Discussion question 2 paragraphs

451

http://dx.doi.org/10.1037/14462-017
APA Handbook of Forensic Psychology: Vol. 2. Criminal Investigation, Adjudication, and Sentencing Outcomes,
B. L. Cutler and P. A. Zapf (Editors-in-Chief)
Copyright © 2015 by the American Psychological Association. All rights reserved.

C H A P T E R 1 7

THE DEATH PENALTY
Craig Haney , Joanna Weill, and Mona Lynch

The death penalty occupies a unique position in
social science and law. Despite the fact that it
directly affects only a relatively small number of
people, it is one of the most extensively studied
aspects of the criminal justice system. There are
several reasons for this high level of scholarly interest,
including the fact of what is at stake in death penalty
cases could not be more profound—literally life and
death. As Supreme Court Justice Potter Stewart
expressed it in the landmark Furman v. Georgia
(1972) case: “The penalty of death differs from all
other forms of criminal punishment, not in degree,
but in kind. It is unique in its total irrevocability.
It is unique in its rejection of rehabilitation of the
convict as a basic purpose of criminal justice. And it
is unique, fi nally, in its absolute renunciation of all
that is embodied in our concept of humanity” (p. 306).

IMPORTANCE OF THE PROBLEM

Those high stakes and the extraordinary nature of the
punishment help to account for the fact that death
penalty cases have established many key legal prece-
dents, establishing benchmarks for fairness and due
process in the rest of the criminal justice system.
In addition to their dramatic stakes and the signifi –
cance of the legal precedents that they generate,
capital cases often involve the highest profi le, most
sensationalized case facts, sometimes attracting
intense public, political, and media interest and,
often, the corresponding attention of legal and social
science scholars. Scholarly interest also has focused

on another unique aspect of capital punishment—
the special set of psychological conditions that must
obtain to enable a group of average citizens to ratio-
nally authorize the death of another and the various
psycho-legal mechanisms that govern this truly
extraordinary decision-making process.

We have divided our review of capital
punishment-related psychological research into
three very broad areas. The fi rst pertains to the
overall operation of the death penalty in the United
States—more specifi cally, what our system of capital
punishment tells us about the nature of criminal cul-
pability and so-called death eligibility, whether and
how the death penalty operates as a deterrent
to capital crime, and whether capital punishment is
imposed in a racially discriminatory manner. The
second broad area of empirical research pertains to
death penalty attitudes and the role that they play in
the administration of capital punishment. Because
capital punishment is both controversial and demo-
cratically administered, relative levels of public
support versus opposition have special legal and
political signifi cance and have been extensively stud-
ied. Third, and fi nally, we examine the operation of
the capital jury—the site of a great deal of psycho-
logical research. We focus on what is known about
the way this unique legal institution is composed
and how it functions, including the effects of the
special procedures that are used to select capital
juries, the unique conditions that are created in capi-
tal trials that enable jurors to traverse an otherwise
deep-seated moral prohibition against taking a life,

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Haney, Weill, and Lynch

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and the unusual decision-making process in which,
supposedly, the jury’s decision to render its life and
death verdict is simultaneously preserved, yet legally
guided. (for a review of research on mental health
assessments in capital cases, see Volume 1, Chapter
7, this handbook).

RELEVANT PSYCHOLOGICAL
THEORY AND PRINCIPLES

Research on capital punishment implicates a wide
range of psychological theories that are often
enmeshed with important principles of constitu-
tional law. The theories include the nature of the
legal and moral concept of culpability, as well as
whether and how the discretion of key decision mak-
ers can be regulated to ensure that judgments—in
this case, judgments about whether a person is
“culpable enough” to be sentenced to die—are made
in a principled and constitutionally appropriate man-
ner (see Volume 1, Chapter 4, this handbook, for a
review of criminal responsibility). In addition, the
death penalty raises important theoretical questions
about the kinds of punishment that deter the most
serious forms of criminal behavior and, in particular,
whether capital punishment has a uniquely deterrent
effect. Historically, the system of death sentencing in
the United States also has highlighted important the-
oretical questions about the persistence of racial prej-
udice and its infl uence on legal decision making,
specifi cally whether, how, and why the application of
the ultimate punishment continues to occur in
racially disparate ways. In addition, people’s attitudes
and beliefs about the death penalty—who supports
a capital punishment at any given time, how
strongly, and why—are long-standing topics of study
and have been extensively theorized and researched
in the literature on public opinion, posing a number
of important conceptual questions about how atti-
tudes about crime and punishment are formed, are
interrelated, and change over time. Finally, the spe-
cial behavior of the capital jury—a group of citizens
that is composed in an unusual manner, subjected to
a special set of legal procedures, and called upon to
engage in an extra ordinary decision-making process
that is supposed to be guided and regulated by a set
of judicial instructions—implicates a number of

psychological theories, including the phenomenon of
moral disengagement, the relationship between attitudes
and behavior, principles of small group behavior, and
whether and how the discretion to select between life
and death punishments can be reliably guided (includ-
ing under conditions where instructional incomprehen-
sion and racial discrimination may be implicated).

The Overall Operation of the
Death Penalty
In this section we address several psychological
aspects of the overall operation of the death penalty,
i.e., how it functions in the broadest possible terms,
including the process of selecting the persons on
whom it is imposed and with what overall societal
effect. The fi rst overall aspect involves the way in
which a system of capital punishment forces a soci-
ety and its legal decision makers to address a criti-
cally important preliminary or threshold issue: How
should we go about identifying and selecting those
persons who are eligible for or placed at risk of
receiving the death penalty? Especially in a society
such as ours in which the exercise of state power is
restrained by a set of long-standing constitutional
limits, the power to punish—here, to punish by
death—cannot run afoul of the prohibition against
imposing punishments that are “cruel and unusual.”
Several approaches to this critical issue involve psy-
chological principles and may be empirically evalu-
ated. A separate aspect of the system of death
sentencing involves whether and how it affects the
rate of capital crime, which is one of its ostensible
justifi cations. Finally, like all systems of democrati-
cally administered punishment and social control,
capital punishment is subject to the biases and pre-
conceptions of those who implement it. In the
United States, by far the greatest concern involves
the racially discriminatory imposition of the death
penalty and, appropriately, this is an issue on which
much empirical research has been focused.

Culpability. Capital punishment raises important
theoretical as well as ethical and moral questions in
law and psychology about the nature of legitimate
punishment, the basis on which the state is justi-
fi ed in taking the life of one of its citizens, and the
circumstances under which a punishment comes

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The Death Penalty

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to be regarded as so extreme that it is seen as cruel
and unusual in constitutional terms. Out of rec-
ognition that “death is different”—in its extremity
and fi nality—there is general recognition that truly
extraordinary justifi cation must be provided for
imposing a death sentence. For the most part, the legal
consensus in the United States is that, if capital pun-
ishment can ever be justifi ed, it must be reserved for
“the worst of the worst.” Indeed, as one commentator
summarized this consensus, “[l]ike the phrase ‘death
is different,’ ‘the worst of the worst’ peppers death pen-
alty literature” ( Note, 2001 ). The “worst of the worst”
principle not only recurs in the death penalty litera-
ture but also has been embraced by the United States
Supreme Court, which has explicitly acknowledged
that “within the category of capital crimes, the death
penalty must be reserved for ‘the worst of the worst’”
(Justice Souter, in Kansas v. Marsh , 2006 , p. 206).

Although identifying the way in which death, and
therefore, the death penalty, is different is straightfor-
ward and perhaps obvious, precisely and meaning-
fully defi ning the category of the worst of the worst
and doing so in a way that can be reliably imple-
mented and applied by legal decision makers (includ-
ing capital jurors) are much more challenging tasks.
In fact, the Court concluded in the landmark Furman v.
Georgia (1972) case that the nation’s system of death
sentencing had failed to accomplish these very tasks,
and that the resulting pattern of arbitrary and capri-
cious imposition of the ultimate punishment was
therefore unconstitutional.

Several different conceptual and procedural
approaches have taken to operationalize the concept
of worst of the worst, and each has embodied a some-
what different set of psychological assumptions. The
fi rst has been to signifi cantly narrow the class
of cases or kinds of crimes for which defendants are
eligible to be considered for the death penalty.
In this sense, modern death penalty statutes are far
more selective than their historical predecessors,
and bear little relationship to laws that provided
for capital punishment upon conviction for scores
of even the most minor or petty offenses. In the
post- Furman era, that narrowing process supposedly
became much more refi ned, so that “worst of the
worst” was defi ned in terms of the nature of the crime
and the presumably heinous features it entailed.

For example, the Supreme Court prohibited the
imposition of the death penalty for the crime of rape
(e.g., see Coker v. Georgia , 1977 )—something for
which capital punishment had been imposed many
times in the past—because a majority of Supreme
Court justices concluded that the punishment was
categorically disproportionate to the heinousness of
the offense. In a related way, the Court held that the
death penalty should be reserved only for cases in
which the crime itself refl ected “a consciousness
materially more ‘depraved’ than that of any person
guilty of murder” ( Godfrey v. Georgia , 1980 , p. 433)
or, as the Supreme Court justices later summarized,
“the culpability of the average murderer is insuffi –
cient to justify the most extreme sanction available
to the State” ( Atkins v. Virginia , 2002 , p. 319).

To ensure that the death penalty would be
reserved for more than just any murder committed
by a defendant with a merely average level of
culpability, states passed capital punishment statutes
that included threshold requirements making only
certain kinds of murders “death-eligible” and
excluded all others from consideration as capital
cases. Under other kinds of statutory schemes, the
narrowing function is accomplished on the basis of a
judgment made by the capital jury, whose members
are called upon to decide, for example, that at least
one “aggravating circumstance” has been proven
that allows the defendant to be considered for the
death penalty. This part of the capital trial is sometimes
referred to as an eligibility phase or stage, whose
logic the Court explained this way: “It is in regard
to the eligibility phase that we have stressed the need
for channeling and limiting the jury’s discretion to
ensure that the death penalty is a proportionate pun-
ishment and therefore not arbitrary or capricious in
its imposition” ( Buchanan v. Angelone , 1998 ,
p. 275–276). In each instance, the narrowing aspects
of the statute and eligibility determination are
supposed to impose an “inherent restraint on the
arbitrary and capricious infl iction of the death
sentence” ( Godfrey v. Georgia , 1980 , p. 428). Other
statutory schemes that are ostensibly designed to
reduce the improper exercise of discretion and the
arbitrary imposition of the death penalty provide
for a postsentencing proportionality review in which
judges examine individual death verdicts and

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Haney, Weill, and Lynch

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compare them to others to determine whether some
internal standard of proportionate punishment has
been violated in any given case.

An entirely different approach, which refl ects
another set of psychological assumptions, has been
to exclude whole categories of persons from the
death penalty on the basis of the fact that they pre-
sumably cannot, by virtue of their status characteris-
tics, be considered the worst of the worst. To date,
there exist two such categories: defendants who are
intellectually disabled and those who are juveniles
(under the age of 18 years at the time they commit-
ted the potentially capital crime). Thus, in Atkins v.
Virginia (2002) the Supreme Court reversed an
earlier position on whether mentally retarded
defendants could be eligible for the death penalty,
ruling that the cognitive and behavioral limitations
of those deemed mentally retarded as well as their
diffi culties in controlling their impulses meant that
they were by defi nition less culpable than others for
the commission of a potentially capital crime. Simi-
larly, in Roper v. Simmons (2005) the Court reversed
its previous position articulated a decade and a half
earlier in Stanford v. Kentucky (1989) and ruled that
“the diminished culpability of juveniles” (p. 571)
precluded them from being punished by death.
Specifi cally, because of their immature judgment,
their greater susceptibility to peer infl uence, and
the fact that their personality development was
in process and incomplete, the Court found that
defendants under the age of 18 at the time they
committed the crime of murder were categorically
ineligible for the death penalty.

A third and fi nal approach to defi ning worst of
the worst in a capital punishment context involves
providing the capital jurors with an instructional
framework that is supposed to guide their discretion
and regularize the capital decision-making process,
in theory eliminating the infl uence of extralegal
factors and ensuring that the death penalty is
imposed only when it is legally proper or justifi ed.
Thus, the sentencing instructions specify factors,
circumstances, or characteristics of the crime and
the defendant that jurors are supposed to at least
consider or take into account in reaching their
life or death sentencing verdicts. The list of factors or
circumstances includes ones that supposedly weigh

either in favor of imposing the death penalty
(aggravating circumstances) or life in prison
(mitigating circumstances), and the jurors are
instructed to weigh or balance the factors to choose
what they believe is the most appropriate sentence.
The restrictions on the amount of juror discretion
exercised at this fi nal penalty or selection stage of
a capital trial, however, must be balanced against
the constitutional requirement that individualized
determinations be made that pertain to the
specifi c case and specifi c defendant. This precludes
automatic death penalty statutes that mandate death
sentences in particular kinds of cases (e.g., Woodson
v. North Carolina , 1976 ), and it has also led the
Supreme Court to allow defendants wide latitude
in the mitigating evidence that they present (e.g.,
Lockett v. Ohio , 1978 ; and see, more generally,
Haney, 2008a ). Thus, “in contrast [to the eligibility
phase], in the selection phase, we have emphasized
the need for a broad inquiry into all relevant mitigat-
ing evidence to allow an individualized determina-
tion” ( Buchanan v. Angelone , 1998 , p. 276).

In addition, a number of Supreme Court justices
have, in a sense, “theorized” some of the psychological
linkages that capital jurors should consider in mak-
ing these individualized determinations, including
the adverse effects that an abusive and traumatic
background might have on a capital defendant’s life
chances and adult behavior. They have suggested
further that consideration of these adverse effects
might well lead a capital jury to assess the defen-
dant’s culpability differently and to decide not to
sentence him or her to death. These assertions
include Justice Powell’s statement that “there can be
no doubt that evidence of a turbulent family history,
of beatings by a harsh father, and of severe emo-
tional disturbance is particularly relevant” to jurors
who are determining whether a capital defendant is
culpable enough to be sentenced to death ( Eddings v.
Oklahoma , 1982 , p. 115), Justice O’Connor’s state-
ment that there is a “long held” societal belief that
“defendants who commit criminal acts that are
attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpa-
ble than defendants who have no such excuse”
( California v. Brown , 1987 , p. 545), and Justice
Souter’s statement that “[i]t goes without saying”

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The Death Penalty

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that evidence about an abusive background “taken
as a whole, might well have infl uenced the jury’s
appraisal of [a capital defendant’s] culpability”
( Rompilla v. Beard , 2005 , p. 393).

Deterrence. The alleged deterrent effect of the
death penalty has long been debated. Justice
Marshall wrote in Furman v. Georgia (1972) that
“[t]he most hotly contested issue regarding capital
punishment is whether it is better than life impris-
onment as a deterrent to crime” (p. 345). Many
researchers have sought to empirically determine
whether and to what extent the death penalty deters
potentially capital crimes, and whether the number
of persons who receive the death penalty and are
actually executed is offset (and therefore in some
way justifi ed) by the number of potential victims
whose lives allegedly would be saved by virtue of
future perpetrators having been deterred ( Ehrlich,
1975 ; van den Haag, 1969 ).

Deterrence theory holds generally that potential
lawbreakers rationally weigh the estimated costs
and benefi ts of their actions and, accordingly,
choose to engage in criminal behavior or not
( Bowers & Pierce, 1980b ). Theoretically, for an indi-
vidual to be deterred from committing a crime, the
expected punishment or cost of being caught must
outweigh the profi t or pleasure/benefi t to be gained
from committing the crime ( Bailey &
Peterson, 1999 ). This means that when penalty
increases, the number of offenses should decrease,
and when penalty decreases, the number of offenses
should increase ( Archer, Gartner, & Beittel, 1983 ).

Hjalmarsson (2009) proposed that three condi-
tions must be met for the death penalty to have a
deterrent effect: First, there must be a large enough
probability that execution will actually occur;
second, execution must be considered more severe
than life in prison; and third, the person who is to be
deterred must be aware of the probability of execution.
Hjalmarsson’s fi nal criterion is in many ways at the
crux of the deterrence debate. While deterrence
assumes that people calculate the costs and benefi ts
of committing a crime, many researchers claim that
criminal acts, like murder, are, by their nature and
their context, not rational. Most crimes of this
nature are unplanned or impulsive ( Archer et al.,

1983 ), and they are often driven by emotion or
occur when persons are under the infl uence of
drugs or alcohol ( Lempert, 1981 ). In addition,
Cochran, Chamlin, and Seth (1994) claim that it is
simply impossible for laypeople to conduct an accurate
cost–benefi t analysis of the possible consequences
of their crimes. In Furman v. Georgia (1972) , which
temporarily abolished the death penalty, Justice
Brennan acknowledged the problematic nature
of deterrence. He noted that the deterrence argu-
ment “can apply only to those who think rationally
about the commission of capital crimes” ( p. 302).
Because it assumes rationality, many researchers
have argued that deterrence theory is, at its core,
illogical.

Racially discriminatory imposition. Capital
punishment in the United States has been plagued
by racial discrimination since its inception
(see Volume 1, Chapter 15, this handbook, for a
review of race and the justice system). Before the
Civil War, punishments in many states differed
based on the race of the defendant. For example, in
pre-Civil War West Virginia, 70 crimes were pun-
ishable by death for Black defendants while only
one was punishable by death for White defendants
( Kennedy, 1997 ). Some of these punishments also
differed based on race of the victim of the crime.
An 1816 Georgia law required a death sentence
if a Black defendant was found guilty of rape or
attempted rape of a White victim ( Bowers & Pierce,
1980a ). The same punishment was not stipulated
when there was a Black victim or when the
perpetrator was White.

Although many of these explicitly racist death
penalty laws were ended in the aftermath of the Civil
War, Blacks still suffered starkly discriminatory
treatment in the criminal justice system in
general and with the death penalty in particular
( Bowers & Pierce, 1980a ). This included the
practice of lynching, in which predominantly White
citizens engaged in vigilante justice by executing
alleged Black criminals, often as law enforcement
and legal authorities stood by ( Banner, 2002 ;
Skolnick & Fyfe, 1993 ).

Although overt racial discrimination has
decreased and offi cial or de jure racism has been

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Haney, Weill, and Lynch

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eliminated in more modern times, subtle forms of
racial discrimination and race-based decision mak-
ing persist ( Dovidio & Gaertner, 1986 ), including
in the legal and criminal justice systems. This line of
research suggests that contemporary discriminatory
behavior is more likely when it can be rationalized
as race-neutral and in situations involving unclear
norms about an appropriate course of action ( Dovi-
dio, Pearson, Gaertner, & Hodson, 2008 ). Indeed,
there is a large body of research that suggests that
implicit forms of racial bias are relatively wide-
spread, while explicit forms are on the wane.
Implicit stereotype biases have been demonstrated to
affect perceptions and behavior in ways that are less
overt than old-fashioned prejudice, rendering them
diffi cult to recognize and contain (see Lynch &
Haney, 2011 , for a review).

When the death penalty was temporarily ended
in the United States in 1972, the Furman Court
focused on the arbitrary and “freakish” way
in which the death penalty was imposed. Although
some justices had concerns about its racially dis-
criminatory imposition, the issue was not determining
factor in the Court’s decision In the years follow-
ing Furman , a number of states developed new
death penalty statutes that provided for guided
discretion in the jury’s penalty phase decision
making. Those statutes that structured the jury’s
decision-making process by giving them factors or
issues to consider in deciding whether a capital
defendant should live or die were approved in
Gregg v. Georgia (1976) . In theory, at least, those
statutes should have resulted in a reduction in both
arbitrary and discriminatory death sentencing, but
there is extensive scientifi c evidence demonstrating
that both persist (e.g., Baldus, Woodworth, & Pulaski,
1990 ). The discriminatory imposition of the death
penalty was challenged directly in McCleskey v.
Kemp (1987) , where the Court imposed a very high
standard of proof on claims of discriminatory
imposition and found that even stark aggregate or
systemic patterns of apparent race-based decision
making were not enough to render Georgia’s death
penalty unconstitutional.

Research nonetheless continues to reveal racial
disparities in the system of capital punishment, such
that murder cases involving White victims are

especially likely to be pursued as capital cases and
end in death, especially when the defendant is Black.
If there were no arbitrariness or discrimination, one
would expect similar treatment in similar cases,
without regard to defendant or victim race ( Bowers,
1983 ). That these racial characteristics continue
to infl uence charging and sentencing decisions in
potentially capital cases implicates both implicit
(if not explicit) individual biases as well as
institutio nalized biases. These patterns have been
explained, in part at least, as a function of differen-
tial empathy, in that those making judgments are
better able to identify with the loss suffered by
victims who are similar to them, whereas they are
likely to experience an empathic divide that
separates them from capital defendants, particularly
minority defendants, whose life experiences are
starkly different ( Haney, 2004 ).

Attitudes About Capital Punishment
Capital punishment generates a great deal of public
debate and controversy. As social psychologists
Vidmar & Ellsworth (1974) once noted, “[t]o some
extent public opinion has always played a part in
modern controversy about the death penalty”
(p. 1246). In the United States, average citizens vote
for politicians to reject or retain capital punishment
and, in perhaps the most democratic of all criminal
justice institutions, they sit on criminal juries that,
in capital cases, decide not only whether a capital
defendant is guilty of a crime for which the death
penalty is possible but also determine whether, in
fact, he should receive it. Until Ring v. Arizona
(2002) was decided, a small number of states—Arizona
and Colorado, for example—used judge sentencing
in capital cases. Ring required that juries make the
key factual determinations that are the basis for any
death sentence, which means that literally every
death sentence in the United States now must be
handed down by a capital jury. Because the Ameri-
can system of death sentencing is democratically
administered in all of these ways, what citizens
think about capital punishment (i.e., who supports
and opposes it, how strongly, and why) matters a
great deal. Attitudes about capital punishment
therefore hold special legal and political as well as
psychological signifi cance.

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The Death Penalty

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Indeed, death penalty attitudes have played a
major role in political decisions about capital
punishment, helping to shape positions taken by
many political candidates and elected offi cials,
having an impact on key legislation that has been
enacted into law, and indirectly infl uencing other
political policymaking. For example, writing at a
time when death penalty support was at an all-time
high, Zeisel and Gallup (1989) observed, “[i]n any
legislative debate on the death penalty, one is bound
to hear that the great majority of the voters want it”
(p. 287). Public opinion about the death penalty
has directly affected capital jurisprudence as well.
In various Eighth Amendment cases over whether
and when the death penalty constitutes cruel and
unusual punishment, the United States Supreme
Court has made explicit reference to public opinion
and has used it as one index of whether the death
penalty offends what has been termed evolving stan-
dards of decency.

The evolution of the legal doctrine connecting
death penalty attitudes to the constitutionality of
capital punishment began with Trop v. Dulles
(1958) , when the Supreme Court ruled that the
prohibition against cruel and unusual punishment
“must draw its meaning from the evolving standards
of decency that mark the progress of a maturing
society” (p. 101). As one commentator suggested,
although Trop was not a capital case, the logic of the
opinion “required the Court to assess punishments
with society’s changing attitudes,” something that, in
turn, “called into question, among other things, psy-
chological effects of capital punishment, public opin-
ion, the morality of the death penalty, and its
possible deterrence against commission of other hei-
nous crimes” ( Bigel, 1991 , p. 738).

