JUDGES AND JURORS - SAGE Publishing

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C H A P T E R

IIIJUDGES ANDJURORS

S E C T I O N H I G H L I G H T S

� Judges and Jurors: Fact Finding and Applying the Law

� Judges

� Jurors

� Edited Readings

y Judges and Jurors: Fact Findingand Applying the Law

In the minds of most Americans, the judge, and to a lesser extent the jury, symbolizesjustice. This is especially true in criminal cases, where the role of the judge is to ensurethat proper procedures are followed and the defendant’s rights are protected and wherethe jury—assuming there is one—is responsible for deciding whether the evidence provesthe defendant’s guilt. If the defendant waives his or her right to a jury trial and is tried bya judge at a bench trial, the judge plays both roles: The judge determines the facts andapplies the law. The judge’s role is more circumscribed if the defendant pleads guilty.In this case, the judge, perhaps with input from the prosecuting attorney, determinesthe appropriate sentence but does not decide whether the prosecutor has proved his orher case beyond a reasonable doubt.

The typical criminal case, then, involves both fact finding and application of the law;it involves “determining the facts and then choosing—often crafting, sometimes evencreating—the appropriate rules of law to apply to these facts” (Murphy et al., 2006, p. 381).When we say that judges apply the law, we mean that judges decide the legal—as opposedto factual—matters before the court. For example, the defendant’s attorney may file amotion requesting that illegally obtained evidence be excluded. Perhaps the attorneybelieves that the defendant’s confession was coerced or that physical evidence was seizedduring an improper search. The judge, who will consider both appellate court decisionsregarding these issues and relevant state and local rules governing the admissibility ofevidence, will decide whether the evidence should be excluded or not. His or her decisionamounts to applying the law, either as spelled out in statutes or interpreted by other courts’decisions. Judges also may be asked to decide whether the case should be moved to anotherjurisdiction as a result of prejudicial pretrial publicity or whether potential jurors shouldbe excused from the jury panel as a result of bias or other factors, and judges ensure thatquestioning of witnesses at trial comports with the rules of evidence. These complex legalmatters are not left in the hands of jurors, the nonexperts in the courtroom drama.

The role that jurors play is that of fact finding. In the typical jury trial, jurors listen to the“facts” of the case as laid out by the defense attorney and prosecutor. They then decide basedon that information what “happened.”Their decisions about what happened ultimately affectwhether the defendant will be held accountable for the crime with which he or she is charged.For example, if an expert witness for the defense convinces the jury that the defendant was notof sound mind at the time of the crime or an alibi witness is able to create reasonable doubtabout the defendant’s involvement in the crime, the jury may elect to find the defendant notguilty. Alternatively, if the prosecution calls 10 persuasive witnesses to the stand and thedefense calls only 1 witness, the jury may be swayed by the prosecution’s version of the eventsthat landed the defendant in court. We put the word facts in quotes at the beginning of thisparagraph for just this reason; they are relative. Because jurors were not present when thecrime occurred, they must determine the “facts” as presented to them by the prosecutionand defense.

Both the application of the law by judges and fact finding by the jury are imperfect.For example, although most judges are impartial and fair, not all are. Judges’ decisionsmay be motivated by bribes, by fear of electoral defeat, or by prejudice or bias against oneside in the case. In 1991, for example, U.S. District Judge Robert Collins was convicted oftaking a $100,000 bribe from a drug smuggler in exchange for a lighter sentence, and in2000, Judge Calvin Hotard of Jefferson, Louisiana, 2d Parish Court was forced to retirefrom the bench after it was revealed that he dismissed cases or imposed lenient sentencesin exchange for sexual favors (Cox, 2001). Judges are also human, which means they donot always apply the law correctly. The judge might misinterpret an appellate court rulingon criminal procedure or allow the use of irrelevant evidence.

The jury system also is imperfect. The jury may not hear all of the facts in the case;the prosecutor and the defense may try to conceal facts that work to the other side’sadvantage. For example, the defendant might decide not to testify, which means that thejury will not hear the defendant’s version of events. Although jurors are instructed notto assume anything as a result of the defendant’s failure to testify, they will nonethelesswonder why they didn’t hear from the defendant. Moreover, jurors usually hear twoversions of the facts—one from the defense attorney and another from the prosecutor

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Section III � Judges and Jurors 211

(see Box III.1). Even if all of the facts come out at trial, the jurors will not necessarilytake all of them into consideration in reaching a verdict. If the jurors believe that thedefendant, for whatever reason, should be acquitted, they can ignore or minimizeevidence that establishes the defendant’s guilt. Finally, jurors, like judges, are also humanand therefore fallible.

In this chapter, then, we focus on judges and jurors. We begin with a discussion ofjudges.We consider such topics as constraints on the discretion of judges, the methods ofselecting judges, and the question of diversity (or the lack thereof) in the courtroom.Wealso consider the issue of nonlawyer judges. Our discussion of juries focuses on juryselection, jury decision making, and the controversial—though relatively rare—practiceof jury nullification.

Box III.1The Adversary Judge

With partisan counsel fighting to win, and with the judge as umpire to ensure the rules of the fight,there might seem a priori no reason in the nature of the contest why the judge should himself be, orseem to be, or perceive himself as being drawn into the fray. . . . The adversary trial, however, hap-pens to be a game in which the role of umpire includes unorthodox features. Although it has noinstant replays or particular events, its participants have a large stake in increasing the probability thatthe whole game be replayed. This possibility depends, largely, of course, on whether the judicialumpire himself commits fouls—“errors,” as we say—in the regulating of the contest. And thiselement is liable to cause the detachment of the trial judge to be tested, threatened, and sometimesimpaired, if not entirely lost.

—Former U.S. District Judge Marvin Frankel (Frankel, 2006, p. 398)

y JudgesIn the eyes of most Americans, the judge is the key player in the courtroom workgroup.The symbolism and ceremony of a criminal trial reinforce this view. The judge is seatedon a raised bench, robed in black, and wields a gavel to maintain order in the courtroom.Moreover, the participants and spectators—including the defense attorney and theprosecutor—are commanded to “all rise” when the judge enters or leaves the courtroom.It is no wonder, then, that the judge is seen as the most influential person in court.

This view of the judge, though accurate to some degree, is misleading for at least tworeasons. First, although the judge clearly plays an important role—in many cases, the leadrole—in state and federal criminal courts, other actors play significant supporting roles.This is particularly the case in the majority of criminal cases that are settled by plea, nottrial. In these cases, the key player may be the prosecutor rather than the judge; theprosecutor determines the charges the defendant will face, negotiates a guilty plea to these

(or lesser) charges with the defense attorney, and may even recommend a sentence to thejudge. A second reason why the traditional view of the judge is misleading is that it isbased on an inaccurate assessment of the role of the judge. Judging involves more thanpresiding at trials. In fact, most of what judges do during a typical day or week issomething other than presiding at trials—reading case files, conducting hearings, accept-ing guilty pleas, pronouncing sentences, and managing court dockets.

The role played by the judge, in other words, is both less influential and more variedthan the traditional view would have people believe.

Constraints on Judges

Judges are expected to be impartial and to decide cases fairly; the judge is to be an“impartial arbiter between the parties and faithful guide of the jury toward the truth”(Frankel, 2006, p. 398). There is, however, no constitutional requirement to this effect.The Sixth Amendment, for example, states that “[i]n all criminal prosecutions, theaccused shall enjoy the right to a speedy and public trial, by an impartial jury,” but it saysnothing about the impartiality of the judge. Even so, the Supreme Court has held that theDue Process Clause of the Fourteenth Amendment guarantees criminal defendants theright to trial by an impartial judge. The Court arrived at this decision in Tumey v. Ohio(1927), a case involving the judge of a municipal court who received the fines and feesthat he levied against those convicted in his courtroom. The Supreme Court concludedthat due process is violated when the judge “has a direct, personal, substantial pecuniaryinterest” in the outcome of the case (Tumey v. Ohio, 1927, p. 523).

A related case is Ward v. Village of Monroeville (1972). In this case, a mayor/judgecollected fines and fees that went to the town’s budget, as opposed to him personally.These fines and fees, however, provided a substantial portion of Monroeville’s totalbudget. The Supreme Court concluded, again, that due process was violated. It held that“the mayor’s executive responsibilities for village finances may make him partisan tomaintain the high level of contribution from the mayor’s court” (Ward v. Village ofMonroeville, 1972, p. 59). Contrast this decision with Dugan v. Ohio (1928), a case wherethe Supreme Court held that due process was not violated because the mayor/judge wasone of several members of a city commission and did not have substantial control overthe city’s funding sources.

Disqualification or Challenges of Judges What happens if the judge is not neutral anddetached and therefore cannot decide the case fairly? Judges, like defense attorneys andprosecutors, are required to abide by codes of conduct that require them to remove (orrecuse) themselves when conflicts of interest exist or if they are biased or prejudicedtoward either party. But what happens if the judge does not voluntarily recuse himself orherself? In most jurisdictions, the prosecution or defense can move to have the judgedisqualified or removed for cause; the side seeking to remove the judge files a motion thatexplains why the judge to whom the case is assigned should be disqualified. The criteriafor disqualification vary, but generally they require that judges be disqualified only if theyhave a “substantial interest” in the outcome of the case. Montana law, for example,provides that a judge cannot sit on any case (1) to which he or she is a party, or in whichhe or she is interested; (2) if he or she is related to either party; or (3) if he or she

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previously represented either side or rendered a decision in the case. According to the U.S.Supreme Court, “Disqualification is required if an objective observer would entertainreasonable questions about the judge’s impartiality. If a judge’s attitude or state of mindleads a detached observer to conclude that a fair and impartial hearing is unlikely, thejudge must be disqualified” (Liteky v. U.S., 1994). If the judge being challenged does notrecuse himself or herself, another judge (in Texas, e.g., it is the presiding judge of thejudicial district) decides whether the motion should be granted.

Another method of removing biased judges, at least in the few states in which it is anoption, is through a peremptory challenge (King, 1998). Under this system, the judgeassigned to the case can be removed or struck by either side,without provision of any reason(Miller, 2004). Under Alaska’s Criminal Rule 25(d), both the prosecutor and the defenseattorney have the right to one change of judge. Generally, each side gets only one challenge,and the challenge must be made soon after the identity of the judge to whom the case isassigned is known. The advantage of this procedure is that it allows either side to exclude ajudge without having to prove that the judge is unable to be fair and impartial.

The Appellate Process Another formal method of constraining judges is through theappellate process. Appellate courts can alter the outcomes of criminal cases by over-turning the offender’s conviction or sentence. Although offenders do not have aconstitutional right to appeal their convictions, every jurisdiction has created a statutoryright to appeal to one higher court. The purpose of this is to ensure that proper proce-dures were followed by all of the parties to the case, including the judge. A state courtdefendant who believes that his or her conviction was obtained improperly can appeal aconviction to the intermediate appellate court or, in states that do not have a two-tieredappellate court system, to the state supreme court. Similarly, a defendant who has beentried and convicted in U.S. District Court can appeal a conviction to the U.S. Courts ofAppeals. If the appellate court sustains the appeal and rules that procedures wereviolated, the court will overturn the conviction and send the case back to the trial court.The case then may be retried or dismissed. If the appellate court rules against theoffender, he or she can appeal to the next highest court, but that court does not have tohear the appeal.

Although the scope of appellate review is limited to final judgments of lower courtson questions of law (and not of fact), many of the decisions judges make are subject toappeal. This might include pretrial decisions regarding bail and provision of counsel, aswell as a host of decisions during the trial itself. For instance, a defendant might appealthe judge’s decision to refuse to grant a change of venue, to allow the prosecutor to usehis or her peremptory challenges to exclude racial minorities from the jury, to admitevidence that was obtained in violation of the law, or to refuse to exclude hearsayevidence. That judges’ decisions are potentially subject to review by an appellate courtobviously constrains their behavior in court.

The ability of appellate courts to alter sentences imposed by trial court judges is morelimited. The United States Supreme Court has ruled that “review by an appellate court ofthe final judgment in a criminal case . . . is not a necessary element of due process of law,and that the right of appeal may be accorded by the state to the accused upon suchconditions as the state deems proper” (Murphy v. Com. of Massachusetts, 1900). Although

all states with death penalty statutes provide for appellate review of death sentences, onlyhalf of the states permit appellate review of noncapital sentences that fall within statutorylimits (U.S. Justice Department, 2000, Table 45). The standards for review vary; in somestates, appellate courts are authorized to modify sentences deemed “excessive,” while inother states only sentences determined to be “manifestly excessive,”“clearly erroneous,” or“an abuse of discretion” can be altered (Miller, Dawson, Dix, & Parnas, 1991, p. 1106).A defendant sentenced under the federal sentencing guidelines can appeal a sentence thatis more severe than the guidelines permit; federal law also allows the government toappeal a sentence that is more lenient than provided for in the guidelines. If an offenderappeals his or her sentence and the appeal is sustained, the sentence must be corrected.An appellate court decision to vacate the sentence does not mean, however, that theoffender will escape punishment. As the Supreme Court stated in 1947,“The Constitutiondoes not require that sentencing should be a game in which a wrong move by the judgemeans immunity for the prisoner” (Bozza v. United States, 1947). Thus, the case will besent back to the trial court for resentencing.

Discipline and Impeachment The behavior of judges is also regulated by procedures fordisciplining or removing unfit judges. The only formal mechanism for removing federaljudges is impeachment, which involves impeachment (or accusation) by the House ofRepresentatives and trial in the Senate. As discussed in the introduction to this book, veryfew federal judges have been removed from the bench through impeachment. Since 1789the House has impeached 13 judges, only 7 of whom were convicted by the Senate andremoved. These numbers are somewhat misleading, however. The House has investigatedabout 50 judges; some of these judges were censured and some resigned during theinvestigation (Murphy et al., 2006, p. 156).

The procedures for removing state court judges are spelled out in each state’sconstitution. Like federal judges, state judges can be impeached by the state legislature.Most states also provide for recall of state officials, including judges. This requires thata certain percentage of registered voters in the jurisdiction sign a petition requesting aspecial recall election; for example, a number of states require signatures from 25% or 30%of the voters who voted in the last election for the targeted office. The voters then decidewhether the judge should be retained or removed.

Because impeachment and recall are cumbersome and slow procedures for discipliningjudges, all of the states have adopted judicial disciplinary commissions. These commissions,which usually are made up of sitting or retired judges, lawyers, and laypersons, investigatecomplaints filed against judges. The investigation, however, is not made public unless thecommission finds that there is probable cause to substantiate the complaint.The commissioncan dismiss the complaint or admonish, censure, or remove the judge. The CaliforniaCommission on Judicial Performance, for example, issues an advisory letter expressingdisapproval of the judge’s conduct if the misconduct is minor and issues a privateadmonishment if the misconduct is more serious. Both of these outcomes are confidential,however; not even the person who lodged the complaint is informed. In cases involvingmore serious misconduct, the commission can issue a public admonishment or censure orcan remove the judge from office. In 2006, the California Commission considered 1,019complaints against 848 judges; the commission removed two judges, publicly censured fourjudges, and publicly admonished nine judges (see http://cjp.ca.gov/).

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Even though few judges are removed from office through impeachment or othermeans, the existence of these procedures serves as a check on the behavior of corrupt,inept, unethical, or rude judges. Judicial conduct commissions, in particular, remindjudges “of their obligations and the price they will pay for ignoring litigants’ and lawyers’legal rights as well as their rights to be treated with dignity and respect” (Murphy et al.,2006, p. 158).

The Politics of Judicial Selection

In the United States today there is no one method of selecting judges. There isuniformity at the federal level, where judges are appointed for life by the presidentwith the advice and consent of the Senate, but the procedures used by the states varyenormously. As one commentator noted, “Almost no two states are alike, and many statesemploy different methods of selection depending upon the different levels of thejudiciary, creating ‘hybrid’ systems of selection” (Berkson, 2005).

Despite these variations, the primary difference in selection procedures for state courtjudges is whether judges are elected, appointed, or chosen using some type of a meritsystem.

There is considerable controversy surrounding the various methods of selecting statecourt judges. The controversy largely revolves around the issues of accountability andindependence. Proponents of electing judges argue that popular elections are a means ofensuring that judges remain accountable to the people. They are a means of ensuring thatjudges consider the will of the people in rendering decisions and guaranteeing that unfitor corrupt judges are voted out of office at the next election. Critics of elections, on theother hand, contend that voters typically know very little about the behavior of judges onthe bench and thus cannot hold them accountable for their decisions. Critics also chargethat electing judges reduces judicial independence and thus makes it less likely that judgeswill hand down fair and impartial decisions (Blankenship & Janikowski, 1992). Judgeswho must face election, in other words, may decide cases with one eye toward the up-coming election; they may hand down decisions that reflect, not an impartialinterpretation of the law, but an analysis of where the voters stand on the issue.

