Regardless of Moral Implications, the Death Penalty Amounts to Justice, At Least for Some

Science possesses the capacity for contribution to our most controversial public-policy related debates. The intersection of science and law is at the core of the current dialogue regarding the propriety of the death penalty. In most contemporary judicial systems, the death penalty is employed as a just punishment for capital offenses, despite that public opinion of its use is often mixed. In this sense, the death penalty debate is merely one that addresses whether variables of human psychology might impede the equitable administration of justice. In this sense, science has provided evidence suggesting that while abhorrent to many, the death penalty’s availability does not marshal jurors toward invoking its use. As such, to oppose the death penalty is to oppose the extent to which a jury of peers, upon which the U.S. legal system is predicated, is entitled to exercise its collective best judgment.

While lending insight into the psychological variables effecting invocation of the death penalty, the most current scientific data neither proves nor even strongly suggests that death penalty attitudes of individual jurors have substantial bearing on capital verdicts (Filkins, Smith & Tindale, 1998). Given this, it is antithetical to a nation of laws and free choice to deny free-thinking individuals the opportunity to administer justice of the kind they deem appropriate in certain instances. It is especially so given that the American Legal System has accounted for an abuse of death penalty practices via judicial means. In Witherspoon v. Illinois, Justice Stewart reasoned that a lack of adequate data rendered impossible a conclusive ruling on the constitutionality of jury selection practices resulting in juries composed solely of those favoring the death penalty (Witherspoon v. Illinois, 1968). However, in Grigsby v. Mabry, the defendant successfully argued that a jury comprised exclusively of members positively predisposed to use of the death penalty had violated his Sixth and Fourteenth Amendment rights in convicting him (Grigsby v. Mabry, 1983). In reversing the conviction, it was held that the systematic exclusion from juries of those unwilling to impose a death penalty verdict violates a defendant’s Sixth Amendment right to be heard by an impartial jury of his peers.

The Grigsby decision sought to ensure that if the death penalty were imposed, it was almost certain to be imposed because an organically comprised jury of American Citizens felt that justice was best served by imposing it. In 1986, however, Lockhart v. McCree overruled Grigsby on account of the same reasoning at its core, thereby given full expression to the force of its opinion despite having overturned it: that even if a jury were comprised entirely of those positively predisposed to imposing a death penalty, such a jury would be constitutionally sufficient in that it would reflect a sampling of a defendant’s peers whose beliefs regarding the implementation of justice were just as legitimate as those held by their counterparts (Lockhart v. McCree, 1986). Once again, to interfere with this form of implementation would be to trample on principles near and dear to the formation of the union. In any event, to preclude certain citizens from choosing to impose the death penalty was found especially outrageous in light of studies that have determined that one’s preconceived approbation of a death penalty sentence has little to no influence on one’s willingness to actually impose it (Ajzen & Fishbein, 1977; Fazio & Zanna, 1981).

While studies and proponents to the contrary suggest otherwise, many tend to privilege the predictive value of a social attitude while ignoring the impact of the trial setting’s environmental variables on an unrestricted deliberation process. In other words, predispositions to the death penalty, whether positive or negative, are just as likely to be altered through the environment in which a death penalty determination might be made as they are to be steadfastly held in imposition of a death sentence. If there is to be a kind of genuine opposition to the death penalty, it cannot emerge from a strictly moral prism that prioritizes the opinions of those who perceive the violation of a higher moral order through enforcement of a death sentence. Opposition to the death penalty founded solely on moral grounds is merely an announcement by the opposing party that he or she either knows that a person positively predisposed to the death penalty will allow this predisposition to unduly influence his or her judgment or simply believes him or herself to be of superior moral character. In either case, morally-founded opposition to the death penalty is predicated upon human arrogance that, once again, is itself antithetical to a system of laws founded upon the exercise of free will and best judgment by all men.

In this sense, serving on a capital case jury is an intellectual setting ripe for highly emotive thinking. To suggest that those opposed to the death penalty are simply better equipped to operate within this setting—or that this setting should somehow be eliminated because of the potential provided by it for what a certain set of citizen believes is the wrong kind of thinking—is to suggest an intellectual superiority on the part of those opposed to the death penalty. Needless to say, such a suggestion is not merely absurd, but also counter to any legitimate conception of democratic ideals. Nevertheless opponents of the death penalty may maintain that death penalty attitudes are, in fact, inextricably linked to conviction-happy behavior; that within the context of serving on a jury people are somehow compelled to conduct themselves in a certain way, as was suggested by a brief submitted by the APA in response to the Lockhart case. However, it is equally persuasive to argue that death penalty attitudes—most likely and most often cultivated absent any exposure to the death penalty itself—are generally and fully formed by the time most potential jurors would encounter an opportunity to apply them. As such, regardless of attitude, a jury setting presents too many developmental variables to guarantee that a generally cultivated attitude will be applied in a targeted manner to the specific scenario for which it has been developed.