The Court focused explicitly on attitudes
toward capital punishment a decade later when, in
Witherspoon v. Illinois (1968) , it described citizens
who supported the death penalty as “a distinct and
dwindling minority,” and cited public opinion poll
data for the proposition that “in a nation less than
half of whose people believe in the death penalty, a
jury composed exclusively of [death penalty sup-
porters] cannot speak for the community” (p. 520).
Public opinion was discussed at some length in fi ve
of the nine separate opinions written in Furman v.

Georgia (1972) . This included Justice Brennan’s
assertion that capital punishment “must not be
unacceptable to contemporary society” (p. 277),
Chief Justice Burger’s view that the courts should
not intervene to end capital punishment because he
felt it was the legislature that “responds to public
opinion and immediately refl ects the society’s stan-
dards of decency” whenever a particular punishment
becomes “basically offensive to the people” (p. 383),
and Justice Blackmun’s willingness to endorse
the proposition that the operative defi nition of
whether the death penalty was cruel and unusual
“may acquire meaning as public opinion becomes
enlightened by a humane justice” (p. 409) as well as
his corresponding concern over “the suddenness of
the Court’s perception of progress in the human
attitude” (p. 410). Although Justice Powell wrote
that he found public opinion polls to be “of little
probative relevance” (p. 441), he used them to but-
tress his argument about the existence of widely
divided public views about the death penalty, sug-
gesting that “however one may assess the amor-
phous ebb and fl ow of public opinion generally on
this volatile issue, this type of inquiry lies at the
periphery—not the core—of the judicial process in
constitutional cases. The assessment of public
opinion is essentially a legislative, not a judicial,
function” (p. 443). Powell also asserted that “the
fi rst indicator of the public’s attitude” in a demo-
cratic society “must always be found in the legislative
judgments of the people’s elected representatives”
(pp. 436–437) and that an “even more direct source
of information refl ecting the public’s attitude toward
capital punishment” (pp. 439–440) existed in the
form of the behavior of the capital juries and their
willingness to return death verdicts.

Whether at the core or periphery of the judicial
process in constitutional cases, or something that is
better assessed by legislatures or, notwithstanding
the skepticism of various justices, more accurately
and reliably measured by scientifi c opinion polls, the
amorphous ebb and fl ow of people’s attitudes toward
capital punishment continues to be a signifi cant con-
sideration in our nation’s system of death sentenc-
ing. Some of the many theoretical and conceptual
issues that are implicated in the study of death
penalty-related attitudes are discussed below.

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Death penalty attitude structure and change. First,
public opinion about the death penalty raises ques-
tions about the nature of attitude formation and
change, particularly in the emotionally charged
and politically volatile arena of crime and punish-
ment policy. As noted above, the death penalty in
particular has been an especially polarizing topic
in American society, dividing many citizens along
religious lines as well as serving as the focal point
in political debates over crime control. The fact that
death penalty attitudes are so legally and politi-
cally signifi cant has also meant that they have been
carefully studied over time, revealing a historical
pattern of change and fl uctuation (rather than a con-
sistent evolution). This pattern, in turn, has raised
questions both about the underlying structure and
stability of death penalty attitudes as well as the
methodology used to measure them.

Public support for the death penalty tends to be
presented in the media, in public discussions, and
political debates as unidimensional (i.e., people are
typically depicted as either favoring or supporting
the death penalty or as opposing it). The fact that
the public’s beliefs about the death penalty have
most often been measured with a single question
also raises the distinct possibility that these beliefs
are represented as more unequivocal and indiscrimi-
nate than, in fact, they are (cf. Ellsworth & Ross,
1983 ; Fox, Radelet, & Bonsteel, 1991 ; Murray, 2003 ;
O’Neil, Patry, & Penrod, 2004 ). As one public opin-
ion poll expert put it: “Categorizing people as favor-
ing or opposing the death penalty does not take into
account the vast heterogeneity of views underlying
this simple dichotomy” ( Harris, 1986 , p. 433).

In addition, surveys rarely collect data that
address the strength of respondents’ support for the
death penalty, or whether that support is based on
misunderstanding or misinformation about how the
system of capital punishment actually operates.
In fact, it was not until 1985 that the Gallup polling
organization, which fi rst conducted a national
survey that asked a death penalty question as far
back as 1936, included a measure of general attitude
strength (very strongly or not very strongly), as well
as a few additional questions about the reasons for
respondents’ death penalty support or opposition,
belief in deterrence, and whether their support or

opposition would vary in response to information
about deterrence and the alternative sentence of life
without parole ( Zeisel & Gallup, 1989 ). Similarly,
few studies of death penalty attitudes examine the
circumstances under which generalized public
support translates into a preference to actually
impose the death penalty in particular cases or
categories of cases.

The bases and sources of death penalty opinion. The
formation and underlying bases for people’s death
penalty attitudes have been explained by reference
to individual-level, social-contextual, historical, and
media variables. Thus, some scholars and research-
ers have suggested that the views that people hold
about capital punishment are an extension of
other personal characteristics, such as particular
personality traits, and belief systems to which they
ascribe, such as their broader political orientation,
personal prejudices (especially racial prejudice), and
certain religious beliefs (e.g., Barkan & Cohn, 1994 ;
Dovidio, Smith, Donnella, & Gaertner, 1997 ;
Harvey, 1986 ; Miller & Hayward, 2008 ), as well
as specifi c demographic characteristics such
as gender and race ( Cochran & Chamlin, 2006;
Cochran & Sanders, 2009 ).

Other scholars have suggested that there are
immediate social contextual variables at work in the
creation and maintenance of death penalty attitudes,
such as the perceived threat of criminal victimiza-
tion (including actual crime rates, publicity about
crime, and neighborhood characteristics that
citizens believe are associated with crime). For
example, Thomas and Foster (1975) theorized that
the public’s perception of increasing crime rates
should translate directly into support for punitive
criminal justice sanctions, including the death pen-
alty: “Under such circumstances, it is quite logical
to suppose that the more the public comes to fear
victimization, the more it will demand what it
believes will be an effective deterrent” (p. 645).
Some researchers have hypothesized that certain
social contextual variables, such as living in areas
with high homicide rates, might be indirectly
associated with death penalty support, especially
when combined with a conservative political
climate (likely to channel fear of crime into punitive

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The Death Penalty

459

responses), a relatively large minority population,
and high levels of income inequality ( Baumer,
Messner, & Rosenfeld, 2003 ).

In addition, historical forces, traditions, and
legacies may shape and condition the death penalty
views of individuals (e.g., Banner, 2002 ), as well as
help create lasting cultural or subcultural pockets
of support in certain regions of the country (e.g.,
Borg, 1997 ; McFeely, 2000 ; Poveda, 2006 ). Thus,
some scholars have suggested that death penalty
support and opposition in some areas of the coun-
try might be explained by exposure to and social-
ization into traditions of vigilantism, ones in which
the death penalty is perceived not only as a legiti-
mate action for the state to take, but also one that
individual aggrieved citizens could properly partic-
ipate in and support, as in the case of Southern
lynchings (e.g., Brundage, 1993 ; Zimring, 2003 ).
Obviously, this is an historical legacy that would be
expected to create diametrically opposed reactions
as a function of race, helping explain support
among Whites from the regions in which these out-
rageous practices were once normalized, and oppo-
sition among Blacks whose ancestors were their
tragic victims.

In modern society, the mass media wield much
infl uence over whether and how people react to
crime, what they understand to be the nature of the
“crime problem” in their community, and what
particular conclusions they draw about how that
problem can best be solved. The process by which
the media highlight certain issues around which
there is heightened public awareness, debate, and
concern has been described as its agenda-setting
function and has spawned a substantial amount of
academic writing and empirical research (e.g.,
McCombs & Shaw, 1972 ; Protess & McCombs,
1991 ; for a review of research on media and the law,
see Volume 1, Chapter 17, this handbook).

The tendency of the media to sensationalize
crime news and crime drama and to demonize its
perpetrators has been identifi ed as one source of the
public’s emotional reaction to crime that helped fuel
the punitive trends in crime policy that have been
pursued over the last several decades, including the
increased use of the death penalty (e.g., Beckett,
1997 ). As one researcher described the phenomenon

during the height of the “tough on crime” era,
terrorists and domestic criminals alike were depicted
as “isolated from their historical and social context,
denied legitimacy of conditions or cause, and por-
trayed as unpredictable and irrational, if not insane”
so that they came to “symbolize a menace that ratio-
nal and humane means cannot reach or control,”
( Gerbner, 1992 , p. 96). Television drama, at least,
“rarely invited the viewer to look for problems
within himself. Problems came from the evil of
other people, and were solved . . . by confi ning or
killing them” ( Barnouw, 1975 , p. 214).

Crime news coverage and crime-related drama
may have especially powerful effects on the public.
As researchers have noted, “[b]ecause most people
do not have direct experience with the serious vio-
lent crimes that they most fear, the role of the media
in generating such fear becomes particularly impor-
tant” ( Cook & Skogan, 1991 , pp. 205–206). Because
there are so few other sources of information to
which the public can turn in attempting to make
informed death penalty–related decisions, it is
reasonable to think that collective immersion in
mass media–based images and storylines leads many
persons to develop distorted but infl uential views
of violent crime and criminal defendants. These
views, in turn, are likely to affect how subsequently
obtained information is processed, including infor-
mation that is presented as supporting evidence for
crime-and-punishment–related political positions
and even evidence that is introduced as the basis for
capital jury verdicts.

Indeed, some have speculated that media mes-
sages about crime are so ubiquitous, consistent,
and problematic that many citizens have internalized
a form of media criminology that systematically mise-
ducates them about the nature of criminality
( Haney, 2008b ). Precisely because “the public’s
role in actual capital case decision making is truly
unparalleled,” the “fl awed criminological curricu-
lum and overall media miseducation” may play a
role in the administration of the death penalty
( Haney, 2008b , p. 691).

The Marshall hypothesis. Justice Thurgood
Marshall’s concurring opinion in Furman v. Georgia
(1972) focused very directly on potentially fl awed or

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Haney, Weill, and Lynch

460

misinformed public opinion about the death pen-
alty, and did so in a way that spawned a great deal
of empirical research. Justice Marshall argued that
public opinion about the death penalty was
critically important, asserting that even a punish-
ment that served a valid legislative purpose and
was otherwise not excessive could still violate the
Eighth Amendment if “popular sentiment abhors
it” (p. 332). Marshall concluded in Furman that
the death penalty did in fact violate the Eighth
Amendment on precisely these grounds because it
had become “morally unacceptable to the people
of the United States at this time in their history”
(p. 360). He argued, however, that this conclusion
about “moral unacceptability” was based on the
“opinion of an informed citizenry” (rather than on
popular opinion in general). Specifi cally, he sug-
gested that “whether or not a punishment is cruel
and unusual depends, not on whether its mere
mention ‘shocks the conscience and sense of justice
of the people,’ but on whether people who were
fully informed [emphasis added] as to the purposes
of the penalty and its liabilities would fi nd the
penalty shocking, unjust, and unacceptable”
(p. 361).

Marshall argued that if the general public were
accurately informed about the workings of the death
penalty and were made aware of the evidence con-
cerning its discriminatory imposition and ineffec-
tiveness as a deterrent to murder, then “the great
mass of citizens” would conclude it was “immoral”
(p. 363). In Marshall’s view, because no public
opinion poll to date had been able to fully inform its
respondents about the actual operation and effects
of the death penalty, the results of such polls could
not really address the issues in the way that
he had posed them. He also suggested that, among
the rationales that people had for supporting capital
punishment, retribution was nonutilitarian in nature
and, therefore, relatively impervious to new or more
accurate information. The notion—seemingly a dis-
tinctly minority view at the time of Furman —that
the death penalty should be imposed simply
because certain people deserved to be executed, no
matter the cost or consequence, was based on a
belief that seemed diffi cult to change, at least with
data alone.

Many social scientists have attempted to evaluate
the several separate components of what has come
to be called the Marshall hypothesis. Thus, they have
examined whether persons who were better
informed about capital punishment were more likely
to reject it, whether providing people with more
accurate information about the overall system of
death sentencing in the United States made them
less willing to support it, and whether the retribu-
tive rationale for supporting the death penalty was
largely impervious to information-based change.

The Nature and Functioning of the
Capital Jury
Capital juries, whose members hear evidence in a
criminal trial in which the death penalty is a possi-
ble outcome, are an unusual and much studied insti-
tution in the American legal system. Because they
are empowered to render a sentencing verdict that
can result in taking the life of a fellow citizen—a
unique and daunting power—they are selected in a
manner unlike all other juries, and they proceed in
response to procedures and instructions that differ
from those used in other kinds of cases (for a review
of research on jury research in general, see Chapter
8, this volume).

Moral disengagement. Viewed from one per-
spective, the death penalty represents an apparent
inconsistency or contradiction. As Justice Brennan
observed, “[f]rom the beginning of our Nation, the
punishment of death has stirred acute public con-
troversy . . . . The country has debated whether a
society for which the dignity of the individual is the
supreme value can, without a fundamental incon-
sistency, follow the practice of deliberately putting
some of its members to death” ( Furman v. Georgia ,
1972 , p. 296). This tension between the value mod-
ern society places on life on the one hand, and the
practice of authorizing and implementing the execu-
tion of its citizens on the other, must be resolved
if ordinary people are to be regularly called upon
to violate the powerful societal prohibition against
killing by taking steps that are designed to lead to
the death of another. Some scholars have suggested
that this tension requires “mechanisms of moral
disengagement” ( Bandura, 1990 , 2002 ; Bandura,

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Barbaranelli, Caprara, & Pastorelli, 1996 ; Castano,
2011 ) to be used to systematically distance or dis-
engage citizens, voters, and especially capital jurors
from the nature and moral implications of the death
sentencing process ( Haney, 1997b ). In a related way,
Cobb (1989) has observed that the “bureaucratiza-
tion” of capital punishment can seemingly exempt
individual decision makers from ever having to con-
front the personal question of whether and how to
extend mercy to capital defendants by “afford[ing]
everyone involved in capital sentencing the illu-
sion that no one has decided that any given indi-
vidual should die; in doing so, it poses the question
whether we want a ‘headless and soulless’ institution
sending people to their deaths” (p. 404).

The mechanisms by which this moral distancing
is accomplished might include invoking or asserting
an apparent moral justifi cation for the actions in
question (e.g., the belief that the death penalty, and
only the death penalty, is called for), encouraging the
dehumanization of the target of the action in ques-
tion and emphasizing his defects and defi ciencies (in
this case, the defendant on whom the death sentence
would be imposed), desensitizing jurors to the nega-
tive consequences of their actions or encouraging
them to disregard or distort those consequences (by
refusing to fully acknowledge that they will result in
the death of another), and diffusing responsibility
(e.g., seeing oneself as merely following the law
rather than making a personal, moral choice).

Jury selection and death qualifi cation. Although
criminal juries in the United States are composed
of average citizens, they are selected through a
process of voir dire in which attorneys and judges
question potential jurors. There are a limited
number of peremptory challenges that attorneys
may use to exclude persons at their discretion. In
addition, those persons who hold disqualifying atti-
tudes may be legally eliminated from participation
“for cause.” For the most part, those disqualifying
attitudes are limited to views or points of view
commonly understood as bias, perspectives that
would prejudice or compromise potential jurors’
ability to fairly and impartially judge the facts or
the law. The latter kind of bias—bias toward the
law—includes an expressed unwillingness to

ascribe to and apply basic legal tenets, such as the
presumption of innocence. In practice, the effec-
tiveness of the process may be limited by the fact
that many of the persons who harbor the greatest
bias and deepest prejudice believe their views to
be normative or commonsensical. Other prospec-
tive jurors may be aware that they hold problematic
counter-normative views, but they are reluctant to
express them in open court (e.g., Suggs & Sales,
1981 ). Finally, people are often unaware of whether
and how their beliefs actually shape and affect
their judgments, decisions, and behavior (e.g.,
Nisbett & Wilson, 1977 ).

In death penalty cases, the voir dire process is
modifi ed in an unusual way that appears to have
important psychological implications for the way
in which the resulting juries are composed and
function. The special screening process that is used
in capital cases is called death qualifi cation;
it is controversial and has been carefully studied
(e.g., Haney, 1984a , 1984d ). The perceived need for
death qualifi cation is based in part on the fact that
jurors in capital cases may be called upon to per-
form a sentencing function (as well as to decide
guilt or innocence), and because moral and religious
opposition to the death penalty in the United States
has existed on a substantial and organized basis
since colonial times. Thus, courts have chosen to
qualify all prospective capital jurors by excluding by
law those whose attitudes towards the death penalty
deem them unfi t.

A series of United States Supreme Court
cases— Witherspoon v. Illinois (1968) , Wainright v.
Witt (1985) , Lockhart v. McCree (1986) , and
Morgan v. Illinois (1992) —established the consti-
tutional standards that govern this practice. Consti-
tutional law permits the exclusion of persons who
are very strongly opposed to the death penalty
(i.e., who could never vote to impose it or whose
opposition would prevent or substantially impair
their ability to function as jurors) as well as also
those who are very strongly in favor (i.e., who
would always vote to impose it when given the
option or whose support would prevent or substan-
tially impair their ability to function as jurors).
However, in actual practice there are many more
people excluded on the basis of their opposition

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Haney, Weill, and Lynch

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than support (e.g., Kadane, 1984 ). The group of
death-qualifi ed jurors that remains typically con-
tains few if any death penalty opponents.

The psychological implications of this practice
extend beyond the obvious fact that such a group
will be composed of persons who are much more
inclined to render death than life sentences. This is
because death penalty attitudes are correlated with
demographic characteristics, measures of racial bias,
and a number of other attitudes about criminal jus-
tice and social issues. As a consequence, systemati-
cally eliminating people on the basis of their beliefs
about capital punishment necessarily alters the
demographic mix of potential jurors and changes
the distribution of the criminal justice attritudes
that are represented in the remaining jury pool.
This narrowing of the demographic and attitudes
range of persons available to be selected may bias
the kinds of juries that are seated in capital cases
and render them less fair, at least in comparison to
the kinds of juries that sit in every other
kind of criminal case (i.e., juries from which these
distinct groups of people have not been excluded).
In addition, the nature of the process by which
death qualifi cation is implemented may have its
own biasing effects on potential jurors. The unique
form of questioning that involves sometimes
lengthy discussions with prospective jurors about
punishment—indeed, their capacity to impose the
death penalty in the case—well in advance of them
having heard any evidence or reached any verdict
may shape and infl uence the way they think about
the case and their expectations about the likely
outcome ( Haney, 1984b , 1984c ).

The United States Supreme Court did consider a
direct constitutional challenge to death qualifi cation
that was premised on the psychological data that
addressed these conceptual issues. In Lockhart v.
McCree (1986) , the Court decisively rejected the
claim that death qualifi cation compromised the fair
trial rights of capital defendants. Essentially apply-
ing a standard that seemed impossible for any
researcher to ever realistically meet—namely, that
controlled studies use “actual jurors sworn under
oath to apply the law to the facts of an actual case
involving the fate of an actual capital defendant”
( Lockhart v. McCree , 1986 , p. 172)—Justice

Rehnquist’s majority opinion questioned the
validity of all of the data that had been adduced
on the effects of death qualifi cation. In addition,
Rehnquist’s opinion took the further step of ruling
that, even if scientifi cally valid, such research would
not be considered to be dispositive of the constitu-
tional issue at hand. This was because juries biased
in the ways that death-qualifi ed juries appeared to
be could have arisen by chance. In other words, “it
is hard for us to understand the logic of the argu-
ment that a given jury is unconstitutionally partial
when it results from a State-ordained process, yet
impartial when exactly the same jury results from
mere chance” ( Lockhart v. McCree , 1986 , p. 178).
Thus the practice of death qualifi cation continues to
operate in virtually every capital case tried in the
United States despite all of the attendant biasing
effects, which we discuss in the research review por-
tion of this chapter.

Instructional comprehension. We noted earlier
that one of the ways in which constitutional con-
cerns over the arbitrary and capricious imposition
of the death penalty are addressed is by providing
capital juries with a set of specially tailored judicial
instructions that are intended to guide the discre-
tion of the capital juries in rendering their penalty
phase verdicts. These instructions have taken one of
several forms, but in each instance they ostensibly
provide jurors with a set of factors, issues, or ques-
tions that the jurors are instructed to think about,
consider, and take into account when they deliberate
and decide what penalty to impose.

A number of theoretical or conceptual questions
have been raised that address whether and how these
instructions are actually comprehended and applied
by jurors, and whether they really do reduce the vast
degree of discretion exercised by capital juries that
was identifi ed as unconstitutional in Furman v. Geor-
gia (1972) . Scholars have reasoned that instructions
must be comprehended before they can function to
affect behavior ( Cho, 1994 ; Diamond, 1993 ;
Haney & Lynch, 1994 ). A body of research conducted
by psychologists and linguists on jury institutions
more generally (e.g., Buchanan, Pryor, Taylor, &
Strawn, 1978 ; Charrow & Charrow, 1979 ; Elwork,
Sales, & Alfi ni, 1982 ; Lieberman & Sales, 1997 )

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has provided some clues as to why capital penalty
instructions have proven so diffi cult for laypersons
to understand and apply. As detailed later in this
chapter, there is also a robust body of research
assessing the nature and consequences of these lin-
guistic diffi culties for capital jury decision making.
Some of the key problems include the vocabulary
used in standard instructions, which is often legalis-
tic and unfamiliar to laypersons. The sentence
structure of the instructions is also problematic,
frequently riddled with double negatives, passive
phrasing, and convoluted organization ( Charrow &
Charrow, 1979 ). Additionally, the mode and timing
of delivery adds to comprehension problems, in that
they are typically read out loud by a judge and deliv-
ered after all of the evidence in the case has been pre-
sented. As a consequence, jurors are not aware of the
law that frames their decision until after they have
heard disjointed and sometimes lengthy presenta-
tions of evidence ( V. Smith, 1991 ).

Jury dynamics. In addition to the unique
challenges posed by capital jury selection and the
distinct diffi culties that attend to penalty phase
instructions, a number of important social sciences
questions revolve around the unique dynamics of
the capital jury as a decision-making body (e.g.,
Bowers, 1995 ; Haney, 1984b ; Haney & Weiner,
2004 ). The interaction of the factors and forces that
drive capital jury composition and its operational
parameters—the joint effects of death qualifi cation,
intergroup (especially racial) relations and dynamics,
instructional comprehension, and decision-making
processes and rules—has led to a signifi cant amount
of empirical research in which these cross cutting
theories and concepts are explored (e.g., Connell,
2009 ; Haney, 2005 ; Lynch, 2009 ). Psychological
research on the behavior of the capital jury has
begun to evolve from examinations of intrapersonal
cognitive processes (i.e., how individuals perceive,
make sense of, and judge case factors as a function
of their preexisting dispositions and characteristics,
cognitive capacities, and affective responses) to the
group-level processes that infl uence penalty phase
decision making. This includes the persuasive tech-
niques that infl uence jury deliberations, whether
and how the racial and gendered dynamics of the

jury unit affect the verdicts that are rendered and
how they are arrived at, and the role of cognition
and emotion in the decision-making process. As we
will highlight in the research sections, insights about
these phenomena are derived from interview-based
studies of former capital juries as well as experimen-
tal studies that include small group deliberations and
decision making.