Advocates of appointing judges, or using the merit system, assert that appointmentmaximizes judicial independence by removing politics from the process. They alsocontend that appointment results in the selection of judges based on their experience andscholarship, rather than on the basis of party affiliation or popular appeal. Not everyoneagrees, however, that appointment of judges eliminates politics from the selectionprocess. One scholar, for example, has pointed out that appointment of judges by electedgovernors or state legislators leads to “the logical inference that regardless of the academicmerits or professional credentials of the candidate, the person chosen reflects the social,political, and economic views” of the person or persons making the appointment(Alarcon, 1983, p. 10). Politics, in other words, may be an inevitable part of judicialselection.

Methods of Selecting State Judges (American Judicature Society, 2004) Historically,judges were appointed by the governor or the state legislature. As shown in Table III.1,only five states currently use gubernatorial or legislative appointment for judges in trial

courts of general jurisdiction. In three states (Maine, New Jersey, and New Hampshire),the governor appoints judges; the appointment must be approved by either the statesenate or some other elected or appointed body. In Virginia and South Carolina, judgesare appointed by the state legislature. As discussed later, many states use a merit system,in which the governor appoints a judge from a list of candidates selected by a nominatingcommission.

More than half of the states elect at least some of their judges. Partisan elections arefound in 11 states; in these states, the candidates are nominated by a political party andtheir party affiliation is included on the ballot. In an additional 20 states, judges areelected on nonpartisan ballots. In these states, the candidate’s party affiliation does notappear on the ballot. Selecting judges by partisan elections is, by definition, political.Historically, in fact, political party bosses used elected judgeships to reward campaignworkers and those who contributed large amounts of money to the party coffers. Non-partisan elections can also involve party politics. The local political parties may endorsejudicial candidates and donate money to the candidates they support, and the candidatesthemselves may publicize their party affiliations.

Regardless of whether they are running in partisan or nonpartisan elections, judicialcandidates tend to run low-key campaigns in which few controversial issues are raised;

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Merit Selection

Alaska

Colorado

Connecticut

Delaware

District of Columbia

Hawaii

Iowa

Maryland

Massachusetts

Nebraska

Nevada

New Mexico

Rhode Island

Utah

Vermont

Wyoming

PartisanElection

Alabama

Illinois

Louisiana

New York

Ohiob

Pennsylvania

Tennessee

Texas

West Virginia

NonpartisanElection

Arkansas

California

Florida

Georgia

Idaho

Kentucky

Michigan

Minnesota

Mississippi

Montana

North Carolina

North Dakota

Oklahoma

Oregon

South Dakota

Washington

Wisconsin

CombinedMethodsa

Arizona

Indiana

Kansas

Missouri

Appointment by Governor (G)or Legislature (L)

Maine (G)

New Hampshire (G)

New Jersey (G)

South Carolina (L)

Virginia (L)

Table III.1 Methods of Selecting Judges for State Trial Courts of General Jurisdiction

a. In these states, some judges are chosen through merit selection and some are chosen in competitive elections.

b. Candidates appear on the general election ballot without party affiliation but are nominated in partisan primaries.


voter turnout for these elections is low, and sitting judges who are running for reelectiontypically keep their seats. In fact, many judicial candidates run unopposed. In the pasttwo decades, however, judicial elections—and particularly elections for state supremecourts—have become more contentious, more costly, and more politicized (Thomas,Boyer, & Hrebenar, 2005). According to Thomas and his colleagues, “These changes werelargely a result of interest groups entering judicial campaigns with tactics and a level offunding more akin to legislative and executive elections” (p. 53). In 1986, for example,death-penalty advocates targeted three California Supreme Court justices who wereopposed to the death penalty; all three were defeated (Wold & Culver). More recently,interest groups spent $8 million on television commercials in an attempt to reelect ordefeat an Ohio Supreme Court justice. According to one commentator, “The content ofads bought by interest groups was hard hitting, very direct, and largely unconstrained,which enabled them to get more rhetorical force from their expenditures” (Thomas et al.,2005, p. 56).

The third method of judicial selection is the merit system, which is also called theMissouri Plan (Missouri was the first state to adopt this method of judicial selection).This system combines appointment and election. Three steps take place. First, a judicialnominating commission, which is usually composed of laypersons, lawyers, and judges,screens potential candidates and nominates several individuals (typically three) for thevacant position. Second, the governor appoints one of the individuals nominated by thecommission to the bench. Third, after the initial term and at designated times thereafter,the appointee runs in a retention election in which the voters are asked whether the judgeshould be retained or not. Fourteen states use this plan, or some version of it, in selectingjudges; other states use a nominating commission to select judicial candidates, but judgesdo not run in retention elections.

Although the Missouri Plan was designed to achieve both judicial independenceand accountability, critics charge that it does not achieve either of these goals. At leastsome members of the nominating commission, as well as the judge, are appointed by thegovernor, an elected official, which raises questions about the independence of judgesappointed using this process.Moreover, research shows that few of the judges who run forretention are defeated; from 1964 to 1998, only 52 of the 4,588 judges who ranfor retention were defeated (Aspin, 2005). Retention elections, then, do not appear to havethe capacity to hold judges accountable for their decisions.

Despite the controversy surrounding the various methods of selecting state courtjudges, there is little empirical evidence that the quality of judges varies depending on themethod used (Atkins & Glick, 1974; Dubois, 1986; Nagel, 1975). Judges selected by onemethod rather than another have not been found to be more competent, honest, oreffective. As we point out in the section that follows, this may reflect that the judicialrecruitment process produces a relatively uniform pool of candidates from which judgesare chosen.

Diversity on the Bench

Researchers have only recently begun to ask whether judges from differentbackgrounds decide cases differently. This is not surprising, given the homogeneity of theindividuals who don judicial robes in courts throughout the United States. The typicaljudge—federal and state—is White, male, and middle-aged. Only about 10% of all state

court judges, for example, are racial minorities and fewer than 15% are women (Carp &Stidham, 1998, p. 261). Most state court judges also were born and went to law school inthe state in which they serve; they typically came to the bench either from the privatepractice of law or from a lower court judgeship, such as a magistrate’s position. As Carpand Stidham noted, “They tend to be home-grown fellows who are moderately con-servative and staunchly committed to the status quo . . . [they are] local boys who madegood” (p. 261). Stumpf ’s (1988) conclusion was even more pointed: “If you are young,female, a member of a racial minority, are of the wrong political party, or presumablyhave few contacts within the organized legal community in your state, the chances ofmaking it to the trial bench are slight” (p. 184).

Judges appointed to the U.S. District Courts also “come from a very narrow stratumof American society” (Carp & Stidham, 1998, p. 210, Note 30). As shown in Table III.2,more than three fourths of the district court judges appointed by Presidents Carter, Bush(George H.), and Reagan; two thirds of those appointed by President Clinton; and threefourths of those appointed by President George W. Bush were men. Similarly, at leastthree fourths of the judges appointed by these five presidents were White (Goldman,Slotnick, Gryski, Zuk, & Schiavoni, 2005). In fact, a majority of the judges appointed byPresidents Carter, Reagan, Bush (George H.) and Bush (George W.) were White men; incontrast, slightly more than half of President Clinton’s appointees were either women orracial minorities.1 The typical district court judge was about 48 years old at the time ofappointment and came to the bench from either a prior judicial position or a position asa public prosecutor. Not surprisingly, the political party affiliation of judges matches thatof the president who appointed them; in fact, about 90% of the judges appointed by eachpresident belonged to that president’s political party.

How does the fact that state and federal court judges are “much more alike than theyare different” (Carp & Stidham, 1998, p. 218) affect the sentencing process? Does thejudicial recruitment process produce “a corps of jurists who agree on how the judicial

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Sex

Male

Female

Race/Ethnicity

White

Black

Hispanic

Asian

Native American

N

66

17

71

6

6

—

—

%

79.5

20.5

85.5

7.2

7.2

—

—

N

218

87

229

53

18

4

1

%

71.5

28.5

75.1

17.4

5.9

1.3

0.3

N

119

29

132

10

6

—

—

%

80.419.6

89.26.84.0——

N

266

24

268

6

14

2

—

%

91.7

8.3

92.4

2.1

4.8

0.7

—

N

173

29

159

28

14

1

—

%

85.6

14.4

78.7

13.9

6.9

0.5

—

Table III.2 Race and Sex of U.S. District Court Appointees, by Administration

George W.BushReagan Carter George H. Bush Clinton


game is played” (Carp & Stidham, 1998, p. 218)? Would judicial decisions be different ifmore women and racial minorities were elected or appointed to the bench? If there weremore diversity in terms of age, religion, and prior experience?

The answers to questions such as these are varied. Most of the debate centers onwhether increasing the number of Black and female judges would produce a different typeof justice. Those on one side of the debate argue that it would not. They contend that thejudicial selection process produces a relatively homogenous bench and that judges of allracial groups—male and female—share similar background characteristics. The judicialrecruitment process, according to this view, screens out candidates with unconventionalviews, with the result that women and racial minorities selected for judgeships “tend to be‘safe’ candidates who are generally supportive of the system” (Walker & Barrow, 1985,p. 615). They are judges, in other words, who know how the judicial game is played.

Those who take the “no difference position” argue that the homogeneity of the bench isreinforced by the judicial socialization process, which produces a subculture of justice thatencourages judges to adhere to prevailing norms, practices, and precedents (Frazier & Bock,1982). It also is reinforced by the courtroom workgroup—the judges, prosecutors, anddefense attorneys who work together day after day to process cases as efficiently as possible.To expedite sentencing, for example,members of the courtroom workgroup may informallyagree on the parameters of acceptable plea negotiations and on the range of penaltiesappropriate for each type of crime. Although individual judges might deviate from thesenorms, there is no reason to expect women or racial minorities to deviate more often thanmen orWhites.

Some commentators assert that even unconventional or maverick judges eventuallyare forced to conform. As Bruce Wright, a Black man who now sits on the New YorkSupreme Court, stated in 1973, “No matter how ‘liberal’ black judges may believe them-selves to be, the law remains essentially a conservative doctrine, and those who practice itconform” (p. 22). Twenty years later, Judge Wright made an even more pointed comment,noting that some Black judges “are so white in their imitation of life and in their reactionsto Black defendants that they are known as ‘Afro-Saxons.’ As soon as these Black judges puton the black robes, they become emotionally white. But it’s not surprising. We haveEurocentric educations. We learn white values” (Washington, 1994, p. 251).

Those who champion diversity in the courtroom argue that Black judges and womenjudges can make a difference. They suggest that Black judges and women judges bring tothe bench beliefs, attitudes, and experiences that differ from those of Whites and men.Goldman (1979), for example, maintained that racial minorities and women will bring tothe court “a certain sensitivity—indeed, certain qualities of heart and mind—that may beparticularly helpful in dealing with [issues of racial and sexual discrimination]” (p. 494).

Advocates of the “difference position,” then, contend that women judges and Blackjudges contribute something unique to the judicial process. In support of the argumentthat women judges “speak in a different voice,” some point to the work of Carol Gilligan(1982), who claimed that women’s moral reasoning differs from that of men: Whereasmen emphasize legal rules and reasoning based on an ethic of justice, women, who aremore concerned about preserving relationships and more sensitive to the needs of others,reason using an ethic of care. Others, who counter that “the language of law is explicitlythe language of justice rather than care” (Berns, 1999, p. 197), claim that the differenceswomen bring to the bench stem more from their experiences as women than from

differences in moral reasoning. They maintain, for example, that women are substantiallymore likely than men to be victimized by rape, sexual harassment, domestic violence, andother forms of predatory violence and that their experiences as crime victims or theirfears about crime shape their attitudes toward and their response to crime and criminals.Noting that “[h]uman beings are products of their experiences,”Martha Fineman (1994)suggested that “if women collectively have different actual and potential experiences frommen, they are likely to have different perspectives—different sets of values, beliefs, andconcerns as a group” (pp. 239–240).

Howmight these gender differences influence judges’ sentencing decisions? If, in fact,women are more compassionate—more caring—than men, they might sentence off-enders more leniently than men do.A female judge, in other words,might be more willingthan a male judge to sentence a nonviolent offender struggling to provide for his familyto probation rather than prison. Alternatively, that women are more likely to be victimsof sexualized violence and are more fearful of crime in general might incline them toimpose harsher sentences than men would, particularly for violent crimes, crimes againstwomen, and crimes involving dangerous repeat offenders. Still another possibility is thatthe life experiences of women judges—and particularly Black or Hispanic womenjudges—will make them more sensitive to the existence of racism or sexism; as a result,they might make more equitable sentencing decisions than would White male judges.

Similar arguments are advanced by those who contend that increasing the number ofracial minorities on state and federal courts will alter the character of justice and theoutcomes of the criminal justice system. Because the life histories and experiences ofBlacks differ dramatically from those of Whites, in other words, the beliefs and attitudesthey bring to the bench also will differ. Justice A. Leon Higginbotham Jr., a Black man whoretired from the U.S. Court of Appeals for the Third Circuit in 1993, wrote that “[t]headvantage of pluralism is that it brings a multitude of different experiences to the judicialprocess” (Washington, 1994, p. 11). More to the point, he stated that “someone who hasbeen a victim of racial injustice has greater sensitivity of the court’s making sure thatracism is not perpetrated, even inadvertently” (p. 11–12). Judge George Crockett’s (1984)assessment of the role of the Black judge was even more pointed: “I think a black judge . . .has got to be a reformist—he cannot be a member of the club. The whole purpose ofselecting him is that the people are dissatisfied with the status quo and they want him toshake it up, and his role is to shake it up” (p. 393).

Assuming that Black judges agree with Judge Crockett’s assertion that their role is to“shake it up,” how would this affect their behavior on the bench? One possibility is thatBlack judges might attempt to stop—or at least slow—the flow of young Black men intostate and federal prisons. If, in other words, Black judges view the disproportionately highnumber of young Black men incarcerated in state and federal prisons as a symptom ofracial discrimination, they might be more willing than White judges to experiment withalternatives to incarceration for offenders convicted of nonviolent drug and propertycrimes. Welch and her colleagues (Welch, Combs, & Gruhl, 1988) made an analogousargument. Noting that Blacks tend to view themselves as liberal rather than conservative,the authors speculated that Black judges might be “more sympathetic to criminal defend-ants than whites judges are, since liberal views are associated with support for theunderdog and the poor, which defendants disproportionately are” (p. 127). Otherssimilarly suggest that increasing the number of Black judges would reduce racism in the

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criminal justice system and produce more equitable treatment of Black and Whitedefendants (Welch et al., 1988).

Nonlawyer Judges: A Dying Breed?

Most judges are lawyers, but nonlawyer, or lay, judges have been common throughoutAmerican history. Even today, 34 states use nonlawyer judges in some capacity; most ofthem serve on state courts of limited jurisdiction, but some of them, such as the surrogatejudges in New Jersey, serve on courts of general jurisdiction (McFarland, 2004). Lay judges,who are referred to by names such as magistrate, justice of the peace, and associate judge,decide millions of cases each year (Provine, 1986). An example can be found in ArizonaJustice of the Peace Courts. There are only four requirements to be a justice of the peace:(1) age 18 years or older, (2) resident of the state, (3) an elector of the county or juris-diction in which the duties are to be performed, and (4) able to read and write English.Those who meet these minimum qualifications can run for the elected position; if elected,they participate in a 19-day training program before taking the bench. Their responsibilityis not to adjudicate criminal offenses but rather to settle disputes involving small amountsof money, usually $1,000 or less.

