In a harsh critique of the death penalty before a gathering of the nation's lawyers last month, U.S. Supreme Court Justice John Paul Stevens said recent exonerations of death row inmates reveal serious procedural flaws that undermine the way capital punishment is administered in this country.
Stevens's remarks before members of the American Bar Association marked one of the very few times that any member of the current court has acknowledged systemic flaws that plague death penalty trials in the United States, said Craig Haney, professor of psychology at the University of California, Santa Cruz, and author of the just-published book, Death By Design: Capital Punishment as a Social Psychological System (Oxford, England: Oxford University Press, 2005).
In Death By Design, Haney addresses the fundamental question, "How can otherwise normal, moral people participate in a process designed to take the life of another?" Haney, one of the nation's most respected death penalty researchers, finds the answer in a set of procedures and practices that systematically "distance and disengage" those charged with deciding the fate of defendants.
Building on more than 25 years of his own and others' empirical research, Haney discusses the system of capital punishment as a whole and identifies the elements that skew the system to facilitate death sentences. Three factors emerge as pivotal:
. Jury selection--Like Stevens, Haney is critical of the jury selection process in capital cases. By systematically screening out opponents of capital punishment, the process produces unrepresentative juries (current surveys show about 70 percent of respondents favor the death penalty) and juries that include a high concentration of people who are more inclined to convict defendants.
. Sentencing instructions--Numerous studies reveal that jurors do not understand the instructions they receive as they begin the sentencing phase of capital trials, particularly the concept of "mitigation," the legal grounds on which jurors can choose a life sentence rather than death. "Death becomes the default outcome when jurors don't understand the instructions they're given regarding mercy," said Haney.
. Cultural and media myths about crime--Print and broadcast news, as well as crime-based television dramas, exaggerate the rate of violent crime and demonize violent criminals without providing any real explanation of the forces that influenced their behavior, said Haney. As a result, the public knows little about the backgrounds of violent criminals and the factors that contribute to violent crime, including poverty, neglect, racial discrimination, and childhood abuse. "Media portrayals of violent criminals are neither neutral nor accurate, and they have helped to create an unprecedented level of punitiveness in our society," he said. "Most people lack firsthand experience with the criminal justice system but are immersed in these misleading messages and images. Many people believe capital punishment is necessary for public safety without understanding how the system really operates or the life circumstances of the defendants who are most often targeted by it."
Haney maintains that these factors work in concert to undermine the reliability of the criminal justice process and compromise the fairness of the outcome of capital cases. "The flaws that riddle the system combine and operate in tandem. They help enable people to participate in behavior--actions designed to take the life of another person--that many of them otherwise would reject and resist," he said.
Haney suggests the following reforms:
. Education--Public-opinion polls repeatedly indicate that the people most in favor of the death penalty are the least informed. "People believe the death penalty deters murder, yet there is no reliable evidence that it does," said Haney. "Many believe people sentenced to life in prison without possibility of parole eventually will get out, although that does not happen." Haney would enlist journalists in an effort to educate the public about capital punishment, but he cautioned that reporters would have to educate themselves first to prevent amplification of inaccurate messages that are sometimes politically motivated. "Unfortunately, the death penalty has become so highly politicized that I'm afraid some politicians perpetuate these myths--knowing full well they are incorrect--simply because they believe these 'tough' stances will help them get elected," said Haney.
. Media coverage--The media must work harder to provide a more accurate and balanced picture of the real causes of violence in our society. Reporters tend to rely on law enforcement and government sources for much of their crime coverage. "Reporters don't know where to look for the other side of the story, and the result is a one-dimensional, incomplete flow of information that's fed to the public," said Haney. "Violence is most often perpetrated by people who are damaged by mistreatment and other traumas suffered earlier in life." Research by Haney and others indicates that the overwhelming majority of capital defendants come from abusive, impoverished backgrounds, and often there are signs early in their lives that they were troubled by these experiences.
. Jury instructions--Building on recent opinions by U.S. Supreme Court Justice Sandra Day O'Connor, Haney would bolster the requirement that attorneys fully and completely investigate and present to jurors the social history of defendants during the sentencing process. In addition, to improve juror understanding of the concept of mitigation, Haney would revise the way instructions are written, not only to avoid the confusion that now plagues them, but also to minimize the dehumanization and distancing effects of the process.
When the U.S. Supreme Court reinstituted the death penalty in 1976, justices broadened the scope of evidence and stipulated that jurors must receive instructions that would guide their discretion as they weighed the defendant's fate. But current efforts fall far short, concluded Haney, who has coined the phrase "empathic divide" to describe the vast gap that separates jurors from defendants in capital cases. The empathic divide erodes the psychological barrier that, under normal circumstances, makes it exceedingly difficult for most people to participate in the taking of life. Without widespread reforms like those he has suggested, Haney is not hopeful that the divide will be bridged any time soon.
"Many jurors are forced to muddle through this life-and-death decision-making process confused about their duty and mired in inaccurate media-based stereotypes," said Haney. "To truly improve the reliability and fairness of the decision-making process in capital cases, overarching reforms would be needed to break down the network of social psychological forces that are at work."
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Note to Journalists: Craig Haney may be reached at (831) 459-2153 or via e-mail at psylaw@ucsc.edu. To request a review copy of Death by Design, contact Jennifer McNulty in the UCSC Public Information Office at (831) 459-4399 or jmcnulty@ucsc.edu.