RESEARCH REVIEW

As we have tried to show, the death penalty system
implicates a number of theoretical propositions and
conceptual assumptions, many of which derive as
much or more from legal principles and standards as
they do from psychological theory. Death sentencing
is subject to a complex set of special processes and
procedures that raise a number of empirically test-
able questions about culpability, deterrence, and dis-
crimination, about the relationship between public
opinion and legal practice and policy, and about the
unique role of the jury in deciding whether someone
lives or dies. An extensive amount of research has
been conducted on these interrelated theoretical,
conceptual, and practical issues and problems.

The Overall Operation of the
Death Penalty

Culpability. Empirical research has provided
decidedly mixed support for the ability of various
approaches to operationalize the worst of the worst,
narrowing criteria to do what they are supposed to
do in order to maintain a constitutional death pen-
alty process. The different methods of narrowing the
categories of cases and defendants that are eligible
to receive the death penalty have achieved decidedly
different results. Categorical exclusions by offense
types (such as exclusion for the crime of rape)
accomplish what they set out to do—reduce the
number and range of cases and defendants who can
be considered for capital punishment—when they
are clearly defi ned and not subject to interpretation.

In the case of the Supreme Court’s categorical
exclusions from death eligibility based on the
reduced culpability of classes of defendants, the
criteria for exemption may or may not be as

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straightforward. In the case of the exemption of
juveniles, the Roper Court articulated a clear delin-
eating line for determination—whether the offense
in question happened before the defendant’s eigh-
teenth birthday. The Court made three psychologi-
cally based empirical assertions on which it
premised its decision about the reduced culpability
of juveniles. The Court asserted that juveniles’ “lack
of maturity” and “underdeveloped sense of responsi-
bility” were more likely to “result in impetuous and
ill-considered actions and decisions” ( Roper v.
Simmons , 2005 , p. 569); that they were more “vul-
nerable and susceptible to negative infl uences and
outside pressures” (p. 569), including pressures
from peers, and simultaneously less able “to escape
negative infl uences in their whole environment”
(p. 570); and that their characters were “not as well
formed” as those of adults and that, therefore, there
was a greater likelihood their “character defi ciencies
will be reformed” (p. 570). Although the Court did
not explicitly cite it, there is an extensive body of
psychological research to support these
propositions.

Psychologists Thomas Grisso, Elizabeth Scott,
Laurence Steinberg, and their colleagues have both
conducted an extensive amount of this primary
research themselves and also provided integrative
summaries of the larger literature on juvenile
culpability (e.g., Scott & Steinberg, 2003 ; Stein-
berg & Scott, 2003 ; see Volume 1, Chapter 12, this
handbook). For example, Scott and Grisso (1997)
have identifi ed a number of the ways in which ado-
lescent decision-making processes vary from those
of adults, Scott, Reppucci, and Woolard (1995) have
underscored the tendency of juveniles to conform
and comply with peers, and Scott (2000) has
explained the well-known tendency for delinquent
and criminal behavior to decrease as juveniles
move into young adulthood “as a predictable
part of the maturation process” (p. 291).

In the case of the intellectually disabled, while
the exclusion was explicitly premised on psycholog-
ical grounds, the Atkins Court largely eluded the
question of how exactly to determine who belongs in
the category of those who are exempt. Thus, the
Court decided that, “[b]ecause of their impair-
ments,” mentally retarded defendants had

“diminished capacities to understand and process
information, to communicate, to abstract from mis-
takes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand
the reactions of others” ( Atkins v. Virginia , 2002 ,
p. 318). These defi ciencies, the Court said, did not
exempt them from punishment, but did diminish
their personal culpability to such a degree that they
should not be punished by death (see Volume 1,
Chapter 4, this handbook, for a review of research
on criminal responsibility, and Volume 1, Chapter
5, this handbook for a review of research on crimi-
nal competence).

The Court cited psychological and legal literature
that addressed the ways in which intellectual
disability compromised defendants’ ability to cogni-
tively process information and thereby undermined
their capacity for self-regulation, decision making,
and moral reasoning (e.g., Ellis & Luckasson, 1990 ;
McGee & Menolascino, 1992 ; Whitman, 1990 ).
The Court also relied on research that addressed
the ways in which intellectual disability undermined
a person’s cognitive capacity to comprehend basic
legal concepts, led to heightened suggestibility,
and increased vulnerability to external pressure
(e.g., Everington & Fulero, 1999 ; Levy-Shiff,
Kedem, & Sevillia, 1990 ), as well as the special
challenges mentally retarded defendants faced in
communicating with others and assisting in their
own defense in a criminal proceeding (e.g., Appel-
baum & Appelbaum, 1994 ). All of these things, the
Court said, collectively “make these defendants less
morally culpable” ( Atkins v. Virginia , 2002 , p. 320).

While the Court was clear on its reasoning for
the exemption of the mentally disabled, it provided
neither substantive criteria to determine who fi ts
into the category of those exempted, nor any direc-
tive as to how the exemption should be determined
as a procedural matter. Consequently, states have
individually determined their own standards and
procedures, resulting in a signifi cant number of sub-
stantially cognitively disabled persons who have
nonetheless been sentenced to death and face execution
( Blume, Johnson, & Seeds, 2009 ).

Approaches to operationalizing the worst of the
worst cases—what the Court has called the “consti-
tutionally necessary narrowing function” ( Pulley v.

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The Death Penalty

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Harris , 1984 , p. 50)—by identifying a list of factors
or features that render them eligible for the ultimate
punishment have proven even less successful. For
one, there is really no theoretical underpinning to
structure the nature of the narrowing process. In
addition, and perhaps because of this, the narrowing
principles are diffi cult to formulate and implement
in ways that achieve their ostensible goal. Indeed,
the year before Furman was decided, Justice
Harlan famously opined in McGautha v. California
(1971) that

[t]hose who have come to grips with the
hard task of actually attempting to draft
means of channeling capital sentenc-
ing discretion have confi rmed the les-
son taught by [history] . . . . To identify
before the fact those characteristics of
criminal homicides and their perpetra-
tors which call for the death penalty,
and to express these characteristics in
language which can be fairly understood
and applied by the sentencing author-
ity, appear to be tasks which are beyond
present human ability. (p. 214)

In the face of this seemingly impossible task, and
not ready to declare the death penalty unconstitu-
tional, Harlan was willing to continue “committing
to the untrammeled discretion of the jury the power
to pronounce life or death in capital cases” ( McG-
autha v. California , 1971 , p. 207), apparently no
matter the patterns of arbitrariness and capricious-
ness that the exercise of such discretion was
producing.

The Court reversed itself just a year later, of
course, declaring the nation’s system of death sen-
tencing unconstitutional in Furman , but the justices
seemed to ignore Harlan’s warning about the diffi –
culty of the task of channeling capital sentencing
discretion when it decided Gregg v. Georgia (1976)
and many subsequent death penalty cases, ones in
which the Court repeatedly authorized states to
address the arbitrary and capricious imposition
of the death penalty by passing statutes that, in
Harlan’s words, attempted to “identify before the
fact those characteristics of criminal homicides and
their perpetrators which call for the death penalty”

(McGautha v. California, 1971, p. 214) Research
seems to have confi rmed Harlan’s earlier skepticism,
if not his preferred solution.

Empirical studies of the actual operation of the
statutes that attempt to narrow application of the
death penalty to only those cases in which it is at
least potentially deserved have found them ill-suited
to the task. Research shows that very little narrow-
ing actually takes place, so that only a minute pro-
portion of fi rst-degree murders in some jurisdictions
are not death-eligible (e.g. Shatz & Rivkind, 1997 );
extralegal variables such as race, gender, and geogra-
phy continue to signifi cantly infl uence the process
of death sentencing, so that the penalty is still ineq-
uitably imposed (e.g., Hindson, Potter, & Radelet,
2006 ); and, in the fi nal analysis, the schemes that
are in operation in numerous states fail to effectively
narrow the class of death-eligible murders (and,
therefore, death-eligible defendants) from all others,
so that “there is no meaningful way to distinguish
who is eligible for the penalty and the very few who
receive it” ( Marceau, Kamin, & Foglia, 2013 ,
p. 1074).

The California death sentencing statute is a
useful, illustrative example. For a narrowing stat-
ute to operate properly in this context, it is sup-
posed to reduce the larger group of persons found
guilty of murder to a much smaller group com-
posed of only those likely to be judged the worst of
the worst who are supposedly deserving of the
death penalty. This means that, once the narrowing
has occurred, there should be a fairly high percent-
age of persons in the remaining group—those who
are now eligible to receive the death penalty—who
actually do deserve the death penalty (because, by
defi nition, they have been selected by the statute as
likely candidates). In Furman , for example, the
Supreme Court was troubled by the fact that only
15%–20% of defendants who were eligible for the
death penalty actually received it, because this sug-
gested that the group at risk of being executed
included large numbers of people who should not
have been considered among the worst of the worst
at all. The Court thought that the failure to narrow
the eligible group had helped unleash the unbri-
dled discretion of the jury that rendered the death
sentencing process unconstitutional.

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Haney, Weill, and Lynch

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The California statute attempted to accomplish
the necessary post– Furman narrowing by requiring
that any one of a list of special circumstances must
be found true before a capitally charged defendant
could be eligible for a death sentence. There is, how-
ever, such a large number of these special circum-
stances written into the statute—including all forms
of felony murder—that more than 30 “distinct cate-
gories of fi rst-degree murderers” are actually eligible
for the death penalty ( Shatz & Rivkind, 1997 , p.
1318). Beyond the sheer number of categories, the
breadth of the cases that they include (especially the
fact that any kind of felony murder qualifi es and
that another special circumstance—lying in wait—is
interpreted so broadly that almost every premedi-
tated murder is arguably covered) means that very
few—according to Shatz and Rivkind’s (1997)
empirical analysis, no more than about 1 in
8—fi rst-degree murders in California are noncapital.
Thus, a large number of defendants have been
placed at risk of receiving the death penalty who
presumably should not be. Shatz and Rivkind
(1997) found that between 1988 and 1994 fewer
than 10% of fi rst-degree murder convictions in the
state resulted in death sentences (well below a
15%–20% nationwide fi gure that had troubled the
Furman Court more than two decades earlier, before
any special narrowing statutes had been put in
place). As Shatz and Rivkind concluded their
empirical analysis of the effect of this statute:
“Succinctly stated, the special circumstances per-
form no substantial narrowing function” (p. 1327).

The same conclusions have been reached in
empirical studies conducted on the actual effects
of the narrowing statutes implemented in a number
of other states. Studies of judicial proportionality
review of death verdicts to determine whether
individual death verdicts rendered in a particular
case are disproportionate relative to other cases indi-
cate that they too have proven ineffective (e.g., Bal-
dus, Woodworth, Grosso, & Christ, 2002 ). This is
in part because there are few courts that actually
conduct such reviews in a meaningful way. In fact,
there is no widely agreed upon logic or metric that
courts employ in reaching their judgments about
proportionality, and reviewing courts almost never
fi nd the existence of disproportionality, suggesting

an overall failure to provide rigorous, meaningful
review (e.g., Baldus, 1996 ; Bienen, 1996 ; Durham,
2004 ; Kaufman-Osborn, 2008 ).

The prosecutor’s decision as to whether to seek a
death sentence is another critical decision point in
the narrowing process. In most jurisdictions, prose-
cutors actually seek death in fewer cases than are
potentially eligible, but research indicates that the
process by which that selection happens falls short
of the narrowing ideals. Thus, evidence suggests
that those charging decisions signifi cantly
over-value White victims (e.g., Baldus et al., 1990 ;
Paternoster et al., 2003 ; Songer & Unoh, 2006 ), and
that death notice fi lings appear to be used to compel
guilty pleas ( Ehrhard, 2008 ; Thaxton, 2013 ).

Finally, capital jurors play a central role in the
narrowing process because they ultimately must
determine whether they believe that the convicted
defendant is culpable enough to be sentenced to
death. In the modern era of the death penalty—since
Gregg v. Georgia (1976) to the present—if there is a
conviction in a potentially capital case and a determi-
nation made that some aspect of the case renders it death-
eligible, the case enters a separate penalty, selection,
or sentencing phase. In this phase, capital jurors are
typically presented with a wide range of evidence
presented by both the prosecution and defense. Pros-
ecutors present aggravating evidence (such as egre-
gious aspects of the crime, prior criminal acts
committed by the defendant) that are intended to
secure a death verdict, while defense attorneys pres-
ent mitigating evidence (such as sympathetic aspects
the defendant’s background or social history, or posi-
tive contributions he has or is likely to make in the
future) that is intended to secure a life sentence.
Under the statutes in operation in most states, judges
instruct jurors that they are to consider and take into
account both aggravating and mitigating factors,
engage in some sort of weighing or balancing pro-
cess, and reach a sentencing verdict with this evi-
dence in mind. By structuring the decision-making
process in this way at this fi nal stage of the capital
trial process, the capital jury’s discretion is supposed
to be properly guided and regularized.

From a psychological perspective, one of the
most interesting components of the penalty phase
process is the centrality of the defendant’s

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The Death Penalty

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background or social history to the decision-making
task. That is, juries are explicitly encouraged to con-
sider the role that the defendant’s social history and
circumstances have played in shaping or infl uencing
his life trajectory and adult behavior. Moreover, they
are instructed to take this information into account
in assessing his overall culpability and render a
sentencing verdict. This kind of inquiry is rarely
even permitted in noncapital criminal cases, much
less made the centerpieces of the trial. Research
confi rms the theoretically soundness of both the
social historical inquiry itself (i.e., past events do
play an important role in shaping and infl uencing
present and future behavior) and also the relevance
of this kind of analysis to the capital jury’s task at
hand (i.e., jurors can and do use this information to
assess culpability). More specifi cally, much capital
mitigation is based on an analysis of the particular
criminogenic background factors and forces that
helped to shape the capital defendant’s life. In addi-
tion, research shows that providing decision makers
(in this case, capital jurors) with information about
these external factors and forces can shift the attri-
butional frame away from purely individual or inter-
nal causes, thereby allowing them to contextualize
the defendant’s behavior and render more informed
(and often more lenient) judgments about his fate.

In fact, extensive research has documented the
powerful role of criminogenic risk factors in con-
tributing to delinquent, criminal, and violent
behavior. Masten and Garmezy (1985) summarized
the early research on these issues: “Children who
pursue delinquent careers may have been exposed
to very severe stresses and harmful life events,
genetic disadvantage, inappropriate parental models,
selective reinforcement by parents of the child’s mal-
adaptive behavior, and chronic low self-esteem”
(p. 25). The consequences of exposure to multiple
risk factors, aggregated over a long period of time,
can negatively shape and affect adult behavior.
Broad “contexts of maltreatment” have profound
and long-lasting effects over a person’s life course
(e.g., Belsky, 1993 ; Briere, 1992 ; Dutton & Hart,
1992 ). The fi eld of developmental criminology
has relied on many of these social historical and
contextual insights to reach conclusions about the
origins of criminal behavior (e.g., Loeber, 1996 ;

Rowe & Farrington, 1997 ). As Sampson and
Laub (1993) noted, “the connection between offi cial
childhood misbehavior and [negative] adult out-
comes may be accounted for in part by the structural
disadvantages and diminished life chances accorded
institutionalized and stigmatized youth” (p. 137).
The direct application of these psychological
insights to understand and explain capital crime
has been summarized in a number of publications
(e.g., Haney, 1995 , 2008a ).

Although the psychological connection or link
between early traumas and risks and later criminality
is empirically well supported, the role that such
evidence plays in capital sentencing depends on
whether and how jurors use it in assessing a capital
defendant’s culpability. As we noted earlier, mem-
bers of the U.S. Supreme Court have suggested over
the years—in cases such as Eddings v. Oklahoma
(1982) , California v. Brown (1987) , and Rompilla v.
Beard (2005) —that evidence of a capital defendant’s
abusive and traumatic background and its adverse
effects on his life chances and adult behavior might
well lead a capital jury to assess his culpability dif-
ferently and decide not to sentence him or her to
death. Much of the research that implicitly supports
the justices’ assertions about how such evidence is
understood is derived from attribution theory.
Attribution theory, which dates back to the 1960s,
is the notion that people regularly make causal
attributions about the behavior they witness others
engage in (or when they hear evidence about behav-
ior that has already been engaged in; e.g., Heider,
1958 ; Jones et al., 1987 ; Kelley, 1967 , 1973 ;
Kelley & Michela, 1980 ; Ross & Nisbett, 1991 ).

It is well established in the application of attribu-
tion theory to legal settings that jurors engage in a
process of analyzing the causes of a defendant’s
behavior, his intentions in the course of that behav-
ior, and the outcome of the behavior itself in the
course of attributing blame, gauging blameworthi-
ness, and assessing culpability. More specifi cally,
depending on whether jurors attribute the causes of
the behavior in question to the internal dispositions
or willful choices of the actor, or to external circum-
stances and conditions over which the actor has less
control, they judge the behavior and the actor very
differently. The nature of the causal attribution

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Haney, Weill, and Lynch

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affects judgments about the moral quality of the act
and the moral culpability of the actor, which then
affects perceptions about the nature and severity of
the punishment that jurors conclude he deserves
(e.g., Albonetti, 1991 ; Anderson, 1990 ; Bell, 1989 ;
Cullen, Clark, Cullen, & Mathers, 1985 ; Hawkins,
1981 ; Shaver, 1985 ; Shultz, Schleifer, & Altman,
1981 ).

Thus, the process of assessing culpability by
taking into account the social historical factors and
forces that have played a criminogenic role in the lives
of capital defendants is grounded in psychological
theory and data. There is solid empirical support for
the justices’ proposition—one that has now become
a bedrock principle of capital jurisprudence—that
an appreciation of these kinds of mitigating explana-
tions can lead jurors to put capital defendants’ lives
in context, understand them better, and treat them
more leniently. In actual practice, however, the
operation of this process and the capital jury’s per-
formance in this regard has been extremely uneven
and often highly problematic. Here, too, a process
that in theory should result in a more rational and
principled narrowing of the category of persons on
whom the death penalty is actually imposed can and
too often does falter at the point of implementation.
Obviously, if attorneys fail to discharge their respon-
sibility of competently and conscientiously develop-
ing these social historical narratives and effectively
presenting them to jurors, then the jurors in turn
will lack the information that they need to engage in
the most relevant and informed attributional analy-
sis of culpability. In a later section of this chapter we
discuss the reasons why this may be so, including
the diffi culties jurors have in comprehending the
instructions that are intended to guide their sentenc-
ing discretion and the failure of attorneys to effec-
tively frame and present social historical
explanations of their client’s lives that correspond-
ingly bear on culpability.

Deterrence. In the early years of death penalty
deterrence research, there was a general consensus
among researchers that the death penalty did not
deter future crimes ( Sellin, 1967 ; van den Haag,
1969 ). In 1975, however, economist Isaac Ehrlich
reached the opposite conclusion when he applied

econometric modeling (assuming rationality and the
ability of persons to make a cost–benefi t analysis)
to some of the same data that past researchers had
analyzed. In fact, Ehrlich (1975) suggested that each
execution deterred seven or eight future murders.
Given the timing of Ehrlich’s study and his claims
about deterrence, which reinvigorated debates
about deterrence, U.S. Supreme Court Justice Potter
Stewart was able to declare in Gregg v. Georgia
(1976) —the case that permitted states to reinstitute
capital punishment—that there was “no convincing
empirical evidence either supporting or refuting”
(p. 185) the deterrent effect of capital punishment.

Although the Court did not refute the validity of
Ehrlich’s conclusions, the research community did.
The critical response was swift and vehement.
Many researchers identifi ed a number of method-
ological problems with Ehrlich’s analysis (e.g., Bey-
leveld, 1982 ; Fox & Radelet, 1989 ; Knorr, 1979 ).
Perhaps the most signifi cant critique was published
by the National Academy of Science ( Blumstein,
Cohen, & Nagin, 1978 ). The 1978 National Acad-
emy of Science report expressed skepticism about
numerous aspects of Ehrlich’s research, including
doubts about whether the econometric model he
used was appropriate in this context. The report
pointed out that the model neglected to incorporate
important crime-related variables and demon-
strated sensitivity to small technical violations, and
it stated that Ehrlich’s fi ndings were not replicable.
The debate over Ehrlich’s work also indirectly
spurred a number of new studies that demonstrated
the lack of a deterrent effect for the death penalty
( Archer et al., 1983 ; Bailey, 1978 , 1980 , 1983a ,
1983b ; Forst, 1983 ).

More recently, another round of deterrence
studies was conducted by economists using econo-
metric modeling techniques similar to Ehrlich’s,
and the research again claimed to demonstrate a
signifi cant deterrent effect ( Cloninger & Marche-
sini, 2001 ; Dezhbakhsh, Rubin, & Shepherd, 2003 ;
Mocan & Gittings, 2003 ; Shepherd, 2004 , 2005 ;
Zimmerman, 2004 ). They, too, were met with a new
set of studies more defi nitively demonstrating the
lack of deterrent effect ( Berk, 2005 ; Cochran &
Chamlin, 2000 ; Donohue & Wolfers, 2005 ; Fagan,
Zimring, & Geller, 2006 ; Hjalmarsson, 2009 ; Katz,

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The Death Penalty

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Levitt, & Shustorovich, 2003 ; Stolzenberg &
D’Alessio, 2004 ).

Some of the discrepancies in the results can be
attributed to variations in the methods and forms of
measurement used (e.g., Knorr, 1979 ). For example,
many of the researchers who have demonstrated a
deterrent effect have used aggregated national data
( Ehrlich, 1975 ; Mocan & Gittings, 2003 ), whereas
other researchers have claimed that these data incor-
rectly assume that executions in jurisdictions with
the death penalty affect crime rates in states without
a death penalty ( Bailey & Peterson, 1989 ; Knorr,
1979 ). When more focused jurisdictions are utilized
in these studies, however, sample sizes can become
very small ( Donohue & Wolfers, 2005 ; Land,
Teske, & Zheng, 2009 ; Lempert, 1983 ). In addition,
different researchers choose to control for different
variables, often neglecting variables that are known
correlates of crime, such as length of prison sen-
tence and gun accessibility ( Blumstein et al., 1978 ),
while including invalid predictors, such as percent-
age of people who voted Republican in recent elec-
tions ( Donohue & Wolfers, 2005 ).