The history of lay judges in this country is one of ebbs and flows. In 17th centuryNew England, legal matters were handled almost exclusively without lawyers. By the early1700s, population growth, urban development, and the accumulation of wealth usheredin an era of a more formalized legal profession. As the legal profession began to grow inpower and influence, adjudication of legal matters was increasingly delegated to legallytrained judges. Eventually, lay judge positions were all but abolished in larger urban areas.Today, they are more likely to be found in thinly populated rural areas where lawyers arein short supply. They also suffer from what Doris Provine (1986), the author of JudgingCredentials: Nonlawyer Judges and the Politics of Professionalism, referred to as an imageproblem (Chapter 5). This is not surprising, according to Provine, given that lay judgesare “the worst paid, worst housed, worst outfitted, and least supervised judges in thenation” (p. 122). Provine’s analysis of lawyer and lay judges on New York’s Justice Courts,however, found no major differences in either their attitudes or behavior (other scholarsare highly critical of lay judges; see, e.g., Mansfield, 1999).

y Jurors and Jury Decision MakingThe jury plays a critically important role in the criminal justice system. Indeed, “the jury isthe heart of the criminal justice system” (Cole, 2000, p. 101). Although it is true that mostcases are settled by plea and not by trial, many of the cases that go to trial involve seriouscrimes in which defendants are facing long prison terms or even the death penalty. In theseserious—and highly publicized—cases, the jury serves as the conscience of the communityand, in the words of the United States Supreme Court, as “an inestimable safeguard againstthe corrupt or overzealous prosecutor and against the compliant, biased, or eccentricjudge” (Duncan v. Louisiana, 1968). As the Court has repeatedly emphasized, the jury alsoserves as “the criminal defendant’s fundamental ‘protection of life and liberty against raceor color prejudice’” (McCleskey v. Kemp, 1987, quoting Strauder v. West Virginia, 1880).

Although the rarity of jury trials limits the jury’s overall influence on the criminalprocess, decisions made by the jury in the cases they do decide are obviously important.The jury decides whether to convict the defendant or not. The jury also may decidewhether to convict the defendant for the offense charged or for a lesser included offense.In a murder case, for example, the jury might have the option of finding the defendantguilty of first-degree murder, second-degree murder, or manslaughter. Like the pro-secutor’s charging decisions, these conviction decisions affect the sentence that will beimposed. A defendant who is charged with first-degree murder but convicted ofmanslaughter will be sentenced more leniently than if convicted of the more seriouscharge. The role of the jury in the criminal justice system, though limited to those caseswhere the defendant elects a jury trial, is thus both symbolically and substantivelyimportant.

Issues in Jury Selection

We noted in the introduction to this book that the Supreme Court has interpreted theSixth Amendment’s requirement that the defendant be tried by an “impartial jury” tomean that the jury pool must be a “random cross-section of the community.” Many ofthe Supreme Court cases regarding jury selection have involved the question of racialdiscrimination. Black and Hispanic defendants have repeatedly challenged the proceduresused to select juries, arguing that the procedures, which often produced all-White juries,violated both the Sixth Amendment and the Equal Protection Clause of the FourteenthAmendment. Questions also have been raised about the potential for juror dishonestyduring voir dire. There is evidence that jurors do not always tell the truth when askedabout their backgrounds, their prior experiences with the justice system, and theirattitudes and beliefs. We explore these issues in the following sections.

Race and the Jury Selection Process The Supreme Court first addressed the issue of racialdiscrimination in jury selection in its 1879 decision of Strauder v. West Virginia. TheCourt ruled that a West Virginia statute limiting jury service to White males violatedthe Equal Protection Clause of the Fourteenth Amendment and therefore wasunconstitutional. The Court stated that theWest Virginia statute denied Black defendantsthe right—in fact, even the chance—to have people of their own race on their juries.“Howcan it be maintained,” the justices asked, “that compelling a man to submit to trial for hislife by a jury drawn from a panel from which the State has expressly excluded every manof his race, because of his color alone, however well qualified in other respects, is not adenial to him of equal legal protection?” (p. 309). The Court added that this was preciselythe type of discrimination the equal protection clause was designed to prevent.

After Strauder v. West Virginia (1879), it was clear that states could not pass lawsexcluding Blacks from jury service. This ruling, however, did not prevent states fromdeveloping techniques designed to preserve the all-White jury. In Delaware, for example,local jurisdictions used lists of taxpayers to select “sober and judicious” persons for juryservice. Under this system, Black taxpayers were eligible for jury service, but were seldom,if ever, selected for the jury pool. The state explained this result by noting that few of theBlack people in Delaware were intelligent, experienced, or moral enough to serve as jurors.

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The Supreme Court refused to accept this explanation. InNeal v. Delaware (1880), decided1 year after Strauder, the court ruled that the practice had systematically excluded Blackpeople from jury service and was therefore a case of purposeful—and unconstitutional—racial discrimination.

Since the mid-1930s, the Supreme Court has made it increasingly difficult for courtsystems to exclude Blacks or Hispanics from the jury pool. It consistently has struck downthe techniques used to circumvent the requirement of racial neutrality in the selection of thejury pool. The Court, for example, ruled that it was unconstitutional for a Georgia county toput the names of White potential jurors on white cards, the names of Black potential jurorson yellow cards, and then “randomly” draw cards to determine who would be summoned(Avery v. Georgia, 1953). Similarly, the Court struck down the “random” selection of jurorsfrom tax books in which the names of White taxpayers were in one section and the names ofBlack taxpayers were in another (Whitus v. Georgia, 1967). As the justices stated in Avery v.Georgia, “the State may not draw up its jury lists pursuant to neutral procedures but thenresort to discrimination at other stages in the selection process.”

The states’ response to the Supreme Court’s increasingly vigilant oversight of the juryselection process was not always positive. The response in some southern jurisdictions“was a new round of tokenism aimed at maintaining as much of the white supremaciststatus quo as possible while avoiding judicial intervention” (Kennedy, 1997, p. 179). Thesejurisdictions, in other words, included a token number of racial minorities in the jurypool in an attempt to head off charges of racial discrimination. The Supreme Courtaddressed this issue as late as 1988 (Amadeo v. Zant, 1988). The Court reversed theconviction of Tony Amadeo, who was sentenced to death for murder in Putnam County,Georgia, after it was revealed that the Putnam County district attorney asked the jurycommissioner to limit the number of Blacks and women on the master lists from whichpotential jurors were chosen.

The Supreme Court’s rulings that the jury must be drawn from a representativecross-section of the community and that race is not a valid qualification for jury serviceapply only to the selection of the jury pool. They do not apply to the selection ofindividual jurors for a particular case. In fact, the Court has repeatedly stated that adefendant is not entitled to a jury “composed in whole or in part of persons of his ownrace” (Batson v. Kentucky, 1986; Strauder v. West Virginia, 1880). This means that pro-secutors and defense attorneys can use their peremptory challenges—“challenges withoutcause, without explanation, and without judicial scrutiny” (Swain v. Alabama, 1965)—asthey see fit. They can, in essence, use their peremptory challenges in a raciallydiscriminatory manner.

It is clear that lawyers do take the race of the juror into consideration during the juryselection process. Prosecutors assume that racial minorities will side with minoritydefendants, and defense attorneys assume that racial minorities will be more inclinedthan Whites to convict White defendants. As a result of these assumptions, both pro-secutors and defense attorneys have used their peremptory challenges to strike racialminorities from the jury pool. Randall Kennedy, in fact, has characterized the per-emptory challenge as “a creature of unbridled discretion that, in the hands of whiteprosecutors and white defendants, has often been used to sustain racial subordination inthe courthouse” (Kennedy, 1997, p. 214, Note 64).

There is compelling evidence that prosecutors use their peremptory challenges tostrike racial minorities from the jury pool. As a result, Black and Hispanic defendants arefrequently tried by all-White juries. In 1964, for example, Robert Swain, a 19-year-oldBlack man, was sentenced to death by an all-White jury for raping a White woman inAlabama. The prosecutor had used his peremptory challenges to strike all six Blacks onthe jury panel (Swain v. Alabama, 1965). In 1990, the state used all of its peremptorychallenges to eliminate Blacks from the jury that would try Marion Barry, the Black mayorof Washington, D.C., on drug charges.

The Supreme Court initially was reluctant to restrict the prosecutor’s right to useperemptory challenges to excuse jurors on the basis of race. In 1965, the Court ruledin Swain v. Alabama (1965) that the prosecutor’s use of peremptory challenges to strikeall six Black people in the jury pool did not violate the equal protection clause of theConstitution. The Court reasoned,

The presumption in any particular case must be that the prosecutor is using theState’s challenges to obtain a fair and impartial jury. . . . The presumption is notovercome and the prosecutor therefore subjected to examination by allegationsthat in the case at hand all Negroes were removed from the jury or that they wereremoved because they were Negroes. (Swain v. Alabama, 1965, 222)

The Court went on to observe that the Constitution places some limits on the use ofthe peremptory challenge. The justices stated that a defendant could establish a primafacie case of purposeful racial discrimination by showing that the elimination of Blackpeople from a particular jury was part of a pattern of discrimination in that jurisdiction.The problem, of course, was that the defendants in Swain (1965), and in the cases thatfollowed, could not meet this stringent test. The ruling, therefore, provided no protectionto the individual Black or Hispanic defendant deprived of a jury of his or her peers by theprosecutor’s use of racially discriminatory strikes.

Despite harsh criticism from legal scholars and civil libertarians (“RethinkingLimitations,” 1983; “Swain v. Alabama,” 1966), who argued that Swain imposed a“crushing burden . . . on defendants alleging racially discriminatory jury selection” (Serr&Maney, 1988, p. 13), the decision stood for 21 years. It was not until 1986 that the Court,in Batson v. Kentucky, rejected Swain’s systematic exclusion requirement and ruled “thata defendant may establish a prima facie case of purposeful discrimination in selection ofthe petit jury solely on evidence concerning the prosecutor’s exercise of peremptorychallenges at the defendant’s trial” (93–94, 96). The justices added that once the defendantmakes a prima facie case of racial discrimination, the burden shifts to the state to providea racially neutral explanation for excluding Black jurors.

Although Batson (1986) seemed to offer hope that the goal of a representative jurywas attainable, an examination of cases decided since 1986 suggests otherwise. State andfederal appellate courts have ruled, for example, that leaving one or two Black people onthe jury precludes any inference of purposeful racial discrimination on the part of theprosecutor (United States v. Montgomery, 1985)2 and that striking only one or two jurorsof the defendant’s race does not constitute a “pattern” of strikes (Fields v. People, 1987;United States v. Vaccaro, 1987). Trial and appellate courts have also been willing to acceptvirtually any explanation offered by the prosecutor to rebut the defendant’s inference of

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purposeful discrimination (Serr & Maney, 1988, pp. 43–47). As Kennedy (1997) noted,“judges tend to give the benefit of the doubt to the prosecutor” (p. 211). Kennedy cited asan example State v. Jackson, a case in which the prosecutor used her peremptorychallenges to strike four Black people in the jury pool. According to Kennedy,

[t]he prosecutor said that she struck one black prospective juror because she wasunemployed and had previously served as a student counselor at a university, aposition that bothered the prosecution because it was “too liberal a background.”The prosecution said that it struck another black prospective juror becauseshe, too, was unemployed, and, through her demeanor, had displayed hostility orindifference. By contrast, two whites who were unemployed were seated withoutobjection by the prosecution. (p. 213)

Although Kennedy (1997) acknowledged that “one should give due deference to thetrial judge who was in a position to see directly the indescribable subtleties,” he stated thathe“still has difficultly believing that, had these prospective jurors been white, the prosecutorwould have struck them just the same”(p. 213). Echoing these concerns, Serr and Maney(1988) concluded that the “cost of forfeiting truly peremptory challenges has yielded littlecorresponding benefit, as a myriad of ‘acceptable’ explanations and excuses cloud any hopeof detecting racially based motivations” (p. 63).

Critics of Batson (1986) and its progeny maintain that until the courts articulate andapply a more meaningful standard or eliminate peremptory challenges altogether“peremptory strikes will be color-blind in theory only” (Cole, 2000, p. 124).

Juror (Dis)honesty During Voir Dire

During the voir dire, jurors are asked questions designed to determine whether theycan decide the case fairly and impartially. They are asked about their background andexperiences and about their attitudes regarding issues, such as insanity or testimony byexpert witnesses or law enforcement officers, that may come up in the case. In deathpenalty cases, they are asked questions about their views of capital punishment. There isan assumption—indeed, a legal requirement if the jurors are under oath—that jurors willanswer these questions honestly. But do they? One researcher (Bush, 1976) interviewedjurors after a 1976 trial verdict and found that one in three of them had lied under oath.Another researcher (Spaeth, 2001) found that 71% of jurors had a fixed opinion reg-arding a defendant’s guilt, but only 15% admitted this during the voir dire phase. Othershave found that the voir dire process itself inhibits full disclosure on the part ofprospective jurors, possibly because of the intimidation factor (Suggs & Sales, 1980).According to one author,

[t]hese statistics are striking. If they are representative of juror honesty generally,they suggest that questions put to jurors in certain formats are more likely toelicit a false response. This lack of candor by jurors can have a significant effectin trial strategy and in the verdicts rendered, because juror honesty during openvoir dire in the courtroom is now the critical method for exposing juror bias andimpartiality. (Spaeth, 2001, p. 39)

The question then becomes, what do we do about juror dishonesty? If prospectivejurors are less than forthcoming during voir dire, what is the remedy? One solution wouldbe to advise jurors that lies are subject to perjury charges. Most jurors, though, are awareof the consequences of being untruthful. Another problem with this solution is thatprospective jurors are not always “under oath” during voir dire. An alternative solutioninvolves the use of a written questionnaire that jurors can complete in relative anonymity.A number of reformers have called for just this approach, citing research from other fieldsthat shows that people are more truthful in their written responses regarding questionsabout their drug use, sexual practices, and other sensitive topics. (Acree, Ekstrand, Coates,& Stall, 1999; Aquilino, 1990; Rasinski, Willis, Baldwin, Yeh, & Lee, 1999).

If prospective jurors regularly lie during voir dire, then perhaps attorneys should begiven all the leverage they need to excuse questionable individuals. Challenges for causeare reserved for cases where prospective jurors have clear conflicts of interest, are biasedtoward one side or the other, or have already made up their minds in the case. Peremptorychallenges, on the other hand, are challenges that the attorneys can use to excuse anyone,without giving a reason. Peremptory challenges are therefore useful for removing jurorswhom the attorneys might have nagging doubts about, even if they are unable to convincethe judge that these jurors should be removed for cause. Peremptory challenges alsocan be used to excuse jurors who fit a certain profile, possibly on the advice of a juryconsultant (see next section).

There is considerable controversy about the peremptory challenge. We already notedthat critics of the peremptory challenge charge that it is used in a racially discriminatoryway. Defenders of the peremptory challenge, who acknowledge that there is inherenttension between peremptory challenges and the quest for a representative jury, argue thatthe availability of the challenge ensures an impartial jury. Defenders of the process furtherargue that restricting the number of peremptory challenges or requiring attorneys toprovide reasons for exercising them would make selection of an impartial jury moredifficult. Those who advocate elimination of the peremptory challenge, on the other hand,assert that prosecutors and defense attorneys can use the challenge for cause to eliminatebiased or prejudiced jurors.

Some commentators contend that the system would be fairer without them. AsMorris B. Hoffman (1997) put it,

even assuming the peremptory challenge ever worked in this country as anythingother than a tool for racial purity, and even assuming it is working today in itspost-Batson configuration to eliminate hidden juror biases without being eitherunconstitutionally discriminating or unconstitutionally irrational, I submit thatits institutional costs outweigh any of its most highly-touted benefits. Thosecosts—in juror distrust, cynicism, and prejudice—simply obliterate any benefitsachieved by permitting trial lawyers to test their home-grown theories of humanbehavior on the most precious commodity we have—impartial citizens. (p. 871)

Jury Consultants: Useful?

In 2004, a jury composed of six men and six women convicted Scott Peterson ofmurdering his wife and their unborn child. This high-profile case stands out both

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because of the publicity it received and the length of the trial—almost 6 months. Evenjury selection, which took nearly 3 months and involved interviews with 1,500 pros-pective jurors, received a wealth of publicity. What did not receive much press, though,was the behind-the-scenes process of jury selection, particularly the role of juryconsultants during the voir dire phase. Jury consultants Howard Varinksky (for theprosecution) and Jo-Ellan Dimitrus (for the defense) both worked in relative obscurityto ensure that their side would benefit from a jury stacked in their favor. Varinksky,Dimitrus, and others like them perform an interesting function in the jury selectionprocess, particularly for high-profile trials.

Where did jury consultants come from? Researchers who have tracked the evolutionof jury consulting look back to the defense of the so-called Harrisburg Seven, a group ofVietnam War protestors who were accused of several acts of civil disobedience (Strier &Shestowsky, 1999). The trial was to take place in the conservative city of Harrisburg,Pennsylvania, and in an effort to combat the resources the government was devoting tothe case and the negative views of the defendants, the defense attorneys hired a teamof social scientists to help them select a jury that would be favorable to their side.The researchers created a demographic profile of people likely to be sympathetic to thedefendants’ antiwar views, and this profile was used to select the jurors for the case.The government spent $2 million on the trial, but the jury acquitted the defendants. Theverdict was largely attributed to the jury consultants and, so, the jury consultingprofession was born.

