Whether or not one supports the death penalty, we like to assume that when the state is trying to take a person's life, that individual will get a fair trial by a jury. What the Capital Jury Project's research and my own interviews with capital jurors suggest is that this is often not the case.
Assume for a moment that you are responsible for deciding whether or not another person is to be put to death by the state. How do you go about it? How much time would you like to decide? How much evidence will you need? How many "authorities" would you like to consult?
Making a decision over an execution is a burden that falls on a relatively small number of ordinary Americans each year. Those people are jurors. It is also a burden most of our state laws shift at the eleventh hour to governors who have the unique power to grant clemency.
I first began thinking seriously about this unique power over another human life during the presidential campaign of 1990. At the time, Texas Governor George W. Bush had signed off on more than 140 executions and was campaigning strongly on the "character issue." It occurred to me that making a decision over even a single human life might be an extraordinary test of character. It certainly was for Hamlet. He went crazy trying to sort out just a single murder. The idea of signing off on 152 executions as Bush would eventually do is hard to imagine. When I asked Bush's close friend, now White House Counsel, Alberto Gonzales, how much time the governor spent reviewing each death sentence, he told me it was about a half-hour.
Governors are not required to spend any time considering alternatives to death. Nor are they required to apply any particular standards or rules. That's the way juries in this country worked until 1972: they had unlimited discretion. And the consequences were horrific. To cite just one example, between 1930 and 1972, 455 men were executed in the United States for rape. Nine out of ten of them were black. And it wasn't because blacks were committing 90% of the rapes.
By 1972, a majority of the Supreme Court came to the undeniable conclusion that the way the death penalty was administered by the states was "arbitrary," "capricious" and unprincipled. In a case called Furman v. Georgia, the Court struck down hundreds of state death penalty laws. But four years later the death penalty was resurrected by another Supreme Court decision, Gregg v. Georgia. The thinking behind Gregg was that if jurors were given "clear and objective standards," a sort of roadmap that would guide their decision-making, the death penalty would be fairer. Unlimited discretion was replaced by "guided discretion." The laws now in place in the 38 death penalty states are the legacy of the Gregg decision. The question, of course, is whether those laws and standards have eliminated arbitrariness, racial prejudice and the other ills identified by the Furman Court, and whether jury sentencing today is any fairer than it was before 1972.
When I began investigating that question a little over a year ago, I found I was repeatedly crossing paths with a research scholar at Northeastern University's College of Criminal Justice named William Bowers. In 1990, Bowers created something called the Capital Jury Project to scientifically examine whether death sentences have become more rational and less arbitrary in the past quarter century. Working under a grant from the National Science Foundation, Bowers pulled together a diverse collection of prominent academics who interviewed more than 1200 capital jurors. Their findings, many of which are cited in Deadly Decisions, will be deeply disturbing to anyone who cares about the fairness of our justice system.
Whether or not one supports the death penalty, we like to assume that when the state is trying to take a person's life, that individual will get a fair trial by a jury. What the jury project's research and my own interviews with capital jurors suggest is that this is often not the case. Jurors frequently don't understand the laws or the standards they are supposed to apply. Often, they don't understand some of the most basic concepts that apply to death penalty cases such as "reasonable doubt" and "mitigation." They don't understand what will happen if they fail to agree on a sentence. They are confused by overly complex legal language. And when they try to do their jobs honestly and ask judges to clarify what they don't understand, too often they are given no help at all. The result is that people are executed whom jurors really didn't want to see die, or they're executed because jurors mistakenly believed they were required to sentence them to death, or because jurors erroneously believed they would be released if they didn't sentence them to death. That's obviously not fair to the defendant. But it's also not fair to jurors, who are forced to make these extraordinarily difficult decisions in the name of the rest of us.
ABOUT ALAN BERLOW
Alan Berlow is a free-lance journalist and former Southeast Asia correspondent for National Public Radio. He is the author of Dead Season: A Story of Murder and Revenge (Vintage Books). His writing has appeared in The Atlantic Monthly, Harper's, The New Republic, The American Prospect, The Washington Post, The Los Angeles Times and Salon.com. His overseas reporting received several awards, among them two from the Overseas Press Club, the Major Armstrong Award from Columbia University and the Weintal Award from the Georgetown University School of Foreign Service. He lives in Maryland.