An alternative approach to testing the deterrence
hypothesis is to compare homicide rates in states
that have the death penalty with neighboring or
contiguous states that do not, or to look at single
states over time and compare homicide rates in
periods when the death penalty was authorized
by state law versus rates when it was not
( Bailey & Peterson, 1999 ). These kinds of studies
have found no evidence of a deterrent effect for
capital punishment ( Archer et al., 1983 ; Bailey,
1983a ; Decker & Kohfeld, 1990 ).

Researchers also have tried to isolate and under-
stand the specifi c mechanisms that comprise the
deterrence model in tests of the theory. For instance,
researchers have asked whether relative certainty
of execution predicts a deterrent effect. States that
have existing death penalty statutes vary in terms
of whether and how frequently it is actually carried
out. Thus, in states that operate what has been
termed a de facto system of capital punishment, exe-
cutions are regularly carried out as the law pre-
scribes, in contrast to states that operate a de jure
system of capital punishment, where executions are
rarely carried out even though the law allows it

( Archer et al., 1983 ). Again the fi ndings are
inconsistent. Some studies have found that execu-
tions appear to deter homicide ( Cloninger &
Marchesini, 2001 ; Ehrlich, 1975 ; Shepherd, 2004 ;
Zimmerman, 2004 ), while others continue to fi nd
no signifi cant evidence for deterrence theory ( Bailey,
1978 , 1980 , 1983a ; Decker & Kohfeld, 1986 ,
1990 ; Donohue & Wolfers, 2005 ; Lempert, 1983 ).

Similarly, researchers have examined whether
the time-to-execution matters for deterrence. In the
context of deterrence, celerity refers to the swiftness
with which punishment is expected to be applied.
Some research suggests that reducing the amount of
time between arrest and punishment will lead to
lower homicide rates ( Bailey & Peterson, 1999 ).
Again, fi ndings are inconsistent, with studies simul-
taneously fi nding that homicides are decreased both
by a shorter time on death row ( Shepherd, 2004 )
and by a longer time there ( Bailey, 1980 ).
A survey of a group of criminology experts indicated
that 73.2% disagreed or strongly disagreed with the
statement that reducing time spent on death row
would reduce homicides ( Radelet & Akers, 1996 ).

Deterrence theory also asserts that for a punish-
ment to deter, it must be known to the population
that is to be deterred. This suggests that well publi-
cized executions should have a stronger deterrent
effect because of the increased number of persons
who will be aware of them ( Bailey, 1990 ;
Hjalmarsson, 2009 ; Stack, 1987 ). Several studies
have examined this possibility, with some fi nding
that highly publicized executions had no deterrent
effect ( McFarland, 1983 ) and others reporting that a
relationship between execution publicity and
subsequent offending did exist ( Cochran &
Chamlin, 2000 ; Cochran et al., 1994 ). Direct
comparisons between well and poorly publicized
executions yielded similarly inconsistent results,
with some support found for a deterrent effect when
the executions were more highly publicized
( Phillips, 1980 ; Stack, 1987 , 1994 ) and others
fi nding no such effect ( Bailey, 1980 , 1990 , 1998 ;
Stolzenberg & D’Alessio, 2004 ). One study ( Bailey,
1998 ) even suggests that execution publicity may
increase the number of homicides.

Finally, some researchers have concluded that,
far from deterring future homicides, executions may

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Haney, Weill, and Lynch

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actually increase them through what has been
termed a brutalization effect. Bowers and Pierce
(1980b) suggested that state-sanctioned executions
represent an offi cial public statement that devalues
life and demonstrates to potential perpetrators that
it is appropriate to kill someone who has engaged in
wrongdoing. While deterrence theory assumes that
potential murderers will identify with the person
being executed, and therefore be deterred, brutaliza-
tion theory suggests that they are more likely to
identify with the executioner. Although brutaliza-
tion, like deterrence, has had inconsistent support,
a number of studies have found some evidence of a
possible brutalizing effect ( Archer et al., 1983 ;
Bailey, 1998 ; Cheatwood, 1993 ; Cochran &
Chamlin, 2000 ; Cochran et al., 1994 ; Forst, 1983 ;
Neumayer, 2003 ).

A number of researchers have proposed that the
inconsistencies found in the empirical data on the
deterrent effect of capital punishment stem from dif-
ferences in the locations, persons, and types of crime
being studied. For example, some have suggested
that a deterrent effect may exist for capital punish-
ment in Texas, but that these data skew the results
for the rest of the country, where no such deterrent
effect occurs ( Berk, 2005 ; Cloninger & Marchesini,
2001 ). Cochran and his colleagues have suggested
that there is a deterrent effect for some types of mur-
ders but not others. Specifi cally, his research indi-
cated that when the death penalty was fi rst used
after a lapsed time, a brutalization effect seemed to
occur in the form of a sudden and permanent
increase in the number of murders of strangers
( Cochran & Chamlin, 2000 ; Cochran et al., 1994 ).
However, there appeared to be a corresponding
deterrent effect as well, resulting in a reduction in
the number of felony-murders of nonstrangers
( Cochran & Chamlin, 2000 ). On the other hand,
Shepherd (2004) found no evidence of deterrence or
brutalization for stranger murders, although she did
fi nd evidence for deterrence in crimes of passion,
which are typically thought to be the type of mur-
ders that are least likely to be deterred. In many of
the studies that parsed out different locations or
types of murders, the combined effect tends to be
no deterrent effect ( Cochran & Chamlin, 2000 ;
Forst, 1983 ; Land et al., 2009 ).

Another possible explanation for the inconsistent
fi ndings was suggested in an analysis conducted by
Shepherd (2005) . She found that when initial execu-
tions are conducted in a jurisdiction, the fi rst nine
have a brutalizing effect; however, after passing that
threshold there will begin to be a deterrent effect.
Far from encouraging more executions, Shepherd
warns of the devastating numbers of homicides that
may occur after an initial execution; in Oregon,
she found that one execution might have led to as
many as 175 murders.

In sum, although the deterrence hypothesis has
been tested in multiple ways and across many differ-
ent time periods and places, there is no defi nitive
proof that executions have any deterrent effect.
Consequently, in its 2012 follow-up report
on deterrence and the death penalty, the National
Research Council concluded that “research to date
on the effect of capital punishment on homicide is
not informative about whether capital punishment
decreases, increases, or has no effect on homicide
rates. Therefore, the committee recommends that
these studies not be used to inform deliberations
requiring judgments about the effect of the death pen-
alty on homicide” ( Nagin & Pepper, 2012 , p. 102).

Racially discriminatory imposition. The
possibility that racial discrimination infl uences the
decision-making processes that produce death ver-
dicts remains central to the debate over capital pun-
ishment (e.g., Kotch & Mosteller, 2010 ). Research
that has examined outcomes of capital cases in the
post- Furman era, having controlled for extraneous
variables and taken extralegal and other factors into
consideration, continue to fi nd race-based dispari-
ties (see Chapter 15, this volume). The distinctive
patterns involve the race of the victim as well as that
of the defendant. In particular, capital cases in which
the victims are White are more likely to
result in death sentences than those in which vic-
tims are non-White, irrespective of the race of the
defendant ( Baldus et al., 1990 ; Paternoster et al.,
2003 ). These fi ndings are consistent with Sundby’s
(2003) suggestion that capital jurors place
murder victims in a hierarchy of intrinsic worth
or value, such that the deaths of certain kinds of
victims deserve to be vindicated with more serious

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The Death Penalty

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punishment (i.e., the death penalty), and others
deserve less (see also, Kennedy, 1988 ; Paternoster,
1984 ). Baldus and his colleagues found that a
race-of-defendant effect—e.g., Black defendants are
treated more punitively and given the death penalty
more often than White defendants—typically only
occurred when there was a White victim ( Baldus
et al., 1990 ). Others have also found that cases in
which there are Black defendants and White victims
are more likely than any other racial combination
to result in death verdicts ( Paternoster & Brame,
2008 ). Some researchers have suggested that these
kinds of interracial cases cross certain racial barriers
for predominately White jurors ( Bowers & Pierce,
1980a) and play on their perceptions of Black
men as more dangerous than others ( Bowers,
Sandys, & Brewer, 2004 ).

In addition to the racially disparate patterns of
death sentencing, racially discriminatory decision
making may occur at earlier stages of a capital case,
including the many pretrial and trial decision points
at which discretion—and therefore discrimination
or bias—may be exercised ( Baldus, Woodworth,
Zuckerman, & Weiner, 1998 ). For example, police
offi cers must decide whom to arrest, prosecutors
must decide how to charge a defendant and whether
to seek the death penalty; judges and jurors must
determine whether the defendant is guilty and,
under many capital sentencing statutes, decide a
threshold question about whether he is eligible to be
considered for a death sentence ( Thomson, 1997 ).
In addition, there are discretionary decisions that
are made after the trial has been concluded and a
death verdict rendered, including appellate and
habeas review by courts that must evaluate the fair-
ness of the legal proceedings, and sentencing
authorities and executive offi cers who must decide
whether to carry out an execution or grant clemency
( Thomson, 1997 ).

A number of studies have identifi ed the impor-
tance of prosecutorial discretion in contributing to
race-based disparities in death sentencing ( Paternos-
ter et al., 2003 ; Thomson, 1997 ). Prosecutors must
decide who is most worthwhile to prosecute—and
to prosecute capitally—with the limited resources
they have available ( Radelet & Pierce, 1985 ). These
decisions are typically not publicly explained and

are technically not legally reviewable. This means
that they may be infl uenced by a range of possible
factors, including prosecutors’ own reactions to
the racial dynamics of the case. They may also be
affected by their interpretation of public outcry over
what the community regards as an egregious crime,
an especially despised alleged perpetrator, or a
particularly sympathetic victim. These community
reactions (as well as prosecutors’ interpretations of
them) may be infl uenced by racial sentiments
(e.g., Paternoster, 1984 ).

In one study, Baldus et al. found that prosecuto-
rial decision making was signifi cantly associated
with victims’ race and that death was more likely to
be sought in cases with White victims ( Baldus et al.,
1990 ). Others have found that prosecutors in cases
with White victims were more likely to charge
defendants with capital homicide ( Lee, 2007 ), as
well as to notify the defense that they would seek
the death penalty, to proceed to trial as a death
penalty case, and to advance the case to a penalty
phase ( Paternoster, 1984 ; Paternoster et al., 2003 ).

One archival study found evidence of prosecuto-
rial discrimination based on race of the defendant
( Baldus et al., 1998 ); however, mirroring the fi ndings
from research done on discrimination in the death
sentencing process overall, prosecutorial racial bias
was based on the interaction of the defendant’s and
victim’s races. That is, in cases in which defendants
were Black and victims White, prosecutors were
more likely to charge defendants with capital mur-
der ( Paternoster & Brame, 2008 ), upgrade police
classifi cation of cases ( Radelet & Akers, 1996 ), fi le
death notices (indicating that they would seek the
death penalty at trial), and continue to pursue the
death penalty through subsequent stages of the case
( Paternoster et al., 2003 ).

These overall patterns suggest that although
jurors appear to value White victims more overall,
race of victim matters even more in a Black defen-
dant case than one in which the defendant is White
( Paternoster, 1984 ). These discrepancies were most
pronounced in cases where there was a single aggra-
vated felony, suggesting that there may be a lower
threshold to seek the death penalty when there is a
Black defendant and a White victim ( Paternoster,
1984 ). Cases with Black defendants and

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Haney, Weill, and Lynch

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Black victims seem to attract the least attention from
prosecutors, with fewer of these cases being charged
capitally ( Paternoster, 1984 ) and fewer death
notices being retained as the cases proceed ( Pater-
noster et al., 2003 ).

Prosecutors and defense lawyers also have infl u-
ence on later decision points by choosing which
individuals will sit on the jury. Research has found
that capital jury pools are likely to be less racially
diverse than the communities from which they are
drawn. Blacks are already less likely to be on the
voter and automobile registration lists from which
prospective jurors are typically summoned ( Baldus
et al., 1998 ). In addition, they are more likely to be
removed by death qualifi cation ( Haney, 2004 ;
Haney, Hurtado, & Vega, 1994 ). Finallly, additional
racial skewing may occur when trial lawyers
choose the jurors they believe will benefi t their sides
of the case.

Race-based decision making can affect another
crucial aspect of a capital trial. During voir dire , or
jury selection, trial lawyers are allowed a limited
number of discretionary peremptory challenges to
eliminate potential jurors and they can do so for
almost any reason. One exception is the use of
peremptory challenges to strike potential jurors on
the basis of their race, a practice that was deemed
unconstitutional in Batson v. Kentucky (1986) . Some
research has shown that Batson has not entirely elim-
inated this race-based practice ( Baldus, Woodworth,
Zuckerman, Weiner, & Broffi tt, 2001 ), in part
because lawyers who are questioned about their use
of peremptory challenges can claim that their strikes
were made for other reasons. In examining how race
affects jury selection, Baldus et al. (2001) found that
prosecuting attorneys strike disproportionate num-
bers of Black potential jurors, while defense lawyers
strike disproportionate numbers of non-Black jurors.

The strikes also specifi cally varied as a function
of the races of the defendant and victim, suggesting
that lawyers on both sides considered how the
jurors’ race might interact with the racial dynamics
of the case. These patterns had a much greater
impact in reducing the number of potential Black
jurors available to serve on a criminal jury (includ-
ing a death penalty jury). That is, Baldus et al. found
that the reduced number of possible Black jurors in

the initial jury pool ( Baldus et al., 1998 ), combined
with the prosecutors’ tendency to strike Black
potential jurors (particularly young Black men),
typically resulted in a jury that did not represent
the community and was not made up of the defen-
dant’s peers ( Baldus et al., 2001 ). For example, in a
study of one Pennsylvania jurisdiction, Baldus et al.
(2001) found that young Black men, who made up
65% of the capital defendants, had no “closest peer”
on their jury in 79% of cases.

The presence of Black peers on the jury matters
greatly, as Black jurors have been found to perceive
cases differently than White jurors ( Bowers,
Steiner, & Sandys, 2001 ). Black jurors feel more
empathy, particularly for Black defendants ( Garvey,
2000 ), are more likely to identify with the defendant,
their situation, and their family ( Bowers et al., 2001 ),
and are less likely to give a death sentence ( Lynch &
Haney, 2009 ). Although jurors were more likely to
generally agree when they were dominated by White
men, more confl ict and questioning tended to arise
when Black jurors were present ( Bowers et al., 2001 ).

A fi nal component of race-based death sentenc-
ing involves the potential effect of what has been
termed biographical racism ( Haney, 2004 , 2005 ).
The continued signifi cance of race in the United
States means that Black defendants are more likely
to have experienced a greater number of accumu-
lated criminogenic risk factors over longer periods
of time than other groups. These risk factors may
include poverty, child abuse, differential treatment
in schools, special education, and confi nement in
the juvenile justice system (e.g., Haney, 1995 ,
2008a ). Black capital defendants are more likely
to have been exposed to a greater number of these
risk factors and are therefore more likely to have
had their life course affected in these adverse ways
( Haney, 2005 ). These patterns of differential expo-
sure to criminogenic risk factors should serve as a
form of built in or structural mitigation that is con-
sidered at the sentencing phase of a capital trial,
resulting in a greater number of life sentences rather
than death sentences ( Haney, 2004 ). However, the
racial differentials that continue to occur in the
overall rates of death sentencing suggest that these
mitigating factors are not having this effect, perhaps
because they are fully understood or appreciated, or

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The Death Penalty

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perhaps because attorneys are failing to properly
develop effective mitigating narratives in which bio-
graphical racism is highlighted and using them to
overcome the empathic divide that otherwise sepa-
rates Black defendants from the typically White
jurors who judge them ( Haney, 2004 ).

Attitudes About Capital Punishment
For all of the reasons that we previously described,
public opinion is especially important in the adminis-
tration of the death penalty and, not surprisingly, has
been extensively studied. Although people’s attitudes
about capital punishment tend to be reported in the
media as largely uncomplicated, unidimensional, and
stable, they are in fact quite complex, multifaceted,
and subject to change. They are also related to a num-
ber of demographic characteristics, to other values and
beliefs, and to external conditions and infl uences,
including the infl uence of more accurate information
designed to correct some widely held misconceptions
about capital punishment.

Death penalty attitude structure and change. As
two researchers have noted, “[p]ublic opinion
on the death penalty in America over the last 50
years has vacillated” ( Radelet & Borg, 2000 , p. 44).
Actually, this vacillation in death penalty attitudes
may have lasted for considerably longer, although it
is diffi cult to be certain. The Gallup organization did
not conduct nationwide polls on capital punishment
between the mid-1930s and the mid-1950s, so there
were few if any reliable national estimates. In the
mid-1950s, when regular nationwide polling began
again, the percent of the public in favor of the death
penalty started a modest but consistent decline. The
lowest level of support occurred in 1966, when only
42% of the public supported capital punishment for
persons convicted of murder. In fact, this was the
only year in which Gallup estimated that the per-
centage expressing opposition to the death penalty
(47%) exceeded those in favor.

This trend soon reversed itself. Reasonably
steady increases in death penalty support occurred
throughout the 1970s and 1980s. In 1989, for exam-
ple, the nationwide Gallup Poll reported that nearly
4 out of 5 citizens—what was characterized as the
“highest in Gallup annals”—favored capital punish-
ment for persons convicted of murder ( Gallup Poll,

1989 ). Gallup’s estimates of death penalty support
plateaued at around that time and then, in the
mid-1990s, began another modest but consistent
decline. According to Gallup, death penalty support
reached a 39-year low in 2011, with 61% of respon-
dents to a nationwide survey in favor, and has stabi-
lized at around that number to the present time
( Newport, 2011 ).

What appears to be the most rapid and signifi –
cant period of change in recent history—the thirty
percentage point increase in death penalty support
that occurred between 1966 and 1994—coincided
with general political campaigns to get tough on
criminals by increasing the harshness of the penal-
ties they received. As two commentators put it at
the start of this trend of increasing death penalty
support: “Support for capital punishment seems to
be strongly correlated with ‘law and order’ cam-
paigns by local, state, and national politicians. It is
one stark means a candidate has of displaying that
he will ‘do something about crime’ if elected”
( Gelles & Straus, 1975 , p. 599).

From the early 1970s until well into the 1990s,
very little visible, organized opposition or public
debate about the death penalty occurred on a
national level in the United States. Moreover, the
death penalty continued to serve as an especially
potent political symbol. During those decades, as
Gross (1998) accurately observed, a “new status
quo” had been reached in which the death penalty
was regarded as less controversial than at any time
in the past and had become simply “an accepted part
of our criminal justice system” (p. 1453). Indeed,
capital punishment was an issue about which there
was little public or political controversy or confl ict
in part because, as Gross (1998) put it in the late
1990s, “the sides are so severely mismatched”
(p. 1453).

In fact, some of the momentum for the new sta-
tus quo in which the death penalty came to be so
widely and unproblematically accepted in the
United States may have come from news reporting
suggesting that this was the case. That is, to the
extent that “[p]eople learn about public opinion
from media coverage, and particularly the coverage
of public opinion polls” ( Gunther, 1998 , p. 487),
the American public learned a great deal about their

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Haney, Weill, and Lynch

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own attitudes toward the death penalty during the
1980s and 1990s. These were times when headlines
announcing the high levels of support for the death
penalty were commonplace in newspapers across
the country. Niven (2002) demonstrated that the
media’s typically unrealistic and simplistic coverage
of public opinion about the death penalty suggesting
that it was unequivocally supported by large majori-
ties had an impact on individual attitudes and
“bolster[ed] a sense of inevitability” about capital
punishment. It likely “helped to construct a social
reality that support for capital punishment is intrac-
table” ( Unnever, Cullen, & Roberts, 2005 , p. 187).

As we noted earlier, however, failing to analyze
the strength of respondents’ support of the death
penalty conveyed an all or nothing quality to
public sentiments that may have masked signifi cant,
underlying ambivalence. As Harris (1986) put it,
“[c]ategorizing people as favoring or opposing the
death penalty does not take into account the vast
heterogeneity of views underlying this simple
dichotomy” (p. 433). Neglecting to specify the
circumstances under which public support would
translate into a recommendation that the death
penalty actually should be imposed conveyed an
impression of broad, generalized support that may
not have extended to all or even most cases in which
capital punishment was a possibility. Indeed, in
spite of the apparent one-sidedness of public opin-
ion, and perhaps, in an odd way, because of it, it was
easy to miss the softness and complexity that char-
acterized at least some people’s support of capital
punishment. Those complexities were drowned out
by all the apparent public enthusiasm and political
promotion over the last several decades.

Thus, a number of public opinion surveys
showed that, even at the highest point of nation-
wide support for capital punishment, there were
large numbers of people who would not impose it
for many kinds of crimes that were technically
death-eligible. More specifi cally, many death penalty
supporters nonetheless endorsed a variety of com-
mon mitigating factors that they indicated would
lead them to impose life rather than death sentences
in an actual case, and substantial numbers of those
in favor of the death penalty actually preferred a
life without parole sentence if it was offered as a

genuine and meaningful alternative to capital pun-
ishment (e.g., Bowers, 1993 ; Fox et al., 1991 ;
Haney, Hurtado, & Vega, 1994 ).

Bases and sources of death penalty opin-
ion. Numerous studies have attempted to uncover
the individual-level variables that appear to infl u-
ence and direct people’s death penalty attitudes.
Researchers have identifi ed two demographic
characteristics—gender and race—that are consis-
tently related to people’s death penalty attitudes.
Specifi cally, studies show that women are signifi –
cantly less likely to support the death penalty (e.g.,
Lester, 1998 ; Stack, 2000 ). As Cochran and Sanders
(2009) summarized, “[a]mong the various known
correlates of death penalty support, one of the
strongest and most persistent predictors has been
respondent’s gender” (p. 525). They found that the
tendency for women to favor capital punishment
signifi cantly less than men has been both enduring
and robust, persisting even after controlling for a
number of other variables.

Racial differences are equally long-standing
and robust and, if anything, even larger (e.g.,
Bobo & Johnson, 2004 ; Cochran & Chamlin, 2006 ;
Johnson, 2008 ; Unnever & Cullen, 2007 ). For
example, Maggard, Payne, and Chappell (2012)
found that race was an overriding determinant of
death penalty attitudes, with Whites supporting cap-
ital punishment in far greater numbers than Blacks,
even when a number of other variables were con-
trolled for. Johnson (2008) has reported that this
substantial and long-standing racial difference in
punitive attitudes may be explained by differences
in racial prejudice among Whites, perceived injus-
tice among Blacks, and each group’s “social struc-
tural location vis-à-vis the criminal justice system”
(p. 204). Indeed, there is evidence that Whites’
support of the death penalty actually strengthens
when they learn of its discriminatory nature
( Hurwitz & Peffl ey, 2010 ).

