More than three decades after the U.S. Supreme Court approved new capital sentencing guidelines in its Gregg v. Georgia decision, we continue to apply the death penalty indiscriminately to a small number of defendants in a narrow swath of the country. Geography, bias, juror misperceptions, and local politics can play major roles in deciding whether to sentence a person to death. Indeed, while some of the most heinous murders do not result in death sentences, less heinous crimes are punished by death, and co-defendants charged with the same crime consistently receive disparate sentences.

Bias and Jury Misperception

The capital sentencing process simply does not overcome biases long ingrained in people's subconsciouses. Ineffective guidelines, which are often unclear or unknown to jurors, ensure that decision-makers come to rely on existing prejudices about criminals and victims.

Confirmation bias refers to a subconscious type of selective thinking in which people tend to observe and seek out what confirms their established beliefs, and to ignore or undervalue the significance of contradictory information. Similarly, cognitive dissonance theory suggests that people are highly motivated to rationalize and justify beliefs they hold to reduce the discomfort of holding conflicting ones; the human mind will go to great lengths to achieve consonance, and even the most rational judges and jurors are subject to these forces.

The Capital Jury Project is the largest undertaking to study the decision-making of jurors in death penalty trials thus far. Based on the data they gathered, researchers associated with the CJP have come to the following conclusions:

• Jurors' race, religion, and attitude toward the death penalty influence the way they will cast a first vote during the jury's penalty-phase deliberation and jury selection is rife with discrimination, with selection methods tending to ensure juries that are disproportionately prone to handing down guilty verdicts and death sentences
• White jurors are about 20 percent more likely to cast their first vote for death than black jurors, and Southern Baptists are similarly more likely to vote first for death than adherents to other religions or denominations
• Jurors who believe that death is the only acceptable punishment for murder are about 13 percent more likely to cast their first vote for death compared to jurors who also believe that death is an appropriate-indeed, the most appropriate-punishment for murder, but not the only acceptable punishment.
• Approximately half of jurors interviewed decided a defendant's penalty before the sentencing phase of the trial, and thus before they heard penalty phase evidence or punishment instructions
• Inserting one person of color into an otherwise homogeneous jury will significantly alter the jury's predicted pronouncement. CJP showed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. Jurors from different backgrounds bring varied perspectives to the jury room regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.
• Jurors consistently lack understanding of the duties of a jury - 45% of jurors did not understand they were allowed to consider any mitigating evidence during the sentencing phase of the trial, and two-thirds of jurors incorrectly believed that unanimity was required for findings of mitigation.
• While the Supreme Court has ruled that no state can ever require the death penalty be administered regardless of whether certain aggravating circumstances have been established, 44% of jurors interviewed in the CJP believed the death penalty was required if the defendant's conduct was heinous, vile, or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future - a claim that has very little scientific basis.

Juror selection procedures regularly prohibit seating jurors in capital trials who would be unwilling to deliver a death sentence, yet capital juries often contain members whose support for the death penalty equally undermines their impartiality and ought to render them legally ineligible to serve. Once seated, these jurors push the final verdict heavily toward death. Additionally, the CJP found that the procedures tend to over-exclude jurors who would be able to impose the death penalty under appropriate circumstances despite reservations and under-exclude those "automatic death penalty" jurors who would not give effect to mitigating evidence in sentencing decision. For these reasons a capital jury can never be truly representative of an offender's peers.

"Worst of the Worst"

If the Supreme Court's decision in Gregg v. Georgia was intended to relegate the death penalty to the "worst of the worst" criminals, it has categorically failed. While the heinousness of a crime bears heavily on capital juries, it has a more complicated relationship with prosecutors, who must first elect whether or not to seek the death penalty for an offender. In reality, the worst of the worst - serial murderers, gang kingpins, and the like - are often spared the death penalty as prosecutors rely on their cooperation to help law enforcement close related cases:

• Gary Ridgway, known also as the Green River Killer, pleaded guilty to 48 charges of first-degree murder, and was likely the perpetrator of more than a dozen more murders. For his assistance in locating many of his missing victims, Ridgway received 48 sentences of life without parole.
• Oscar Veal, a contract killer, received just 25 years in prison for murdering seven individuals execution-style in service to a drug syndicate in Washington, D.C., after he helped prosecutors build a case against his employers.
• Larry Bright killed eight black women in Illinois over the course of 15 months, burning a number of his victims to ash in his mother's backyard. He received life sentences for each of the women he murdered.
• Zacarias Moussaoui received a life sentence for his role in conspiracy leading to the September 11, 2001 terror attacks.
• Charles Cullen admitted to killing 29 patients while serving as a nurse in New Jersey and Pennsylvania. He was sentenced to 17 consecutive life sentences.
• John Gotti, once head of the Gambino crime family in New York, was convicted on 13 murder charges, among racketeering and financial crimes, and received a life sentence in 1992.

As a result of the 1994 Federal Death Penalty Act, nearly all of the roughly 16,000 homicides occurring in the U.S. each year are now death-eligible, yet juries are becoming more reluctant to hand down the ultimate penalty and prosecutors pursue them infrequently. In 2009, the U.S. saw 15,241 murders and only 112 death sentences.