Jury consultants use a number of different strategies. Although the most commonstrategy is to develop a profile of jurors likely to vote in favor of the defense, consultantsalso may perform background checks on prospective jurors or hire field investigatorsto gather additional information. Profiling involves surveying a large number of peopleabout their views on the case and the issues surrounding the case and, at the same time,gathering demographic data, such as age, gender, race, education, occupation, politicalparty affiliation, social standing, and marital status. Then the consultants use the data todevelop models of juror decisions. These are basically statistical models that indicate theprobability that individuals will decide the case a certain way based on their backgroundcharacteristics and attitudes. The results of the analysis are then used to create a profile ofa juror who would be likely to acquit the defendant. The defense team uses this profileduring the peremptory challenge phase of the voir dire process; potential jurors who fitthe profile are retained, whereas those who don’t fit it are excused.

There are arguments for and against professional jury consulting. One argument inconsultants’ favor is that they take some of the guesswork out of selecting a jury. Prospectivejurors are excluded based on what the data show, rather than the attorney’s preconceivednotions regarding the types of people who will decide in his or her favor. An argumentagainst juror consultants is that because they are expensive only wealthy defendants andthose whose cases attract national attention can afford them (Hartje, 2005). Critics also havechallenged jury experts’ claims of success, arguing that “if jury consultants are as effective asthey claim, and ‘if the results of a trial can be controlled simply by choosing jurors labeledacceptable by social scientists, then trial by jury would cease to function impartially andwould ultimately have to be abandoned’” (pp. 501–502).

Whether jury consultants perform a useful service or negatively affect the fairness ofa trial remains to be seen. What seems unlikely is that they will disappear any time soon.

As long as attorneys—especially defense attorneys—believe that jury consultants increasetheir odds of winning, they are likely to use them whenever the situation warrants it.

Factors Affecting Juror Decision Making

The role of the jury in the criminal process is to determine what actually happened.After listening to evidence presented by the state and the defense and after beinginstructed on the law by the judge, the jurors go off by themselves to “deliberate” and todecide whether the defendant is guilty of the crime with which he or she is charged. Howdo the jurors make this decision? What factors do they consider as they attempt todetermine the facts?

Questions such as these have long fascinated researchers, who have conductedhundreds of studies. Because jury deliberations are conducted behind closed doors,researchers are unable to observe the actual deliberation process. Instead, they use mockjuries or mock trials that involve hypothetical scenarios. These may be actual mock trials,such as in a university classroom, or simple written scenarios wherein people (oftencollege students) are asked to decide a hypothetical defendant’s fate. Then the researcherscompare people’s demographic characteristics to the decisions they hand down. Oneproblem with this approach is that the hypothetical situations presented are not real andtherefore no one’s liberty is at stake. In addition, the vignettes are typically short andprovide very limited information about the crime, the defendant, and the victim. Thedecisions that “jurors” make in these situations may or may not be the same as decisionsthey would make in actual trials.

Research on jury decision making generally has focused on the effects of proceduralcharacteristics, juror characteristics, case characteristics, and deliberation characteristics(Devine, Clayton, Dunford, Seying, &Pryce, 2001). Procedural characteristics refer tosuch factors as jury size, juror involvement during the trial, and jury instructions. Jurorcharacteristics refer to demographic factors, such as age, race, gender, employmentstatus, and other individual variables. Case characteristics refer to variables associatedwith specific trials, such as the charges involved or the strength of the evidence. Finally,deliberation characteristics refer to such factors as polling procedures or participation indeliberation.

In an extensive review of the literature, Devine and his colleagues (2001) drew severalconclusions regarding juror decision making (pp. 700–701). Not surprisingly, the studiesrevealed that juror decisions are affected by the quality and the quantity of the evidence;jurors are more likely to convict when the evidence is strong and conclusive. The personalcharacteristics of the participants (i.e., the mock juror, the victim, the defendant), on theother hand, do not reliably predict juror verdicts. These factors come into play primarily incases where the evidence is ambiguous and the outcome is therefore less predictable. Thishas been explained using the liberation hypothesis (Kalven & Zeisel, 1966), which suggeststhat when the evidence is uncertain jurors are “liberated” from the constraints imposed bythe law and therefore feel free to take legally irrelevant factors into consideration. Researchalso reveals that the deliberation process produces a reversal of the verdict preferenceinitially favored by the majority in 1 of every 10 trials. Finally, the studies conducted to dateindicate that jurors’ decisions reflect their past experiences, their stereotypes about crimeand criminals, and their beliefs about what is right, wrong, and fair.

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Jury Nullification

Most jury trials result in convictions. In 2002, for example, 85% of all defendantstried by juries in the 75 largest counties in the United States were convicted (U.S. JusticeDepartment, 2006, p. 26). A jury’s decision to acquit the defendant usually means that thestate has failed to prove its case beyond a reasonable doubt. Sometimes, however, the juryvotes to acquit despite overwhelming evidence that the defendant is guilty. In this case,the jury ignores, or nullifies, the law.

Jury nullification, which has its roots in English common law, occurs when a jurorbelieves that the evidence presented at trial establishes the defendant’s guilt, butnonetheless the juror votes to acquit. The juror’s decision may be motivated either by abelief that the law under which the defendant is being prosecuted is unfair or by anobjection to the application of the law in a particular case. In the first instance, a jurormight refuse to convict a defendant charged in U.S. District Court with possession ofmore than 5 grams of crack cocaine, based on his or her belief that the long prisonsentence mandated by the law is unfair. In the second instance, a juror might vote toacquit a defendant charged with petty theft but also charged as a habitual criminal andfacing a mandatory life sentence, not because the juror believes the law is unfair butbecause he or she believes that this particular defendant does not deserve life in prison(Dodge & Harris, 2000).

Although nullification allows the jury to be merciful when it believes that eitherthe punishment or a criminal conviction is underserved, it also allows the jury to makearbitrary or discriminatory decisions. For example, there is evidence that southern jurieshave—and some would say, still do—refused to convict White defendants charged withoffenses against Black victims, even in the face of convincing evidence of their guilt (Hodes,1996). Nullification can also be used to make a political statement, such as to expressdissatisfaction with a policy. Some have alleged that O.J. Simpson’s acquittal reflected in partthe jurors’ beliefs that the Los Angeles Police Department was racist (Rosen, 1996). An evendarker form of jury nullification has been called jury vilification (Horowitz, Kerr, &Niedermeier, 2001). “Juries may return verdicts that reflect prejudiced or bigotedcommunity standards and convict when the evidence does not warrant a conviction”(Horowitz et al., 2001, p. 1210).

Jurors clearly have the power to nullify the law and vote their conscience (Scheflin &VanDyke, 1980). If the jury votes to acquit, the Double Jeopardy Clause of the Fifth Amendmentprohibits reversal of the jury’s decision. The jury’s decision to acquit, even in the face ofoverwhelming evidence of guilt, is final and cannot be reversed by the trial judge or anappellate court. Inmost jurisdictions, however, jurors do not have to be told that they have theright to nullify the law (see, e.g.,United States v. Dougherty, 1972).

There is no way to know with any certainty how often jury nullification occurs.However, researchers have sought to identify the circumstances under which jurors willdisregard the law. Some experimental evidence shows that as penalties become moresevere, jurors are less likely to convict and in fact apply higher standards of proof (Kerr,1978). Niedermeier, Horowitz, and Kerr (1999), for example, reported on an experimentthey conducted wherein a physician was accused of knowingly transfusing a patient withblood he knew hadn’t been screened for HIV. Holding everything else constant (e.g., theevidence), the authors found that mock jurors were less likely to declare the physician

guilty when the penalty was severe (25 years in prison relative to a $100 fine). The findingsfrom these studies show that jurors are influenced by something other than the facts of thecase as laid out by the prosecution and defense.

y Summary: Judges and Jurors in the CourtroomThe judge, whose job it is to interpret the law and to ensure that proper procedures arefollowed at every step in the process, plays a key role in the criminal court system. Thepowers that judges wield are not, however, unlimited; their powers are constrained byrules that require them to be fair and unbiased, by procedures to disqualify or removethem if they are not impartial, and by appellate court rulings on questions of law andprocedure. Jurors, whose job it is to determine the facts in a case and to decide whetherthe state has proved the defendant’s guilt beyond a reasonable doubt, also play an impor-tant role. Even though jury trials are rare, the cases that do go to trial typically involveserious crimes in which defendants are facing long prison sentences. In these seriouscases, the jury serves as the conscience of the community and as a safeguard against theimproper use of the criminal law.

In this chapter, we provided an introduction to some of the controversies surroundingjudges and juries. Questions have been raised about the methods of selecting judges, theeffects of recruiting more women and racial minorities to the bench, and the consequencesof using nonlawyer judges. Issues related to juries include the use of peremptory challenges,the role of jury consultants, the factors that jurors take into consideration duringdeliberations, and the practice of jury nullification. The edited readings included in thissection explore a number of these issues in greater detail.

y Notes1. A similar pattern is found for appointments to the United States Courts of Appeals. The

percentage of appointees who were White men was 60.7% (Carter), 92.3% (Reagan), 70.3% (Bush), and44.8% (Clinton) (see Carp & Stidham, 1998, Note 30, Table 8.2).

2. The Court of Appeals for the Eleventh Circuit, however, rejected this line of reasoning in Fleming v.Kemp (1986) andUnited States v. David (1986).

K E Y T E R M S

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Appellate review

Application of the law

Challenge for cause

Discipline of judges

Fact finding

Impartial jury

Impeachment of judges

Judicial disciplinarycommission

Judicial impartiality

Jury consultant

Jury nullification

Liberation hypothesis

Merit system(Missouri Plan)

Mock jury study

Nonlawyer judges

Peremptory challenge

Prima facie case of racialdiscrimination

Random cross-sectionof the community

Recuse

Retention election

Right of appeal

Voir dire


D I S C U S S I O N Q U E S T I O N S

1. In a criminal case, who determines the facts? Who applies or interprets the law? Why are bothof these processes imperfect?

2. What is the traditional view of the judge and why is it misleading?

3. Under what circumstances should a judge recuse (remove) himself or herself from a case?

4. When can a defendant challenge his or her sentence? What are the standards that might beapplied in reviewing the challenge?

5. How are federal judges removed from office? What procedures can be used to remove statecourt judges? What would justify removing a federal or state court judge?

6. What are the advantages and disadvantages of electing judges? Of appointing judges?

7. In your opinion, why is the typical judge White, male and middle-aged? At least in theory, howmight electing or appointing more women and racial minorities change the quality of justicemeted out by the courts?

8. Why is the role of the jury in the criminal justice system “both symbolically and substantivelyimportant”?

9. What has the U.S. Supreme Court said regarding race and the jury selection process? Why arethe standards different for selection of the jury pool and selection of the jurors for a particularcase?

10. What are the problems inherent in the use of the peremptory challenge? Should theperemptory challenge be eliminated? Why or why not?

11. Should either side in a criminal trial be prohibited from using jury consultants?Why or why not?

12. Why do jurors have the right to nullify the law? Should they have this right?

W E B R E S O U R C E S

American Judicature Society: www.ajs.org

Biographical Directory of Federal Judges, Federal Judicial Center: http://www.fjc.gov/history/home.nsf

Decision Quest (jury consultants): http://www.decisionquest.com/

California Commission on Judicial Performance: http://cjp.ca.gov/

Federal Habeas Corpus Review: Challenging State Court Criminal Convictions: http://www.ojp.usdoj.gov/ bjs/abstract/fhcrcscc.htm

Federal Judges Association: http://www.federaljudgesassoc.org/

Jury selection, Cook County, Illinois: http://www.cookcountycourt.org/jury/faq-selection.html

National Conference of State Trial Judges, American Bar Association: http://www.abanet.org/jd/ncstj/

National Consortium on Racial and Ethnic Fairness in the Courts: http://www.consortiumonline.net/index.html

Outline of the U.S. Legal System, U.S. Department of State: http://usinfo.state.gov/products/pubs/legalotln/judges.htm

R E A D I N G

Most of the research investigating racial and gender differences in decision making bytrial court judges focuses on the effects of the judge’s race and gender on sentencingdecisions. This is the approach taken by Darrell Steffensmeier and Chris Hebert, whosearticle is included in this chapter. Using data on sentencing outcomes in Pennsylvania,the authors of this study investigate whether female judges sentence differently thanmale judges. The results of their study reveal that although there are many similaritiesin the sentencing practices of men and women judges, there are important differencesas well. Female judges tended to impose harsher sentences than male judges, particularlyon repeat Black offenders.

Women andMen Policymakers

Does the Judge’s Gender Affect the Sentencing of Criminal Defendants?

Darrell Steffensmeier and Chris Hebert

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The long debate about whether a decisionmaker’s individual characteristics or organi-zational role has a greater influence on decisionmaking has not been resolved: “What is themore important determinant of behavior, theinternal dynamics of personality emphasized bypsychologists, or the external pressures of theoccupational role, stressed by sociologists?”(Niederhoffer 1967:109). In recent years, theissue has received renewed attention in studiesof gender’s role in organizational decisionmaking (Walker & Fennell 1986). The essentialquestion is whether women—who are assumedto have been socialized differently and thus havea different “personality”—make substantivelydifferent decisions than men. Unfortunately, thisimportant functional area of social science studysuffers from a lack of strategic researchopportunities.Conducting such research requiresan organizational environment that includes

substantial numbers of women who are indecision-making positions where their decisionscan be clearly identified. The criminal courtsprovide such an environment.

Growing numbers of women are beingattracted to law-related fields; many are pur-suing careers in prosecutors’ and publicdefenders’ offices and other local, state, andfederal criminal justice agencies. The mostrecent trend—and the one that may have thegreatest ultimate impact—is the increasingnumbers of women who are being appointedor elected to judgeships at both the federal andstate levels. Highly visible examples of theintegration of women into key criminal justicepositions are Janet Reno, the U.S. attorneygeneral, and the two U.S. Supreme Courtjustices, Sandra Day O’Connor and RuthGinsberg.Women todaymake up about 15% ofall federal judges and about 10% of all judges at

SOURCE: “Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants?” by DarrellSteffensmeier and Chris Hebert in Social Forces, vol. 77, no. 3. Copyright © 1999 by the University of North Carolina Press.Used by permission of the publisher, www.uncpress.edu.

Section III � Women and Men Policymakers 233

the state and local levels (Schafran & Wilker1992): In Pennsylvania, women now occupyabout 15% of all the commonwealth’s judge-ships, as compared to 5% just a decade ago.This sharp increase in the number of femalejudges is large enough both to overcome thetokenism described by Kanter (1977) and toenable a comparison of their sentencingpatterns with those of their male counterpartswhile controlling for a number of importantvariables thought to influence sentencing.

Using 1991–93 sentencing data andadditional archival data from Pennsylvania,we examine whether a judge’s gender makesa difference in the sentencing of criminaldefendants. Judicial decision-making patternsare assessed both in terms of the sentencingoutcomes (i.e., final decision to incarcerate andlength of prison term) and the decision-makingprocess.We ask two questions:

(1) Do women and men judges givesimilar or different sentences to cri-minal defendants, net of controls forcase characteristics, court contextualvariables, and judge’s background?

(2) Do women and men judges use thesame criteria and give the same weightto case characteristics when arriving ata sentencing decision, net of controls?

The data allow us to greatly extend priorsentencing research that included judge’s genderas a sentencing variable (reviewed below). Theyalso enable us to overcome a main impedimentin most earlier research on women and men intraditional male occupations and decision-making positions—namely, the lack of adequatecontrols; that is, few studies have comparedmen and women in “matched” jobs or organi-zational positions (Bielby & Baron 1986;Coverman 1988; McGuinness & Donahue1988;Hagan&Kay 1995; Reskin&Phipps 1988).Women’s recent entrance into male-typed

occupations is characterized typicallyby a sexual division of labor within theseoccupations; for example, women lawyers aresegregated into family law, women physiciansinto pediatrics, and so on. In contrast, wecompare women and men who are employedin the same male-typed job, receive the samepay, perform a job entailing considerablework autonomy, and hold a position involvingconsiderable skill and prestige. These features alsoenable us to better assess the importance ofindividual as compared to structural or organi-zational explanations of behavior, particularlygendered behavior.

y Minimalist andOrganizational VersusMaximalist andIndividual Views ofGendered Behavior

The issue of whether women and men judgesapproach sentencing in gender-specific ways isat the core of concerns in law and criminologyabout the determinants of judicial decisionmaking and the “law in action” (Peterson &Hagan 1984; Kruttschnitt 1984; Myers &Talarico 1987). More broadly, the issue is alsoan institutionally specific manifestation bothof debates in current feminism concerning“maximalist” versus “minimalist” approachesto the existence and explanation of genderdifferences (Giele 1988) and of recurrentthemes in organizations and occupations asregards the long-standing sociological inquiryinto whether the person or the job mostinfluences attitudes and behaviors (Hagan &Kay 1995; Kanter 1977; Walker & Fennell1986).

