The twelve jurors were all writing very busily on slates. “What are they all doing?” Alice whispered to the Gryphon. “They can’t have anything to put down yet, before the trial’s begun.” “They’re putting down their names,” the Gryphon whispered in reply, “for fear they should forget them before the end of the trial.” “Stupid things!” Alice began in a loud, indignant voice, but she stopped hastily, for the White Rabbit cried out, “Silence in the court!”[1]
Alice did not have a very high opinion of the criminal justice system in Wonderland. One would hope that the American criminal justice system would have more to offer, especially in capital cases. But, if anyone has ever served on a jury, they are likely to have had similar thoughts to Alice’s. The jury that I served on for a DUI case seemed to pay little attention to the evidence and more attention to the demeanor of the lawyers, the defendant, and witnesses. Information we were told to disregard (like why certain witnesses did not take the stand) was the main focus of the jury discussion. The instructions explaining our options were awkward and led to confusion. People are not machines and juries come to the courtroom with their own biases, prejudices, and pre-dispositions. My jury decided to convict, but another jury, on another day, may have decided to acquit.
Such arbitrariness in jury decisions often encourages defendants to go to trial in hopes that the jury will be lenient. But arbitrariness in capital punishment cases painfully points out the potential flaws in a trial by jury. Something seems more unfair about sentencing one murderer to death and another, similarly situated murderer, to life imprisonment. Perhaps this is why many of the United States Supreme Court cases involving the constitutionality of the death penalty center around the jury and issues of arbitrariness.[2] Unfortunately arbitrariness remains all too common.
This article will examine the role of juries in capital punishment cases and conclude that they are not functioning ideally. Either a workable system needs to be developed or the death sentence needs to be abolished. Part I of this paper will examine the advantages and disadvantages of the jury system. Part II will examine the United States Supreme Court’s role in shaping the function of juries. Part III will use the Capital Jury Project, a project studying the way jurors think in capital cases, to examine several areas of concern regarding the use of juries in capital punishment cases. Finally, Part IV will conclude that the Constitution requires a re-structuring of the jury system.
I. Jury Ideology
Trial by jury is a fundamental aspect of the American justice system. The Constitution of the United States makes explicit in Article III and in the Sixth Amendment that jury trials are one of the main attributes of the criminal system.[3] Today, people can be called for jury service for anything from a DUI trial to a murder trial. Many view citizen participation in trial through jury service as a “linchpin of
A. The Advantages
There is something alluring about a justice system that uses its citizens as lay-judges in the determination of guilt or innocence of an accused. The hallmark advantage of a trial by jury is that it serves as a check and balance on the judicial system. The fate of the accused does not rest in the hands of elected or state-appointed officials, but rather it rests in the hands of everyday men and women from the community. If one believes that governmental power needs to be restrained, then juries are a necessary component of the justice system.
A related advantage is that the jury system connects the community to the governmental process. As a check and balance on the justice system, jurors have a significant duty to apply the law to the facts of the case before them. This duty also serves an educational function because it creates a hands on experience for the community to take part in the governmental process. In no other place could people from diverse professions (be it a doctor, a teacher, a mechanic, a waitress) work together as a unit to decide the fate of an accused.
While a juror’s duty is to uphold the law, it is possible for jurors to disregard the law. Jury nullification is the process that occurs “when a jury – based on its own sense of justice or fairness – refuses to follow the law and convict in a particular case even though the facts seem to allow no other conclusion but guilt.[7] While some see this as a disadvantage to the jury system, others see it as one of the critical functions of the jury as a system of checks and balances.[8] For example, in the death penalty context, jury nullification occurred when juries opted for acquittal when confronted with mandatory death sentences.[9] The result was a change in law giving juries discretion in choosing life or death.[10] The power of the jury is a significant aspect of the criminal justice system.
B. The Disadvantages
The power that the jury holds is also a source of many of the disadvantages attributed to the system. Any power has potential for abuse, and the fact that juries come to court with individual biases and prejudices means that a fair verdict is not guaranteed. Part II of this paper will focus on problems resulting from discretion in the jury process, so this section will be limited to focusing on some practical disadvantages involved in the jury system.
