Running header: ISSUES SURROUNDING CAPITAL PUNISHMENT

More Than Meets the Courtroom:

Issues Surrounding Capital Punishment
Robyn Denz
Wright State University

ISSUES SURROUNDING CAPITAL PUNISHMENT

More than Meets the Courtroom: Issues Surrounding Capital Punishment

The death penalty has had waxing and waning support during its
existence in the United States. In the seventeenth century, when the first
legal executions happened, laws and punishments were supplemented with
verses from the Bible as a means of justification (Reggio, 2014). Crimes that
warranted the death penalty were numerous and wide reaching, from
stealing food and killing animals, to rape and murder. Since then, there have
been several attempts (and successes) at reform, from early opposition to
public execution, to a federal suspension of the death penalty in 1972 and
reinstatement in 1976, up to the current state of the union, as fifteen states
have abolished the death penalty and four states have imposed a
moratorium (States With and Without, 2015). In the wake of botched
executions in various states, the news has brought capital punishment back
to the forefront of public opinion and discourse (Cohen, 2014). The real
problems, Cohen argues, are not just legal, but inherent and structural.
Analyses of capital cases provide strong evidence that decisions are not
based on the facts presented being beyond a reasonable doubt, but are
instead influenced by extralegal factors that should be irrelevant.
Barner (2013) analyzed 36 interviews with former jury members of
capital cases, archived as a part of the Capital Jury Project. Barners intent to
assess the effectiveness of a jury to rule on a capital case revealed
significant issues regarding how jurors are instructed to perform their duty

ISSUES SURROUNDING CAPITAL PUNISHMENT

and how jurors understand their responsibility. Despite receiving instructions

from the court, many jurors felt that the legal jargon was unclear and that
they largely had to make sense of it themselves. Not only was confusion
evident surrounding the textual component, but jurors were also puzzled by
the procedure involved in the courtroom. While there is a stipulation that a
jury may submit questions to the judge, likely to alleviate these kinds of
issues, some jurors reported that these attempts did not serve their purpose.
Judges sent back vague responses that did not provide any clarity, or they
simply refused to respond to the questions at all. Barner infers that this may
be a way for the judges to avoid biasing the jury in their decision, but the
ramifications are more serious. How can people be expected to make a
decision concerning the life of another person if they are unclear as to what
the law states? How many jurors are submitting to the will of an impatient,
careless group while they themselves are not convinced?
Outside of conscious issues jurors may have in their experience, death
penalty outcomes are also unjustly influenced by characteristics of the
people involved in the case, if only unconsciously. The race and sex of
victims, defendants, attorneys, and jury members have been shown to have
significant effects on the decisions made when other variables are controlled.
Tomsich et. al. (2014) looked into these effects and explored several
theoretical explanations on their nature. When the victims of the crime on
trial are women, capital punishment is more likely, especially if they are
white women. Tomisch et. al. attribute this to a chivalrous responsibility the

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government has to protect women, a trend seen in the majority of cases, not
just capital cases. When the defendant is a woman, it is far less likely that
the death penalty will be given, and when it is given, it is far less likely that it
will ever be carried out; women make up less than one percent of all
executions in the United States. Tomisch et. al. link this with how death
penalty laws are structured; aggravating factors are more common among
male defendants, while mitigating factors are more common among female
defendants. When it comes to attorneys and jurors, the scant amount of
literature has yielded mixed results. It is likely that the issue is more
complicated than looking into sex alone and involves multiple variables, like
age and political views. Overall, the race or sex of a victim, defendant,
attorney, or juror should not have any effect on death penalty outcomes, and
yet the literature has exposed significant effects. If a capital trial cannot be
fair and unbiased, how can we still allow people to be sentenced to death?
One area of qualification where the law has been changed in order to
uphold the constitution is the mitigating factor of intellectual disability. Until
recently, any defendant with an IQ score above 70 was not eligible to claim
intellectual disability and therefore exemption from the death penalty (Cooke
et. al, 2015). However, a Florida man appealed his conviction because his IQ
over the years had fluctuated between 60 and 80, and he felt that was
evidence of his intellectual disability. The court disagreed, and through
discussion and debate, the law was amended. Instead of an IQ below 70
being a barrier to surpass, it is now included in a host of factors to be

ISSUES SURROUNDING CAPITAL PUNISHMENT

examined by the court in death penalty cases involving intellectual disability.