Studies that examined the period of increasing
crime rates in the United States—the late 1960s and
into the early 1970s—suggested that rising crime and
perceptions of threat are instrumentally related to
death penalty support (e.g., Rankin, 1979 ; Thomas
and Foster, 1975 ). Other researchers, however, found

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The Death Penalty

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that death penalty support appeared to be less an
instrumental response to crime and more a symbolic
attitude held as part of a commitment to a larger set
of political and social beliefs ( Ellsworth & Gross,
1994 ; Tyler & Weber, 1982 ). That is, supporters are
more likely to have a political and social commitment
to punitiveness in general, of which support for the
death penalty is merely a component.

In more recent research, many scholars and
researchers have suggested that support for capital
punishment is based on people’s commitment to a
broad personal worldview, including one premised
on authoritarianism, fundamentalism and, especially,
retributivism (e.g., Bohm, 1987 ; Finckenauer, 1988 ;
Grasmick, Davenport, Chamlin, & Bursik, 1992 ).
The tendency to cite retribution as an ideological
basis for death penalty support has grown during
the tough on crime era, while the use of instrumen-
tal justifi cations to explain prodeath penalty senti-
ments have decreased since 1981 ( Ellsworth &
Gross, 1994 ). In a related vein, Harvey (1986) found
that persons who supported the death penalty
tended to ascribe to the most concrete functioning
of the four belief systems he measured. Barkan and
Cohn (1994) found that support for the death pen-
alty was associated with political conservatism,
antipathy for Blacks, and racial stereotyping. Miller
and Hayward (2008) found that a number of per-
sonal characteristics were associated with death pen-
alty attitudes, including religious beliefs. Unnever
and Cullen (2006) have reported that the relation-
ship between religion and support for the death
penalty is far more complex than originally thought,
requiring a careful disentangling of specifi c and
potentially countervailing denominational beliefs.

Perhaps not surprisingly, a number of sophisti-
cated analyses have found that death penalty atti-
tudes are infl uenced by a complicated combination
of variables, including demographics, broad values
and worldviews, and contextual factors. For exam-
ple, as Soss, Langbein, and Metelko (2003) con-
cluded from their analysis of White support for the
death penalty, “[n]o single factor, taken alone, can
explain why most White people support capital
punishment or why a dissenting minority stands in
opposition” (p. 411). They found that support for
the death penalty among White respondents was

infl uenced by commitment to a broader set of values
and perspectives (i.e., trust in government, belief in
individual responsibility, order, and deference) and
varied signifi cantly by racial prejudice, but that
these tendencies were moderated by contextual vari-
ables. That is, “[t]wo individuals with similar char-
acteristics can be expected to respond differently [to
the death penalty] depending on their surrounding
social environments” (p. 414).

Similarly, others have found that although racial
differences in death penalty support are very power-
ful in their own right, they also moderate the effects
of a broad historical context (such as a tradition of
vigilantism) and contemporary conditions (such as
distrust of government) on death penalty support
( Messner, Baumer, & Rosenfeld, 2006 ). However, it
is also important to note, that as Unnever, Cullen,
and Jonson (2008) concluded in a recent review of
empirical studies conducted from the 1980s through
the 2000s, “racial animus is one of the most
consistent and robust predictors of support for the
death penalty. Whites who harbor racial animus
toward [Blacks], particularly those who endorse
the new form of racism—that is, who are symbolic
racists—are signifi cantly more likely to support
capital punishment” (p. 69).

Death penalty attitudes also appear to be related
to a number of specifi c legal and criminal justice
values and beliefs. Fitzgerald and Ellsworth (1984)
studied the ways in which death penalty supporters
and opponents systematically differed in their fun-
damental criminal justice and constitutional values.
Using a dichotomy fi rst developed by Packer (1968) ,
which juxtaposed a “due process” perspective that
emphasized “the fallibility of the criminal process in
correctly apprehending, trying, and convicting law-
breakers” ( Fitzgerald & Ellsworth, 1984 , p. 33) with
a “crime control” perspective that emphasized a
belief “that the most important function of the crim-
inal justice system is repressing crime” (p. 34).
Fitzgerald and Ellsworth (1984) demonstrated that
death penalty supporters were far more likely to be
aligned with a crime control perspective, in contrast
to death penalty opponents, who were more likely
to endorse due process values.

A decade later, when overall support for the
capital punishment was at an all-time high, Haney,

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Hurtado, and Vega (1994) found much the same
thing—that persons who supported the death pen-
alty tended to embrace crime control points of view
over the due process perspective that was more
likely to be held by death penalty opponents. For
example, respondents who disagreed with the basic
tenet of American jurisprudence that it is better for
society to let some guilty people go free than to risk
convicting an innocent person were signifi cantly
more likely to support the death penalty, as were
those who disagreed with the exclusionary rule and
believed that the insanity defense was little more
than a loophole that allowed too many guilty per-
sons to go free.

As we noted earlier, in addition to individual-level
factors that help account for death penalty attitudes
and beliefs, much attention has been paid to the role
of external infl uences, including regional differences
that appear to stem from cultural and subcultural
practices and norms. Although little psychological
research has been conducted to directly explain this
phenomenon, a number of researchers have found
very reliable and signifi cant geographical variations
in both support for the death penalty and in actual
death penalty practices (i.e., numbers of persons
sentenced to death and numbers of persons actually
executed). For example, Borg (1997) found that,
although there was little overall difference between
southerners and non-southerners in terms of death
penalty support, there were very signifi cant differ-
ences in regional conditions that translated into
much higher percentages of persons who supported
capital punishment in some communities or areas
than others. To explain these localized differences
within a region of the country ordinarily associated
with death penalty support, she emphasized the
importance of understanding “not only the contex-
tual nature of ‘southern violence’ but also the vari-
ability of ‘southern identity,’” (p. 25) from one place
to another.

Liebman and Clarke (2011) have found that the
variations are much more dramatic when, in addi-
tion to attitudes about the death penalty, actual
death sentences are taken into account. As they put
it: “[N]otwithstanding broad public and statutory
support” for capital punishment, “the vast bulk of
death sentences are imposed on behalf of a small

minority of Americans.” Indeed, a “given defendant’s
likelihood of receiving a sentence of death depends
greatly on the county in which he was tried” (p. 265).
The small minority of communities that actually use
the death penalty were characterized by their high
levels of parochialism, or a “tendency to feel embat-
tled from ‘outside’ infl uences, including crime”
(p. 270) and by their libertarianism, or “a vigilante
streak—a willingness to take the law into one’s
own hands and out of the untrustworthy hands of
government” (p. 274).

The mass media are another especially powerful
external force that helps to explain death penalty
attitudes (see Volume 1, Chapter 17, this handbook,
for a review of research on media and the law).
Researchers have confi rmed the ways in which the
media signifi cantly infl uence how people “frame”
and react to certain kinds of criminal justice events,
and how they feel about certain crime-related
policies. For example, we know that pretrial public-
ity can shape how people feel about a particular
crime, criminal case, and criminal defendant (e.g.,
Moran & Cutler, 1991 ; Otto, Penrod, & Dexter,
1994 ; Sandys & Chermak, 1996 ). Sherizen (1978)
concluded that the “world view or public belief
system developed by the media limits the perspec-
tives of the audience to certain limited aspects of the
crime phenomena and, in the process of limiting its
coverage, certain features of considerable impor-
tance are excluded from comprehension” (p. 207).

Studies have documented the relationship
between the amount of news coverage that is given
to particular topics and the signifi cance that the
public subsequently attaches to these same topics
(e.g., Iyengar, Peters, & Kinder, 1982 ; K. Smith,
1987 ). For example, studies have demonstrated a
direct relationship between the amount of newspa-
per space devoted to violent crime and the likeli-
hood that neighborhood residents selected crime as
their community’s most serious problem
(M. Gordon & Heath, 1991 ).

With these issues in mind, Haney and Greene
(2004) content-analyzed the newspaper coverage of
a representative sample of California death penalty
cases. They found that the press tended to concen-
trate more heavily on cases in which a death verdict
ultimately was returned (even though, statistically,

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The Death Penalty

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life verdicts are more common), focus their coverage
mostly on the beginning stages of the cases—when
little information about the background or social
history of the defendant was available—and that the
overwhelming majority of the “facts” reported in
news stories were details about the crime itself. They
also found that the press relied overwhelmingly on
the police and other law enforcement agencies as the
sources cited for the information contained in the
articles that were coded—the so-called subsidized
news aspect of crime reporting—and also that the
many repeated references to the crime routinely
focused the reader’s attention on its heinous aspects
or features, often with carefully crafted language
that further dramatized already emotionally charged
events. The stories almost never included even
remotely sympathetic background information that
might have conveyed an explanation of the defen-
dant’s criminal behavior in terms of past trauma, an
especially deprived or abusive upbringing, or some
other social contextual factors.

Media crime coverage like this not only shapes
public perceptions by heightening concerns over
the nature and frequency of victimization and the
magnitude of the crime problem, but also may infl u-
ence the judgments that people make about whether
to support largely or exclusively punitive strategies
(including the death penalty) in order to address
these issues. For example, in one study, researchers
compared sentencing views among persons who
reviewed several case-related court documents with
another group who reviewed several newspaper
articles about the same case. Those who read the
newspaper articles were more than three times as
likely to regard the sentence meted out to the defen-
dant as too lenient ( Roberts & Doob, 1990 ). In a
separate but related study, Roberts and Edwards
(1989) found that crime-related publicity increased
participants’ recommended levels of punishment
even when the crime for which they rendered a
sentence (e.g., theft) was very different from the
one they read about (e.g., homicide). As one litera-
ture review concluded: “[P]references for highly
punitive sanctions in the criminal justice system are
one consequence of the media’s predilection for
covering violent and sensational crimes”
( Hans & Dee, 1991 , p. 142).

Although no researcher has systematically
studied whether exposure to media criminology
( Haney, 2008b ) per se has a direct effect on death
penalty attitudes and decision making, Holbert,
Shah, and Kwak (2004) conducted a national
cross-sectional survey that found that support for
the death penalty was positively related to viewing
police reality shows and television crime drama.
Similarly, Slater, Rouner, and Long (2006) found
that viewing a law and order–oriented crime drama
suppressed the infl uence of preexisting liberal ideol-
ogy among viewers and led them to favor the death
penalty and attach greater importance to public
safety and crime reduction. More recently, using
state-level survey data from Nebraska, Kort-Butler
and Hartshorn (2011) found that nonfi ction reality
crime television viewing signifi cantly contributed to
fear of crime and distorted views of crime preva-
lence, while viewing crime drama television pro-
gramming directly and signifi cantly predicted
support for capital punishment.

One apparent shift in sentiments about capital
punishment emerged at a time when support for the
death penalty was at or nearing an all-time high.
The shift illustrates the potentially complex inter-
play between political and media infl uences, general
values, and attitudes about the death penalty. Part
of the law-and-order political campaigns that were
mounted throughout the United States beginning in
the 1970s included an intensifi cation of the media’s
coverage of crime (e.g., Beckett, 1997 ). The public
became increasingly concerned in response, and
their anger toward the perpetrators of crime intensi-
fi ed. By the end of the decade, Warr and Stafford
(1984) identifi ed an emerging relationship between
a belief in retribution as a justifi cation for punish-
ment in general and support for the death penalty in
particular: “Retribution is by far the most frequently
cited justifi cation of punishment . . . those who view
retribution as the most important purpose of pun-
ishment overwhelmingly favor capital punishment”
(p. 104). A short time later, Harris (1986) reported
much the same thing: “[P]oll data are consistent in
showing that support for the death penalty is largely
a matter of emotion: revenge is a more powerful
rationale than any of the utilitarian justifi cations”
(p. 453).

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Haney, Weill, and Lynch

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As the decade of the 1990s began, Fox et al.
(1991) suggested that “Americans now are
unashamed, and perhaps even proud, to verbalize
their desire for retribution” (p. 512), and noted that
their support for capital punishment was one impor-
tant way that they were able to give voice to these
newly legitimated desires. At around the same time,
Ellsworth and Gross (1994) similarly reported that
most people’s views on capital punishment were now
based more on emotional than rational grounds, and
that people not only had little accurate knowledge
about the death penalty but also were not particu-
larly interested in acquiring more. Near the end of
the 1990s, just before support for capital punishment
began its slow but steady decline, Simon (1997) cor-
rectly observed that the death penalty was no longer
being advocated or defended on the basis of its
instrumental or social utilitarian value—what it
could accomplish—but rather as an “invocation of
vengeance” that took the form of a “satisfying per-
sonal experience for victims and a satisfying gesture
for the rest of the community” (p. 13).

This phenomenon also appeared to be subject
to media-driven change. For example, Fan, Keltner,
and Wyatt (2002) content-analyzed a very large
sample of newspaper stories published about the
death penalty between 1977 and 2001, and corre-
lated changes in the content of the reporting to
overall changes in public opinion about capital pun-
ishment. They found not only that “support for the
death penalty could be predicted with good accuracy
from press coverage of the death penalty” (p. 446)
but also that, as press coverage in the late 1990s
shifted the reporting frame to concentrate much
more heavily on the wrongful conviction of persons
who had been sentenced to death, the shift in cover-
age was strongly related to a corresponding decrease
in nationwide support for capital punishment.

The Marshall hypothesis. Recall that there were
essentially three components to the hypothesis that
Justice Thurgood Marshall advanced concerning
death penalty opinions: the public in general lacks
accurate information about capital punishment;
a large majority of an informed citizenry would
defi nitively reject the death penalty; and support
for the death penalty that was based in whole or

in large part on retribution would be relatively
impervious to the infl uence of accurate information
(e.g., Sarat & Vidmar, 1976 ; Vidmar & Ellsworth,
1974 ). There have been a number of studies of these
seemingly straightforward and empirically testable
propositions, and they have yielded a somewhat
complicated pattern of results.

There is much research that substantiates
Marshall’s view that the public in general is unin-
formed or misinformed about capital punishment
(e.g., Haney, 2005 ), relying on what one scholar
has called folk knowledge rather than actual facts
( Steiner, 1999 ). Perhaps the most consistently
studied and identifi ed misconception is the one
that pertains to the prevailing alternative to a death
sentence—life in prison without possibility of
parole. Numerous studies have shown that not
only survey respondents but even actual capital
jurors misconstrue the meaning of a life without
parole sentence. For example, one early study
found that some 70% of citizens in a national sam-
ple did not believe that defendants sentenced to life
without parole would remain in prison for the rest
of their lives ( Bennack, 1983 ). Other researchers
have noted that “[p]rospective jurors often main-
tain the common misconception that a life
sentence is not, in reality, a life sentence” ( Dayan,
Mahler, & Widenhouse, 1989 , p. 166). They high-
light one study suggesting that the average juror
believed that a life sentence meant the person
would be released in seven or eight years. Focusing
on actual capital jurors, Paduano and
Stafford-Smith (1987) concluded that “the typical
juror at the sentencing phase of a capital trial per-
ceives the imposition of
a sentence of ‘life imprisonment’ to mean there is a
good chance that the capital defendant will in fact
be released from prison on parole” (p. 211).
Similarly, the Capital Jury Project, whose research-
ers interviewed a sample of persons who had
actually served as jurors in capital cases in Califor-
nia and 13 other states, reported that only a
small percentage—18.4% of the 152 jurors they
interviewed—believed that capital defendants
who got life without parole sentences actually
would spend the rest of their lives in prison
( Bowers & Steiner, 1999 , p. 653).

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The Death Penalty

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This particular misconception is especially
important to Marshall’s view that misinformation is
at the core of much death penalty support. As the
Capital Jury Project researchers explained: “Embed-
ded in contemporary cultural common sense about
crime and punishment is the tenet of early release,
which holds that state policy is too lenient and so
ineffective that murderers not condemned to death
will be back in society far too soon, even before they
actually become eligible for parole” ( Steiner, Bow-
ers, & Sarat, 1999 , p. 496). Indeed, both having and
understanding the option of life without possibility
of parole appears to signifi cantly reduce death pen-
alty support. For example, in the 1985 Gallup Poll,
nationwide support for the death penalty fell from
72% overall to 56% when respondents were given
life without possibility of parole as an explicit alter-
native ( Paduano & Stafford-Smith, 1987 ). Zeisel
and Gallup (1989) aggregated the results of 1985
and 1986 nationwide Gallup polls and showed a
slightly larger drop in death penalty support (from
71% to 52%) when the life without parole option
was explicitly provided. Similar and in many
instances even larger shifts in support (some result-
ing in sizable majorities favoring life over death)
were reported in a number of other studies when
this option was given and understood (e.g., Fox
et al., 1991 ; Haney, Hurtado, & Vega, 1994 ).

A number of studies have suggested that Mar-
shall’s second and in many ways key assertion—that
knowing more about capital punishment would lead
people to support it less—is fundamentally although
not uniformly correct (e.g., Bohm, Clark, & Aveni,
1991 ; Sarat & Vidmar, 1976 ; Vidmar & Dittenhof-
fer, 1981 ). Although one study found that increased
information actually polarized people and led them
to become even more extreme in their preexisting
views ( Lord, Ross, & Lepper, 1979 ), and another
showed that short-term information-based changes
were not necessarily preserved over much longer
terms ( Bohm & Vogel, 2004 ), most studies, includ-
ing those cited above that focused on life without
parole, have indicated that dispelling certain mis-
conceptions about capital punishment—creating an
“informed citizenry” on the issue—leads to a
decrease in death penalty support. For example,
Murray (2003) found that death penalty attitudes

were multidimensional and unstable, and that
support for capital punishment was reduced when
respondents were merely asked a series of questions
about how fairly it was being administered. The
study by Lambert, Camp, Clarke, and Shanhe
(2011) provided nuanced support for Marshall’s
prediction, showing that accurate information about
the death penalty differentially reduced support
depending on the demographic characteristics of the
recipients and their level of preexisting knowledge
about capital punishment.

The fi nal component of the Marshall Hypothesis—
that persons who support the death penalty on a pri-
marily or exclusively retributive basis are unlikely to
change their views based on new information—was
especially relevant in the late 1980s and early 1990s
when, as we noted above, high levels of death pen-
alty support were increasingly associated with retrib-
utive rationales or justifi cations for capital
punishment. Interestingly, however, a new issue in
the death penalty debate emerged at roughly that
same time to eventually undermine the nature of that
support: wrongful conviction (e.g., Bedau & Radelet,
1987 ; Gross, Jacoby, Matheson, Montgomery, &
Patil, 2005 ; Huff, 2002 ; Radelet, Bedau, & Putnam,
1992 ; Radelet, Lofquist, & Bedau, 1996 ; Scheck,
Neufeld, & Dwyer, 2000 ). Because the retributive
rationale requires that persons unequivocally deserve
their punishment, highly publicized cases of death
row exonerations of persons convicted and sen-
tenced to death for crimes that they did not commit
seemed to call people’s confi dence in this rationale
into question. Studies done more recently, after these
exonerations drew increased scrutiny to capital pun-
ishment (e.g., Baumgartner, de Boef, & Boydstun,
2008 ; Tabak, 2001 ), indicate that even death penalty
supporters who base support on retribution are sus-
ceptible to information-based change ( Cochran &
Chamlin, 2005 ). Current research also indicates that
having knowledge about the risk of convicting and
executing innocent persons is associated with lower
levels of death penalty support ( Bobo & Johnson,
2004 ; Unnever & Cullen, 2005 ), and that providing
persons with information about innocence per se can
lead to reductions in number of persons who report
favoring capital punishment (e.g., Fan et al., 2002 ;
Lambert et al., 2011 ).

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Haney, Weill, and Lynch

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The Nature and Functioning of the
Capital Jury
As a unique institution in the American legal system
and the focus of much constitutional jurisprudence,
the capital jury has been extensively studied. A vari-
ety of different research methods have been used in
studies conducted over many decades. The methods
used include case studies, analysis of trial transcripts
and other archival data, experimental or simulation
research, and interview studies of persons who pre-
viously served as actual capital jurors.

In the case of interview studies, one major,
coordinated research project deserves special men-
tion; its data will be cited extensively in the review
below. The Capital Jury Project is an interdisciplin-
ary research project begun in 1991 and composed
of research teams in 14 different states selected for
their geographical diversity and the representative-
ness of the capital sentencing statutes and processes
(e.g., Bowers, 1995 ; Bowers, Fleury-Steiner, & Anto-
nio, 2003 ; Eisenberg & Wells, 1993 ). The project’s
core data come from lengthy, semistructured inter-
views conducted with actual capital jurors. They
were sometimes supplemented with data from trial
transcripts, interviews with judges, defense attor-
neys, and prosecutors (e.g., Bowers, 1995 ), surveys
(e.g., Bowers, 1993 ), and jury simulations ( Garvey,
Johnson, & Marcus, 2000 ). By 2002, some 1200
interviews with persons who had served as capital
jurors had been completed, and numerous aspects of
the jury’s decision-making process had been
explored and analyzed.

Below we summarize and discuss four broad
areas of the psychological research that has been
conducted on the capital jury—moral disengage-
ment, jury selection and death qualifi cation, instruc-
tional comprehension, and jury dynamics (for more
general research on juries, see Volume 1, Chapter 8,
this handbook).

Moral disengagement. In its most basic form,
the death penalty requires people to transcend
a fundamental prohibition against taking a life.
Because the death penalty is democratically
administered—average citizens are required to make
decisions about whether someone lives or dies—
“mechanisms of moral disengagement” ( Bandura,

1990 ) appear to play a role in facilitating the death
sentencing process:

Because, under ordinary circumstances,
a group of twelve normal, law-abiding
persons will not calmly, rationally, and
seriously discuss the killing of another,
nor will they eventually decide that the
person in question should, in fact, die,
and then take actions designed to bring
that death about, this unique set of con-
ditions is crucial to allow the process of
death sentencing to go forward. ( Haney,
1997b , p. 1447)

Mechanisms of moral disengagement can change the
moral tenor of the decision making in which capital
jurors engage, minimize their awareness or appreci-
ation of the full range of consequences that are
likely to follow from their actions, and reduce
jurors’ own sense of personal agency by lessening or
displacing responsibility elsewhere. Bandura (1990)
has articulated a number of different, specifi c mech-
anisms of moral disengagement, and many of them
appear to be at work in the death-sentencing
process. In fact, Bandura and colleagues have dem-
onstrated the ways in which these mechanisms
operate to facilitate not just the legal decision mak-
ing that makes death sentences possible, but also the
actual execution process in which those sentences
are fi nally carried out ( Osofsky, Bandura, &
Zimbardo, 2005 ).

One such morally disengaging mechanism is
dehumanization. As Bandura put it, “[p]eople sel-
dom condemn punitive conduct—in fact, they cre-
ate justifi cations for it—when they are directing
their aggression at persons who have been divested
of their humanness” ( Bandura, 1990 , p. 181). The
process of dehumanization begins well in advance of
a capital trial and pervades mass media depictions of
criminal defendants in general. For example, Sloop
(1996) analyzed the media’s portrayals of criminal
offenders over the 40-year period from 1950 to
1993. He found evidence of a dramatic shift away
from depicting offenders as redeemable or amenable
to personal growth and change. Instead, there was a
growing tendency to show prisoners as irrational,
predatory, dangerous, and beyond being reformed.