Among the varied feminist schools ofthought, two opposing camps have emergedwith seemingly polar sets of assumptionsabout the nature of women and men (Epstein1988). One camp, the maximalists, argues

that the sexes are fundamentally differentcognitively, emotionally, and behaviorallyas a result of the interaction of biological,psychological, and experiential realities ofbeing male or female (Gilligan 1982).According to Lehman (1993), “These unique-nesses purportedly lead men and women totake different approaches to a wide variety ofissues and problems, including how theyengage in occupational pursuits” (179). Theother camp, the minimalists, contends that,rather than different personality traitsassociated with sex or gender, variations inmale and female attitudes and actions reflectthe influence of external constraints andopportunities that happen to be associatedmore with one sex than with the other. Thesethemes overlap individual versus organi-zational models of behavior that are long-standing concerns within sociology (Kanter1977; Walker & Fennell 1986). The thrust ofthe individual model of work behavior is onbeliefs and attitudes carried inside theindividual, which lead to the conclusion that“women are different.” In the organizationalmodel, common professional training andidentical constraints imposed by organiza-tional customs and rules overcome anybiological, psychological, or experienced-baseddifferences between the sexes (Cook 1978;Kanter 1977).

These alternative ways of treating genderdifferences in worker orientations and organ-izational decision making and the contrast-ing models within each set of approachesshare a prominent premise. The maximalistand individual positions assume real andimportant differences in the ways men andwomen approach decision making. Thatfemale judges have grown up and lived aswomen, have played women’s roles in theirfamilies and community, and have functionedin women’s networks means that they are likelyto have some perspectives and to haveresponses to some constituencies that differfrom those of male judges. In sum, the

different perspectives that women judges bringto the bench can be expected to influence theirsentencing decisions.

The minimalist and organizational modelsassume few, if any, fundamental genderdifferences. The demands of the judicial role—that judges be bound by law, their oath ofoffice, and the traditions and values of theirprofession—are likely to be sufficientlypowerful not only to affect individualperceptions, values, and thinking but also torestrain the tendency to allow past experienceto influence one’s behavior once elected orappointed (Hogarth 1971). In sum, womenjudges are likely to be governed more by theirlegal training and legal socialization than bytheir socially structured personal experienceswhen making sentencing decisions.

y Prior Research andTheorizing AboutGender-of-Judge Effects

Speculations and assumptions about theimpact of more women on the bench thrive inboth the popular and scientific writings on thejudiciary (Kritzer & Uhlman 1977; Martin1990; Nagel 1962; Schumaker & Burns 1988).Some people believe that women judges will bemore liberal or compassionate (i.e., soft-hearted) and thus sentence offenders moreleniently; that women judges will be par-ticularly harsh toward rapists and otherdefendants convicted of sexual assault becauseof same-sex identification with victims; thatmale judges will be more paternalistic and thussentence female defendants more leniently; andthat the life experiences of women judges leadto greater concerns about sexism or racism andwill result in more equitable decision making.

Yet there is little empirical evidenceestablishing differences between male andfemale judges’ approaches to sentencing. Thefew empirical studies that do exist are

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summarized in Table 1. They find that theeffects of judge’s gender on sentencing out-comes are small or negligible but that, wheredifferences do exist, female judges are harsher.Also, there is little evidence that male andfemale judges sentence female defendantsdifferently.

Important shortcomings in these studies,however, severely limit their usefulness fordrawing conclusions about whether womenjudgesmake different decisions thanmen judges.The shortcomings, which vary from onestudy to another, include (1) no measure ofdefendant’s prior record, perhaps the mostpowerful determinant of sentencing outcomes;(2) inclusion of too few cases and offenses;(3) analysis limited to a single jurisdiction;(4) analysis of only a few female judges; and(5) an absence of contextual analysis to assesspossible interaction effects of case or judgecharacteristics (e.g., time on the bench) ongender-of-judge sentencing practices. In add-ition, none of the studies examines whetherwomen and men judges use the same criteriaand give the same weight to case characteristicswhen arriving at a sentencing decision.

No theory about whether and how womenand men judges might differ in theirsentencing practices yet exists. Our approachin this study is to develop hypotheses thatderive from the sociological writings on thecourts, on organizations, and on gender(particularly as the latter has been linkedto patterns of decision making,moral develop-ment, and criminal victimization). Thesehypotheses reflect both minimalist andmaximalist positions.

On the one hand, a strong case can bemade for the minimalist viewpoint thatgender-of-judge effects will be small ornegligible because the powerful influences ofselection and socialization to the judicial rolewill offset any pre-officeholding attitudesof the judges. First, studies of judicialbackgrounds indicate that judges recruited tostate trial courts share similar characteristics

and experiences. Most are middle or upperclass, were born and attended law school inthe state in which they serve, and frequentlyhave legal experience in the prosecutor’s orpublic defender’s office (Spohn 1990). Second,these similarities are reinforced by a judicialsocialization process that emphasizes theinterplay of three focal concerns in reachingsentencing decisions: (1) the offender’s blame-worthiness and the degree of harm caused thevictim as indicated by the seriousness ofoffense, the offender’s role in the offense, andso forth; (2) protection of the community asindicated by prior criminal history, the facts ofthe crime such as use of a weapon, and soforth; and (3) practical implications of thesentencing decision such as assuring thesteady flow of cases, the costs to be borne bythe correctional system, and the offender’sability to do time (see Steffensmeier, Kramer& Streifel 1993). Third, adherence to pre-vailing norms, practices, and precedents isalso encouraged by the courtroom workgroup—the judges, prosecutors, and publicdefenders who work together day after day toprocess cases as efficiently as possible. Toexpedite sentencing, for example, members ofthe courtroom work group may informallyestablish a range of normal penalties for eachtype of crime and agree to sentence withinthat range (Spohn 1990; Sudnow 1965).Individual judges might deviate from thesentencing norms, but there is no reason toexpect that the judicial socialization process ismore or less effective among female judgesthan among male judges. In summary, then,we hypothesize that

Hypothesis 1: The sentencing practicesof women and men judges are morenoteworthy for their similarities than fortheir differences. For example, both maleand female judges will be swayed heavily byoffense severity and prior criminal history.Both will be sensitive to the plea bargainingprocess and the disadvantages for the

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courtroom work group and the county ofhaving too many trials.

Hypothesis 2: Background and careercharacteristics of judges—for example,age and time on the bench—will affect thesentencing practices of men and womenjudges similarly.

On the other hand, there also are solidreasons for expecting that pre-officeholdingattitudinal differences between men andwomen might carry over and result in somegender-of-judge differences in sentencingpractices. First, despite major efforts to promotegreater gender equality in American society,fundamental differences remain in the effectsof predatory criminality and victimizationfor men and women. The routine activitypatterns of women and their associations withothers are shaped much more by prospectiveexposure to risky or vulnerable situations

that in turn increase an individual’s chancesof victimization (Miethe & Meier 1994).Accordingly, fear of crime, concern forneighborhood protection, and sensitivity torisk of recidivism appear to be greater amongfemales than among males (Schumaker &Burns 1988; Warr 1995). Second, there isevidence that women (including womenofficeholders) slant more toward a particular-istic style of policymaking and that this leaningreflects women’s greater concern forpreserving the relational webs of life, theirsensitivity to the variable needs of others, andtheir tendency to be problem solvers (Gilligan1982). Compared to their male counterparts,women officeholders are more concerned withthe substance of policy and legislation thanwith abstract precepts (Diamond 1977; Darcy,Welch & Clark 1994). Because men’s socialorientation emphasizes formal external recog-nition gained through competition, male

Study (DataPeriod)

Kritzer &Uhlman 1977(1968–74)

Gruhl, Spohn &Welch 1981(1971–79)

Myers &Talarico 1987(1976–85)

Spohn 1990(1976–85)

Sample Size(No. Female)

23,328“MetroCity”

35,529(10,432)

1,024a Stateof Georgia

3,798Detroit

No. FemaleJudges

NA

7

NA

9

PriorRecord

No measure

No measure

No measure

No measure

OffenseType/Severity

6 offenses

14 offenses

7 offenses

Sexualassaults

Sex ofDefendant

No effect

Female offendersmore likely to beimprisoned

NA

NA

In/Out

No effect

Female judgeharsher

No effect

No effect

Length ofTerm

NA

No effect

No effect

Female judgesharsher

Table 1 Statistical Studies of Gender-Judge Effects on Sentencing Outcomes

Gender of Judge

a. Analysis is based on offenders sentenced in courts where female judges presided. Authors examine the effects of the gender compositionof the bench on sentence severity. Myers and Talarico (1987) look at the impact of the bench—with female judges versus without femalejudges—on sentencing decisions in Georgia. There were only 1,024 cases sentenced in jurisdictions where female judges presided.

NA = Not available or not applicable


morality and decision making are moresubordinated to rules and universal principlesof justice that are equated in terms of fairness;the impersonal application of laws is deemedfair and objective in a society where logical,analytical, and abstract thinking are highlyvalued attributes (Bordo 1987; Kathlene 1989).Third, because of differences in gender rolesocialization and apprehension about victimi-zation, women tend to be more moralistic andfeel more threatened by challenges to normsand law than men do (Archer 1996; Crow et al.1991; Kritzer & Uhlman 1977; Steffensmeier &Allan 1995).

Extending these ideas, we expect that

Hypothesis 3: Women judges will be moresevere in their sentencing decisions thanmenjudges.

Assuming that women judges will be moreinfluenced by indicators of dangerousness andrecidivism risk and by pragmatic concernssuch as the social costs to children of sendingwomen to prison and the extra burdens forprison staff of incarcerating older offenders,we also hypothesize two main forms ofinteraction:

Hypothesis 4a: Prior record—an indicatorof dangerousness and recidivism risk—willaffect the sentencing decisions of womenjudges more than it will those of menjudges.

Hypothesis 4b: Defendant’s age, race, andsex also are linked to attributions ofrecidivism risk and dangerousness; young,male, and black defendants are perceived asmore dangerous and less amenable toreform (Steffensmeier, Ulmer & Kramer1998). These variables also raise otherpragmatic sentencing concerns such asability to do time and costs to thecorrectional system. Specifically, we expectthat, relative to male judges, female judgeswill be harsher in their sentencing ofdefendants who are male, black, and young

(i.e., young adults vs. middle-aged or elderlyadults).

Finally, it is arguable that male and femalejudges might respond differently to violentor sexual assault crimes than to propertycrime because of greater female concernsabout safety and violent victimization.However, prior research on juror decisionmaking generally finds that gender of juror hasnegligible effects on jury outcomes in rape orsexual assault cases (Faulkner 1979; Weisbrod1986). Furthermore, most research on sen-tencing shows that discretion is more likely tooccur in cases involving less serious crimes(e.g., property crime) than more serious orviolent ones (Steffensmeier, Kramer & Streifel1993). Thus,

Hypothesis 5: The effects of gender of judge(women judges harsher) will be moremanifest in the sentencing of propertyoffenders than in the sentencing of eitherviolent or sexual assault offenders.

In view of the shortcomings and scarcity ofresearch to date, the question of whether thejudge’s gender makes a difference in sentencingdecisions is unresolved. This study comparesthe sentencing decisions of women and menjudges, focusing primarily on the maximalistargument: Can we document empirically theexistence of gender differences in judicialdecision making?

y Data and ProceduresOur data come from two sources: (1) sentencingoutcomes in Pennsylvania from 1991 to 1993,compiled by the Pennsylvania Commission onSentencing (PCS); and (2) archival informationon judge characteristics such as gender, age,prior prosecutorial experience, and length oftime on the bench. Together, these data provideperhaps the richest information available inthe country for analyzing judges’ sentencing

practices. By Pennsylvania law, each sentencegiven for a felony or misdemeanor convictionmust be reported to the PCS. Pennsylvaniaimplemented presumptive guidelines in 1982to structure, but not eliminate, sentencingdiscretion. The guidelines therefore represent astructured system in which offense severity andprior record are supposed to be the majordeterminants of sentencing.Unlike certain otherguideline systems (e.g., Minnesota’s, the federalsystem), Pennsylvania’s allows more sentencingdiscretion, but it also risks the possible intrusionof sentencing disparity. The data providedetailed information on sentences given as wellas unusually complete and specific informationon offense severity and type, prior record,number of convictions, and other offender-related and court contextual variables thatmightaffect sentencing decisions.

Our analysis is limited to counties that hadat least one female judge. By comparingdecisions handed down by women and menjudges in the same jurisdiction, we can controlfor differences in local legal norms and practices.Eighteen of the 67 counties in Pennsylvania hadat least one female judge. Also, in order tocontrol for possible race effects and because onlyone female judge was black, our analysis islimited to white judges. Thus, we compare thesentencing decisions of 39 white female judgesto those of 231 white male judges. Table 2 showsthe dependent and independent variables usedin our analysis and describes their coding.

Outcome Variables

The recent literature points to the need toconsider sentencing as at minimum a two-stageprocess involving, first, a decision about whetherto incarcerate an offender and, second, if so, adetermination about the length of incarceration(Kramer & Steffensmeier 1993). We thereforeinvestigate the role of judge’s gender in these twostages separately, using logit models for thein/out decision and OLS models for the length-of-term decision.

Independent Variables

Besides gender of judge, the independentvariables include a combination of case andjudge characteristics that have been previouslyshown to affect the sentencing of criminal defen-dants. The coding and definition of thesevariables are presented in Table 2 and arestraightforward. Table 2 also compares womenand men judges on key variables used in theanalysis. Overall, the case characteristics andsentencing outcomes are noteworthy more fortheir similarities than for their differences.

The legal factors we control are offenseseverity and prior criminal history. Ourcontrol for offense severity is an eight-pointscale developed by the PCS that ranks eachstatutory offense. The severity scale is basedon factors such as degree of victim injury,offender culpability, and property loss. Inaddition, we control for whether the convictionoffense involved a violent crime, a propertycrime, or a sexual assault. We also include adummy variable to measure the number ofconcurrent offense convictions accompanyingthe most serious conviction (coded 0 if theoffender had a single conviction, 1 if he orshe faced multiple convictions). Our measureof prior record is a seven-point scale of priorconvictions weighted according to theirseverity, which includes prior misdemeanorspunishable by at least one year’s incarcerationand all prior felonies. Prior misdemeanors maytotal no more than two points on the scale,while prior felonies count for one to threepoints each, depending on their severity. Recallthat none of the earlier studies on gender-of-judge effects controlled for this importantlegally prescribed variable.

Other factors we control are offender’srace, sex, and age and mode of conviction—that is, whether the offender was convictedthrough a guilty plea, bench trial, or jury trial.In addition, we include controls for judgeattributes, other than gender, that might affectsentencing decisions. For example, increased

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Gender of judge

Incarcerate or not(in/out)

Prison sentence(length of term)

Prior record

Offense severity

Multiple convictions

Mode of conviction

Race of offender

Sex of offender

Age of offender

Type of offense

Age of judge

Marital status of judge

Time on bench

Prosecutorialexperience

Whether judge was female or male

Whether defendant was incarcerated or not

Length (in months) of minimum sentence

7-point score

8-point score

Whether conviction included more than one charge

Plea of guilty of conviction at trial. Two dummyvariables, bench and jury trial. (Plead guiltyis omitted.)

Bench trial

Jury trial

Whether defendant was white or black

Whether defendant was female or male

Dummy-coded groupsa

Dummy coding of violent crime and sexual assault.(Property crime is omitted.)

Violent crime

Sexual assault

Whether judge is married or not

Number of years judge had been on bench at timecase was decided

Whether judge had prior prosecutorial experience

1 = Female

1 = Yes

Number ofmonths

0 None,6 = Maximum

1 = Least serious,8 = Most serious

1 = Yes

1 = Yes

1 = Yes

1 = Black

1 = Female

Year

1 = Yes

1 = Yes

Years

1 = Yes

Year

1 = Yes

FemaleJudge

N = 39

62%

18.1

1.7

4.6

36%

6%

2%

57%

14%

29(avg.)