Jury duty is of the utmost civic importance, but many individuals dread jury duty, and still more avoid it by any means.[11] Some may question the prudence of a system that results in a jury box full of people not smart enough to get out of jury duty. Of course the counterargument is that the jury box is full of people who take their duty seriously. We can only hope the latter scenario is more accurate.
Additionally, the fact that jurors are mere laypersons brings a critical focus to the system’s effectiveness. When a juror is confronted with a murder case, it likely the first time he or she is confronted with such a situation. Application of the law to facts is something first year law students struggle with, yet juries are expected to do it with little instruction. Limited knowledge regarding capital cases, or the law in general, means jurors are faced with important decisions without a frame of reference. Arguably, a judge would be better suited to decide the fate of the accused, but a system without a jury opens up another can of worms altogether.
II. Jury-Centered Jurisprudence
The 8th Amendment forbids cruel and unusual punishment.[12] With this simple statement, the United States Supreme Court is left with the task of deciding how the death penalty can conform to the Constitution. The Court determined that the death penalty is cruel and unusual if it is arbitrarily imposed.[13] With arbitrariness as a guide, the United States Supreme Court turned to one source of arbitrariness – the jury. In a long line of opinions, the Court waxed and waned in its jury centered analysis by promoting the utmost discretion,[14] then limiting discretion by erecting procedural safeguards,[15] and then incrementally increasing discretion by limiting procedural safeguards.[16] With death as the potential result of capital cases, the Court has offered little more than a gossamer shield as a constitutional protection to those facing the ultimate penalty.
A. Discretion Favored
In McGautha v. California,[17] the United States Supreme Court was confronted with the issue of whether “the absence of standards to guide the jury’s discretion on the punishment issue is constitutionally intolerable.[18] The Court recognized that legislation granting juries discretion in sentencing was a response to juries consistently nullifying legislating requiring mandatory sentences.[19] Based in part on an inability to adequately guide discretion, the Court concluded that “untrammeled discretion” in a jury’s ability to choose “life or death in capital cases” does not violate the Constitution.[20] Thus, the Court agreed that guidance in sentencing was not necessary in order to maintain Constitutional mandates. The Court’s opinion changed one short year later.
B. Discretion Disfavored
In Furman v. Georgia,[21] the Court seemingly took the opposite position to McGautha when it concluded that untrammeled jury discretion in sentencing resulted in arbitrary and capricious infliction of the death penalty, which violated the 8th Amendment.[22] The problem that Furman addressed was the arbitrary application of the death penalty among those accused of murder. Justice Stewart concluded that it is unconstitutional to inflict the penalty of death “wantonly” and “freakishly.”[23]
Apparently juries were misusing their discretion in sentencing the same way the Queen of Hearts in Alice in Wonderland arbitrarily shouted “Off with their heads!” at the first sign of disobedience.[24] The Court concluded that it was this arbitrariness that offended the Constitution. However, Furman left more questions than answers. States were confronted with the task of limiting discretion in capital sentencing procedures without much guidance on how to approach the task.
Some guidance came in the form of Gregg v. Georgia,[25] where the Court outlined possible procedural safeguards necessary to uphold the Constitution. After Furman, various states implemented legislation limiting sentencing discretion. Georgia’s scheme was a typical response to Furman and the Court had to decide whether the statute constitutionally complied with Furman.[26]
The Georgia statute ensured limited discretion in a number of ways. First, the trial was bifurcated into a trial stage, where guilt or innocence was determined, and a penalty stage, where the appropriate sentence was determined by considering aggravating and mitigating factors.[27] Second, the jury was given guidance by being provided with aggravating factors that warrant death, but the jury was not required to impose death if mitigating factors warranted leniency.[28] Finally, expedited direct review was required where the state supreme court would consider the proportionality of the sentence considering other similar cases.[29] The Court ultimately concluded that concerns of arbitrariness can be “best met by a system that provides for a bifurcated proceeding at which the sentencing authority is appraised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.”[30]
Another response to Furman was the elimination of arbitrariness in sentencing altogether through the imposition of mandatory death sentences for a narrow class of cases. The Supreme Court struck down this procedure in Woodson v. North Carolina.[31] The Court concluded that mandatory sentencing was an inappropriate response because it did not adequately achieve individualized sentencing.[32] After Gregg and Woodson it seemed clear that some discretion must permitted to allow for individualized sentencing, but procedural safeguards were needed to guide and limit that necessary discretion.
