Blind Justice: Juries Deciding Life and Death With Only Half the Truth

Blind Justice, the most recent report to be released by the Death Penalty Information Center (DPIC), is the first to focus on the prob­lems of the death penal­ty from the per­spec­tive of jurors. While jurors have always occu­pied an esteemed posi­tion in the broad­er crim­i­nal jus­tice sys­tem in the United States, in cap­i­tal cas­es the respon­si­bil­i­ty of jurors is even more crit­i­cal as they decide whether defen­dants should live or die. Even with this unique author­i­ty in cap­i­tal cas­es, they are treat­ed less than respect­ful­ly. Frequently, they are kept in the dark regard­ing key infor­ma­tion about the case and are often barred from serv­ing based on their beliefs or their race.

Deciding guilt beyond a rea­son­able doubt is not easy. But there is clar­i­ty in that task and 225 years of tra­di­tion to sup­port it. Judging whether a per­son should be con­demned to die is far more daunt­ing and the dif­fi­cul­ty is com­pound­ed by a com­plex for­mu­la that even many lawyers and judges do not under­stand. The mod­ern death sen­tenc­ing sys­tem was adopt­ed by the Supreme Court in 1976, and the results have been disturbing.

This report exam­ines the ways in which the death penal­ty fails jurors and, in turn, fails as a sys­tem of jus­tice. It looks at the dis­tort­ed way jurors are select­ed in cap­i­tal cas­es. It describes how crit­i­cal infor­ma­tion is often with­held from jurors, and how the evi­dence they do hear is often unre­li­able. It describes how the com­plex rules of death sen­tenc­ing pro­ce­dures ensure a sense of frus­tra­tion and emo­tion­al pain as jurors are asked to make one of the most dif­fi­cult choic­es of their lives.

As Blind Justice dis­cuss­es in detail, jurors are manip­u­lat­ed in cap­i­tal cas­es in many ways: 

• Their deeply held per­son­al views on cap­i­tal pun­ish­ment are picked apart and used as a lit­mus test of their abil­i­ty to serve as mem­ber of the jury. Those adher­ing to beliefs pre­vent­ing a death sen­tence will be reject­ed, even though those beliefs are well with­in the main­stream of public opinion.
• Jurors’ col­or and gen­der will often play a key role in whether they are cho­sen for a death penal­ty tri­al. In recent Gallup Polls, far more blacks and women oppose the death penal­ty than white males, mak­ing it more like­ly that they will be exclud­ed from cap­i­tal juries. Similar con­sid­er­a­tions work against those with cer­tain religious beliefs.
• Jurors in cap­i­tal cas­es are not rep­re­sen­ta­tive of the pop­u­la­tion as a whole. Those allowed to serve will be more pro-pros­e­cu­tion and con­vic­tion-prone than those who are exclud­ed. iii
• Those jurors who are select­ed might expect a high-qual­i­ty pur­suit of jus­tice on a lev­el play­ing field, but the truth will often be hid­den from them: pros­e­cu­tors may with­hold crit­i­cal evi­dence and defense attor­neys may fail to inves­ti­gate basic facts. Junk sci­ence, jail­house infor­mants and over­ly con­fi­dent eye­wit­ness­es will be offered as if they reli­ably estab­lished the defendant’s guilt.
• Since 2000, 37 peo­ple have been freed from death row after they were exon­er­at­ed. In 62 per­cent (23) of these cas­es, state mis­con­duct in mis­in­form­ing the juries played a sig­nif­i­cant role in the wrongful convictions.
• Far beyond their tra­di­tion­al role of deter­min­ing guilt and inno­cence, jurors are instruct­ed to weigh the ter­ri­ble aspects of the crime against any redeem­ing qual­i­ties of the defen­dant. From such an abstract com­par­i­son they are expect­ed to arrive at a deci­sion with life and death consequences.
• Jurors’ emo­tions will be acute­ly played upon as the most grue­some aspects of the crime are dis­played in graph­ic detail, and as the victim’s fam­i­ly is pit­ted against the defen­dant and his fam­i­ly. They will be told noth­ing about more heinous cas­es in the same juris­dic­tion where the death penal­ty was not even sought, much less imposed.
• Once their deci­sion is made, jurors will be large­ly ignored. If they have sec­ond thoughts after learn­ing new facts, it will be too late. In many cas­es, their work will be for noth­ing – their deci­sions over­turned because of errors by oth­ers beyond their control.

Slowly, jurors are begin­ning to react to the fla­grant flaws in this sys­tem. Some have offered affi­davits to judges and gov­er­nors about what they would have done had they known the whole truth. In increas­ing num­bers, they are vot­ing for life sen­tences, giv­en what they have seen and heard about abus­es in the sys­tem. As one juror in Louisiana said after sen­tenc­ing some­one to death who was lat­er exon­er­at­ed, ​“I don’t think many jurors feel com­fort­able play­ing Russian Roulette with people’s lives. Jurors are rec­og­niz­ing that life in prison is per­haps the only respon­si­ble way to vote.”

Death sen­tences have dropped by over 50 per­cent in the past five years in the wake of so many inmates being exon­er­at­ed of their crimes. The fun­da­men­tal ques­tions of whether the death penal­ty can be made to fit with­in our prin­ci­ples of equal­i­ty, the pro­tec­tion of the inno­cent, and the appro­pri­ate lim­i­ta­tion of gov­ern­men­tal pow­er are being open­ly raised by many judges, leg­is­la­tors, and the broader public.

Yet, the sys­tem con­tin­ues with many of the same prob­lems that have plagued it in the past. Those most like­ly to see the flaws in this sys­tem are the least like­ly to be cho­sen for the next cap­i­tal case. Death sen­tences are hand­ed down in iso­la­tion with lit­tle chance to explore the larg­er issues. Once imposed, the pre­sump­tions in favor of death become even stronger and hard­er to reverse.

The costs in terms of mis­takes, the con­vic­tion and even exe­cu­tion of inno­cent peo­ple, are exceed­ing­ly great. But there is also a cost to the respect afford­ed our sys­tem of jus­tice. Jurors are not the prob­lem — rather the prob­lem is in the failed attempt to twist a sys­tem designed to iden­ti­fy the clear­ly guilty into a sys­tem for weigh­ing life and death. The stakes in these cas­es encour­age bend­ing the truth and the elim­i­na­tion of jurors who might ques­tion the process. There is much to emu­late in our tra­di­tion of cit­i­zen par­tic­i­pa­tion in the crim­i­nal jus­tice sys­tem, but its appli­ca­tion to the death penal­ty has not served us well.