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The Death Penalty

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Violent offenders, in particular, tended to be shown
as having “animalistic and senseless” characteristics
that stemmed from their “warped personalities”
(p.142). Similarly, Pillsbury (1989) observed that
when media messages encourage the public to
“assign the offender the mythic role of Monster,”
they help simplify the diffi cult task of assigning
moral blame (including the task of condemning
to death), making it easier “to ignore the moral
complexities [inherent in the process of judging
another] and declare the person and his act entirely
evil,” which in turn “justifi es harsh treatment and
insulates us from moral concerns about the suffering
we infl ict” (p. 692). In this context, it becomes
justifi able “to kill those who are monsters or inhu-
man because of their abominable acts or traits, or
those who are ‘mere animals’ (coons, pigs, rats, lice,
etc.) . . .” because they have been excluded “from
the universe of morally protected entities”
( Williams, 1981 , p. 34).

The capital trial process builds upon preexisting
stereotypes about the inhumanity of persons con-
victed of murder and helps jurors erect psychological
barriers between themselves and the defendant that
further this dehumanization. Some of these barriers
stem from the formality that attaches to legal lan-
guage and court proceedings generally. As one legal
commentator has noted, “the emotional, physical,
and experiential aspects of being human have by and
large been banished from the better legal neighbor-
hoods and from explicit recognition in legal
discourse . . .” ( Henderson, 1987 , p. 1575). Because
of the way that the capital trial process is structured,
opportunities to humanize the capital defendant are
typically delayed until the very last phase of the trial
itself. As one lawyer put it: “While the state has often
presented the evidence in the guilt phase that argu-
ably makes the homicide especially heinous, the pen-
alty phase is usually the defense’s fi rst opportunity to
present to the factfi nder the personal aspects of the
defendant’s life . . . . [I]t would be an unusual case
where the defendant’s family history and character were
introduced in the guilt phase” ( Carter, 1987 , p. 101).

Beyond the timing of the defendant’s humanizing
narrative, other aspects of the capital trial make it
diffi cult to overcome the dehumanization that has
preceded it. Thus, “[w]hile the defense will seek to

have the jury empathize with the defendant, the
defense narrative—unattached to legal form—is a
diffi cult one to convey, and the legalistic formula
can provide sanctuary from moral anxiety” ( Hender-
son, 1987 , p. 1590). As another legal commentator
put it,

The prosecution will tell a story designed
to provoke anger; the defense will
respond with one to evoke sympathy.
The sentencer must choose between or
among them. As the law now stands, this
gives the prosecution a signifi cant advan-
tage at the punishment stage. The law’s
sanction of retribution and the fact of
criminal conviction give weight and legit-
imacy to the prosecution’s angry appeal.
The defense needs a similar, legally
authorized, emotional appeal to check
that anger, to keep the debate within
moral bounds. ( Pillsbury, 1989 , p. 607)

Another mechanism of moral disengagement
involves minimizing, distorting, or ignoring the full
range of consequences that one’s actions are likely
to bring about. Thus, Bandura (2002) noted that
“[i]t is easier to harm others when their suffering is
not visible and when destructive actions are physi-
cally and temporally remote from their injurious
effects” (p. 108). The death qualifi cation process, as
discussed in the above section, may contribute to
this in several ways. At the very outset of the capital
trial—before any evidence has been presented or
decisions made, and certainly before any humaniz-
ing evidence has been introduced about the
defendant—it requires prospective jurors to discuss,
refl ect on, and imagine a possible execution. In
some cases, they are questioned about this issue
repeatedly and at length, and in every case they
must willingly agree to play some direct role in it if
called upon to do so. That is, in order to qualify,
prospective jurors must at least express their will-
ingness to impose the death penalty in what they
regard as an appropriate case; otherwise they are
deemed ineligible to serve and are excused by the
judge. This process may desensitize them to the
implications of a death sentence because contem-
plating the imposition of the death penalty—and in

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Haney, Weill, and Lynch

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some jurors’ minds agreeing to it—is a psychological
barrier that they have already traversed at the very
outset of the trial. It may also lead them to infer that
death is the preferred legal outcome because anyone
who could not agree to at least consider imposing it
has been prohibited from being a capital juror
( Haney, 1984b , 1984c ).

Capital trials also present jurors with skewed or
incomplete narratives of the consequences of vio-
lence. On the one hand, a death penalty trial appro-
priately focuses the jurors’ attention on the violence
of the defendant. Indeed, as Sarat (1995) put it,
“[t]he state compels the juror to view . . . graphic
representations [of the defendant’s violence] and to
grasp the death-producing instrumentalities which
are given special evidentiary value in the state’s case
against the accused” (p. 1124). In addition, the U.S.
Supreme Court has sanctioned so-called victim
impact testimony in capital penalty trials that allows
prosecutors to go even farther and, essentially, to
require capital jurors to directly confront and con-
sider the full range of terrible consequences that the
defendant’s violence has produced ( Payne v. Tennes-
see , 1991 ). On the other hand, however, the law sys-
tematically and explicitly prevents capital jurors from
learning anything comparable about the violence of
the punishment they are being asked to help infl ict.
For example, as stated in one court’s representative
ruling on this issue: “Evidence of how the death pen-
alty will be performed, as well as the nature and qual-
ity of life for one imprisoned for life without the
possibility of parole, is properly excluded” from the
jury’s consideration ( People v. Fudge , 1994 , p. 1117).

Thus, capital jurors are exposed to—indeed, they
are required to view—vivid narratives of the defen-
dant’s violence and are systematically excluded from
any exposure to the violence that they are being
invited to infl ict (e.g., Sarat, 1993 ). The one-sided
way in which the law makes one set of consequences
salient and another invisible operates to disengage
jurors from the full moral implications of their
actions. As one legal commentator noted, “[t]he
pain of the victims should be brought home to a
juror asked to make a moral determination as to
appropriate punishment; so should the pain of the
defendant, and the violence of the execution being
contemplated” ( Howarth, 1994 , pp. 1393–1394).

In fact, research with capital jurors also shows
that not only are the details of the execution ritual
systematically hidden from them but that many
believe it is unlikely ever to occur. For example, one
study of capital jurors in California and Oregon
found that verdict skepticism—disbelief that the sen-
tencing decisions they reached actually would be
imposed—pervaded the deliberation process. As one
of the jurors put it,

We talked about the fact that if you have
a hard time voting for the death penalty,
are you really not just voting for life
imprisonment? Because there hasn’t been
an execution in over 20 years in Califor-
nia. And so, you know, is it really more a
statement than it is an actuality? ( Haney,
Sontag, & Costanzo, 1994 , p. 171)

Similarly, Sarat (1995) found that capital jurors in
Georgia were skeptical about whether death actually
meant death or, as one of them said: “[T]hey don’t
put you to death. You sit on death row and get old”
(p. 1133).

Another mechanism of moral disengagement
involves diffusing or displacing responsibility for
one’s own actions to others. That is, “[p]eople will
behave in ways they normally repudiate if a legiti-
mate authority accepts responsibility for the effects
of their conduct” ( Bandura, 2002 , p. 106). This can
take several forms in a capital trial. Research tells us
generally that “[t]hrough convoluted verbiage,
destructive conduct is made benign and people
who engage in it are relieved of a sense of personal
agency” ( Bandura, 1990 , p. 170). As we will discuss
later in this chapter, the convoluted verbiage of the
capital jury instructions distances jurors from the
realities of the decision they are being called upon
to make, confuses many of them about the critical
concept of mitigation upon which all life verdicts
essentially depend, and fails to provide them with
an intellectual or moral framework—or even an
orderly cognitive process—by which life verdicts
can be consistently reached (e.g., Geimer,
1990–1991 ; Haney & Lynch, 1994 , 1997 ; Haney,
Sontag, & Costanzo, 1994 ; Weisberg, 1984 ). As one
scholar observed: “Under the pre- Furman system,
the jury rendered a moral decision; it reached into

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The Death Penalty

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its gut to decide whether death was the appropriate
punishment for the defendant. Now, however, the
jury is sometimes torn between rendering a moral
decision and applying a legal formula they don’t
quite understand” ( White, 1987 , p. 69).

Weisberg (1984) suggested that capital jurors
might “artifi cially distance themselves from choices
by relying on legal formalities” to help dictate their
verdicts (p. 391), and several studies have indicated
that they do. For example, one study of Indiana cap-
ital jurors uncovered not only “juror misperception
of the responsibility for the death sentencing func-
tion” ( Hoffman, 1995 , p. 1138), but also widespread
diffi culty among jurors in accepting responsibility
for the defendant’s fate. A study of capital jurors in
South Carolina found that penalty instructions not
only created false expectations about alternatives to
the death penalty but also confused jurors about
burdens of proof in the sentencing phase of a capital
case ( Eisenberg & Wells, 1993 ). Because of jurors’
strong initial inclination to sentence to death follow-
ing the typical guilt-phase trial, this signifi cantly
increased the likelihood that a death verdict would
be reached. Indeed, the authors concluded that
“[t]he default sentence in a capital case is death . . . .
[T]he tilt towards death suggests that a defendant
with a confused jury may receive a death sentence
by default, without having a chance to benefi t from
legal standards designed to give him a chance for
life” ( Eisenberg & Wells, 1993 , p. 12).

Thus, many capital jurors readily acknowledge
the sense in which condemning someone to death is
“not really my decision, it’s the law’s decision,” and
they come to believe that they are not personally
sentencing someone to die but rather are simply
following legal orders—whether in the form of “just
weighing the factors” provided in the instructions
that prevail in most death penalty states or “just
answering the questions” posed in special-issues
states like Texas and Oregon ( Haney, Sontag, &
Costanzo, 1994 , pp. 166–167). Similarly, a number
of capital jurors in the Indiana study tended to
believe inaccurately that,

[T]he judge’s sentencing instructions
were intended to defi ne a legally “cor-
rect” capital sentencing outcome. These

jurors tended to see the sentencing deci-
sion as analogous to the guilt–innocence
determination. They interpreted the
judge’s instructions as eliminating most
of their own personal moral responsi-
bility for choosing life or death for the
defendant. ( Hoffman, 1995 , p. 1152)

Jury selection and death qualifi cation. Perhaps
because the capital jury’s role is so important and
unusual, the process by which its members are
selected has been subjected to extensive empiri-
cal study and analysis. As we noted earlier, jury
selection proceeds with prosecution and defense
attorneys lodging challenges to prospective jurors
that can be either peremptory (essentially, at their
discretion) or for cause (alleging a specifi c legal
reason that the person cannot be fair). Although
most of the empirical research has focused on the
particular cause challenge that is unique to capital
cases—death qualifi cation and the elimination of
potential jurors on the basis of their death penalty
attitudes—the peremptory challenge process has
also been studied.

Winick (1982) was among the fi rst to observe
that the unique focus on the death penalty attitudes
of prospective jurors during capital jury selection
allowed for the use of peremptory challenges to bias
the composition of the jury that
was ultimately selected. He noted that questioning
prospective jurors about their death penalty
attitudes provided attorneys—in particular,
prosecutors—with an opportunity to use peremp-
tory challenges to eliminate persons moderately
opposed to the death penalty but otherwise legally
qualifi ed to serve. He concluded that this tendency
in essence “deprives capital defendants of their due
process right to an impartial jury on sentence”
( Winick, 1982 , p. 82), because even persons moder-
ately opposed to or ambivalent about the death pen-
alty could (and often would) be eliminated. When
considered in conjunction with the effects of the
exclusions that occur as a result of death qualifi ca-
tion (as discussed in more detail below), Winick
(1982) concluded that this “produces capital juries
that are signifi cantly more prone to convict than
would be neutral juries, thereby depriving the

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Haney, Weill, and Lynch

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capital defendant of his due process right to an
impartial jury on guilt” (p. 82).

In a later analysis, Baldus and colleagues reached a
number of similar conclusions, including the fact that
prosecutors had a signifi cant comparative advantage
over defense attorneys in using peremptory chal-
lenges to shape the composition of capital juries. Spe-
cifi cally, Baldus et al. (2001) found that prosecutors
used this advantage to eliminate larger numbers of
Blacks (who are less likely in general to support the
death penalty) and that the racial composition of the
jury—whether produced by the discriminatory effects
of death qualifi cation or the discriminatory use of
peremptory challenges—made a difference in death
sentencing rates, especially for Black defendants.
Thus, although predominately Black juries (with fi ve
or more Black members) were signifi cantly less likely
to render death sentences than predominately White
juries (with four or fewer Black members), the jury
selection process ensured that predominately Black
juries were very diffi cult to obtain.

Most of the research on jury selection in capital
cases has focused on death qualifi cation, i.e., the
practice of excusing persons for cause because of
their strong opinions about capital punishment. The
early research done on the effects of death qualifi ca-
tion focused on the legal standard that was estab-
lished in Witherspoon v. Illinois (1968) and that was
in operation in capital cases until 1985. In Wither-
spoon , the United States Supreme Court authorized
courts to preclude persons from sitting on capital
juries if they expressed an unwillingness to impose
the death penalty in any case, no matter the facts
and circumstances. In Wainwright v. Witt (1985) ,
the standard was changed to exclude persons who
said that their death penalty attitudes would prevent
or substantially impair them from performing their
duties as jurors.

Wainwright appeared to broaden the basis or
standard by which a prospective juror could be
found excludable, beyond the one articulated in
Witherspoon , and to correspondingly limit the num-
ber of persons whose death penalty attitudes ren-
dered them qualifi ed. Thompson (1989) noted at
the time that Wainwright “expands the class of indi-
viduals who may be excluded from capital juries
because of their feelings about the death penalty”

(p. 186), and he and other scholars and researchers
expressed concern over the implications of this
expansion. Also, by the time Wainwright was
decided, most states had begun to provide for the
exclusion of persons who were so strongly in favor
of the death penalty that their extreme views meant
that they, too, could not be fair. Although this was
ostensibly intended to balance the attitudes repre-
sented on the jury, the number of persons excluded
on the basis of their extreme support for the death
penalty never remotely approximated the number
who were disqualifi ed by virtue of their opposition
and did not appear to signifi cantly reduce bias
(e.g., Kadane, 1984 ; Luginbuhl & Middendorf,
1988 ).

In any event, a number of studies have shown that
death qualifi cation has a number of deleterious
effects overall. It reduces the representativeness of
the resulting jury pool, changes its attitudinal mix or
composition in ways that render it more oriented
toward law enforcement and less sensitive to the due
process rights of defendants, and produces a group
that is more likely to convict on the basis of the same
set of facts and circumstances. In addition, exposure
to the process of death qualifi cation itself creates a
number of problematic tendencies and expectations,
including guilt-proneness. In short, research shows
that death qualifi cation creates capital juries that are
different from the kind of jury that sits in every other
kind of criminal case, and different in ways that are
adverse to the interests of capital defendants. As two
researchers summarized these studies overall: “At all
stages of the trial—jury selection, determination of
guilt or innocence, and the fi nal judgment of whether
the defendant lives or dies—death qualifi cation
results in bias against the capital defendant of a
nature that occurs for no other criminal defendant”
( Luginbuhl & Middendorf, 1988 , p. 279).

More specifi cally the composition effects of death
qualifi cation arise from the fact that people’s atti-
tudes about the death penalty are correlated with
other things about them. Because persons who
strongly oppose the death penalty have many other
characteristics and attitudes in common, any proce-
dure that eliminates them also will disproportion-
ately exclude those other characteristics from being
represented in the jury pool. Thus, one important

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The Death Penalty

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way in which the composition of the capital jury is
compromised by death qualifi cation concerns the
representativeness of the group of eligible, prospec-
tive jurors that it creates, and especially the fact that
women and Blacks, who are historically more likely
to oppose the death penalty than other groups (e.g.,
T. Smith, 1976 ; Ziesel & Gallup, 1989 ), are therefore
signifi cantly more likely to be excluded from the cap-
ital jury pool. As a result, a process that selects eligi-
ble jurors essentially on the basis of their death
penalty support will exclude disproportionately
greater numbers of women and Blacks (e.g., Bronson,
1970 , 1980 ; Fitzgerald & Ellsworth, 1984 ; Haney,
Hurtado, & Vega, 1994 ). In addition, because Blacks
are already underrepresented on the jury lists in
many parts of the country (e.g., Alker, Hosticka,
& Mitchell, 1976 ; Fukurai, Butler, & Krooth, 1993 ;
Fukurai & Krooth, 2003 ), death qualifi cation may
act to compound a preexisting problem.

Studies show that death qualifi cation also biases
the composition of the capital jury by skewing atti-
tudinal make-up. Any process that systematically
eliminates persons with strong feelings about the
death penalty is likely to leave behind a group that
differs on a host of other interrelated criminal jus-
tice attitudes. Fitzgerald and Ellsworth (1984) cap-
tured many of these differences in research that
showed that death-qualifi ed jurors were more likely
to favor crime control perspectives on criminal jus-
tice issues, as opposed to persons excluded by the
then-operative Witherspoon standard, who tended to
endorse a host of due process–related attitudes.
Among the beliefs that the death-qualifi ed respon-
dents were signifi cantly more likely to hold are that
the failure of a defendant to testify at trial is indica-
tive of guilt, the insanity plea is a loophole, and that
defense attorneys “need to be watched.”

More recent studies that used the newer Wain-
wright standard, and accounted for the exclusion of
extreme prodeath penalty prospective jurors (the
requirement in all capital cases after Morgan v. Illinois ,
1992 ), found that some attitudinal and other effects
were attenuated, but a number of others remained.
For example, one study ( Haney, Hurtado, & Vega,
1994 ) using these newer constitutional standards
found that, compared to those persons who would
be excluded from sitting on a capital jury,

death-qualifi ed persons were less likely to be women
or minorities, less concerned about convicting the
innocent, more likely to endorse punishment-related
polices in general, more likely to fi nd a number of
key case facts as aggravating and less likely to fi nd a
number of others as mitigating. Death-qualifi ed per-
sons were also less knowledgeable about the system
of death sentencing itself (including being signifi –
cantly less likely to believe that life without parole
really meant that a prisoner would not be released
from prison), and they had fewer concerns about
potential fl aws in the system of death sentencing
(including being less concerned that innocent peo-
ple might too often be convicted of capital crimes, or
that the death penalty might be unfair to
minorities).

In a series of studies regarding the characteristics
of death-qualifi ed persons versus those who would
be excluded from capital jury service under current
legal practices, Butler and colleagues have found
that death-qualifi ed jurors are more likely to be
male, White, moderately well-educated, politically
conservative, Catholic or Protestant, and middle
class ( Butler & Moran, 2002 ). Like other research-
ers (e.g., Cowan, Thompson, & Ellsworth, 1984 ;
Moran & Comfort, 1986 ; Thompson, Cowan, Ells-
worth, & Harrington, 1984 ), Butler found that
death-qualifi ed persons are more likely to fi nd capi-
tal defendants guilty and, of course, to sentence
them to death (the basis on which they are selected).
Butler and colleagues also found the death qualifi ed
to be more likely to express racist, sexist, and homo-
phobic views ( Butler, 2007a ), and to hold what
social psychologists have described as a “belief in a
just world” that renders them more punitive in capi-
tal cases (perhaps because they believe that bad
things should always happen to people who have
themselves done bad things; Butler & Moran,
2007a ). In addition, these jurors are more suscepti-
ble to drawing fl awed conclusions from fl awed sci-
ence ( Butler & Moran, 2007b ), are more likely to be
skeptical of defenses involving mental illness
(including the insanity defense; Butler & Wasser-
man, 2006 ), more likely to be infl uenced by the
kind of potentially prejudicial pretrial publicity that
often surrounds capital cases ( Butler, 2007b ), and
more likely to be affected by the victim impact

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Haney, Weill, and Lynch

486

statements that may be introduced during the sen-
tencing phase of capital trials ( Butler, 2008 ).

One of the most well-documented and problem-
atic effects of death qualifi cation on the composition
of the capital jury pertains to what researchers have
termed its conviction proneness. By limiting capital
jury participation to only those persons who, among
other things, share a pro-prosecution and
crime-control perspective and hold more favorable
(often erroneous) beliefs about how the system of
death sentencing actually functions, death qualifi ca-
tion ensures that the evidence presented at trial will
be fi ltered through a particular set of juror predispo-
sitions. Surely there are some cases in which the
weight of the evidence will completely determine
the outcome of the case, and no amount of bias or
predisposition will alter the verdict. In other cases,
however, even jurors who take seriously their
responsibility to base decisions on the evidence and
nothing else may be infl uenced in subtle ways by
preexisting attitudes and expectations. Thus,
death-qualifi ed jurors may literally see a different
case and be “perceptually ready” ( Bruner, 1957 ) to
perceive incriminating evidence, give greater credi-
bility and weight to prosecution witnesses, and
apply different standards of reasonable doubt and
the presumption of innocence than jurors who are
more impartial. Ultimately, as the effects of these
biases and predispositions accumulate throughout
the trial, they may well make their presence felt in
changing the likelihood of conviction.

The basic proposition that death-qualifi ed juries
might be conviction-prone was fi rst suggested more
than 50 years ago ( Oberer, 1961 ). Numerous studies
done since then have confi rmed this (e.g., Bronson,
1970 , 1980 ; Goldberg, 1970 ; Jurow, 1971 ). For
example, Thompson et al. (1984) found that trial
testimony is not only evaluated differently by
death-qualifi ed and excludable jurors, but that
“death-qualifi ed jurors perceive confl icting, ambigu-
ous testimony in a way that follows the prosecu-
tion’s version of events, perhaps because that
version corresponds to a script that is readily avail-
able to them” (p. 111). They also found that
death-qualifi ed jurors showed a willingness to con-
vict on a lesser showing of guilt than persons
excluded by the death qualifi cation process. Perhaps

not surprisingly, Cowan et al. (1984) found that
death-qualifi ed jurors were half as likely as those
excluded by death qualifi cation to vote not guilty
(22.1% vs. 46.7%) on predeliberation ballots in a
potential capital case scenario, and nearly a third as
likely to acquit after deliberation had taken place
(13.7% vs. 34.5%). Other researchers have reached
similar conclusions. In fact, a meta-analysis of stud-
ies done through the late 1990s concluded simply:
“The results indicate that the more a person favors
the death penalty, the more likely that person is to
vote to convict a defendant” ( Allen, Mabry, & McK-
elton, 1998 , p. 724). Thus, to the extent that death
qualifi cation selects jurors on the basis of their will-
ingness to impose the death penalty, it is also likely
to produce juries that are conviction-prone.