C. Procedural Safeguards Limited
After indicating that 1) states cannot eliminate all discretion and 2) states must erect safeguards to prevent untrammeled discretion, the Court began examining the constitutionality of various safeguards implemented by states. The guidance in Gregg seemed to be whittled away when the Court determined that aggravating factors must be limited,[33] mitigating factors must be unlimited,[34] and jury sentencing at the penalty phase was not required.[35]
1. Limiting Aggravating Factors
In Godfrey v. Georgia,[36] the Court had to determine whether consideration of a specific aggravating factor was constitutional.[37] Georgia allowed the jury to consider, as an aggravating factor, whether the offense was “outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim.”[38] The problem was that the term was so broad that all murders could potentially fit within its confines and again lead to arbitrariness. The Georgia “outrageously or wantonly vile” factor was first addressed in Gregg where the court concluded that there was “no reason to assume that the Supreme Court of Georgia will adopt . . . an open-ended construction” of the factor so that sentences would be unconstitutionally and arbitrarily imposed.[39] In Godfrey the Court determined that the Supreme Court of Georgia did in fact allow an open-ended construction of the term when the court failed to limit the term when it reviewed the Godfrey case.[40] Thus, open-ended aggravating factors may be unconstitutional because they do not pose an adequate safeguard to arbitrariness. Interestingly, the Supreme Court left the task of limiting discretion to the state supreme court rather than at the trial where the discretion actually occurs.
2. Expanding Mitigating Factors
In Lockett v. Ohio,[41] the Court had to determine whether jury discretion could be limited by outlining appropriate mitigating factors.[42] The statute in Lockett limited mitigating factors to three narrow considerations: 1) there was victim provocation, 2) defendant was under duress or being coerced or 3) the crime was influenced by defendant’s mental deficiency.[43] The Court determined that unlike aggravating factors, mitigating factors could not be so limited. The Court held that juries must be able to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”[44] Aggravation and mitigation as guidance in sentencing requires both limiting discretion by narrowing the class of defendant’s death eligiblity and increasing discretion by expanding what factors allow a jury to be lenient and impose life sentences over death.[45]
3. Jury Sentencing Unnecessary
After Gregg it seemed as if jury sentencing in the form of a bifurcated trial was one of the procedural safeguards that preserved the constitutionality of the Georgia statute.[46] The jury seemed necessary in Gregg because the jury, more than a judge, reflected evolving standards of decency in contemporary society. In Walton v. Arizona,[47] however, this proposition was not so clear. The Court in Walton decided that a jury does not have to impose the sentence after trial.[48] That is, a judge imposed sentence of death after a jury trial meets constitutional muster.[49]
III. Jury-Centered Concerns
Furman told the world that excessive arbitrariness in sentencing is unconstitutional. The issue becomes whether a jury decision can ever be guided to the point that arbitrariness is not the result. States cannot 1) guide juries to the point of eliminating discretion by imposing mandatory death sentences, 2) expand discretion by broadening aggravating factors, and 3) limit discretion by narrowing mitigating factors. With these rules in place, it is not clear that jury decisions resulting in death are constitutional considering that extreme arbitrariness is unconstitutional. In fact research about how juries think has brought to light several issues leaving many to question the ability of juries to make life and death decisions. To better understand the dynamics of juries, the Capital Jury Project has undergone a “multi-state research effort designed to better understand the dynamics of juror decision making in capital cases.”[50] This research effort has lead to numerous concerns about jury dynamics.[51] Two concerns in particular revolve around issues of arbitrariness in resulting decisions: 1) jury confusion regarding instructions and 2) using only death qualified jurors for trial and sentencing.
A. Jury Confusion
Jury instructions should be the most clear aspect of a capital trial given the gravity of each juror’s duty. Unfortunately jury instructions are often awkward strings of sentences that are not in plain language. The result is jury confusion about the law, about their responsibility, and about their options.
One of a juror’s most important tasks is considering mitigating and aggravating factors. Research from the Capital Jury Project regarding North Carolina Juries indicate that juries often misunderstand three aspects of mitigation and aggravation: 1) the ability to consider only listed aggravating factors while at the same time being able to consider any mitigating factors, 2) the varying burden of proof attached to aggravating and mitigating factors, and 3) whether unanimity is required.[52] The aggravating and mitigating factors are supposed to guide a jury, but misunderstanding about the application of the factors leads to arbitrary results because it all depends on a particular jury’s interpretation.
