New DPIC Podcast: Prof. Meredith Rountree on What Influences Death Penalty Jurors’ Moral Decision Making

In the March 2022 episode of Discussions With DPIC, Northwestern Pritzker School of Law Senior Lecturer Meredith Rountree speaks with Death Penalty Information Center Executive Director Robert Dunham about her study of the types of evi­dence that influ­ence juror deci­sion-mak­ing at the sen­tenc­ing stage of capital cases. 

Rountree and her co-author Dr. Mary Rose of the University of Texas, reviewed and ana­lyzed 176 ver­dict forms com­plet­ed by juries in fed­er­al death penal­ty cas­es, focus­ing on three legal­ly con­tro­ver­sial areas of mit­i­gat­ing evi­dence that juries found to be impor­tant to their deci­sions on life or death: the impact of a person’s exe­cu­tion on their loved ones, the sen­tences received by co-par­tic­i­pants in the offense, and the role of gov­ern­ment neg­li­gence. The research wasn’t ​“just a sur­vey of what jurors think mat­ters,” Rountree explained. It also asked and answers impor­tant ques­tions on ​“how does this fit in to their moral decision making?”

“[O]ne of the things that moti­vat­ed this whole project,” Rountree said, ​“is a sense that … courts make a lot of assump­tions — in all sorts of domains — about how jurors would have respond­ed to par­tic­u­lar lawyer­ly argu­ments about whether they would have been affect­ed by cer­tain kinds of evi­dence.” Rather than sim­ply assume, she said, ​“I’m enough of an empiri­cist to think that, well, we should ask jurors what mat­ters to them.”

In exam­in­ing the ver­dict forms, Rountree and Rose found that the jurors ​“worked very hard in these cas­es. I think they were immense­ly con­sci­en­tious,” Rountree said. The data showed, how­ev­er, that the courts’ lim­it­ed con­cep­tion of what is impor­tant may actu­al­ly impede jurors from doing their jobs by exclud­ing evi­dence that mat­ters to them. “[I]if we want jurors to be per­form­ing their func­tion as voic­es of the com­mu­ni­ty, to real­ly enable them to do their work,” Rountree explained, ​“we have to have the idea of jus­tice that they bring in here.” There are ​“mul­ti­ple ways of think­ing about jus­tice,” Rountree said, and an impor­tant con­tri­bu­tion of their study ​“is to show these are some things that [jurors] thought were impor­tant that courts have not thought were impor­tant to justice.”

Execution-Impact Evidence

One legal­ly con­tro­ver­sial type of evi­dence juries found impor­tant in their sen­tenc­ing delib­er­a­tions is ​“exe­cu­tion-impact evi­dence” —the impact of an exe­cu­tion on the defendant’s loved ones. After ini­tial­ly declar­ing vic­tim-impact tes­ti­mo­ny uncon­sti­tu­tion­al in death-penal­ty cas­es, the Supreme Court reversed course and per­mit­ted its admis­sion based upon its rel­e­vance to assess­ing the harm caused by the killing. 

“If the degree of harm is rel­e­vant when it comes to the fam­i­ly mem­bers of the vic­tim,” Dunham asked, ​“how is it not rel­e­vant when it comes to the fam­i­ly mem­bers of the defen­dant?” Courts have tend­ed to think of mit­i­gat­ing evi­dence as ​“essen­tial­ly char­ac­ter­is­tics of the offend­er and cir­cum­stances of the crime,” Rountree said. Another way to think about jus­tice, she sug­gest­ed, is to ask ​“how does this pun­ish­ment affect the community?” 

The ver­dict slips showed that jurors were ​“very engaged with this kind of evi­dence,” Rountree observed. Calling it the study’s ​“strongest find­ing,” she said that when juries had ​“the oppor­tu­ni­ty to con­sid­er [exe­cu­tion-impact] evi­dence, it had a strong influ­ence on out­come.” The researchers found that jurors who were not asked to con­sid­er exe­cu­tion-impact evi­dence vot­ed unan­i­mous­ly for death in 44.5% of cas­es, as opposed to in 30.9% of cas­es in which where they were asked to con­sid­er it. Juries returned non-unan­i­mous life ver­dicts in 18.8% of cas­es in which they were not pre­sent­ed exe­cu­tion-impact evi­dence, but 33.6% of the time in which they were, indi­cat­ing the evi­dence had per­suad­ed at least some jurors to vote for life.

