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Jurors and the Death Penalty

Publication Date: 
April 11, 2006
Michel Martin

NPR's Talk of the Nation talks to Professor Robert Weisberg about sentencing and the death penalty:

Mr. WEISBERG: Up until the 1960s, in most states there was a single phase. There'd be a trial, usually for murder, although the death penalty used to be available for other crimes, such as rape and kidnapping. The jury would be asked to go back, determine whether the defendant was guilty, let us say, of first degree murder. And then it would be told that if in the course of it's jury deliberations, it determined that the defendant was so guilty, it should decide whether he should live or die.

It wasn't given any particular guidance as to how to make that second decision. It also wasn't given any real information that might be relevant to that decision, other than the general information about the guilt of the crime the jurors got from the guilt phase.

The Supreme Court in a famous decision in 1972, the Furman decision, struck down laws that met that description, the so-called unguided discretion laws, because of two classic problems. Number one, these laws seem to lead to completely unpredictable, arbitrary, capricious results. Number two, they led to, unfortunately, rather predictable results in many cases, results based on race. Although most of the statistics then, most of the statistics now, as a matter of fact, suggest that the racial bias was not about the race of the defendant so much as the race of the victim.

Anyway, the Supreme Court then encouraged states to pass a new kind of law, a kind of law that was finally approved a few years later, what can be roughly be called a guided discretion law. First the jury decides, in a conventional guilt phase, whether the defendant is guilty, let us say, of first degree murder. If and only if it so finds, and often has to find one other aggravating or death- eligibility factor, the jury will then return to the court room and there'll be a second phase, which sort of looks like a trial. But also is going to look a bit like a kind of open sentencing hearing of the kind that used to happen just before a judge in non-capital cases. But again, the jury will usually be present. And all kinds of things can come in at that point, all kinds of aggravating and mitigating circumstances and testimony. And then the jury has to go back into the jury room and decide between life and death.

MARTIN: And it's usually the same jury? Are there ever different juries for the different tasks?

Mr. WEISBERG: Virtually never.

MARTIN: And is this the norm in state penalty, state death penalty trials as well as the rare federal death penalty trial?

Mr. WEISBERG: Oh yes, because the, although the statutes vary to some extent from state to state and between the states and the federal government, they're pretty much tracking a model that was strongly encouraged if not required by the Supreme Court when it restored the death penalty's constitutionality in 1976, so it's very much a kind of core constitutionally required form.

MARTIN: The victim impact statement is a relatively recent phenomenon, isn't it?

Mr. WEISBERG: Oh, there probably always been types of testimony from victims about crimes. It's become a more visible and regularized phenomenon in recent years, but it's actually had a rather twisty history in modern death penalty law, because in 1987, in a case called Booth vs. Maryland, the Supreme Court held that is was unconstitutional to allow testimony from victims if it bore on, in effect, the worth of the life of the victim or the particular consequences of that victim's death for family members. The Supreme Court thought that was an arbitrary factor that was irrelevant to the true culpability of the defendant.

Four years later in a case called Paine vs. Tennessee, the Supreme Court flatly reversed itself and declared that these victim impact statements were legal and most states now have them.

MARTIN: I understand you don't like the use of this kind of testimony during the penalty phase. Is that accurate? And why is that?

Mr. WEISBERG: Well, I thought the court was right the first time. A lot of emotion is going to be expressed in death penalty cases anyway. First of all, even the basic facts of the murder that are laid out at the guilt phase are going to, you know, capture a lot of the emotional, you know, consequences of the killing.

And even in the penalty phase, of course, merely to talk about particular aggravating factors, including factors about the particular way the crime was done are certainly going to evoke great passion, and to some extent that's unavoidable.

The problem with victim impact statements is in some ways, well, it's a philosophical one. It suggests that a major factor in determining whether the defendant should live or die is the set of particular characteristics of the victim or the particular types of emotional, financial or other consequences that the survivors faced. To put it simply, it differentiates killings on the basis of the nature or life or character or family circumstances of the victim. Murder is murder. I think the best argument would be that if there's one constant in the equation is that, it is that all human life is equally worthwhile.

MARTIN: Let's bring another voice into the discussion. And joining us now is Joshua Marquis.

Mr. WEISBERG: I should add, simply, that what I just stated is losing position according to the Supreme Court. I have lost on that one.