly since the Furman case-CJP data continue to show several
major shortcomings "not easily amenable to legal remedies." Those
deficiencies, Bowers says, are the fault of both the law and the human
limitations of jurors.
It's obvious that jurors are going to make mistakes, but one can only
hope that the English legal scholar Glanville Williams had it wrong when
he said, "It is an understatement to describe a jury as a group of
twelve people of average ignorance. There is no guarantee that members
of a particular jury may not be quite unusually ignorant, credulous, slow-witted,
narrow-minded, biased, and temperamental."
Indeed, the CJP has found that jurors are often prejudiced or willfully
ignorant. Half of the jurors interviewed revealed that, during the first
phase of their trial, before they had passed judgment on whether the defendant
was guilty, they had already decided on the punishment. Among these respondents,
those voting for death outnumbered those voting for life imprisonment by
three to two.
In California, where jurors are told before deliberations that a life
sentence without parole is the sole alternative to the death penalty, only
one in five of those interviewed said they believed it. In short, many
seemed to refuse to be informed. These insights into jurors' decision-making
lead Bowers to believe that "getting jurors to understand and consider
the true death penalty alternative may take more than simply telling them
what it is just before they retire for sentencing deliberations. By that
time, a good many have already made up their minds."
Like everyone, jurors are also subject to general cultural attitudes
on crime and punishment-perspectives amplified (or even created) by political
rhetoric and media coverage-which can lead to systematic biases. For example,
CJP researchers in Georgia found that throughout the 1980s the media there
"consistently reported that murderers not given the death penalty
would be eligible for parole in seven years, despite the Georgia State
Parole Board's explicit indication in 1985 that Class I murderers . . .
are considered for parole only after fifteen years."
This mix of misrepresentation and human limitation does not make for
a solid foundation from which to mete out life or death, Bowers says, adding,
"In every aspect of the sentencing guidelines we have examined, there
is a tilt toward death in jurors' understanding."
In certain states that tilt is enhanced by judges who sometimes emphasize
their power to override a death penalty verdict. Even though the U.S. Supreme
Court has called it "an intolerable danger" for a juror to believe
that the "responsibility for any ultimate decision of death will rest
with others," a judge's continual reminder that a verdict is only
a recommendation can serve to dampen the jurors' sense of accountability.
"All this recommendation stuff was all we ever heard," said an
Indiana juror in a CJP interview. "They wanted to make sure we didn't
think we were actually killing him."
Another juror quoted by CJP researchers in a 1995 issue of the Indiana
Law Journal said she felt totally absolved of responsibility. Although
the case file showed that she had recommended death, when interviewed she
said she had voted in that manner only to go along with the other jurors
and that she had never believed the man should be executed. "I really
had no thought about it," she said. "It wasn't my choice to make.
It was a judgment call. It really doesn't mean a whole lot what I say because
it's ultimately up to the judge." Another juror said she voted for
death only after being assured by the foreman that the accused would have
time to "get right with the Lord"-probably not quite what the
Supreme Court justices had in mind when they declared that jurors should
use "guided discretion."
In sum, the CJP has found that jurors "often make their decision
before learning what the law says they should consider, often misunderstand
what the law requires of them after being told by the judge, and often
do not know what the alternative punishment actually is because the law
prohibits the judge from telling them," to quote a report by Bowers.
Given these shortcomings, he asks, "should we have punishment for
which most jurors are unwilling to take responsibility? The fact that fewer
than one in five jurors will take responsibility for the punishment they
impose may be telling us that the life and death decision cannot be purged
of the arbitrariness and improprieties the data reveal.
"The questions are: just how arbitrary can the system be and still
remain constitutionally acceptable, and how much impropriety of what kinds
by how many jurors can the Constitution tolerate? Eliminating forced choices
does not guarantee the death penalty will be free of grave constitutional
faults; this is a necessary step, but it may not prove sufficient."
Keith Atkinson is a freelance writer in Brookline, Massachusetts.
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