Inadequate Representation

Nearly all death row inmates were unable to afford private representation in court, putting further strain on an already stressed public defender system. Court-appointed attorneys often lack the experience necessary for capital trials and are generally overworked and underpaid. In extreme cases, attorneys have slept through parts of trials or arrived under the influence of alcohol.

Justice Sandra Day O'Connor confessed in 2001, "Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used."

For related info, visit our page on representation.

California

According to the California Commission on the Fair Administration of Justice (CCFAJ), roughly 87% of first-degree murders in California are eligible for the death penalty, yet often fewer than one percent of eligible offenders receive the death penalty, with no more than two percent sentenced to death in recent years.

The state of California saw 1,970 murders in 2009 (the latest year with statistics available), over 1,700 of which were death-eligible, using the CCFAJ estimate; however, a mere 29 of these men were sentenced to death, or about 1.7 percent of those eligible. In 2008, there were 2,143 homicides, more than 1,850 of which were death-eligible, and 21 men were sentenced to death, roughly 1.1 percent of those eligible.

The California State Senate created the CCFAJ in 2004 to study the failures of the state's criminal justice system and to propose improvements to the process in order "to further ensure that the application and administration of criminal justice in California is just, fair, and accurate." The commission was dissolved after it completed its study and published its findings in 2008. The commission offered a number of findings and recommendations, among them:

• Commissioners concluded that, "the [death penalty] system is plagued with excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions, and a severe backlog in the review of appeals and habeas petitions before the California Supreme Court. Ineffective assistance of counsel and other claims of constitutional violations are succeeding in federal courts at a very high rate. Thus far, federal courts have rendered final judgment in 54 habeas corpus challenges to California death penalty judgments. Relief in the form of a new guilt trial or a new penalty hearing was granted in 38 of the cases, or 70%."
• The CCFAJ estimated the costs of California's death penalty system to be roughly $137 million annually; if the state adopted the commission's recommendations on increasing funding for defense counsel, it would cost the state over $230 million; by significantly narrowing the special circumstances, the state would spend around $130 million; and were the state to abolish the death penalty and instead impose maximum sentences of lifetime incarceration, California would spend roughly $11.5 million annually.
• The commission suggested establishing a Death Penalty Review Panel, to be composed of judges, prosecutors, defense lawyers, law enforcement representatives and victim advocates to issue an annual report to the Legislature, the Governor and the courts, gauging the progress of the courts in reducing delays, analyzing the costs of and monitoring the implementation of the recommendations of this Commission, and examining ways of providing safeguards and making improvements in the way the California death penalty law functions.
• Because district attorneys are given so much leeway when it comes to deciding whether to charge an offender with a capital crime, the CCFAJ recommended that DAs "formulate a written Office Policy describing when and how decisions to seek the death penalty are made, such as who participates in the decisions, and what criteria are applied." They also recommended that input from the defense be taken into account during this decision-making process.

In a separate California study of gender bias in capital sentencing, researchers found that the death penalty is imposed on women relatively infrequently and that it is disproportionately imposed for the killing of women. In cases where the victim was a woman, the death sentence rate was 10.9%, seven times the rate when men were victims, 1.5%.

The authors concluded that "the death penalty in California appears to be applied in accordance with stereotypes about women's innate abilities, their roles in society, and their capacity for violence. Far from being gender neutral, the California death penalty seems to allow prejudices and stereotypes about violence and gender, chivalric values, to determine who lives and who dies."

For related info, see our page on gender and the death penalty.

Resources

Forecasting Life and Death: Juror Race, Religion, and Attitude Toward the Death Penalty (2001)
Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

The authors, members of the Capital Jury Project, analyzed interviews to determine the effect of individual jurors’ backgrounds on the outcome of capital trials. Among a number of findings, the authors concluded that race, religion, and support of the death penalty influenced jurors in the way they cast their first vote, and that the ultimate outcome could reliably be predicted based on the jury’s first vote.

Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing (2002)
William J. Bowers and Wanda D. Foglia

One of the first studies published after the CJP, the authors easily came to the broad conclusion that "jurors are not deciding who deserves the death penalty in the way the U.S. Supreme Court has held the constitution requires."

The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims (2003)
Scott E. Sundby

The author studied the effects of victim impact evidence (VIE) on capital sentencing.

The Decision Maker Matters: An Empirical Examination of the Way the Role of the Judge and the Jury Influence Death Penalty Decision-Making (2006)
William J. Bowers, Wanda D. Foglia, Jean E. Giles, and Michael E. Antonio

Researchers from the CJP offer yet more data confirming faults in the death penalty system.

The California Commission on the Fair Administration of Justice Final Report (2008)

Findings from the four-year-long study commissioned by the California legislature.

Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (2010)
Chris Chambers Goodman, H. Mitchell Caldwell, & Carol A. Chase

More, substantial findings on the arbitrariness of the death penalty's application.

Chivalry is Not Dead: Murder, Gender, and the Death Penalty (2011)
Steven F. Shatz, Naomi R. Shatz

In a review of 1,300 murder cases in California between 2003 and 2005, the authors confirmed what earlier studies have shown: that the death penalty is imposed on women relatively infrequently and that it is disproportionately imposed for the killing of women.

Struck by Lightning: The Continuing Arbitrariness of the Death Penalty (2011)
Richard C. Dieter, Death Penalty Information Center

Details on 35 years of arbitrariness in the application of the death penalty.