33%

5%

48.1

67%

6.6

26%

MaleJudge

N = 231

51%

16.6

1.6

4.1

29%

5%

2%

44%

16%

29 (avg.)

26%

5%

58.7

84%

12.7

23%

Table 2 Definition and Coding of Variables and Breakdown by Gender of Judge

Gender of Judge

a. The age categories are 30–49 years and 50 years and older. The omitted category is 19–29 years.

time on the bench might harden judges andincline them to impose severe sentences(Hogarth 1971). Other researchers have foundthat older judges tend to be more conservativeand to impose harsher sentences than youngerjudges. The two variables—time on the benchand age—are not necessarily equivalent, butthey should be related (Spohn 1990). Similarly,it appears that judges with prior prosecutorialexperience are more likely to impose harshersentences than judges without such exp-erience. Consequently, we include as controlsthe length of time a judge has been on thebench, judge’s age and marital status, and priorprosecutorial experience.

y FindingsDescriptive statistics are shown in Table 2. Thekey findings are as follows. First, female judgesare younger, have served on the bench for ashorter period of time, and are less likely to bemarried. However, male and female judgeshave similar prior experience in the criminaljustice system—roughly equal proportionsserved as a district attorney (26% of females,23% of males). Second, the independentvariables reflecting case characteristics (e.g.,defendant’s prior record) indicate that femaleand male judges handled comparable kinds ofcases, though female judges were somewhatmore likely to have adjudicated defendants withhigher scores for prior record and offenseseverity. These differences reflect the greaterlikelihood that female judges preside in thePhiladelphia area, where a higher proportion ofmore serious offenders reside. Third, offenseseverity and prior record have large effectson sentencing outcomes, whereas the othervariables—including judge’s gender—tend tobe correlated only weakly with sentencingoutcomes. Fourth, female judges on average aremore likely to incarcerate offenders (62%to 51%) and to sentence those imprisoned toslightly longer sentences (1.5 months longer onaverage) than are male judges.

Because we are theoretically and empiricallyinterested in the effects of judge’s gender onsentencing decisions, while controlling for caseand judge characteristics, we begin byexamining the independent, main effects ofjudge’s gender on sentencing. We then presentinteractive models of the influences onsentencing of these variables combined withjudge’s gender. We also partition the data bygender of judge to examine the effects of theindependent variables on the sentences imposedby female judges and to replicate this analysis formale judges. In addition, we partition the databy defendant characteristics and prior record inorder to assess more specifically whether caseand judge characteristics have different effectson the sentencing outcomes of women ascompared to men judges.

Judge’s Gender and SentencingOutcomes (Additive Models)

In/Out Decision

Our estimation of models predicting theeffects of judge’s gender on the incarcerationdecision revealed that prior record and offenseseverity are strong predictors of the incarcerationdecision. Each increase in the scores for thesevariables increases the probability of incar-ceration by about 11%. The background andcareer variables have weak effects (under 4%),except for marital status: married judges areabout 13% more likely to incarcerate. The mostimportant finding is that female judges are 11%more likely to incarcerate than male judges.

Length-of-Term Decision

The results for models predicting sentencelength reveal that prior record and offenseseverity have strong effects on sentencelength—an increase in each score increases theperiod of incarceration by about 8 months and10 months, respectively. There also is a sub-stantial “trial penalty” effect—defendantsconvicted in a jury trial receive sentences that

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are about 19 months longer on average thanthose of defendants who pled guilty. Offendercharacteristics such as race, sex, and age havesmall to moderate effects—whites, females, andolder defendants receive shorter prison terms.The main finding is that judge’s gender has asmall effect on the length-of-term decision,with female judges handing out sentences thaton average are about 5 months longer. Thus, inboth the in/out and length-of-term decisionsfemale judges are harsher than male judges.

Judge’s Gender and SentencingCriteria (Partitioned Models)

We next examine whether and to whatextent women and men judges use similar ordistinct criteria in their sentencing decisionsand whether judge’s background attributeshave similar or distinct effects on sentencingdecisions.We begin by partitioning the data bygender of judge and comparing the coefficientsof women judges to those of men judges acrossa range of variables. We then partition thedata by key case characteristics and conductadditional tests for interaction effects in orderto better describe important gender-of-judgedifferences. Our discussion of findings reliesmainly on the partitioned analyses.

Legal and Case-Processing Variables

Beginning with the in/out decision, wefind that prior record and offense severityhave comparable effects on the incarcerationdecisions of male and female judges; that is,the effects are large and in the same direction,but the gender-of-judge difference is smallor negligible. Each increase in the score forprior record increases the probability ofimprisonment by 12% for female judges and10% for male judges; similarly, each increasein the offense-severity score increases theprobability of imprisonment by 12% forfemale judges and 11% for male judges. Thetrial penalty effect for a jury trial is also similar.

Opting for a bench trial rather than a guiltyplea has a negligible effect on whether male orfemale judges impose imprisonment, whereasopting for a jury trial substantially increasesthe likelihood that both genders will incar-cerate the defendant (31% for female judges,28% for male judges).

Regarding length of term, the effects ofoffense severity and prior record are generallycomparable, as is the penalty for pursuing ajury trial. Female judges hand out sentencesthat are about 23 months longer to defendantsconvicted by way of a jury trial rather than aguilty plea, as compared to 18 months for malejudges.

Offender Characteristics

Sex, race, and age all have moderate effectson the incarceration decision. Female judgesare 22% less likely to incarcerate female thanmale offenders, as compared to 14% for malejudges; female judges are 10% less likely toincarcerate white than black offenders, ascompared to a 5% difference for male judges;both female and male judges are less likely toincarcerate older offenders than young adultoffenders, but again, the difference is greaterfor female judges—24% less likely as comparedto 18% for male judges.

For length of term, the effects of offendercharacteristics are small and in the samedirection for female and male judges. Both areharsher toward male defendants (about 10months for both female and male judges) andblack defendants (about 3 months vs. about2 months, respectively). Female judges, however,give older offenders a larger break in sentencelength (about 15 months vs. about 7 months,respectively).We address these findings below.

Clarification ofGender-of-Judge Differences

So far, we have shown similarities anddifferences between male and female judges inthe criteria they use in arriving at sentencing

decisions. The effects of key variables are in thesame direction, and the differences in the size ofthe gender-of-judge effect across most criteriaare small or negligible. The chief differences arethat female judges are somewhat harsher in theirsentencing decisions and that they are morestrongly influenced by offender characteristicsthan are male judges. To the extent that dis-cretion exists, it is more evident among femalethan male judges.

We are particularly interested in theinteractions between gender of judge anddefendant’s race, sex, age, and prior record.Recall that hypotheses 4 and 5 predict, res-pectively, that women judges will be moreaffected by prior record in their sentencingdecisions and that they will be comparativelyharsher in sentencing defendants who aremale, black, and young. Among women judges(Table 3), being a repeat offender has negligibleeffects on differences in the level of leniency theygrant to white female defendants as compared towhitemale defendants.However, a very differentpattern emerges when the comparisons arebetween white and black defendants. For bothsentencing decisions (in/out and length ofterm) and for female as well as male def-endants, the overall race effect of harshersentencing of black defendants is enhancedamong female judges when they sentence

repeat offenders, whereas among male judgesthe race effect is diminished or unchanged.

Taken together, therefore, the key findingis that the effect of prior record on the in/outdecision differs across race-sex defendantsubgroups among women judges but notamong men judges. Being a repeat offenderincreases the sentence severity of both womenand men judges, but the size of the increase iscomparatively greater among women judgeswhen the defendant is a repeat black offender.Indeed, the race effect among women judges(i.e., a harsher sentence for black defendants)is mainly evident in the case of repeat blackoffenders. In contrast, among men judges, theeffect of prior record is generally consistentacross the varied defendant subgroups.

y Discussion and ConclusionThe large number of cases sentenced bywomen and men judges and the inclusion ofimportant control variables allow us to go con-siderably beyond prior sentencing research.Previous research was based on a smallnumber of women judges, did not include acontrol for defendant’s prior record, and didnot consider whether women and men judgesuse similar or distinct criteria in their

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In/Out (Odds Ratio) Length of Term (Months)

Female Judge Male Judge Female Judge Male Judge

1st Time Repeat 1st Time Repeat 1st Time Repeat 1st Time Repeat

Black male offender 1.16 2.29 1.24 1.24 4.812 4.812 3.418 .686

White female offender .47 .47 .65 .65 −9.465 −9.465 −9.803 −6.445

Black female offender .53 1.04 .81 .81 −10.877 5.596 −11.092 −5.759

a. White male offender is the omitted category.

Table 3Relative Net Effect of Defendant’s Race, Sex, and Prior Record on Sentencing Decisions ofMale and Female Judgesa

sentencing decisions. Our findings (net ofcontrols) are somewhat complex and addressthree main questions.

Are There Gender-of-JudgeDifferences in Sentence Severity?

Women judges sentence more harshlythan men judges. On average, they are about10% more likely to incarcerate, and theyimpose prison terms that are about fivemonths longer. This greater punitivenessextends mainly to property offenders, how-ever; there are negligible gender-of-judgedifferences at both the in/out and length-of-term stages in the sentencing of violentand sexual assault offenders. These findingssupport our hypotheses (nos. 3 and 6) thatwomen judges will sentence more harshlybecause they are more threatened by challengesto norms and laws than men judges andthat gender-of-judge variation will be moreevident in cases involving less serious (e.g.,property crime) as opposed to more serious orviolent criminality. Both women and menjudges view crimes such as robbery and rapeas ranking high in seriousness and deservingof harsh punishment (Warr 1995), and whenthe crime is serious, a judge has less latitude indeciding whether the sentence will be servedin prison or how long it will be (Steffensmeier,Kramer & Streifel 1993).

Are There Gender-of-JudgeDifferences in the Effects of Judge’sBackground and CareerCharacteristics on Sentencing?

Judge’s background and career attributeshave similar effects on the sentencing practicesof both women and men judges. Judges whoare older and who were former prosecutorsare more severe in their sentencing decisions,whereas those who have been on the benchlonger are less severe. These gender-of-judge

similarities hold for both sentencing decisions,and they are consistent with our secondhypothesis, which predicts that the powerfulinfluences of selection and socialization to thejudicial role will tend to offset any pre-officeholding attitudes of the judges.

Our finding that time on the benchapparently does not harden judges andpredispose them to impose more severesentences is contrary to what some writershave speculated (Spohn 1990). We suggest thatjudges may become more independent orimmune from local political and citizenrypressures to sentence harshly. Note that inPennsylvania, as in most states, judges areelected initially by popular vote but, onceelected, face only a retention vote at ten-yearintervals. It also may be that the longer judgesserve, the more likely they are to perceive afutility in incarceration.

Are There Gender-of-JudgeDifferences in the Weighing ofSentencing Criteria?

The findings for whether women and menjudges use the same criteria and give the sameweight to characteristics of a case when arrivingat a decision are mixed. Case characteristicsgenerally have similar effects on the sentencingoutcomes of women and men judges. Forexample, prior criminal history and offenseseverity are the main determinants of thesentencing decisions of both women andmen judges, and women judges invoke a trialpenalty in a fashion similar to their malecounterparts. These findings are consistentwith our first hypothesis—that the distinct lifeexperiences of men and women judges andtheir differing beliefs about what is fair, if theyexist, are in most respects offset by the judicialrecruitment and socialization process.

But several noteworthy gender-of-judgedifferences also emerge. Our main findingis that the sentencing decisions of womenjudges are contextualized more by defendant


characteristics such as race, sex, and age andby defendant’s prior record. This greatercontextualization exists for both the incar-ceration and the length-of-term decisions.Specifically, we find that women and menjudges give approximately equal sentences towhite female defendants, whereas womenjudges sentence the other race-sex subgroups—black female defendants, white male def-endants, black male defendants—more harshlythan men judges do. We also find that womenjudges sentence young adult offenders moreharshly but that there are negligible gender-of-judge differences in the sentencing of olderoffenders. The most prominent finding,however, is that the overall race effect ofharsher sentencing of black defendants isenhanced among female judges when theysentence repeat offenders, whereas among malejudges the race effect is essentially unchanged.This pattern holds for both sentencingdecisions, for both female andmale defendants,and for younger as well as older defendants.

Stated another way, and keeping in mindthat women judges begin with somewhat higherlevels of severity in their sentencing decisions,case characteristics such as being an olderdefendant or a first-time offender (i.e., no priorcriminal record) mitigate the sentence severityamong female judges more than they do amongmale judges. Notably, prior record dispro-portionately increases the sentence severity offemale judges toward both white and blackdefendants, but the increase is even greaterwhen they sentence black defendants. Amongmen judges, case characteristics such as priorrecord and defendant attributes such as race,sex, and age all have main effects but maineffects only. For example, men judges sentenceyoung black defendants more harshly thanyoung white defendants, and this difference isuniform regardless of whether the defendant isa first-time or repeat offender. Also, amongmale judges, race-sex-age defendant subgroupsdistribute on a sentence-severity continuum thatis essentially rank-ordered: young black maledefendants and young white male defendants

receive the harshest sentences; older whitefemale defendants and older black femaledefendants receive the most lenient sentences;and falling in-between are the sentencesimposed on young white female defendants,young black female defendants, older whitemale defendants, and older black maledefendants. In sum, there is less variability, orgreater consistency, in the weighing ofsentencing criteria on the part of men judges.

These findings support our hypotheses(nos. 4 and 5) that women judges will be moreaffected by recidivism risk and will be moreparticularistic in their sentencing decisions thanmen judges. Indicators of future criminality andrisk to the community, such as prior recordand defendant’s age, apparently contextualizethe sentencing decisions of women judges morethan they do those of men judges. In a broadersense, moreover, our findings support priorresearch that suggests that women policymakersare somewhat more concerned with thesubstance of policy than with abstract preceptsand that their greater contextualization inpolicymaking reflects women’s greater concernfor preserving the relational webs of life, theirsensitivity to the variable needs of others, andtheir apprehension about the effects of decisionson neighborhoods or communities (Diamond1977; Welch 1994). That women judgesapparently are more influenced by indicators ofrisk to the community may also stem from theirstatus as “tokens” and their greater concernsabout prospective criticism of their sentencingdecisions (see below).

Gender, as is true of most backgroundvariables, is of course an imperfect indicatorof socialization experiences, attitudes andvalues, and risk assessments. However, we alsohave anecdotal evidence from an ongoing evalua-tion of sentencing practices in Pennsylvaniathat is consistent with our statistical findingsand theoretical interpretation. This evaluationincludes discussions with a number of femaleand male judges about sentencing practicesand observations of a number of sentencinghearings. Both male and female judges were

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swayed heavily by offense severity and priorcriminal history. Both seemed equally sensitiveto the plea bargaining process and to thedisadvantages for the courtroom work groupand the county of having too many trials.Other pragmatic considerations also were feltby these judges, but women judges seemedmore likely to express concerns about thesocial costs to children of sending women toprison, the possible harmful effects of sendingsome young offenders to prison (e.g., youngwhite males to largely black-populatedprisons), the extra burdens for prison staff ofincarcerating older offenders, and the ties ofthe offender to community or work. Womenjudges also seemed to be more focused onwhether the offender was a first-time or arepeat offender and whether she or he waslikely to engage in future offending. Consistentwith our statistical analysis, women judgesappeared to be less matter-of-fact and moreresponsive to defendants’ social histories andcurrent circumstances. In this sense, womenjudges did seem to slant a bit more toward aparticularistic style in their sentencingpractices. One female judge put it this way:

I hear a lotta men judges say, “Iwouldn’t want to go before a womanjudge, they’re tough!” I don’t necessarilythink we are but that we [i.e., womenjudges] consider the whole ball of wax.What did the defendant do, does hehave a criminal past, is he making aneffort to put his life in order? Is thererisk to the community if he’s put onprobation or should he be put awayfor awhile? Most men judges considerthese things, too, but they comeacross [to me] as more cut-and-dried. . . . Another thing, a womanjudge constantly has to look over hershoulders because she is “watched”a lot more—not so much by thecommunity but by the DA, the police,and other male judges.

