Should Forensic Psychology Professionals Conduct Work Related to the Death Penalty? The American Psychological Association (APA) has raised questions about whether psych

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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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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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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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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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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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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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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 en

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