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.”


Discussions With DPIC, Prof. Meredith Rountree on What Influences Death Penalty Jurors’ Moral Decisionmaking, March 31, 2022; Meredith Rountree and Mary Rose, The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns, 69 Buffalo Law Review 1237 (Dec. 2021).