Juries ​“cared about the fact that peo­ple who were inno­cent of this crime were going to suf­fer as a result of the exe­cu­tion,” Rountree said. ​“And they thought about that in their moral decision making.”

Lesser Sentences for Co-Participants

Rountree and Rose also found that jurors’ con­cep­tions of just out­comes were influ­enced by the pro­por­tion­al­i­ty of the defendant’s pun­ish­ment as com­pared to oth­er par­tic­i­pants in the offense. ​“What was clear in our data is that [jurors] real­ly cared about co-par­tic­i­pant out­comes — ​‘what was this oth­er per­son sen­tenced to?,’” Rountree explained. 

When ver­dict forms list­ed a mit­i­gat­ing cir­cum­stance in which at least one co-par­tic­i­pant received a less­er sen­tence, jurors were more than twice as like­ly to return a unan­i­mous ver­dict of life with­out the pos­si­bil­i­ty of parole (44.2%) than in cas­es in which the ver­dict form did not fea­ture any co-par­tic­i­pant mit­i­gat­ing cir­cum­stance (20.6%). Federal juries returned unan­i­mous death ver­dicts in 57.3% of the cas­es in which ver­dict forms con­tained no co-par­tic­i­pant mit­i­gat­ing cir­cum­stances, com­pared to 26.8% of the cas­es in which ver­dict forms list­ed one or more co-par­tic­i­pant mitigating circumstances. 

Rountree not­ed that ​“in many of these ver­dict forms, the jurors are actu­al­ly writ­ing in, they are say­ing in their own words, what mat­ters to them.” She and Rose ​“real­ly felt like there was a fair­ness com­po­nent to [jurors’] think­ing,” Jurors felt ​“it’s not fair that some­one could be a same or greater cul­pa­bil­i­ty and not be sub­ject­ed to the death penal­ty or cap­i­tal tri­al,” she explained.

Government Negligence

The third fac­tor Rountree and Rose explored was the role gov­ern­ment neg­li­gence played in juror deci­sion mak­ing. ​“Some of the jurors gave sup­port to or wrote in mit­i­ga­tors about how the gov­ern­ment failed to rec­og­nize that this defen­dant has spe­cial edu­ca­tion needs, or that [the gov­ern­ment] had failed to have Child Protective Services inter­vene in an abu­sive fam­i­ly,” Rountree stated. 

However, jurors did not lim­it con­sid­er­a­tion of gov­ern­ment neg­li­gence to fail­ure to pro­vide child or oth­er pro­tec­tive ser­vices. In sev­er­al cas­es in which the fed­er­al gov­ern­ment sought the death penal­ty for prison mur­ders, jurors cred­it­ed defense evi­dence that neg­li­gence by Bureau of Prisons offi­cials con­tributed to the mur­der. ​“There’s a sense that when the gov­ern­ment cre­at­ed the cir­cum­stances that led to the death of a vic­tim, … they lose a kind of moral stand­ing to seek the ulti­mate pun­ish­ment against the per­son who actu­al­ly did com­mit the crime.” In those cas­es, she said, the ver­dict forms show ​“strong sup­port for the idea that [it is mit­i­gat­ing that] the gov­ern­ment helped make this crime happen.” 

Jurors’ Sense of Justice

Rountree finds the results of her study par­tic­u­lar­ly instruc­tive giv­en that death-penal­ty juries go through a selec­tion process in which, to be eli­gi­ble to serve, ​“you have to be will­ing to impose the death penal­ty.” That means, she said, that the ideas of jus­tice expressed in the cap­i­tal ver­dict forms ​“are some of the most con­ser­v­a­tive ideas of jus­tice.” These more con­ser­v­a­tive jurors think that doing jus­tice ​“impli­cates who will suf­fer as a result of this exe­cu­tion, who is not being pun­ished in the same way, and what is the government’s role in the harm that was done.” 

These con­sid­er­a­tions, Rountree argues, are all part of a ​“more com­plex vision of jus­tice” than the court’s con­struc­tion of mit­i­gat­ing evi­dence has rec­og­nized. Asked what the data mean in set­ting pol­i­cy, she responds: ​“as a pol­i­cy mat­ter, I would say, open up the doc­trine to enable jurors to real­ly have the full infor­ma­tion that they need from a moral per­spec­tive in sen­tenc­ing some­one to life or to death.”