Capital Juries

G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal Death Penalty (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539892).

This analysis of the racial make-up of inmates on federal death row reveals that currently twenty-seven of the fifty-seven inmates (47% of the inmates) are African American. Yet, African Americans constitute only 13% of the population. Attorney General Holder has called this statistic "disturbing." In trying to uncover the reasons for this racial disparity, the authors note that six of the ninety-six federal districts account for one-third of all federal inmates on death row, while nearly one-third of federal districts have not sought the death penalty at all. In considering whether there is anything distinctive about the federal districts that have sent inmates to death row, the authors note that these jurisdictions contain counties that have a high percentage of African Americans, but are located within federal districts that are heavily white. Thus, the authors suggest that juries in federal crimes should be selected from the county in which the offense took place, rather than from the federal district as a whole.

Sam Kamin & Justin Marceau, The Facts about Ring v. Arizona and the Jury's Role in Capital Sentencing (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564465).

In Ring v. Arizona, the United States Supreme Court announced that any fact necessary to impose the death penalty must be proven to a jury beyond a reasonable doubt. In this article, the authors demonstrate that, far from being a watershed in capital sentencing jurisprudence, Ring has had very little impact upon the states. By analyzing the capital sentencing statutes of four different states, the authors conclude that fact-finding is a difficult concept to define, and as a result, state courts have been able to minimize Ring's impact. They suggest that the role of the capital jury not be grounded in the Sixth Amendment, as it was in Ring, but in the Eighth Amendment.

Mona Lynch & Craig Haney, Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination, 33 Law & Human Behavior 481 (2009).

In this article, the authors analyze the effects of jury deliberation on capital sentencing. They recruited 539 "death-qualified" individuals to sit in mock juries and to watch a videotaped penalty phase of a trial. The videotapes varied the race of defendant and victim, using a white defendant and a white victim, a white defendant and a black victim, a black defendant and a white victim, and a black defendant and a black victim. After watching the videos, the mock jurors were asked to record their initial decision before deliberation, and then they were asked to deliberate with their fellow jurors and to reach a decision. The authors found that the deliberation shifted mock jurors toward the death penalty and exacerbated racial discrimination against black defendants. The authors suggested that the legal system should acknowledge these tendencies, as well as other tendencies that other researchers have uncovered with respect to capital juries.

Margaret C. Stevenson, Bette L. Bottoms & Shari S. Diamond, Jurors' Discussions of a Defendant's History of Child Abuse and Alcohol Abuse in Capital Sentencing Deliberations, 16 Psychology, Public Policy & the Law 1 (2010).

This article is an empirical analysis of the ways in which capital jurors use a defendant's history of child abuse and alcohol abuse during deliberations. Using potential jurors that were tapped for jury duty in Chicago, the authors created mock juries of about 10-12 individuals and showed the mock jurors a videotape of a penalty phase of a trial. The videotape revealed that the defendant was periodically beaten by his father when he tried to prevent his father from sexually assaulting his sister and that the defendant had a history of abusing alcohol which motivated him to commit acts of violence. The mock jurors' deliberations were videotaped and their statements about child and alcohol abuse were coded as either mitigating or aggravating statements. The authors found that mock jurors were more likely to argue that child abuse and alcohol abuse should not be used as mitigators than that the abuse should be a mitigator.

Scott Sundby, War and Peace in the Jury Room: How Capital Juries Reach Unanimity, 62 Hastings Law Journal - (forthcoming 2010) (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604572).

This article uses interviews conducted with jurors who sat on capital trials to see how jurors reach a unanimous decision during deliberations with respect to the fate of a defendant. The author discovered that even though jurors received no instructions on how to deliberate, capital jurors acted in a surprisingly consistent manner. Specifically, after the first vote was taken, the majority tended to unite and force the minority to explain its vote. After repeated rounds of questioning, this led to the conversion of the holdouts to the majority's point of view. Once the holdouts reconciled themselves to the verdict, the majority welcomed the holdouts back into the group. Finally, the unanimous verdict was announced in open court, an event for which jurors sometimes had to prepare themselves.