In any event, scientific evidence has strongly suggested that those morally opposed to the death penalty, as opposed to those willing to impose it, are the ones at greatest risk of applying a biased approach to conviction. To this end, acquittal proneness of certain potential jurors has been firmly established, with at least one study revealing that for purposes of convicting, jurors with a negative predisposition to the death penalty demanded more evidence than did their counterparts (Robinson & Elliot, 1991). The “reasonable doubt” standard for criminal conviction operates effectively only if a juror’s objectivity is ensured. As such, if those opposed to the death penalty are found to raise this standard of “reasonableness” when considering a defendant’s guilt in the context of a conviction that might result in imposition of the death penalty, then the subjugation of our criminal standard for liability to the morality of certain jurors is a threat far greater than any posed by those willing to impose the death penalty. In other words, those arrogant enough to believe themselves imbued with superior morality are more prone to allowing their attitudes to dominate their decision-making process, to the detriment of our legal system’s efficient functioning, which relies upon these citizens’ exercise of objective judgment.

What emerges in considering the death penalty is that its necessity is not rooted in the mere deterrence that it functions to provide for would-be criminals, but in the ideals upon which the nation was founded and through which its laws are expressed. In other words, the death penalty is necessary in order to ensure that those American Citizens with particular conceptions of what is required for purposes of implementing justice are not barred from applying these conceptions in employing their best judgment with regard to a criminal defendant’s guilt. To so bar such citizens from their beliefs is to eviscerate the constitution that provides for their participation in a judicial process that is rooted in the intellectual, moral and sociological freedom of man, and not merely in some perceived moral order in which death is a universal bad. And, of course, those opposed to the death penalty are offered ample opportunity to express their opposition to it through the same process by which their counterparts express their willingness to impose it.

Based on current scientific data, death penalty attitudes do not substantially bear on a given jury’s likelihood of convicting in a capital case, if indeed they bear at all. While opposition to the death penalty has been strong, it is almost invariably founded on belief in a higher moral order to which all must ostensibly subscribe. While those opposing the death penalty on this basis are entitled to their opinions, so too are those who support its use, regardless of how strongly they support it. The American Legal System is predicated upon participation of all citizens, whose opinions and viewpoints are necessarily distinct. To insist upon one such viewpoint as unacceptable, when science has strongly indicated that this viewpoint does not bear significantly on capital punishment verdicts, is to preempt free will and independence of thought, without which the legal system would crumble. It may be that imposition of the death penalty is fundamentally wrong, as prescribed by the courts of heaven, but within the context of the earthly administration of justice, it has been deemed an appropriate form of justice, at least by some, as applied to certain instances in which those opposed to it are free to express their opposition through an electoral process. But to limit a potential juror’s capacity for contributing to judicial order in the manner in which he or she deems appropriate is to embark upon an exceedingly slippery slope that will inevitably begin to erode the foundations of our legal system in unfoundedly privileging one set of beliefs over another.

References

Ajzen, I., & Fishbein, M. (1977). Attitude–behavior relations: A theoretical analysis and review of empirical research. Psychological Bulletin, 84, 888–918.

Elliot, R. & Robinson, R.J. (1991). Death penalty attitudes and the tendency to convict or acquit. Law and Human Behavior, 15 (4) 389-404.

Fazio, R. H., & Zanna, M. P. (1981). Direct experience and attitude–behavior consistency. InL. Berkowitz (Ed.), Advances in Experimental Social Psychology, Vol. 14, 162–202.

Filkins, J. W., Smith, C. M., & Tindale, R. S. (1998). An evaluation of the biasing effects of death qualification: A meta-analytic/computer simulation approach. In R. S. Tindale et al. (Eds)., Theory and Research on Small Groups, New York: Plenum Press, 1998.

Grigsby v. Mabry, 637 F.2d 525 (8th Cir.1980).

Lockhart v. McCree, 476 U.S. 162, 1986.

Witherspoon v. Illinois, 391 U.S. 510, 1968.