We can only speculate on the meaning ofthe finding, largely unexpected, that femalejudges are exceptionally harsh toward repeatblack offenders. Perhaps women judges aremore affected by widespread views of blackoffenders, particularly black recidivists, asdangerous, streetwise, and crime-prone(Gibbs 1988; Lemelle 1994). Women judgesmay also be more influenced by whetherthe defendant is remorseful or exhibitsconventionality in social ties or currentcircumstances (e.g., marriage, employment).Some evidence suggests that repeat blackoffenders are less contrite than repeat whiteoffenders and that they also are less likely tohave conventional ties and legitimatesources of income (Daly 1994). It may alsobe that the overall harsher sentencing andthe harsher sentencing of repeat blackoffenders by female judges reflect the latter’stendency to behave like tokens who areparticularly sensitive to a judge’s accounta-bility for her or his sentencing decisionswithin the framework of local politics andcommunity norms, as the quote abovesuggests. That is, despite recent increases inthe number of women judges, they continueto be greatly outnumbered by men judges.Tokens in skewed groups are vulnerableto performance pressure (Kanter 1977).Because their “differentness” is highlyvisible, women judges as tokens may feel thatthey are always under scrutiny and mustperform well. Thus, they may put in extraeffort and take greater notice of constituents’criticisms about the consequences of theirsentencing decisions. They also may be moreconcerned about the impact of offenderrecidivism on the court’s standing in thecommunity.

Finally, our findings are clearly at oddswith a number of speculations about theeffects of judge’s gender on sentencing—thatwomen judges will be soft or timid assentencers but that they will be unusuallyharsh toward rapists and sexual assaultoffenders.

Theory on Gender,Decision Making, and Sentencing

We began this study by raising a question:Do women and men judges approach policy-making—that is, criminal sentencing—in gender-specific ways? The issue has relevance for theoryand research in law and criminology as well as inother prominent social science interests, includingwork and organizations and the recurrent inquiryinto whether the person or the organization or jobmost influences attitudes and behaviors; thequestion also addresses the current debate withinfeminism between minimalist and maximalistviews of gender differences.Themaximalist arguesthat fundamental differences between men andwomen purportedly lead them to take differentapproaches to a wide variety of issues andproblems, including how they make policydecisions. To the minimalist, on the otherhand, few demonstrable patterns of humanfunctioning are uniquely female or male. Thesources of what appear to be gender-specificpatterns of action are in the socioculturalsystem rather than in the actors.

We find many similarities yet somedifferences in the sentencing decisions of womenand men judges, indicating overall greatersupport for the minimalist and organizationalperspectives. There is considerable overlap in thesentences imposed and in theweighing of criteriafor determining sentence severity. For example,both women and men judges weigh priorcriminal history and offense severity heavilyin arriving at sentencing decisions, and womenjudges invoke a trial penalty in much the sameway as male judges do. In addition, judgecharacteristics such as time on the bench and agehave parallel effects on women and men judges.However, we also find some noteworthy gender-of-judge differences, including that womenjudges are somewhat more likely to incarceratedefendants and impose somewhat longer prisonsentences thanmen judges. In addition, althoughthe effects of the varied sentencing criteria arealways in the same direction for female and male

judges, the sentencing decisions of female judgesare more contextualized by defendant attributes(i.e., race, sex, age) and defendant’s prior record.Notably, women judges are particularly harshtoward repeat black offenders.

Future theoretical work and empiricalresearch might explore why women judges aresomewhat more punitive and somewhat moreparticularistic in their sentencing decisions.Observations and interviews with judges thatgo beyond our statistical results and theanecdotal evidence we were able to access areneeded to examine more directly the “gestalt”of their sentencing decisions and whether thatgestalt differs among women as compared tomen judges. Do women and men judges, forexample, differ in their conceptions of thejudicial role or in their personal theoriesof punishment, and, if so, how do suchdifferences impact their sentencing practices?Are women judges more conscientious in theirsentencing decisions and thus more carefulabout taking into account factors such as riskto the community and the mental or physicalcondition of the defendant?

Epstein (1988) suggests that the quest toidentify gender differences may focus too muchon differences rather than similarities and thussometimes impair our ability to understand socialphenomena. We find that in many respectswomen and men judges have similar sentencingpractices, which suggests that both are governedmore by their legal training and legal socializa-tion thanby their socially structuredpersonal exp-eriences. The job, not so much the individual,apparently makes the “man” or the “woman”judge. However, we also find important genderdifferences in sentence severity and in the effectsof defendant characteristics and prior record onjudicial decision making (i.e., greater contex-tualization amongwomen judges), suggesting thatthe life experiences of women judges differfrom those of men judges and will influencetheir organizational decision making. Ratherthan supporting or contradicting the opposingapproaches (i.e., individual and maximalist

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vs. organizational andminimalist), an importantimplication of our findings for theory andresearch is that a coherent picture of “gendered”realitymust recognize both gender differences andgender similarities.

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1. Steffensmeier and Hebert discussed two opposing views of decision making by male and femalejudges—the minimalist/organizational and the maximalist/ individual. According to these perspectives,will the sentencing decisions of male and female judges be the same or different?

2. The authors used data from Pennsylvania to test a series of hypotheses about the effect of the judge’s sexon sentencing decisions (see following list). Explain the rationale for each of these hypotheses.a. The sentencing practices of women and men judges are more noteworthy for their similarities than

their differences (null hypothesis).b. Background and career characteristics will have similar effects on the sentencing practices of men

and women judges.c. Women judges will be more severe in their sentencing decisions than men judges.d. Prior record will affect the sentencing decisions of women judges more than it will those of men judges.e. Defendants’ age, race, and sex will affect the sentencing decisions of women judges more so than

those of men judges; women will imposed harsher sentences on young Black male offenders than onother types of offenders.

f. The effects of the gender of the judge will be more manifest in the sentencing of property offendersthan in the sentencing of violent or sexual assault offenders.

3. Were the authors’ hypotheses confirmed or refuted?

4. After reading this article, how would you characterize the sentencing decisions of male and female judges?

R E A D I N G

Although research generally reveals that the competence of judges does not vary dramaticallydepending on theirmethod of selection, concerns have been raised about judicial impartialityin capital cases. Stephen Bright and Patrick Keenan argue that elected judges are influencedby politics in cases involving the death penalty.According to these authors, elected judges face“overwhelming pressure . . . to heed, and perhaps even to lead, the popular cries for the deathof criminal defendants” (see also Wold & Culver, 1987). These authors discuss a number ofproblems inherent in electing judges who adjudicate capital cases. They also present severalpossible solutions to these problems.


Review of Sociology. Vol. 12, edited by Ralp Turnerand James Short Short Jr. Annual Reviews.

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�

Judges and the Politics of Death

Deciding Between the Bill of Rights andthe Next Election in Capital Cases

Stephen B. Bright and Patrick J. Keenan

The “higher authority” to whom present-day capital judges may be “too responsive” is apolitical climate in which judges who covet higher office—or who merely wish to remainjudges—must constantly profess their fealty to the death penalty. . . . The danger thatthey will bend to political pressures when pronouncing sentence in highly publicizedcapital cases is the same danger confronted by judges beholden to King George III.

—Justice John Paul Stevens,dissenting in Harris v. Alabama1

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The thunderous voice of the present-day“higher authority” that Justice Stevensdescribed is heard today with unmistakableclarity in the courts throughout the UnitedStates. Those judges who do not listen andbend to political pressures may lose their posi-tions on the bench.

Decisions in capital cases have increasinglybecome campaign fodder in both judicialand nonjudicial elections. The focus in thesecampaigns has been almost entirely on thegruesome facts of particular murders, not thereason for the judicial decisions. Judges havecome under attack and have been removedfrom the bench for their decisions in capitalcases—with perhaps the most notable examplesin states with some of the largest death rows andwhere the death penalty has been a dominantpolitical issue. Recent challenges to state courtjudges in both direct and retention electionshave made it clear that unpopular decisions incapital cases, even when clearly compelled bylaw, may cost a judge her seat on the bench, orpromotion to a higher court. This raises seriousquestions about the independence and integrityof the judiciary and the ability of judges to

enforce the Bill of Rights and otherwise be fairand impartial in capital cases.

California has the largest death row of anystate in the nation. In 1986, Governor GeorgeDeukmejian publicly warned two justices ofthe state’s supreme court that he would opposethem in their retention elections unless theyvoted to uphold more death sentences. Hehad already announced his opposition to ChiefJustice Rose Bird because of her votes in capitalcases. Apparently unsatisfied with the sub-sequent votes of the other two justices, thegovernor carried out his threat. He opposedthe retention of all three justices and all losttheir seats after a campaign dominated by thedeath penalty. Deukmejian appointed theirreplacements in 1987.

The removal and replacement of the threejustices has affected every capital case the courthas subsequently reviewed, resulting in adramatic change. In the last five years, theCourt has affirmed nearly 97% of the capitalcases it has reviewed, one of the highest rates inthe nation.2 A law professor who watches thecourt observed, “One thing it shows is thatwhen the voters speak loudly enough, even the

SOURCE: “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” by StephenB. Bright and Patrick J. Keenan in Boston University Law Review, vol. 75, pp. 759–835, 1995. Reprinted by permission of the author.

Section III � Judges and the Politics of Death 251

judiciary listens.”3 The once highly regardedcourt now distinguishes itself primarily by itsreadiness to find trial court error harmless incapital cases. The new court has “reversed everypremise underlying the Bird Court’s harmlesserror analysis,” displaying an eagerness thatreflects “jurisprudential theory” less than a“desire to carry out the death penalty.”4

The voice of “higher authority” has alsobeen heard and felt in Texas, which has thenation’s second largest death row. After adecision by the state’s highest criminal court,the Court of Criminal Appeals, reversing theconviction in a particularly notorious capitalcase, a former chairman of the state RepublicanParty called for Republicans to take overthe court in the 1994 election. The votersresponded to the call. Republicans won everyposition they sought on the court.

One of the Republicans elected to the courtwas Stephen W. Mansfield, who had been amember of the Texas bar only two years, butcampaigned for the court on promises ofthe death penalty for killers, greater use ofharmless-error doctrine, and sanctions forattorneys who file “frivolous appeals especiallyin death penalty cases.” Even before the electionit came to light thatMansfield hadmisrepresentedhis prior background, experience, and record,that he had been fined for practicing lawwithout a license in Florida, and that—contrary to his assertions that he had exp-erience in criminal cases and had “writtenextensively on criminal and civil justiceissues”—he had virtually no experience incriminal law and his writing in the area ofcriminal law consisted of a guest column in alocal newspaper criticizing the same decisionthat prompted the former Republican chair-man to call for a takeover of the court.Nevertheless, Mansfield defeated the incum-bent judge, a conservative former prosecutorwho had served twelve years on the court andwas supported by both sides of the criminalbar. Mansfield was sworn in to serve for a six-year term in January 1995. Among his

responsibilities will be the review of everycapital case coming before the court on directappeal and in postconviction review.

The single county inAmerica responsible forthemost death sentences and executions is HarrisCounty, Texas, which includes Houston. JudgeNorman E. Lanford, a Republican, was voted offthe state district court in Houston in 1992 afterhe recommended in postconviction proceedingsthat a death sentence be set aside due toprosecutorial misconduct, and directed anacquittal in another murder case due toconstitutional violations. A prosecutor whospecialized in death cases, Caprice Cosper,defeated Judge Lanford in the Republicanprimary. Lanford accusedDistrict Attorney JohnB. Holmes of causing congestion of Lanford’sdocket to help bring about his defeat. In theNovember election, Cosper was elected after acampaign in which radio advertisements on herbehalf attacked her Democratic opponent forhaving once opposed the death penalty.

Judges in other states have had similarcampaigns waged against them. Justice JamesRobertson was voted off the MississippiSupreme Court in 1992. His opponent in theDemocratic primary ran as a “law and ordercandidate” with the support of the MississippiProsecutors Association. Among the decisionsfor which Robertson’s opponent attacked himwas a concurring opinion expressing the viewthat the Constitution did not permit the deathpenalty for rape where there was no loss of life.Robertson’s opponent exploited the opinioneven though the U.S. Supreme Court had heldten years earlier that the Eighth Amendmentdid not permit the death penalty in suchcases.5 Opponents also attacked Robertson forhis dissenting opinions in two cases that theU.S. Supreme Court later reversed.

The voice of “higher authority” can also beheard in less direct, but equally compelling ways.As Justice Stevens observed in his dissent inHarris v Alabama, some members of the UnitedStates Senate have “made the death penalty alitmus test in judicial confirmation hearings for

nominees to the federal bench.”6 Severalchallengers for Senate seats in the 1994 elections“routinely savaged their incumbent opponentsfor supporting federal judicial nomineesperceived to be ‘soft’ on capital punishment.”

It is becoming increasingly apparent thatthese political pressures have a significantimpact on the fairness and integrity of capitaltrials. When presiding over a highly publicizedcapital case, a judge who declines to handdown a sentence of death, or who insists onupholding the Bill of Rights, may thereby signhis own political death warrant. In suchcircumstances, state court judges who desire toremain in office are no more able to protect therights of an accused in a criminal case thanelected judges have been to protect the civilrights of racial minorities against majoritysentiment. In the three states that permitelected judges to override jury sentences incapital cases, judges override jury sentences oflife imprisonment and impose death far moreoften than they override death sentences andimpose life imprisonment. Judges have alsofailed to enforce constitutional guarantees offairness. It has been observed that “[t]he moresusceptible judges are to political challenge, theless likely they are to reverse a death penaltyjudgment.”7 Affirmance rates over a ten-yearperiod suggest that “[n]ationally there is a closecorrelation between the method of selectionof a state supreme court and that court’saffirmance rate in death penalty appeals.”8 Evengreater pressure exists at the local level. Electedtrial judges are under considerable pressure notto suppress evidence, grant a change of venue,or protect other constitutional rights of theaccused. An indigent defendant may face thedeath penalty at trial without one of the mostfundamental protections of the Constitution,a competent lawyer, because judges frequentlyappoint inexperienced, uncaring, incompetent,or inadequately compensated attorneys.9 Statetrial court judges in many states routinelydispose of complex legal and factual issuesin capital postconviction proceedings by adopting

“orders” ghostwritten by state attorneysgeneral—orders that make no pretense of fairlyresolving the issues before the court.

This Article examines the influence of thepolitics of crime on judicial behavior in capitalcases. A fair and impartial judge is essential in anyproceeding, but perhaps nowheremore so than incapital cases, where race, poverty, inadequatecourt-appointed counsel, and popular passionscan influence the extermination of a human life.The legal system indulges the presumption thatjudges are impartial. The Supreme Court hassteadily reduced the availability of habeas corpusreview of capital convictions, placing itsconfidence in the notion that state judges, whotake the same oath as federal judges to uphold theConstitution, can be trusted to enforce it. Thisconfidence, however, is frequently misplaced,given the overwhelming pressure on elected statejudges to heed, and perhaps even to lead, thepopular cries for the death of criminal defendants.

Part I of this Article briefly summarizesthe increasing use of the crime issue in localand national politics and the extraordinaryprominence of the death penalty as a litmustest for politicians, including politicianswho serve as judges, purporting to be “tough”on crime. Part II examines the politics ofbecoming and remaining a judge in such aclimate. Part III assesses the effect of thispolitical climate on a judge’s ability to presideimpartially over highly publicized capitalcases. Part IV proposes some modest steps thatmight limit the influence of politics and thepassions of the moment on judicial behavior.

y I. Crime in Politics andthe Death Penalty in thePolitics of Crime

During the Cold War, many politicians,seeking to avoid more controversial anddifficult issues, professed their opposition toCommunism. Because almost everyone aspiring

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to public office was against Communism,politicians sought in various ways—such assupport for loyalty oaths and investigationof unamerican activities—to demonstratejust how strongly they were opposed toCommunism. Those who questioned thewisdom of such measures were accused ofnot being sufficiently strident—“soft” onCommunism.

Since the collapse of the Soviet Union andother Soviet-bloc governments, crime hasemerged as an issue that appears equally one-sided. No one is in favor of violent crime.Politicians demonstrate their toughness bysupporting the death penalty, longer prisonsentences, and measures to make prison lifeeven harsher than it is already. Those whoquestion the wisdom, cost, and effectiveness ofsuch measures are branded “soft on crime.”Whether sound public policy emerges fromsuch a discussion of crime is a question to beaddressed elsewhere. The emergence of crimeas a dominant political issue is, however, notonly having an impact on the behavior ofpoliticians seeking positions in the legislativeand executive branches of government, but alsoon the behavior of judges who are sworn touphold the Constitution, a document thatprotects the rights of those accused of even themost serious crimes.