Another area of confusion in jury instructions involves misunderstandings about the ability to choose an alternative sentence to death. The problem is that in many states “judges may not inform jurors about the minimum term that must be served before a defendant is eligible for parole.”[53] The results from the Capital Jury Project indicate that jurors who believe a life sentence will be relatively short tend to sentence a defendant to death while jurors who believe a life sentence will be much longer tend to sentence a defendant to life.[54] The failure of jury instructions to explain the meaning of various sentences leads juries to sentence defendants based on their perception of the law rather than the law itself.
A more striking example of jury confusion occurs when juries actually request clarification and are denied. In Lonnie Weeks’s capital murder trial, jurors seemed confused about the effect of aggravating factors when they asked the judge if they had to sentence Weeks to death if the crime was heinous or if Weeks presented a continuing threat to society.[55] The judge replied by telling the jurors to re-read the instructions that confused them in the first place.[56] The jury sentenced Weeks to death despite obvious confusion about their ability to consider mitigating factors.[57] Thus, even if jurors ask for help and admit confusion the system may fail them by leaving the meaning of instructions up to the discretion of the jury.
B. Death Qualified Juries
Capital trials have juries who are able to vote for the death penalty. That is, jurors who, for whatever reasons, cannot impose the death penalty are excluded from jury service. The problem is that “studies have strongly suggested that the resulting jury tends to be more conviction-prone than a non-death-qualified jury.”[58] Additionally, research from the Capital Jury Project indicates that “[m]any jurors make premature pro-death punishment decisions.”[59] Thus, death penalties resulting from such juries are arbitrary in that they do not reflect the opinion of a fair cross section of the community.
Interestingly, it is information from jury verdicts that the United States Supreme Court uses to gauge whether a national consensus has emerged for or against the death penalty.[60] Obviously a jury composed of death qualified jurors will have different sentencing patterns than a jury composed of jurors both for and against the death penalty. Also, if one believes that jury nullification is part of the function of juries to serve as a check and balance against the judicial process,[61] then the potential for nullifying the death sentence by jury is wrongly denied.
IV. Conclusion
The appropriate conclusion depends on one’s valuation of the jury system altogether. The jury system, in its current form, is both a vital instrument of democracy and an instrument of arbitrary sentencing. If the system is retained, then it needs to be re-structured in a way that 1) allows individualized sentencing and 2) eliminates the arbitrariness that concerned Furman. At the very least, better jury instructions are needed. Jury instructions need to adequately explain mitigation and aggravation, and also explain the alternatives to imposing the death sentence. Also, if juries request further guidance on particular instructions then it should be provided to them. Additionally, the concept of death qualified juries should be re-examined. If a cross section of America, consisting of advocates and abolitionists, could not agree on a punishment, then perhaps its time to abandon the death penalty.
[1] Lewis Carroll, Alice in Wonderland, in The Best of Lewis Carroll 1, 96-97 (1986).
[2]See discussion infra Part II.
[3] U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . .”); U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . .”).
[4] Jose Felipe Anderson, When the Wall has Fallen: Decades of Failure in the Supervision of Capital Juries, 26 Ohio N.U. L. Rev. 741, 752 (2000).
[5]Id. at 751.
[6]Id. at 752.
[7] Hon. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239, 239 (1993).
[8]Id. at 240 (“When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.”); see also Fully Informed Jury Association, Juror’s Guide: Citizens Guide to Jury Duty, at http://www.fija.org (n.d.) (The power of nullification gives a juror the “responsibility of protecting all innocent Americans from unjust laws.”)
[9] McGautha v. California, 402 U.S. 183, 198 (1971).
[10]Id. at 207.
[11] Anderson, supra note 4, at 752.
[12] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
[13] Furman v. Georgia, 408 U.S. 238 (1972). Furman’s narrow holding was that the 8th amendment was violated in the three cases before it. Id. This holding is derived from a number of concurring opinions with the emerging theme that the death penalty violates the 8th amendment when it is arbitrarily and capriciously imposed. Id. at 239-374.
[14] McGautha v. California, 402 U.S. 183, 198 (1971).
