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The Role of the Jury

The jury was key to reviving the death penalty in 1976 when the United States Supreme Court decided Gregg v. Georgia and companion cases, holding that statutes that guided the jurors’ discre- tion could cure the arbitrariness that led them to fi nd the death penalty unconstitutional as applied four years earlier in Furman v. Georgia (1972). The Court emphasized the importance of the need for guidance when they stated “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 capri- cious action” ( Gregg v. Georgia , 1976, p. 189). At the same time, they decided two cases holding that the death penalty could never be mandatory ( Roberts v. Louisiana , 1976; Woodson v. North Caro- lina , 1976) because “death is different” from lesser penalties and “individualized sentencing” is required by the Eighth Amendment ( Woodson , p. 303–05). Two years later the Court elaborated on

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20 The Capital Jury and Sentencing


this requirement by making it clear that the sentencer cannot be precluded from considering any relevant mitigating evidence ( Lockett v. Ohio , 1978). From the outset of the modern era of capital punishment, therefore, the jury’s role has been diffi cult because avoiding arbitrariness through guiding discretion, and allowing individualized sentencing by mandating unlimited consideration of mitigation, are diffi cult to reconcile.

Doubts About the Jury’s Ability to Follow the Law

At least six different United States Supreme Court Justices have indicated that they do not believe it is possible to avoid the arbitrariness condemned in Furman and also have the individualized sentencing required by Woodson and Lockett . Justices Brennan and Marshall took the position in their concur- rence in Furman that the death penalty always violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it is inherently arbitrary. A third of the fi ve concurring justices in Furman , Justice Douglas, argued that unless the death penalty is mandatory, which the Court clearly rejected in Woodson and Roberts , it would be unconstitutional because it would be inherently subject to discrimination.

Since reinstituting the death penalty in Gregg , Justices Scalia, Thomas, and Blackman all argued that it is impossible to have both guided discretion and individualized sentencing, but reached different conclusions. Justices Scalia and Thomas decided to reject individualized sentencing ( Walton v. Arizona , 1990). In contrast, Justice Blackman concluded that the death penalty could not be administered in accordance with the Constitution ( Callins v. Collins , 1994).

In 2009, the American Law Institute (ALI), which formulated the Model Penal Code, also decided that one could not avoid arbitrariness with guided discretion and at the same time allow jurors to consider any relevant evidence they found mitigating (Death Penalty Information Center, 2017a). The ALI withdrew the section on capital punishment (§210.6) from their Model Penal Code, in part because of the tension between guided discretion and individualized sentencing (American Law Insti- tute, 2009). Like Blackman, they concluded that it was not possible to have both; thus it was impos- sible to have a death penalty that meets constitutional standards.

In his dissent in Glossip v. Gross (2015), Justice Breyer, joined by Justice Ginsburg, also questioned the constitutionality of the death penalty. Justice Breyer relied on three rationales for concluding that it was “highly likely that the death penalty violates the Eighth Amendment” and, although they did not focus directly on the jury, the capital jury is implicated to some extent in each of the problems cited (p. 2776–2777). For instance, one of the three constitutional problems Justice Breyer sees in the current administration of the death penalty is its unreliability, as evidenced by the numerous exonera- tions and legal errors. He argues that the practice of death qualifi cation of jurors may be one of the reasons the death penalty is not more reliable, citing a couple of examples of the plethora of scholarly research fi nding that death qualifi cation “skews juries toward guilt and death” (2015, p. 2758, citing Rozelle, 2006, p. 807).

Each jurisdiction with the death penalty has its own statute, but many aspects of the process are the same in every state and in the federal system because the United States Supreme Court has held they are constitutionally required. This chapter will focus on the aspects of the jury’s role that are uniform in all jurisdictions because they are mandated by the Sixth and Eighth Amendments to the United States Constitution. We concentrate on the legal standards governing the jury’s sentencing decisions because its role in the sentencing process was key to the determination that the death pen- alty is constitutional. We include sections on capital juror qualifi cations, the timing of the sentencing decision, guiding juror discretion, fears of future dangerousness and early release, and the infl uence of race. Each section describes the applicable law and what the empirical evidence tells us about how the process actually works. We conclude by discussing what the evidence reveals about the constitutional- ity of capital punishment.



Wanda D. Foglia and Marla Sandys

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