Indiana University Law Professor Joseph Hoffman says jurors confronted with the "anguishing moral dilemma of a death sentencing decision" seek to avoid personal moral responsibility for the decision much as the subjects in Milgram's experiment did. A former clerk to Chief Justice William Rehnquist, Hoffman researched this phenomenon for the Capital Jury Project, a consortium of law professors, psychologists, criminologists and other social scientists. The project has interviewed more than 1200 capital jurors during the past decade. Hoffman says some jurors he interviewed simply denied that the death sentence they handed down was their responsibility at all.
Joseph Hoffman. Photo: Annalese Poorman
Hoffman explains, "We've had jurors say, for example, that they believed that the judge had told them that they should come back with a death sentence when, in fact, we have transcripts of the trial and no such thing was actually said. But the jury members, for whatever reason, interpreted the judge's instructions in that way."
In the case of Virginia cop-killer Lonnie Weeks, juror Ted Trynock, says several women jurors became highly emotional during discussions over the death sentence, and the judge repeatedly reassured them that they were not responsible for the sentence.
"Whenever the ladies were crying," recalls Trynock, "the judge came back into the quarters, where we were at, and the judge, he told them that 'your job is just to find him innocent or guilty, OK. I do the sentencing.'"
The judge said that?
"Yeah. Uh huh," says Trynock.
If the judge actually said that, his behavior was not only highly unethical, but also entirely misleading. Virginia judges have never had authority over death sentencing. Yet taking that burden off the jurors may have made it easier for some of them to vote for death. Weeks was executed two years ago.
In the past quarter century, 120 people were executed in states where judges rather than juries were allowed to make critical sentencing decisions. In June, the Supreme Court ruled that the laws in five of those states violated the constitutional right to a trial by jury. Yet three states still allow juries to recommend death sentences, leaving a final decision to the judge. Whether these statutes will also be found unconstitutional remains to be seen.
Professor Hoffman says that the experience of being asked to "kill someone" is so "alien and so overwhelming" that jurors will frequently shift responsibility to the defendant, the appeals process, the judge or the law itself.
"Jurors will say things like, well, I think the law basically was pointing us in the direction of a death sentence in this case," says Hoffman. "Or in some cases, the other way: the law was telling us that we should come back with life in this case. That's not what the law is supposed to do. It's not what the law is trying to do. But it's how the jurors interpret that legal guidance."
Hoffman says the law should make jurors feel responsible and behave responsibly. But, he says, to have a functioning capital punishment system, jurors cannot be made to feel that they are entirely responsible for the "violence" they tell the state to carry out. Hoffman says that if the law goes too far in emphasizing that the defendant's life rests in the jurors' hands: "You may produce a situation in which no jury would ever impose a death sentence."
Defense lawyers have long argued unsuccessfully as it turns out that capital jurors should be given graphic details of the execution process itself to drive home the weight of their decision and of their moral responsibility.
Next: Part II, Juror Confusion