The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns

The focal concerns of jurors evaluating mitigation: Evidence from federal capital jury forms

“…We see this as additional evidence that although most mitigation write‐ins centered on characteristics of the defendant, particularly his blameworthiness, a subset of capital juries seemingly consider a “multilayered environment” (Ulmer, 2012, p. 11) of the sentencing encounter: flaws in the trial process or evidence, the outcomes for equally (or more) culpable others, and the government seeking a death penalty when a state court would not permit it. Even some factors we coded as representing blameworthiness, such as when jurors suggested culpability on the part of the government, may reflect fairness concerns: conceivably, juries mentioning ways the government failed the defendant or was otherwise negligent (e.g., failing to make rounds in a prison) may believe that a culpable government should not pursue death (see Rountree & Rose, 2021). How jurors think about the government as a party in the case, and whether the prosecutor is a representative of the same government and system that has previously interacted with or “failed” the defendant, would be a useful area of future research.…”

“…Through write-ins, juries may elaborate on topics already presented to them or describe factors not discussed anywhere else on the form. This latitude is critical because mitigators are otherwise constrained by what defendants are allowed to argue to the jury or place on the verdict form (see Rountree & Rose, 2021 for some legal restrictions). Although modern death penalty law permits defendants to ask jurors to consider a wide range of evidence in support of a life sentence (Tennard v. Dretke, 2004), only evidence regarding the "character and record of the individual offender and the circumstances of the particular offense" (Lockett v. Ohio, 1978, 601) will be consistently admitted.…”

“…Although modern death penalty law permits defendants to ask jurors to consider a wide range of evidence in support of a life sentence (Tennard v. Dretke, 2004), only evidence regarding the "character and record of the individual offender and the circumstances of the particular offense" (Lockett v. Ohio, 1978, 601) will be consistently admitted. States and federal circuits continue to differ on what they deem to be relevant to mitigation beyond the Lockett factors (Rountree & Rose, 2021). Write-ins therefore permit the jury to provide their own reasons the defendant deserves a life sentence.…”

“…Perhaps it humanizes the defendant and supports the idea that the crime was an aberration, but this is different from what FCT posits, namely, the sentencer's concern for how the sentence will affect defendant's family (e.g., a sentence of death means that a defendant's child loses a parent). Courts are divided with respect to the admissibility of evidence regarding the harm of execution to the defendant's family (Rountree & Rose, 2021). This makes this concern a particularly fruitful one to consider among independent jurors.…”

“…Ultimately, write‐ins enable us to observe more directly themes that emerge in jurors' deliberations about mitigation and whether these themes correspond to FCT. This includes a better understanding of any “practical constraints and consequences” jurors may consider during mitigation, a factor that may not reliably appear as an enumerated item on the verdict form (Rountree & Rose, 2021). To directly see what “focal” mitigation issues jurors consider during deliberation, jurors need to speak for themselves, something that write‐ins uniquely permit.…”