Due to Hall v. Florida, intellectual disability now encompasses a
comprehensive assessment of adaptive functioning.
Given the inherent flaws in capital punishment as well as changes
necessary to administer the punishment fairly and effectively, how do people
feel about the death penalty in the United States? In what ways do people
think about death as a punishment for crime in various contexts? How do we
treat those who are convicted and sentenced to death?
Research into opinion of the death penalty has primarily focused on
finding individual factors that strongly correlate with self-report of support for
the death penalty. While we may know that republicans are more likely to
support capital punishment than democrats, or that women are less likely to
support capital punishment than men, we cannot accurately predict how
people will react in specific contexts. For example, will women be more likely
than men to support the death penalty if rape is involved? Burgason &
Pazzani (2014) created a multi-level study that assessed both individual
factors as well as situational vignettes in order to better understand the ways
that factors interact when forming an opinion of a death penalty case. They
found that no individual factor significantly predicted death penalty support
when situational factors were controlled, providing further evidence that our
opinion when it comes to capital punishment is more complicated than a
dichotomous for or against. However, when they analyzed interactions
between individual factors and situations, trends emerged. For example,

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when negative information was presented about the victim, support for the
death penalty decreased, but when negative information was presented
about the offender, support for the death penalty more than doubled. These
results indicate that capital punishment judgments are largely emotional and
can supersede rational decision. Overall, the study details various complex
interactions that demonstrate the flawed nature of popular polls spouting the
percentage of Americans for or against the death penalty. An argument for a
majority of the nation supporting the death penalty cannot be adequately
backed up when the issue is much more intricate in nature.
While the American publics opinion of the death penalty is
complicated, it is simple to change. Supreme Court justice Thurgood Marshall
put forth a hypothesis in the 1970s that more knowledge about capital
punishment would sway American citizens minds and convince them of the
horrible injustice involved. This is commonly referred to as the Marshall
hypothesis and has been verified by dozens of studies since. In addition to
the literature concerning arguments of discrimination, innocence, and effect
on deterring future crime, a recent study looked into the effects of an
international context (LaChapelle, 2014). When participants were exposed to
statements putting the United States capital punishment practices in
comparison with the international reality, the effects were stunning. Figures 1
and 2 present the distribution of opinion before and after reading the
statements. Over 98% of participants shifted their position to a category to
the left of their original opinion, reducing their support for the death penalty.

ISSUES SURROUNDING CAPITAL PUNISHMENT

This study and many others have shown that further knowledge about the
death penalty overwhelmingly increases opposition to it. So why is the
United States the only major western country that still supports capital
punishment on a national level?
Regardless of the myriad reasons to oppose the death penalty, there
will still be those who support it in some form, whether it be on moral
grounds, or in rare circumstances, such as leaders of genocides and terror
groups. Some people who support the death penalty actively go out of their
way to learn about death row inmates and recent executions, as evidenced
by the website prodeathpenalty.com. On the website, there are public areas
for commentary about the inmate, crime, and execution. The anonymous
comments that have accrued are unambiguously hostile and gruesome, and
for that reason have been studied by Phillips & Cooney (2015). They
hypothesized that the seriousness of the crime would correlate with the
hostility of the comments. Indeed, the executions most vehemently
supported include those whose killings were brutal, predatory, involved
strangers, rape, torture, vulnerable victims, multiple victims, and multiple
ethnicities (a difference in ethnicity between offender and victim). This
research illustrates that vehement supporters of the death penalty draw a
righteous, moral justice from the system. However, our government has no
moral grounds to take the life of its citizens. Countless commonplace sayings
echo this sentiment: two wrongs dont make a right, and an eye for an
eye leaves the whole world blind. There is no system that holds our courts

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accountable for the men and women sentenced to death who did not
deserve it. In every circumstance the death penalty was issued, life in prison
was an alternate option, and it was the right option.
Capital punishment will not be abolished until more citizens speak up
about the inherent injustices of the system. As more states begin
investigations into the matter and inevitably postpone all executions, we
grow closer to a united state against the death penalty, and we discard the
barbaric practices that civilized western countries have already abandoned.
Only when the American people understand the facts will they revolt against
the inhumane and intolerable regime of capital punishment.
References
Barner, J. R. (2013). Life or death decision making: Qualitative analysis of
death penalty jurors. Qualitative Social Work, 1473325013507304.
Burgason, K. A., & Pazzani, L. (2014). The death penalty: A multi-level
analysis of public opinion. American Journal of Criminal Justice, 39(4),
818-838.
Cohen, A. (2014, May 5). The problems with the death penalty are already
crystal clear. The Atlantic. Retrieved from
http://www.theatlantic.com/politics/archive/2014/05/we-already-knowwhats-wrong-with-the-death-penalty/361635/
Cooke, B. K., Delalot, D., & Werner, T. L. (2015). Hall v. Florida: Capital
punishment, IQ, and persons with intellectual disabilities. Journal of the
American Academy of Psychiatry and the Law Online, 43(2), 230-234.

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LaChappelle, L. (2014). Capital punishment in the era of globalization: A

partial test of the marshall hypothesis among college students.
American Journal of Criminal Justice, 39(4), 839-854.
Phillips, S., & Cooney, M. (2015). The electronic pillory: Social time and
hostility toward capital murderers. Law & Society Review, 49(3), 725759.
Reggio, M. H., (2014). History of the Death Penalty. Retrieved from
http://www.pbs.org/wgbh/pages/frontline/shows/execution/readings/hist
ory.html
States With and Without the Death Penalty. (2015, July 1). Retrieved from
http://www.deathpenaltyinfo.org/states-and-without-death-penalty
Tomsich, E. A., Richards, T. N., & Gover, A. R. (2014). A review of sex
disparities in the key players of the capital punishment process: From
defendants to jurors. American Journal of Criminal Justice, 39(4), 732752.

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Figures

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