Death qualifi cation also biases the death-sentencing
process is an obvious way: By ensuring that the only
jurors who are allowed to decide whether a capital
defendant lives or dies are ones that have been
selected on the basis of their willingness to impose
the death penalty, a capital jury is more likely to
actually impose the death penalty than one selected
through non–death-qualifying voir dire . Several
studies have looked beneath the surface of this obvi-
ous fact to explore some of the specifi c mechanisms
by which this occurs, fi nding that death qualifi ca-
tion in essence also selects for persons who are dif-
ferentially responsive to certain mitigating and
aggravating circumstances of the sort that are com-
monly presented in the penalty phase of a capital
trial. That is, death-qualifi ed jurors are not only
more in favor of the death penalty in the abstract,
but they are also less likely to attend positively to
certain mitigating facts about the defendant and are
more likely to react negatively to certain aggravating
facts about him or his crime (e.g., Haney,
Hurtado, & Vega, 1994 ; Luginbuhl & Middendorf,
1988 ; Moran & Comfort, 1986 ). Together these
studies suggest that death-qualifi ed jurors not only
start out more in favor of the death penalty but,
because of their differential sensitivity to different
kinds of potential penalty phase evidence, are less
likely to be persuaded that life imprisonment is an
appropriate sentence.

Finally, Haney (1984b , 1984c ) found that merely
exposing persons to the unusual and suggestive

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The Death Penalty

487

process of death qualifi cation in which, as we have
noted, they are asked to contemplate the defendant’s
conviction and make a public commitment to be
willing to at least consider voting to authorize his
execution has independent biasing effects. Haney
found that exposure to the process led jurors to be
more conviction-prone, to infer that the other major
trial participants believed that the defendant was
guilty (which would account for their focus on his
punishment) in advance of evidence having been
presented, and that the law “disapproves” of death
penalty opposition (perhaps because death qualifi ca-
tion results in those persons who express disap-
proval being excluded from participating as jurors).

Recall that, in Lockhart v. McCree (1986) , the
United States Supreme Court considered a substan-
tial amount of the research that documented the
biasing effects of death qualifi cation and nonetheless
refused to prohibit the practice. As one commenta-
tor soberly concluded about the decision: “A more
complete repudiation of social science research
could hardly have been accomplished” ( Acker,
1993 , p. 76). The decision in effect guaranteed that,
at least for the immediate future, death sentences
would continue to be meted out by a carefully
selected group of jurors who differed along a num-
ber of important and problematic dimensions,
including being less representative and more guilt-
and death penalty–prone than those who decide
other kinds of criminal cases.

Instructional comprehension. At least since Gregg
v. Georgia (1976) , the United States Supreme Court
has relied very heavily on the use of judicially admin-
istered sentencing instructions to attempt to control
the previously unbridled and unconstitutional dis-
cretion with which capital jurors once acted (e.g.,
Furman v. Georgia , 1972 ). These instructions are a
central feature of the overall system of capital pun-
ishment to which the Court has given its approval
and continued to confer legitimacy for nearly 40
years. As we have explained, under the post- Furman
model of death sentencing, if and when a defendant
has been convicted of a potentially capital crime,
jurors enter a second stage of the trial—a penalty or
selection phase—in which they are asked to deter-
mine whether the defendant should be sentenced to

death or life in prison without possibility of parole.
At this stage, under the sentencing statutes in place
in the great majority of jurisdictions, jurors are per-
mitted to hear evidence on both aggravating and
mitigating factors or circumstances that are intended
to infl uence them in favor of returning, respectively,
either a death or a life verdict. Statutes commonly
identify specifi c aggravating factors that narrow the
scope of what can be considered but allow a very
broad range of mitigating factors to be introduced
and taken into account. Jurors are instructed to con-
sider, take into account, and be guided by this evi-
dence and, usually through some kind of a weighing
process, are to a render sentencing verdict by select-
ing one of the two possible punishments.

Unfortunately, there is much evidence that this
guided discretion model does not work as the Court
intended. In addition to the way that many statutes
fail to adequately narrow the range of death-eligible
cases, as we discussed earlier, studies show that capi-
tal jury verdicts are still plagued by continued arbi-
trariness and even racial discrimination. Direct
attempts to explain these patterns have focused heav-
ily on the nature and effect of the instructions them-
selves, especially the extent to which they are poorly
comprehended by the persons whose behavior they
are supposed to guide. Numerous studies have docu-
mented the incomprehensibility of different versions
of the capital sentencing instructions that are in use
in various jurisdictions across the United States ( Dia-
mond, 1993 ; Diamond & Levi, 1996 ; Haney &
Lynch, 1994 ; Haney, Sontag, & Costanzo, 1994 ;
Levi, 1993 ; Luginbuhl & Howe, 1995 ; Tiersma,
1995 ; Wiener, Pritchard, & Weston, 1995 ; Wiener
et al., 2004 ). Because it seems unlikely that jurors
can be properly guided by instructions that they are
unable to comprehend, this research has raised seri-
ous questions about the fairness and reliability of the
life-and-death decisions that have been rendered by
capital juries in the modern era of death sentencing.

Aside from the limited utility of any instruction
that cannot be properly understood by the persons
whose discretion is supposed to be guided by it, two
additional aspects of this problem bear emphasis.
The fi rst is that even confused jurors must render a
penalty phase verdict. Their confusion may mean
that they are more easily infl uenced by irrelevant

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Haney, Weill, and Lynch

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peripheral cues, more likely to fall back on simple
judgment heuristics, or more willing to rely on a
brand of commonsense justice that includes
preexisting stereotypes and prejudices that are
scarcely different from the unbridled discretion
condemned in Furman —save its appearance of
having been sanitized by judicial instructions
( Haney, 1997a ).

The second problematic aspect concerns the
asymmetry of the comprehension errors that studies
show jurors make. Recall that the penalty-phase
instructions in use in most jurisdictions juxtapose
two central categories or kinds of evidence—
aggravating and mitigating circumstances—and that
jurors are supposed to take into account and weigh
this opposing evidence to reach their sentencing deci-
sions. These key terms and the weighing process itself
are what most studies show jurors simply fail to
understand. The errors that occur, however, are
much more serious and widespread in the case of one
of the key terms—mitigation. In several studies done
in California, for example, after having heard the sen-
tencing instructions read several times, not only were
comparatively few people able to defi ne the term miti-
gation in even a partially correct manner, but the defi –
nitions they did correctly provide tended to relate
only to aspects of the crime rather than to the defen-
dant (the opposite of the kind of mitigation that is
presented in a typical capital penalty phase). In con-
trast, the term aggravation—the evidence that leads
jurors to favor death verdicts—was not only much
better understood overall but it was also understood
in exactly the crime-related ways in which such evi-
dence typically is introduced at trial ( Haney & Lynch,
1994 , 1997 ; Lynch & Haney, 2000 ).

The crime-focused understanding of these key
sentencing terms may help explain the tendencies
that were identifi ed by the Capital Jury Project in
their postverdict interviews with actual capital
jurors. Project researching described an “obsessive
focus on the defendant’s guilt of the crime” that car-
ried over into the penalty trial and distorted the
jurors view of mitigation. As the author put it,

The jurors do not appear to have grappled
with the notion that, despite the defen-
dant’s clear guilt of an aggravated

murder, they could decide that he deserved
a sentence other than death. What is
missing from these interviews is any
real recognition of a separate choice, an
independent decision about whether this
defendant should suffer the ultimate pen-
alty of death. ( Bentele & Bowers, 2001 ,
p. 1031)

Recall that the Supreme Court mandated that “all
relevant mitigating evidence” ( Buchanan v. Angelone ,
1998 , p. 276) be allowed to be introduced into the
penalty or selection phase of a capital trial in order
to ensure the fairness and reliability of the individu-
alized sentencing process. Yet the value of this
opportunity to present a wide range of potential
mitigation may be compromised by the fact that
penalty-phase instructions fail to properly defi ne
and explain the meaning of mitigation; jurors
unclear on the concept are unlikely to know
whether and how to properly make use of whatever
mitigating evidence they do receive. These problems
may well contribute to what has been called
“wrongful condemnations” ( Haney, 2006 )—the
penalty-phase analogue of wrongful convictions
in which a capital defendant, sentenced to death,
should have and would have been sentenced to life
instead if the available mitigation in his case had
been effectively presented to a jury that fully
comprehended its mitigating signifi cance under
applicable constitutional standards.

Finally, we should note that there have been a lim-
ited number of attempts to correct at least some of the
problems with instructional comprehension by using
psycholinguistic principles to rewrite the
penalty-phase instructions in ways that are intended
to make them clearer and, in some instances, not just
easier to understand and to be guided by but also to
connect the instructions to the specifi c facts of the
case at hand (e.g., A. Smith & Haney, 2011 ;
Wiener et al., 2004 ). To date, these attempts have pro-
duced limited but promising results. However, they
have been used in only a limited number of jurisdic-
tions and typically without any systematic empirical
evaluation of whether and how well they are working.

Jury dynamics. Capital juries operate as small
groups, ones charged with a unique legal task and

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The Death Penalty

489

daunting moral responsibility. As the Supreme
Court itself observed, a “capital sentencing jury is
made up of individuals placed in a very unfamil-
iar situation and called on to make a very diffi cult
and uncomfortable choice” ( Caldwell v. Mississippi ,
1985 , p. 242). In fact, researchers have documented
some of the emotional impact of serving as a capital
juror and discharging these extraordinary duties.
Indications of the immense mental and physical
strain experienced by capital jurors appear in reports
of posttrial personal problems, nightmares, regret,
fear, physical illness, and even drug abuse ( Antonio,
2006 , 2008 ).

The behavior of the capital jury has been studied
not only through the lens of the extraordinary
reason for which they have been assembled but also
the legal rules that are intended to govern the deci-
sions they make, the composition and characteris-
tics of the jury members who make them, the
kind of evidence that is brought to bear on the
decision-making process, and the characteristics of
the victims and defendants in the cases where a
sentencing verdict must be rendered. Because the
capital jury’s unique legal task and daunting moral
responsibility are concentrated primarily in the
penalty phase of a capital trial, most of the research
focuses on the dynamics and decision making
which occur at that stage of the case.

It is worth noting, however, that the Capital Jury
Project has found that in some states approximately
half of the jurors they interviewed reported
discussing punishment during the guilt phase of
the trial ( Sandys, 1995 ), and approximately half
also revealed that they had personally decided on an
appropriate penalty during that fi rst phase ( Bowers,
Sandys, & Steiner, 1998 ). Those who had a penalty
preference before the penalty phase of the trial com-
menced were signifi cantly more likely to support a
death sentence ( Sandys, 1995 ). In addition, evi-
dence from the guilt phase was not only used in the
penalty phase, but many jurors based their penalty
decisions largely or exclusively on the facts of the
crime or the mere fact that the defendant had
been convicted in the fi rst phase of the case ( Ben-
tele & Bowers, 2001 ). Of course, if penalty decisions
are made before the presentation of any mitigating
and aggravating evidence has occurred, and in

advance of jurors being instructed on how and why
such evidence is relevant to and should be consid-
ered in making their life-and-death decision, its
constitutionally mandated signifi cance will be
thwarted (e.g., Bowers et al., 1998 ).

Consistent with what we said earlier about the
role of moral disengagement in the
death-sentencing process, the Capital Jury Project
also has found that many jurors absolve themselves
of personal responsibility for the death verdicts they
have rendered by telling interviewers that they felt
pressured into voting in favor of the death penalty
because they (erroneously) believed that the law
required this sentence whenever certain aggravating
circumstances had been proven (e.g., Bentele &
Bowers, 2001 ; Garvey et al., 2000 ). In addition to
reporting that the law had somehow compelled
them to reach a death verdict, many also explicitly
shifted the responsibility for the decision away from
themselves and attributed it to others, including the
assertion that they were following judicial and even
religious mandates (e.g., Bowers, 1995 ; Bowers,
Foglia, Giles, & Antonio, 2006 ; Hoffman, 1995 ).

As we noted earlier, in discussing the asymme-
try of the narratives of violence that occur in the
typical capital trial, the U.S. Supreme Court has
permitted the introduction of victim impact testi-
mony into the penalty or selection stage of a capital
case, allowing family members and others deeply
affected by the victim’s death to describe that
impact to the jury. Much of the research conducted
on the nature and effect of victim impact testimony
has suggested that jurors are indeed infl uenced by
it (e.g., Greene, 1999 ; Luginbuhl & Burkhead,
1995 ). Although it is not necessarily determinative
of the outcome of a capital trial, independent of
other features of the case and additional evidence
that is presented (e.g., T. Gordon & Brodsky,
2007 ), studies show that victim impact testimony
generally generates sympathy and empathy toward
victims, and that it provokes anger, hostility, and
vengeful feelings toward capital defendants that can
lead to increased levels of death sentencing (e.g.,
Paternoster & Deise, 2011 ).

Jurors also seem to be infl uenced by aspects
of victim impact testimony that technically should
not signifi cantly infl uence their judgment of the

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Haney, Weill, and Lynch

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defendant’s culpability or death worthiness. That is,
the power of victim impact testimony to persuade
jurors to return death verdicts turns in part on
how respectable (e.g., Greene, Koehring, & Quiat,
1998 ) or valuable (e.g., Eisenberg, Garvey, &
Wells, 2003 ) or innocent as opposed to troubled
(e.g., Sundby, 2003 ) the jurors perceive the victim(s)
to be. Specifi cally, the more respectable or valuable
or innocent jurors perceive the victim, the more seri-
ous the crime and the more death-worthy the defen-
dant are regarded. Critics have argued that because
the potentially emotionally infl ammatory nature of
victim impact testimony combines with this ten-
dency of jurors to focus on the social value of the
victims in judging the defendant’s death-worthiness,
its use in capital penalty trials actually exacerbates
the very kind of arbitrary death sentencing that the
Supreme Court has otherwise sought to avoid (e.g.,
Logan, 1999 ; Myers & Greene, 2004 ).

A signifi cant amount of research has been done
on the ways in which the composition of the capi-
tal jury and the resulting decision-making dynam-
ics affect sentencing outcomes. By looking at the
interaction of a number of variables that have
been shown separately to infl uence jury decision
making, researchers have gained insights into the
way in which the death-sentencing process
unfolds and with what consequence. For example,
the Capital Jury Project and others have con-
ducted a number of such studies on the racial
dynamics that are generated both by the racial
dimensions of the case facts (in particular, the
race of the defendant and victim) and the demo-
graphic characteristics of the jurors. Among other
things, they found that the racial make-up of the
jury has a large impact on jury dynamics and sen-
tencing decisions (e.g., Bowers et al., 2001 ), par-
ticularly in cases with Black defendants and White
victims. In one study, for example, Eisenberg,
Garvey, and Wells (2001) found that Black jurors
were less likely than Whites to choose death in
the fi rst vote taken during penalty deliberations
and, although Black and White jurors did not dif-
fer by the time of fi nal vote, the fi rst vote was crit-
ically important: the proportion of life to death
votes at fi rst ballot was the single largest predictor
of fi nal sentence.

As we have noted, mitigation plays a special role
in capital penalty-phase deliberations because it
provides the jurors with crucial information about
the defendant’s background and character that
allows them to more fairly and meaningfully assess
his culpability ( Haney, 1995 ; 2008a ). A number of
studies have examined whether there are racial dif-
ferences in the way in which this important kind of
evidence is handled by jurors. Researchers have
reported that Black jurors in general are more likely
to feel empathy for the defendant (e.g., Garvey,
2000 ), potentially making them more sensitive to
mitigating evidence (e.g., Bowers et al., 2004 ;
Brewer, 2004 ). In another study of capital jury
dynamics, Baldus et al. (1998) examined whether
and how capital juries handled mitigating evidence
as a function of the race of the defendant. They
found that capital juries were much more likely to
give credence to mitigating evidence that was
offered on behalf of non-Black defendants, whereas
they gave little weight to such evidence when the
defendant was Black. The same kind of discounting
of mitigation occurred in those cases where there
were non-Black victims.

Another capital jury sentencing dynamic that
Capital Jury Project researchers have uncovered
was termed the White male dominance effect. Spe-
cifi cally, they found that the presence of fi ve or
more White male jurors on a jury was associated
with a signifi cantly higher rate of death sentencing
in those cases in which a Black defendant was
being punished for having killed a White victim
( Bowers et al., 2004 ). On the other hand, a
so-called Black male presence effect occurred
when one or more Black male jurors were present
in the same kinds of cases, which substantially
reduces the chances of a death verdict ( Bowers
et al., 2004 ). Their interview data suggested that
these overall patterns were a function of the fact
that White and Black men typically came to very
different conclusions about what they perceived to
be the Black defendant’s remorsefulness, danger-
ousness, and his cold-bloodedness (pp. 1531–1532).
Moreover, as Brewer (2004) also found, the Black
men in this study reported being more empathic
toward the defendants in these cases than did any
other category of jurors.

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The Death Penalty

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In another Capital Jury Project study, Garvey
(2000) found that the role that emotion played in
death sentencing varied as a function of the race of
the jurors. He reported that White jurors expressed
much more anger toward defendants overall than
Black jurors did, irrespective of the defendants’ race.
Garvey also found that Black jurors were more able
to fi nd something likable about the defendant and
to empathize with the defendant than their White
counterparts, and concluded that Black jurors were
much more likely to “keep the sin separate from the
sinner” ( Garvey, 2000 , p. 47) in both Black and
White defendant cases.

Haney and Lynch approached some of these
issues with a fundamentally different research
method but reached many of the same conclusions.
Examining the sentencing implications of their ear-
lier studies ( Haney & Lynch, 1994 , 1997 ) showing
that capital jury sentencing instructions were diffi –
cult to comprehend overall and that the least under-
stood concept in the instructions appeared to be
mitigation—the kind of evidence that leads jurors to
life sentences rather than death sentences—Haney
and Lynch conducted several simulation studies to
explore whether instructional comprehension
was related to racially discriminatory death sentenc-
ing. In the fi rst study, individual jury-eligible,
death-qualifi ed adults rendered individual verdicts
after viewing one of four simulated penalty trials in
which race of defendant and victim were orthogo-
nally varied ( Lynch & Haney, 2000 ). In a follow-up
study ( Lynch & Haney, 2009 ), a hundred small
group juries comprised of four–seven jurors were
randomly assigned to one of the same four condi-
tions and, after viewing the same simulated penalty
trial tape, were given an opportunity to deliberate
to verdict.

In both studies, Black defendants were signifi –
cantly more likely to be sentenced to death than
White defendants (although in the second study,
this occurred only after deliberation), jurors who
demonstrated poor comprehension of the instruc-
tions were more likely to be infl uenced by race, and
although the understanding of mitigation was poor
overall, mitigating evidence was less likely to be
given its appropriate weight and actually was more
likely to be improperly used in the cases in which a

Black defendant was being judged. In the delibera-
tion study, the postdeliberation effect appeared
to be driven primarily by the White men on the jury.
This White male dominance effect was primarily a
function of the divergent ways in which they used
the mitigating evidence that was presented to make
attributions about the defendant’s character as a
function of the defendant’s race. The researchers
concluded that, in addition to racial animus that
certain jurors may bring to a capital trial, the jury’s
inability to cross an “empathic divide” and take into
account the life struggles of a Black defendant also
appear to be a function of group-level processes and
dynamics that occur in the course of deliberation.
Those processes and dynamics seemed to activate
and exacerbate rather than neutralize or contain
preexisting biases.

PRACTICE AND POLICY ISSUES

Capital punishment remains an extremely contro-
versial and intensely criticized practice in the United
States and throughout most of the rest of the world.
After several decades of successful international abo-
litionist activity, there are only a very few modern
democracies that still retain the practice—notably,
the United States, India, and Japan (e.g., Hood,
2001 ; Hood & Hoyle, 2008 ). Public opinion in the
United States remains extremely divided on the
issue of the death penalty, as it has throughout most
of the nation’s history. Over the last few decades,
there has been a trend toward decreased use of the
death penalty and, in some places, outright aboli-
tion. Fewer death sentences are being returned by
capital juries and, at present, only a small percent-
age of counties in the United States continue to
actively utilize capital punishment. These trends
appear to be based on a number of factors, including
the high cost of the death penalty (especially relative
to the minimal or nonexistent return in increased
public safety), the surprisingly frequent number of
miscarriages of justice that have surfaced in capital
cases in recent decades, and the persistence of evi-
dence of arbitrariness and unfairness in the applica-
tion of the death penalty. The gap appears to be
narrowing between the popular and political fi ctions
about capital punishment and what the public and

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politicians now more accurately understand about
its empirical realities.

Most of the research that we have reviewed in
this chapter has raised fundamental questions about
the utility or purpose of the death penalty and criti-
cally examined the manner in which it is adminis-
tered in the United States. The existence of extensive
research that consistently and systematically docu-
ments such fundamental fl aws and imperfections in
our system of death sentencing inevitably raises
questions about its moral as well as legal underpin-
nings. The problems that have been identifi ed with
the administration of capital punishment are basic
and widespread. For this reason, as we will suggest,
they do not lend themselves to piecemeal or partial
solutions. Indeed, we believe that this body of
research leads very clearly to the conclusion that the
death penalty must either be reformed in truly fun-
damental and comprehensive ways, or it must be
abandoned entirely (e.g., Haney, 2005 ).

In fact, many scholars, researchers, and legal ana-
lysts have concluded that the issues and problems
that we have identifi ed in the nature and administra-
tion of capital punishment simply cannot be
addressed effectively enough to ensure fair and equi-
table administration, and have recommended its
abolition. Indeed, Justice Harry Blackmun, who
often voted to uphold the death penalty against sys-
temic constitutional challenges during his tenure on
the Supreme Court, fi nally declared that he would
“no longer . . . tinker with the machinery of death”
( Callins v. Collins , 1994 , p. 1145) because, after
decades of carefully and closely examining the sys-
tem of death sentencing, he had fi nally come to the
conclusion that “capital punishment cannot morally
or constitutionally be imposed” ( McFarland v. Scott ,
1994 , p. 1264).

Without presuming to take a moral position on
the resolution of these issues, in this section of the
chapter we examine the policy implications and rec-
ommendations for reform that follow from the
empirical study of the system of death sentencing.
Moving from the least to most expansive proposals,
we fi rst consider attempts to reform especially dys-
functional components of the system, then turn to
calls for more comprehensive overhaul, and fi nally
to advocacy of outright abolition. Our policy

suggestions take seriously the challenge to “make
law modern” by incorporating “a contemporary con-
textual, situational, or social–psychological model of
behavior [that] will have profound consequences for
both the form and substance of our law and legal
apparatus” ( Haney, 2002 , p. 4)

One general set of policy implications and rec-
ommendations that emerge from the empirical liter-
ature on capital punishment is the need to address
the broader context of myth and misinformation in
the system of death sentencing. Public opinion is
plagued by a relative lack of accurate knowledge
about how the death penalty actually is adminis-
tered and with what consequences. This is all the
more problematic because, as Finckenauer (1988)
observed, “[p]ublic opinion certainly seems to play
a role in the setting of criminal justice policy,
including (and perhaps especially) policy regarding
capital punishment” (p. 83). Quite apart from what
has been empirically documented about the Mar-
shall Hypothesis and the prediction that accurate
knowledge invariably leads people to reject capital
punishment, it seems clear that, if criminal justice
policy is to be shaped by public opinion at all, it
should be infl uenced by public opinion that is well
informed rather than based on erroneous factual
predicates.