[15] Gregg v. Georgia, 428 U.S. 153 (1976).
[16] Walton v. Arizona, 497 U.S. 639, 647 (1989) (limiting procedural safeguard of jury sentencing by upholding a statute that requires judge sentencing); Lockett v. Ohio, 438 U.S. 586, 602 (1978) (limiting procedural safeguard of mitigation by allowing jury to consider any and all mitigating factors); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (limiting procedural safeguard of no arbitrariness in sentencing by rejecting a statute that imposed a mandatory death sentence in certain cases).
[17] 402 U.S. 238 (1972).
[18]Id. at 196.
[19]Id. at 199.
[20]Id. at 204-207.
[21] 408 U.S. 238 (1972).
[22]Id. at 239-374; see also Gregg v. Georgia, 428 U.S 153, 187 (where the Court paraphrases Furman as mandating “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”).
[23]Furman, 408 U.S. 238 at 309-310 (Stewart, J., concurring).
[24] Carroll, supra note 1, at 70.
[25] 428 U.S. 153 (1976).
[26]Id. at 196.
[27]Id. at 160-161.
[28]Id. at 165.
[29]Id. at 166.
[30]Id. at 195.
[31] 428 U.S. 280 (1976).
[32]Id. at 304.
[33] Godfrey v. Georgia, 446 U.S. 420, 429 (1980) (aggravating factors cannot be so broad that do not provide meaningful guidance to juries).
[34] Lockett v. Ohio, 438 U.S. 586, 604 (1978) (juries must be allowed to consider any mitigating factor regarding defendant’s character, record, or circumstances).
[35] Walton v. Arizona, 497 U.S. 639, 648 (1989) (sentencing phase of bifurcated trial can be conducted by judge rather than jury).
[36] 446 U.S. 420 (1980).
[37]Id. at 423.
[38]Id. at 422 (quoting Ga. Code § 27-2534.1(b)(7) (1978)).
[39] Gregg v. Georgia, 428 U.S. 153, 201 (1976).
[40]Id. at 432.
[41] 438 U.S. 586, 604 (1978).
[42]Id. at 589.
[43]Id. at 593.
[44]Id. at 604.
[45] Justice Scalia has indicated that this dichotomy leads to contradictory and confusing results. Walton v. Arizona 497 U.S. 639, 673 (Scalia, J., concurring). As a consequence, Justice Scalia decides to reject the Lockett line of cases. Id. (” I cannot continue to say, in case after case, what degree of ‘narrowing’ is sufficient to achieve the constitutional objective enunciated in Furman when I know that objective is in any case impossible of achievement because of Woodson-Locket.”).
[46]See supra note 27 and accompanying text.
[47] 497 U.S. 639 (1989).
[48]Id. at 648.
[49]Id.
[50] Cornell Death Penalty Project, Capital Jury Project, at http://www.lawschool.cornell.edu/lawlibrary/death (last updated May 21, 2001).
[51]See id. (presenting a comprehensive list of published studies based on the Capital Jury Project).
[52] James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?, 70 Ind. L.J. 1161 (1995) (“The[ ] data reveal[ed] that jurors inadequately comprehend the domain from which aggravating and mitigating factors could be considered, as well as both the required burden of proof and the requirement (or lack thereof) of unanimity”).
[53] Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, Cornell L. Rev 1, 8 (1993).
[54]Id. at 7; see also Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, The Deadly Paradox of Capital Jurors, S. Cal. L. Rev. 371, 395 (2001) (finding that the public doubts that the death penalty is fairly administered but yet they continue to sentence defendants to death as jurors because of a perceived or an actual lack of an alternative in the form of life without parole).
[55] Stephen P. Garvey, Sheri Lynn Johnson & Paul Marcus, Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85 Cornell L. Rev 627, 627 (2000).
[56]Id.
[57]Id.
[58] Luginbuhl, supra note 52, at 1177-78.
[59] William J. Bowers, Marla Sandys & Benjamin D. Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decisions Making, 83 Cornell L. Rev. 1476, 1546 (1998).
[60]See, e.g., Penry v. Lynaugh, 492 U.S. 302 (1989) (“The clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures. We have also looked to data concerning the actions of sentencing juries.”) (emphasis added).
[61]See supra note 8 and accompanying text.
