A Protocol for Death

Frederic Block declared in a March 15, 2007 New York Times op-ed that considering the financial cost of death penalty cases to the American taxpayer, and the few death penalty verdicts that result in the condemned actually being put to death, the federal death penalty system is in need of reform. Other reports on grueling details from botched executions add to the list of reasons for major changes needed in the system of capital punishment in the United States. Meanwhile, several states have imposed moratoriums on capital punishment because of high profile exonerations by DNA evidence.

As is true in every aspect of the criminal justice system, structural inequalities result in the uneven assignment of capital punishment. Of course, death penalty sentencing and execution are not meted out equally. The death penalty is administered in only a minority of eligible cases, and its determinants often seem inconsistent and unpredictable. One factor that accounts for the inconsistency regarding who is actually executed is race–both the race of the victim and race of the perpetrator. The death penalty is sentenced at a much greater rate to people of color than whites convicted of crimes, and to those who kill whites compared to those who kill people of color. Death sentences of black-defendant/white-victim far exceed any other combination of victim and perpetrator. Prosecutors, juries, and judges are simply more likely to think that the loss of a white person’s life is more significant than the loss of a person of color.

Angela Davis refers to such racialized patterns in the criminal justice system as “masked racism.” Social psychologists study even more subtle forms of prejudice and discrimination-bias that is hidden, unintentional, seemingly harmless, or apparently insignificant. This “benign bigotry” manifests in every capital case through the process known as death qualification.

Death Qualification

In most criminal cases, a jury decides to convict or acquit, while a judge makes sentencing decisions. In capital cases however, the jury decides the verdict and also whether or not to impose a death sentence. The jury’s decision is based on the weighing of aggravating (which could lead them toward the death penalty) or mitigating (which could lead them toward sparing the life of the convicted) circumstances. When jurors are empanelled to serve on cases in which the death penalty is being sought, during voir dire (the process by which judges and attorneys ask potential jurors questions to attempt to uncover any biases) potential jurors are required to answer questions about their attitudes toward capital punishment. Cases involving the death penalty have to have a jury that has been “death-qualified.” When jurors indicate strong anti-death penalty beliefs they are excused from service to that case. Jurors are systematically dismissed until a “death-qualified” jury, with members who are willing to consider death as a punishment, is empanelled. Those who oppose capital punishment are explicitly and systematically removed from the jury by the judge, while those in favor of the death penalty are retained for service. This process produces three hidden biases that function to railroad a defendant.

Who are Death-Qualified Jurors?

The question among defense attorneys and social scientists has been, by excluding potential jurors who oppose the death penalty, what kind of jurors are left? Is the death-qualified jury different from a jury made up of those who oppose the death penalty? Phoebe Ellsworth at the University of Michigan and her colleagues conducted a series of studies that address this question. They found that death qualified jurors are biased against the defendant compared to juries comprised of jurors who have a range of attitudes toward capital punishment. Specifically, death qualified jurors are more inclined to favor the prosecutor’s viewpoint, more likely to mistrust criminal defendants and their counsel, more punitive in their approach toward offenders, more concerned with crime control than with due process, and more likely to find a defendant guilty.

One of Ellsworth’s experiments using mock juries (people who are jury-eligible but are not on an actual case) compared the deliberations and decisions of death qualified juries and juries that included some jurors who were “excludables” (those who strongly oppose the death penalty and therefore would not be eligible to serve on actual capital juries). In contrast to death-qualified juries, juries with some excludables were more skeptical of witnesses (regardless of whether they were for the defense or prosecution), were more likely to take the deliberation process seriously, and were better at remembering evidence. One reason why a death-qualified jury is more likely to impose the death penalty than a jury comprised of excludables is that death-qualified jurors are more likely to be swayed by aggravating circumstances and less sympathetic to mitigating circumstances. Thus, one hidden bias produced from death qualification is that the process obtains biased, pro-conviction, jurors.
Creating a Pro-Death Penalty Norm

Death qualified jurors are more conviction-prone, but what happens to jurors during the process of death qualification on a particular case? The death qualification procedure establishes the death penalty, and those who favor it as the unbiased, while those who oppose the death penalty are viewed as biased-so biased that they must be removed from the jury. This leaves potential jurors and the public with the impression that the anti-death penalty position, the position that most of the world favors, is the subject, biased position, and the pro-death penalty position, the position held by only a tiny fraction of countries around the world, is the objective non-biased position.

The death qualification procedure in capital cases is unlike any other kind of trial. It is the only situation where the possible outcome of the case and sentencing issues are brought up to the jurors prior to the jury hearing any of the case. This procedure introduces a major source of bias against the defendant in death penalty cases. Potential jurors are required to think in terms of a guilty verdict even before they hear opening arguments. Therefore, another hidden bias produced from death qualification is the juror’s a priori belief in the possible (and perhaps) probable guilt of the defendant prior to hearing the case. In this way, guilt, not innocence, is the frame through which jurors on capital cases view the case and testimony. The implication here is that jurors go into a case with the presumption of guilt which flies in the face of the American legal system’s assumption of innocence until proven guilty.

In addition to the death qualification procedure and its impact on each particular case, the procedure actually influences people’s attitude toward the death penalty. The death qualification procedure takes place in the presence of all prospective jurors. University of California, Santa Cruz professor Craig Haney constructed an experiment to see whether or not people are influenced by the process of death qualification itself. He created two versions of a videotape of a court proceeding. People were shown one of two versions of the tape. In one condition, viewers saw the typical death qualification procedure in which prospective jurors were asked their opinion of the death penalty and were dismissed from service if they expressed strong opposition to it. In the control condition, the death qualification procedure did not appear. Compared to people in the control condition, those who viewed the death qualification segment were more convinced of the defendant’s guilt, they believed that the judge thought the defendant was guilty, and they were more likely to impose the death penalty if the defendant was convicted. Thus, merely witnessing the death qualification procedure can have an effect on how jurors judge the defendant. The death qualification procedure sets up an anti-defense, anti-defendant norm. Thus, a final hidden bias is that the death qualification process actually influences jurors’ thinking about the death penalty more generally-that the pro-capital punishment is the norm.

The U.S. Constitution is set up so that there is the presumption of innocence. But in capital cases, the focus of jurors’ attention is drawn away from the presumption of innocence toward the presumption of guilt because of the focus on post-conviction events. These proceedings literally have life and death consequences.

The United States is one of just a few countries left in the world that sanction state sponsored executions. According to Amnesty International, 94% percent of world-wide executions are carried out by just four countries: China, Iran, Saudi Arabia, and the United States. All sentences, except for capital ones, are reversible. Given what we know about capital punishment, and one piece of the process, death qualification, capital punishment should be abolished in favor of long-term sentences or rehabilitation. This would bring the U.S. in line with similar nations. Even Russia has had a moratorium on state executions since 1996. In fact, the U.S. has become so isolated from comparable nations on this issue, many countries will not extradite their citizens accused of violent crime in the U.S. because the U.S. still has the death penalty.

The research on death qualification is conclusive: the procedure is stacked against the defendant and that defendant is disproportionately a person of color and poor. Death qualified juries are more conviction-prone than juries that include those who are excluded from serving because of their reservations about the death penalty. Any citizen concerned with human rights must make lawmakers aware of the research on death qualification.