Title: Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing
Abstract: Introduction: The Challenge of Brown v. Texas' How capital jurors should make the life or death sentencing decision is a critical issue at the core of modern capital jurisprudence. Since its 1976 decisions in Gregg v. Georgia,2 Proffitt v. Florida,3 and Jurek v. Texas4 authorized the states' return to capital punishment, the United States Supreme Court has grappled with the two-sided question: To what extent can we trust jurors to understand and apply the law correctly and to what extent must they be explicitly directed in their decision-making? Once the Court has determined that some constraints are necessary, it then must decide whether they are needed only to correct misbehavior or, more fundamentally, to shape the constitutional contours of capital sentencing. What the Court decides to do, or not to do, has often depended on untested assumptions about how jurors make the critical punishment decision.5 Such empirical assumptions need to be informed, and sometimes revised, in light of the kind of data presented in this Article.6 In the denial of certiorari in Brown v. Texas,7 one of these perplexing empirical issues surfaced as a clear concern of four Supreme Court justices.8 Basically, the issue is this: Should capital jurors know how long the defendant must spend in prison before becoming eligible for parole, or how long he is apt to serve before actually being paroled, if the defendant is not given the death penalty? Can jurors make a reasoned moral choice between life and death without such information? On this issue, Texas's sentencing scheme presents a particular irony, as Justice Stevens observed in Brown: The situation in Texas is especially troubling. In Texas, the jury determines the sentence to be imposed after conviction in a significant number of noncapital felony cases. In those noncapital cases, Texas law requires that the jury be given an instruction explaining when the defendant will become eligible for parole. Thus, the Texas Legislature has recognized that, without such an instruction, Texas jurors may not fully understand the range of sentencing options available to them. Perversely, however, in capital cases, Texas law prohibits the judge from letting the jury know when the defendant will become eligible for parole if he is not sentenced to death.9 Why shouldn't Texas jurors, or those from any other state, know about parole in making their capital sentencing decision? Isn't parole an even more important consideration in capital than in noncapital sentencing? Justice Stevens cites evidence from citizen surveys in a number of states that indicates people find the death penalty less attractive the longer offenders would stay in prison before becoming eligible for parole,'o and surmises that the Texas rule against informing jurors of parole eligibility in capital cases tips the scales in favor of a death sentence that a fully informed jury might not impose. He concludes with a call for further study of the issue of false choice to assist the Court in its correct resolution: [T]he likelihood that the issue will be resolved correctly may increase if this Court allows other tribunals `to serve as laboratories in which the issue receives further study before it is addressed by this Court.2 Though uncommon, opinions respecting denial of certiorari have sometimes foreshadowed portentous developments in capital jurisprudence, including the Court's holdings in Batson v. Kentucky,'3 and Coker v. Georgia.14 Although the assumption that jurors disregard parole in their decisionmaking has undergirded the thinking of courts about how jurors should make capital sentencing decisions,'5 the empirical data shows it is a false description of what jurors actually do-a legal fiction. The stage is thus set for an examination of two related empirical questions that hold the key to understanding the implications of not informing capital juries of the death penalty alternative: Do capital jurors misunderstand the death penalty alternative, in the absence of being informed; and, if so, do such misunderstandings bias their sentencing decisions? …
Publication Year: 1999
Publication Date: 1999-02-01
Language: en
Type: article
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Cited By Count: 37
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