Recent Gallup polling shows support for the death penalty in the United States is at a 40-year low, with the 63 percent favorability rating a stark contrast to the 80 percent who supported it in the 1990s.1 When comparing death to life in prison, death favorability drops to 42 percent.2 Meanwhile, the number of death verdicts has also dropped, with only 73 defendants sentenced to death and 35 executed in 2014. Contrast this with 279 sentences and 98 executions in 1999.3 Of 32 death penalty states, only seven carried out executions in 2014, the fewest in 25 years. Further, eight states have abolished the death penalty since 2007, and no states have added the penalty.
As its reign appears to be over, there's no need to continue studying the death penalty, right?
Not so fast. Focusing on the malicious actions of Boston Marathon bomber Dzhokhar Tsarnaev, prosecutors and defense attorneys seemingly set aside all pretenses about his guilt to focus on the only trial phase worth attention: whether he deserved death. Half a country away, James Holmes — the Aurora, Colorado, movie theater shooter — began his trial with a prosecution equally zealous in pursuing death.
At minimum, these trials are high-profile reminders that capital punishment is still alive, especially in cases that attract media attention and public outrage. The Supreme Court is similarly attuned to the continued existence of the death penalty, as several cases are on its docket in 2015, including: Hurst v. Florida, which looks at Florida's death penalty in terms of mental retardation and death sentence unanimity by jurors; Kansas v. Carr, which looks at severing cases with multiple defendants as well as mitigation (factors that make the defendant less worthy of death); and Kansas v. Gleason, which assesses whether judges must instruct jurors that mitigating factors need not be "proven."
The fact that the Supreme Court continues to finetune who is death-eligible underscores how important these cases are. For example, the Supreme Court recently adjusted its 2002 Atkins v. Virginia ruling, which prohibited executing defendants with intellectual disabilities. In Hall v. Florida (2014), the court noted that holding a bright-line IQ limit to determine death-eligibility ("70 means no death while 71 allows death") is unconstitutional. Later this term in Montgomery v. Louisiana, the Supreme Court will determine whether its 2005 Roper v. Simmons ruling (which prohibits executing minors) retroactively applies to an adult who killed when he was a teen.
Ironically, with the use and favorability of the death penalty waning, the need for research should increase. As the list of death-eligible defendants is restricted, social scientists need to conduct research to ensure that those few who remain eligible receive a just and fair trial. At best, death penalty cases favor prosecutors. Pro-prosecution biases result in part from the unique way attorneys select capital jurors: only "death-qualified" jurors (those willing to render a death sentence) sit on capital juries. Unfortunately, research shows that death-qualification increases the likelihood of jurors finding guilt and rendering death sentences. At worst … well, even the FBI admitted to over-representing the prosecutorial value of forensic hair evidence in cases before 2000, including 32 death penalty cases (and 14 executed defendants).
Despite research by the Capital Jury Project at the School of Criminal Justice, University of Albany, and social scientists spanning half a century, much is unknown about how jurors render verdicts. One area that needs study is how jurors understand mitigation. Preliminary evidence suggests that jurors misperceive such mitigating factors as drug or alcohol abuse and severe mental illness as aggravating. Archival and experimental research is thus needed on whether jurors see these factors as mitigating, and if so, for which type of jurors and under what circumstances. Unlike non-capital cases, death penalty cases also place innocent defendants at a sizable risk of receiving the maximum penalty, especially for African-Americans and Hispanics. Recent incidents involving race relations in Alabama, New York and Maryland necessitate a reassessment of how the public perceives crimes involving race, especially in capital cases where African-American convictions and death sentences are overrepresented.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
Footnotes
1 https://deathpenaltyinfo.org/national-polls-and-studies#gallup2014opens in new window
3 https://www.deathpenaltyinfo.org/documents/FactSheet.pdfopens in new window