Similar recommendations can be made about the
U.S. Supreme Court’s analyses of death penalty–
related constitutional issues. The Court’s
long-standing reluctance to rely on and reference
social science research has been especially glaring in
the case of capital punishment. Although the land-
mark Furman v. Georgia (1972) case was a clear
exception to this long-standing tendancy, the
Court’s record since then has been mixed and prob-
lematic. For example, Acker (1993) reviewed some
28 Supreme Court death penalty decisions that were
decided between 1986 and 1989 and concluded that
“social science evidence had little infl uence on the
Court’s death penalty decisions. Lead opinions
brushed aside convincing empirical evidence . . .
and refused to consider social-scientifi c evidence
relevant to capital punishment” (p. 82). Sometime
later, other commentators reached essentially the
same conclusion: “Supreme Court justices rarely
take into account empirical research when making

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The Death Penalty

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decisions, and they seem particularly opposed to
incorporating social-scientifi c scrutiny of the death
penalty” ( Clarke, Lambert, & Whitt, 2000–2001 , p.
309). Although the situation improved in the case of
two more recent decisions (notably, Atkins v. Vir-
ginia and Roper v. Simmons ), there is little to suggest
that those cases marked a new commitment to
empirical jurisprudence in constitutional decision
making about the death penalty.

Turning to more issue-specifi c policy reforms,
attempts to operationalize the legal category of the
worst of the worst in order to better defi ne
death-eligible levels of culpability have yielded decid-
edly uneven results, with the Court’s research-based
categorical exclusions for juvenile defendants (in
Roper v. Simmons ) succeeding in creating a workable,
bright-line rule where other approaches to narrow
death eligibility have not. One simple and conceptu-
ally straightforward solution to the problem of
over-breadth in death-eligibility would be the imple-
mentation of statutory reform in those jurisdictions
(such as California) whose laws are over-inclusive.
This would entail drastically reducing the number of
death-eligible crimes to include only limited,
well-defi ned acts that are signifi cantly more egre-
gious than common murders (e.g., Alarcón & Mitch-
ell, 2010 ). At the other end of the death-sentencing
process, it would require that enhanced and truly
meaningful proportionality reviews be conducted, in
which death verdicts are carefully scrutinized to
ensure that they have been returned only in cases
that are unequivocally regarded as the worst of the
worst. Although these reforms appear to be concep-
tually simple, the strategies that would be required to
successfully navigate the complex political dynamics
that stand in the way of implementing them seem
challenging (but are beyond the scope of our empiri-
cally oriented social science analysis. )

With respect to the critical and perennially
debated issue of the deterrent effect of the death
penalty, as we noted, no conclusive evidence has
been produced demonstrating that such an effect
exists. We have alluded to the basic psychological
reasons why this may be so. At the most fundamen-
tal theoretical level, the core assumption that poten-
tial lawbreakers are even capable of the complex
decision-making processes on which deterrence

depends—let alone whether they actually use
them—appears to be misguided. In addition to the
questionable psychological assumptions on which it
is based, there are seemingly insurmountable meth-
odological limitations to manner in which the deter-
rent effect of capital punishment can be studied. As
Knorr (1979) has suggested, the proper question may
not be whether the death penalty deters, but whether
researchers have the ability to determine if it does.
Either way, an important policy implication of the
existing state of research on this question is that capi-
tal punishment cannot and should not be justifi ed on
the basis of an effect that can only be presumed (i.e.,
one that empirical research not only has never defi ni-
tively demonstrated but also never will or can).
Moreover, it remains unclear whether and how, in
practical terms, such a deterrent effect could actually
be created or improved upon. In light of this, a seem-
ingly wiser and empirically more defensible approach
to the reduction of capital crime might well be to
divert some or all of the substantial resources that are
devoted to our system of death sentencing and to
invest them instead in efforts aimed at reducing the
criminogenic forces—especially exposure to child-
hood trauma and risk factors—that we now know are
so strongly associated with serious violent crime.

Similarly, persistent patterns of racially discrimi-
natory death sentencing provide evidence that the
legal system continues to be plagued by the taint of
individual and institutional racism. Researchers
have effectively documented the myriad and com-
plex ways that race matters in capital cases. To date,
however, these insights have been largely ignored,
as exemplifi ed by McCleskey v. Kemp (1987) . Until
McCleskey’s requirement that a successful equal pro-
tection claim required proof of an individual intent
to discriminate is overturned, systemic remedies to
racial discrimination in the administration of capital
punishment may have to be pursued in venus
beyond or outside the courts. For example, it seems
more reasonable at this juncture to seek legislative
remedies—perhaps in the form of so-called racial
justice acts in which capital defendants are explicitly
permitted to use statistical data to establish broad
patterns of racially discriminatory charging or death
sentencing as the basis for claims of unconstitution-
ality (e.g., Chemerinsky, 1995 ). North Carolina’s

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Haney, Weill, and Lynch

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Racial Justice Act also provided some remedy to the
problem of race-based jury selection by allowing
county-based challenges based on the patterns of
peremptory challenges that are exercised by prosecu-
tors ( O’Brien & Grosso, 2013 ). Admittedly, however,
such legislative reforms are also susceptible to politi-
cal trade-offs and uncertainties; compromises in the
drafting of these kinds of laws and threats to repeal
them can drastically limit enforcement mechanisms
and render them impermanent. At another level, a
number of other changes in death penalty procedure
and practice that we will discuss below—such as lim-
iting or eliminating death qualifi cation, rewriting
capital sentencing instructions to improve their com-
prehension, and emphasizing the more effective use
of mitigation—may have salutary effects on racially
discriminatory patterns of death sentencing. Yet
many of the race-related problems that continue to
plague the administration of capital punishment are
widespread, endemic, and seemingly intractable.

With respect to public opinion about the death
penalty, the problem for which a policy-related
solution seems appropriate and, frankly, long over-
due is one to which we have already alluded: even
abstract death penalty support tends to be premised
on a lack of knowledge or understanding about
how the system of capital punishment actually
operates. A number of studies have indicated that
persons who know the least about how the system
of death sentencing actually functions are likely to
support it most. We would argue that it is diffi cult
to defend any legal and public policy that is pre-
mised so much on widespread ignorance, especially
when it is a policy that places individual lives in
jeopardy. Thus, the continued collection and analy-
sis of accurate information about the system of
death sentencing by social science researchers and
the increasingly widespread public dissemination of
these fi ndings seem essential. Campaigns of public
education that examine and discuss the realities of
death sentencing can enhance the general level of
debate over whether and how capital punishment
should be modifi ed and preserved, and can better
ensure that these realities are taken honestly and
accurately into account in public policy initiatives.
The Marshall Hypothesis notwithstanding, contin-
ued public support for the preservation of the death

penalty must at least be predicated on accurate
views of the way the system actually functions.
Otherwise, we belive that it is hard to justify its
continued existence.

Death penalty laws may be infl uenced by myth
and misinformation in another way. There is some
research to suggest that state lawmakers overesti-
mate the public’s demand for capital punishment
and then adapt their legislative preferences to those
distorted perceptions ( Sandys & McGarrell, 1994 ).
Such misperceptions may have catalyzed and facili-
tated the widespread political manipulation of capi-
tal punishment, elevating its stature as a wedge issue
in the 1980s and 1990s ( Pierce & Radelet, 1990 ).
This possibility underscores the importance of
ensuring that lawmakers are optimally informed
about a range of death penalty–related topics and
issues. They should be targeted by educational cam-
paigns that accurately portray the realities of capital
punishment, sensitizing these key decision makers
to the true nature of the system of death sentencing
they fund and help administer, and keeping them
accurately informed about the nature of public opin-
ion on which they ostensibly rely.

Turning to the capital jury, as we have noted, a sub-
stantial amount of research has documented numer-
ous, persistent problems in the death-sentencing
process. A number of studies—many of them con-
ducted by Capital Jury Project researchers—have
underscored the failure of the constitutionally man-
dated reforms that became the hallmark of the mod-
ern system of death sentencing following Furman v.
Georgia . The fi ndings are so consistent and so
damning that they have deepened concerns over
whether the challenge of creating a fair and reliable
system of death sentencing can ever be achieved.
For example, as one commentator concluded, “The
best available evidence shows that arbitrariness still
runs rampant more than three decades after Furman
v. Georgia ” ( McCord, 2005 , p. 806) and that, as a
result, “much of [the Court’s] capital jurisprudence
over the last three decades has been a colossal mis-
take” (McCord, 2005, p. 868). Another argued that
“the best description of the capital sentencing pat-
tern the Court’s doctrine currently requires . . . is
virtually identical to the pattern Furman ruled
unconstitutional” ( Liebman, 2007 , p. 12).

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Unfortunately, the magnitude and seriousness of
these problems are not matched by the promise of
available policy-oriented solutions. For example,
although there are a number of things that could be
done to address the morally disengaging aspects of
the capital trial process, these very mechanisms may
be part of the foundation on which the viability of
capital punishment depends (e.g., Haney, 2005 ).
Possible remedies include broadening the scope of
permissible guilt-phase testimony by the defense
that humanizes the defendant, providing the defense
with the option to request that evidence in the pen-
alty trial be presented in a more chronological
sequence, so that the defense could open and per-
haps close the penalty trial, balancing the current
asymmetries of violence in penalty-phase testimony
by permitting capital juries to hear graphic evidence
about the realities of both of the sentencing options
(life in prison without parole and the death penalty)
that they are asked to choose between, explicitly
acknowledging the importance of compassion in the
meting out of justice by permitting or requiring
judges to provide a pre-instruction at the outset of
the penalty trial that acknowledges the value that
the law requires jurors to attach to the defendant’s
personhood (e.g., Haney, 2005 , p. 228–231).
Although these kinds of reforms are likely to have a
moderating effect on a number of the problems that
we have identifi ed with existing capital trial proce-
dures, they are unlikely ever to be adopted without
signifi cant, corresponding shifts in capital jurispru-
dence. We are left instead with a set of largely
practice-oriented implications derived from the
research, i.e., attorneys should be trained to effec-
tively overcome moral disengagement and to reduce
the empathic divide that separates the jurors from
their capital clients. These things may be accom-
plished by providing jurors with extensive humaniz-
ing information about the defendant, emphasizing
the commonalities that connect rather than distance
them from the personhood of the defendant, and
underscoring the deeply personal nature of the deci-
sion the jurors are individually responsible for
making.

Research has also documented the broad nega-
tive consequences of death qualifi cation. The prac-
tice signifi cantly skews the composition of the jury

panel in ways that make it less representative,
balanced, and fair, and the process itself has a
biasing effect on those jurors who pass through it.
Separately and in combination, these effects appear
to facilitate the conviction of capital defendants and
the imposition of death sentences. As one commen-
tator put it, “Death qualifi cation as currently prac-
ticed tilts the jury fi rst towards guilt and then
towards death, both by removing too many of cer-
tain kinds of people from the pool, and by affecting
the expectations and perceptions of those who
remain” ( Rozelle, 2002 , p. 699). Moreover, because
the extent of disqualifying death penalty attitudes
varies over time and across jurisdictions, the size of
the group challenged for cause on this basis will
vary, at any given time and in any given case, so
that, ironically, when support for the death penalty
wanes, more prospective jurors are likely to be
excluded from participation at the outset of trial.
Here, too, viable remedies are not diffi cult to con-
ceptualize but are nearly impossible to implement
under current law and policy. They certainly include
the outright elimination of death qualifi cation of the
guilt-phase jury (for example, by death qualifying
the penalty jury if and only if the defendant has been
convicted of a death-eligible crime). In addition,
much greater emphasis could be placed on what has
been called life qualifi cation—ensuring that that jurors
not only understand mitigation and are willing to
consider it in their penalty phase decision-making but
also that they “are empowered to react to mitigating
evidence in accordance with the dictates of their
conscience, even in the face of adverse reactions
from other jurors” ( Blume, Johnson, & Threlkeld,
2001 , p. 1215).

The empirically documented problems with capi-
tal jury sentencing instructions are especially vexing
given the signifi cance the U.S. Supreme Court
seemed to attach to them when it reinstituted the
death penalty in 1976. Yet the Court itself has
acknowledged that its faith in these instructions was
as much a pragmatic necessity as anything else: “The
rule that juries are presumed to follow their instruc-
tions is a pragmatic one, rooted less in the absolute
certitude that the presumption is true than in the
belief that it represents a reasonable practical
accommodation of the interests of the state and the

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Haney, Weill, and Lynch

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defendant in the criminal justice process” ( Richardson
v. Marsh , 1987 , p. 211). As we noted earlier, the valid-
ity of that practical accommodation has been systemat-
ically deconstructed in numerous studies documenting
the widespread incomprehension of the various jury
instructions that govern capital penalty trials in a num-
ber of jurisdictions and underscoring the serious con-
sequences that can follow from it. As we also noted,
there are a number of promising psycholinguistically
inspired revisions of these instructions already in exis-
tence, and some have shown a demonstrated potential
for improving comprehension. The fact that so few of
these science-driven modifi cations have been
attempted or implemented, and none to our knowl-
edge that have been pursued in conjunction with a
programmatic and empirical evaluation to document
their effects, suggests that the problem of instructional
incomprehension is likely to persist (even though
potential solutions exist).

Because the capital trial process unfolds sequen-
tially, many of the problematic forces and factors to
which capital jurors are exposed will have accumu-
lated by the time the penalty phase and the fi nal jury
deliberation stage are reached. As we have noted,
this is the stage at which researchers have uncovered
what is often a complicated and very troublesome
decision-making dynamic at work, one that impli-
cates the moral disengagement that characterizes the
proceedings generally, and the continued use of
uncorrected myths and misinformation by the previ-
ously death-qualifi ed jurors, many of whom fail to
fully understand crucial sentencing instructions that
are supposed to guide their discretion. The end
result is too often unreliable—based on extralegal
considerations and erroneous assumptions—and
can result in racially discriminatory outcomes.

One doctrinal bright spot in this area of law can be
found in the Supreme Court’s willingness to broaden
the scope of admissible evidence in capital penalty
phases, permitting capital juries to consider the back-
ground and character of the defendant whose fate
they decide (e.g., Lockett v. Ohio , 1978 ; Eddings v.
Oklahoma , 1982 ; Wiggins v. Smith , 2003; Rompella v.
Beard, 2005 ). This important doctrinal innovation
provided lawyers with an opportunity to educate
jurors in a more comprehensive way about the lives of
their clients, to broaden and deepen the psychological

analyses to which jurors are exposed that explain the
factors and forces that infl uenced the capital defen-
dents whose fate they must decide, and to provide
jurors with accurate knowledge and important
insights about the social historical roots of violence by
drawing on a growing body of research on the origins
of criminal behavior of the sort that can eventually
lead to capital murder (e.g., Haney, 2008a ).

There are serious problems with the way in
which this doctrine is implemented in a number of
actual capital cases and, correspondingly, numerous
ways that it can and should be improved in practice.
Thus, although capital attorneys are now required
to conscientiously assemble available mitigation in
capital penalty trials, some states still fail to provide
attorneys with the level of resources that are neces-
sary to competently investigate, analyze, and present
such evidence. In some instances capital cases are
tried by attorneys who present only a small portion
of the mitigation that actually exists. Indeed, wrong-
ful condemnations—sentencing capital defendants
to death who would likely have received life if their
cases had been handled competently at the time of
trial and adjudicated in a fairer and more just man-
ner ( Haney, 2006 )—most often occur when attor-
neys fall short of their duty to effectively educate
the jury about their client’s social history and fail to
provide the jurors with suffi cient available informa-
tion on which to premise a life rather than death
sentence. Given the importance of this kind of evi-
dence in deciding the fate of a capital defendant,
it would not be unreasonable to require in advance
(rather then waiting to correct wrongful condemn-
tions years later on appeal) that a reasonably com-
plete mitigation case be presented in all cases before
the jury is permitted to render a death verdict.

In addition, as we have discussed at length, the
courts have still done little to insure that capital
jurors truly understand the judicial instructions that
are supposed to legitimate their use of mitigating
evidence. Instead, many capital defendants watch
their cases be decided by jurors who have not
learned the full truth about the social historical and
contextual factors that helped to shape their lives
and infl uence their criminal behavior, and many
capital jurors are allowed to muddle through this
life and death decision-making process, mired in

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The Death Penalty

497

faulty media-based stereotypes and confused about
what if any relevance mitigating evidence has to the
issues at hand.

Finally, it is important to acknowledge the many
practical and political obstacles to truly fundamental
reform that remain in this area of law. Many of the
seemingly straightforward policy-related implica-
tions of the extensive empirical research that has
been done on capital punishment have been effec-
tively resisted to date in a historically conservative
legal system where change of any kind is notoriously
diffi cult to bring about. Moreover, the proposals that
have the greatest likelihood of being adopted are,
frankly, most often mere palliatives—the very kind
of “tinkering” that Justice Blackmun warned against.
Indeed, many scholars, researchers, and legal ana-
lysts have examined the same body of research that
we have reviewed in this chapter and reached the
conclusion that the problems with our system of
death sentencing are so fundamental, endemic, and
interconnected that only a truly fundamental and
comprehensive program of reform would have any
possibility of adequately addressing them.

A number of the policy recommendations that
we have made in this concluding section are embod-
ied in various statements by professional organiza-
tions concerned with injustices in our nation’s
system of death sentencing. Many have recom-
mended further that a moratorium should be
declared on all executions in the United States until
and unless these systemic problems are effectively
addressed. Thus, the American Bar Association in
1997 called for a moratorium on executions in order
to “ensure that death penalty cases are administered
fairly and impartially in accordance with due pro-
cess” and to “minimize the risk that innocent per-
sons may be executed” ( American Bar Association,
1997 ). A few years later, the American Psychological
Association’s Council of Representatives ( American
Psychological Association, 2001 ) called upon “each
jurisdiction in the United States that imposes capital
punishment not to carry out the death penalty” until
it had implemented “policies and procedures that
can be shown through psychological and other
social science research to ameliorate the defi cien-
cies” that plague the system of death sentencing.
Many of the defi ciencies that were listed by the

Council have been discussed in this chapter. As
Haney (2005) has argued, however, the effective
reform of those policies and procedures that make
up the system of capital punishment cannot be
accomplished on a piecemeal basis. Rather “[t]he
fact that these overarching problems are structural
and systemic and that they operate cumulatively and
in tandem means that they must be addressed in
kind (i.e., through a set of interlocking reforms
designed to remedy the entire system of death
sentencing rather than one or another faulty
component)” ( Haney, 2005 , p. 214).

In fact, a number of commentators and profes-
sional organizations, including the Society for the
Psychological Study of Social Issues (2001) , have
reached the conclusion that it is infeasible to ever
bring about a set of structural and systemic reforms
that is comprehensive enough to effectively solve
the numerous interconnected problems that plague
the administration of capital punishment. They have
called instead for the abolition of the death penalty,
largely on the grounds that its many fl aws are sim-
ply insurmountable.

SUMMARY AND CONCLUSIONS

Extensive research has been conducted on various
aspects of the death penalty. The intense scholarly
attention given to this topic is based in part on the
magnitude of what is at issue in capital cases, the
benchmark status of the legal and constitutional
standards that are set in this area of law, and the sig-
nifi cance of the moral, societal, and politic issues
posed when the state seeks to take the life of one of
its citizens. As our review of this literature has
underscored, much of the research has focused on
the fl aws and failures in the system of death sentenc-
ing. The empirical realities repeatedly fall short of
the symbolic images and aspirations that surround
the death penalty, and the constitutional principles
that are supposed to govern the application of this
extraordinary punishment too often fail to function
as they should. There are few if any areas of the
criminal justice system that have been subjected to
such careful social scientifi c scrutiny and, corre-
spondingly, few if any parts of the larger system that
have been found so consistently wanting.

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Haney, Weill, and Lynch

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Capital punishment is thus, in the words of Lieb-
man, Fagan, and West (2000) , a “broken system,”
and the myriad ways that it regularly breaks down
have been extensively documented. Much of that
research has been reviewed in this chapter, includ-
ing the various attempts to reliably, meaningfully,
and fairly defi ne and refi ne the nature and amount
of personal culpability that warrants a sentence of
death, whether and under what circumstances capi-
tal punishment achieves the deterrent effect that
supposedly provides its most rational and perhaps
most often cited justifi cation, the continued legacy
of racial discrimination that has plagued this form of
punishment throughout its history, the unusually
important yet complicated and at times contradic-
tory nature and role of public opinion about the
death penalty, and the nature and functioning of the
unique and often problematic institution of the capi-
tal jury. Even the research that is neutral and dispas-
sionate in tone typically documents the problematic
nature of whatever aspect of capital punishment is
under study, and our review of this literature has
refl ected from eprical facts and that perspective.

As we have noted, many of the problems that
plague the system of death sentencing are fundamen-
tally psychological in nature. Numerous intra- and
interpersonal processes are implicated in the problems
that we have described, including unreliable determi-
nations of culpability and deservedness by legislators,
prosecutors, and capital jurors, the misperceptions
about crime and punishment that shape key judg-
ments that are structured into the death sentencing
process, and the operation of bias and error that
occurs in the course of emotionally daunting
decision-making tasks that are unfamiliar to jurors
and for which often incomprehensible instructions
provide little useful guidance. There are inherent limi-
tations to the extent to which changes in legal policy
and practice alone can effectively resolve these issues.

In fact, as our discussion of policy implications
and potential reforms indicates, the many problems
that have been empirically documented in the
administration of capital punishment do not lend
themselves to simple solutions. In some instances,
the complexity of the challenge comes about
because of political as well as conceptual obstacles
that must be overcome. In others—as in the case of

moral disengagement of jurors—the very problem at
issue may be instrumental to the preservation of the
system of death sentencing itself. That is, imple-
menting policies and practices that truly ensure that
individual jurors both fully accept the humanity of a
capital defendant and fully appreciate the moral
gravity and implications of a decision to sentence
that defendant to death would also likely ensure that
very few death verdicts are ever rendered. To take a
different but related example, as long as perceptions
about criminal culpability and victim worthiness are
cognitively connected to racial stereotypes and
biases—among the general public as well as for key
legal decision makers—it is diffi cult to envision a
simple policy directive or legal reform that would
effectively neutralize the underlying psychological
associations that create and maintain the problem.

These realizations, practicalities, and conun-
drums help explain why many scholars and profes-
sional organizations have concluded that even a
comprehensive set of reforms is likely to accomplish
no more than modest improvements in the reliabil-
ity and quality of justice dispensed by our nation’s
system of death sentencing. The exorbitant costs
that are necessary to maintain this system, as com-
pared to its questionable benefi ts, have led many—
even some who support the idea of the death penalty
in abstract philosophical terms—to recommend its
abolition. In any event, the long and
well-documented empirical record of fl aws and
shortcomings have led scholars and professional
organizations to call not only for solutions to the
most immediate and glaring problems that plague
the death penalty but also for an overarching and
systematic overhaul of the system of capital punish-
ment, a moratorium until this kind of comprehen-
sive reform can be completed or, in the alternative,
for the abolition of the punishment itself.

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