Even before the end of the Cold War,Richard Nixon demonstrated the potency of thecrime issue by promising, in campaign speechesand in his acceptance of the Republican nom-ination for President in 1968, to replaceDemocrat Ramsey Clark as Attorney General.Clark’s defense of civil liberties and proceduralsafeguards had led some, including Nixon, todenounce him as “soft on crime.” In 1988, LeeAtwater urged Republicans to concentrateon the crime issue because “[a]lmost everycandidate running out there as a Democrat isopposed to the death penalty.”10 George Bushwas elected President that year with the help ofadvertisements criticizing his opponent forallowing the furlough of Willie Horton, who

committed a rape in Maryland while on aweekend furlough from aMassachusetts prison.

As crime has become a more prominentissue in political campaigns, the death penaltyhas become the ultimate vehicle for politiciansto demonstrate just how tough they are oncrime. During California’s 1990 gubernatorialprimary, an aide to one Democratic candidateobserved wistfully that the carrying out of anexecution would be a “coup” for her opponent,the state attorney general. Candidates forgovernor of Texas in 1990 argued about whichof them was responsible for the mostexecutions and who could do the best job inexecuting more people. One candidate rantelevision advertisements in which he walkedin front of photographs of the men executedduring his tenure as governor and boastedthat he had “made sure they received theultimate penalty: death.” Another candidateran advertisements taking credit for thirty-twoexecutions.11 In Florida, the incumbent guber-natorial candidate ran television advertise-ments in 1990 showing the face of serial killerTed Bundy, who was executed during histenure as governor. The governor stated that hehad signed over ninety death warrants in hisfour years in office.

Presidential candidate Bill Clintondemonstrated that he was tough on crime in his1992 campaign by scheduling the execution ofa brain-damaged man shortly before the NewHampshire primary. Clinton had embraced thedeath penalty in 1982 after his defeat in a bidfor reelection as governor of Arkansas in 1980.In his presidential campaign ten years later,Clinton returned from New Hampshire topreside over the execution of Rickey RayRector, an African-American who had beensentenced to death by an all-white jury. Rectorhad destroyed part of his brain when he turnedhis gun on himself after killing the policeofficer for whose murder he received the deathsentence. Logs at the prison show that in thedays leading up to his execution, Rector washowling and barking like a dog, dancing,

singing, laughing inappropriately, and sayingthat he was going to vote for Clinton. Clintondenied clemency and allowed the execution toproceed, thereby protecting himself from beinglabeled as “soft on crime” and helping theDemocrats to take back the crime issue.Clinton’s first three television advertisementsin his bid for reelection—already begun a yearand a half before the 1996 presidentialelection—all focused on crime and Clinton’ssupport for proposals to expand the death penalty.

By 1994, crime had so eclipsed otherissues that an official of the NationalGovernor’s Association commented that the“top three issues in gubernatorial campaignsthis year are crime, crime, and crime.”12

Stark images of violence, flashing policelights, and shackled prisoners dominatedthe campaign, and candidates went toconsiderable lengths to emphasize theirenthusiasm for the death penalty and attacktheir opponents for any perceived hesitancyto carry out executions swiftly. Even afterTexas carried out forty-five executions duringDemocrat Ann Richards’s four years asgovernor, George W. Bush attacked GovernorRichards during his successful 1994campaign against her, complaining thatTexas should execute even more people, evenmore quickly. Bush’s younger brother Jebran a television advertisement in his 1994campaign for governor of Florida in whichthe mother of a murder victim blamedincumbent Governor Lawton Chiles forallowing the convicted killer to remain ondeath row for thirteen years. Jeb Bush knew,and acknowledged when asked, that therewas nothing Chiles could have done to speedup the execution because the case was pen-ding in federal court. Jeb Bush also arguedthat Florida’s eight executions since Chiles’selection in 1990 were not enough.

In her quest to win the 1994 Californiagubernatorial race, Kathleen Brown foundthat her personal opposition to the deathpenalty was widely viewed as a major liability

even though she promised to carry outexecutions as governor. She had to defendherself against Governor PeteWilson’s chargesthat, because of her personal moral convic-tions, she would appoint judges like Rose Bird.Governor Wilson, whose approval ratings hadbeen “abysmal,” recovered by following theadvice of the old master, Richard Nixon, whotold him to hit his opponent hard on crime.Candidate Brown responded to the charges byproducing an advertisement proclaiming herwillingness to enforce the death penalty.Nevertheless, she lost to Wilson. Both IllinoisGovernor Jim Edgar and Iowa Governor TerryE. Branstad similarly attacked their oppon-ents’ personal opposition to the death penalty.Both were reelected. New York GovernorMario Cuomo faced heated attacks for hisvetoes of death-penalty legislation duringtwelve years in office and his refusal to return aNew York prisoner to Oklahoma for execution.Cuomo defended himself by proposing areferendum on the death penalty, but still losthis office to a candidate who promised toreinstate capital punishment and to send theprisoner back to Oklahoma for execution.

As the public debate on crime and itssolutions has become increasingly one-sidedand vacuous, the death penalty has become theultimate litmus test for demonstrating thatone is not “soft on crime.” The impact of thisdevelopment has been felt not only in theexecutive and legislative branches of govern-ment, where popular sentiment is expected toplay a major role in the development of policy,but also in the judiciary, where judges areexpected to follow the law, not the electionreturns.

y II. The Politics of Becomingand Staying a Judge

Judges in most states that have capital punish-ment are subject to election or retention.Although all judges take oaths to uphold the

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Constitution, including its provisions gua-ranteeing certain protections for persons accusedof crimes, judges who must stand for election orretention depend on the continued approval ofthe voters for their jobs and concomitant salariesand retirement benefits. A common route to thebench is through a prosecutor’s office, wheretrying high-profile capital cases can result inpublicity and name recognition for a prosecutorwith judicial ambitions. A judge who has usedcapital cases to advance to the bench finds thatpresiding over capital cases results in continuedpublic attention. Regardless of how one becomesa judge, rulings in capital cases may significantlyaffect whether a judge remains in office ormovesto a higher court.

A. Judges Face Electionin Most States ThatEmploy the Death Penalty

Almost all judicial selection systems fallinto one of four categories. First, judges ineleven states and the District of Columbiaare never subjected to election at any time intheir judicial careers. Second, the judges ofthree states are elected by vote of the statelegislature. Third, the judges of twenty-ninestates are subjected to contested elections,either partisan or nonpartisan, at some pointin their careers, whether during initial sele-ction for the bench or after appointment bythe governor. The fourth category of judicialselection systems includes those systems inwhich the judge or justice is at some timesubjected to a retention election but neverfaces an opponent. Thirteen states employsuch a system.

There are currently thirty-eight states thathave capital punishment statutes. Thirty-twostates both elect their judges and sentencepeople to death.

In nine states—including Alabama andTexas—judges run under party affiliations.The success of the party in national or stateelections may have a significant impact on the

judiciary. For example, Texas Republicansswept into state judicial offices as part of theparty’s general success in the 1994 elections.Republicans won every elected position theysought on the Texas Court of Criminal Appealsand the Texas Supreme Court. Republicanstraight-ticket voting contributed to thedefeat of nineteen Democratic judges and aRepublican sweep of all but one of the forty-two contested races for countywide judge-ships in Harris County, Texas, which includesHouston. Such straight-ticket voting, whichcomprised one-quarter of all votes cast inHarris County, also resulted in the removal ofthe only three black judges and left only oneHispanic on the bench.

The lack of racial diversity now found inHouston is consistent with the exclusion ofminorities from the bench throughout thecountry. One reason for the lack of minorityjudges is that in many states—particularly thosein the “death belt” states such as Florida andTexas—judges have long been elected fromjudicial districts in which the voting strength ofracial minorities is diluted.

B. Prosecuting Capital Cases as aStepping Stone to the Bench

One of the most frequently traveled routesto the state trial bench is through prosecutors’offices. A capital case provides a prosecutorwith a particularly rich opportunity for mediaexposure and name recognition that can laterbe helpful in a judicial campaign. Calling apress conference to announce that the policehave captured a suspect and the prosecutorwill seek the death penalty provides an opp-ortunity for a prosecutor to obtain newscoverage and ride popular sentiments thatalmost any politician would welcome. Theprosecutor can then sustain prominent mediacoverage by announcing various developmentsin the case as they occur. A capital trialprovides one of the greatest opportunities forsustained coverage on the nightly newscasts

and in the newspapers. A noncapital trial orresolution with a guilty plea does not producesuch coverage.

The relationship between prosecutingcapital cases and moving to the bench isevident in Georgia’s Chattahoochee JudicialCircuit, which sends more people to death rowthan any other judicial circuit in the state. Twoof the four superior court judges in the circuitobtained their seats on the bench after tryinghigh-profile capital cases. Mullins Whisnant,who now serves as chief superior court judgein the circuit, became a judge in 1978 afterserving as the elected district attorney. Hepersonally tried many of the ten capital casesthe office prosecuted in 1976 and 1977, fiveof which involved African-Americans triedbefore all-white juries for homicides of whitevictims. His last capital trial as prosecutorinvolved a highly publicized rape, robbery,kidnapping, and murder of a white MethodistChurch organist by an African-American. Theextensive news coverage of the case includedelectronic and photographic coverage of thetrial. Whisnant made a highly emotional pleato jurors to join a “war on crime” and “send amessage”by sentencing the defendant to death.

Once Whisnant became a judge, his chiefassistant, William Smith, took over as thedistrict attorney. Smith personally tried manyof the fourteen capital cases that took placeduring his tenure before he joined his formerboss on the bench in 1988. One of those casesinvolved the highly publicized trial of anAfrican-American accused of being the “SilkStocking Strangler” responsible for themurders of several elderly white women in thecommunity.

And benefits other than publicity came toSmith’s eventual campaign for judge as a resultof his use of the death penalty as a districtattorney. In a case involving the murder of thedaughter of a local contractor, Smith contactedthe victim’s father and asked him if he wantedthe death penalty. When he replied in theaffirmative, Smith said that was all he neededto know, and subsequently obtained the death

penalty at trial. The victim’s father rewardedSmith with a contribution of $5000 duringSmith’s successful run for judge in the nextelection. The contribution was the largestSmith received. Smith’s chief assistantsucceeded him as district attorney and, afterprosecuting eight capital cases, has announcedan interest in the next opening on the SuperiorCourt bench. So close is the relationshipbetween the judiciary and the prosecutor’soffice in the circuit that the prosecutor’s officehas made the assignments of criminal cases tojudges for the last six years, assigning the moreserious drug and homicide cases to formerprosecutors Whisnant and Smith.

These prosecutors in the ChattahoocheeJudicial Circuit have demonstrated that capitalcases produce good publicity even when a guiltyverdict is reversed for prosecutorial misconduct.After the United States Court of Appeals setaside a death sentence because of a lynch-mob-type appeal for the death penalty by then-District Attorney Smith, which the court chara-cterized as a “dramatic appeal to gut emotion”that “has no place in a courtroom,”13 Smithcalled a press conference, insisted he had donenothing wrong, and announced that he wouldseek the death penalty again in the case.When afederal court set aside a second death sentencedue to similar misconduct, Smith called anotherpress conference and expressed his “anger” atthe decision, accused the reviewing court of“sensationalism” and “emotionalism,” suggestedthat the “judges of this court have personalfeelings against the death penalty,” and vowed toseek the death penalty again.14

Attempts to exploit capital cases for poli-tical purposes may backfire, however,particularly if the prosecution is not ultimatelysuccessful in obtaining the death penalty. Forexample, a verdict of voluntary manslaughterinstead of first degree murder transformed thecase of Bruce R. Morris in St. Charles County,Missouri, from one in which a defendant’s lifewas at stake to one in which a political careerwas at stake. “[C]ourthouse observers, includ-ing [the prosecutor’s] former employees”

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criticized the prosecutor, who was a candidatefor circuit court judge, and stated that the trialwas the prosecutor’s first jury trial in memory.They also accused him of taking the case totrial just because he was running for judge.

Prosecutors may be criticized for failureto seek the death penalty, even when the lawdoes not permit it. For example, a Californiaprosecutor criticized a Colorado prosecutorfor not seeking the death penalty against adefendant who had committed crimes in bothstates even though the Colorado prosecutorexplained that there were no statutory aggra-vating circumstances that would permit him toseek the death penalty.

Although it may be unethical and improperfor prosecutors to campaign on promises toseek the death penalty or on their success inobtaining it, there is no effective remedy toprevent the practice. Moreover, capital casesproduce so much publicity and name recog-nition that explicit promises to seek death arehardly necessary. As a result, prosecuting capitalcases remains a way of obtaining a judgeship.Aswill be discussed later, some persons who reachthe bench in this manner have difficultyrelinquishing the prosecutorial role. But evenwhen a prosecutor is not seeking a judicial post,or is unsuccessful in obtaining one, the politicaluse of the death penalty in the discharge ofprosecutorial responsibilities may spill over intoelections for judicial office and influence theexercise of judicial discretion. The politicalconsequences of decisions by both prosecutorand judge become apparent for all to see.

C. The Death Penalty’s Prominencein the Election, Retention, andPromotion of Judges

With campaigning for the death penaltyand against judges who overturn capital cases aneffective tactic in the quest for other offices, itis not surprising that the death penalty hasbecome increasingly prominent in contestedand retention elections for judges. Not only thejudge, but her political supporters as well, may

suffer the consequences of an unpopular rulingin a capital case.

In the 1994 primary election for the TexasCourt of Criminal Appeals, the incumbentpresiding judge accused another member ofthe court of voting to grant relief for convicteddefendants more often than other judges.Although a Republican candidate for thesecond seat on the court lamented what hecalled the “lynch mentality” of the campaign,two other candidates for the Republicannomination, both former prosecutors, indicatedtheir willingness to treat defendants severely.One stated that the role of the court is toensure justice, not to reverse convictionbecause of “technicalities” or “honest mistakes,”while the other called the Court of CriminalAppeals a “citadel of technicality” thatneglected the interests of crime victims andcitizens at large. Two candidates for the thirdposition on the court criticized the incumbentfor granting a new trial to a man convicted ofhomicide. One challenger promised to bringa “common sense” approach to such cases.

A judge’s votes in capital cases can threatenhis or her elevation to a higher court. Nomatter how well qualified a judge may be,perceived “softness” on crime or on the deathpenalty may have consequences not only forthe judge, but also for those who wouldnominate or vote to confirm the judge foranother court. For example, in 1992 groupscampaigned against the retention of FloridaChief Justice Rosemary Barkett for the FloridaSupreme Court because of her votes in capitalcases. Then in 1994 Barkett’s nomination tothe U.S. Court of Appeals for the EleventhCircuit came under fire because of her recordon capital punishment during nine years onthe Florida Supreme Court. After a long delay,the Senate finally confirmed Barkett by a voteof sixty-one to thirty-seven.

Despite Barkett’s confirmation to theEleventh Circuit, campaigns against her andother judges tagged as “soft on crime” con-tinued. Bill Frist, in his successful campaign tounseat Tennessee Senator Jim Sasser, attacked

Sasser for voting for Barkett and for havingrecommended the nomination of a federaldistrict judge who, two months before theelection, granted habeas corpus relief to adeath-sentenced man. Frist appeared at a newsconference with the sister of the victim in thecase in which habeas relief had been granted.After the victim’s sister criticized Sasser forrecommending U.S. District Judge John Nixonfor the federal bench, Frist said that Sasser’s voteto confirm Judge Barkett showed that he “stillhasn’t learned his lesson.”

Although pro-death-penalty campaigns arenot always successful in defeating judges, eventhe threat of such a campaign may intimidatea judge. Challenges also make retaining ajudgeship more expensive than it wouldotherwise be, thereby forcing a candidate toraise more money and contributing to theperception that those who contribute to judicialcampaigns can get more justice than others.One of the saddest and most recent examples isthe bitter campaign waged for chief justiceof Alabama’s supreme court in 1994. Thechallenger accused the incumbent of shakingdown attorneys who had cases before the courtfor contributions, while the incumbent ranadvertisements in which the father of a murdervictim accused the challenger of being anaccomplice to the murder.

Whether the “hydraulic pressure” of publicopinion that Justice Holmes once describedand the political incentives accompanying it areappropriate considerations for publicly electedprosecutors is doubtful, but clearly suchconsiderations have no place in the exercise ofthe judicial function. Yet in jurisdictions wherejudges stand for election—often with theprosecution in a position tantamount to thatof a running mate—judges are subject to thesame pressures. As a result of the increasingprominence of the death penalty in judicialelections as well as other campaigns for publicoffice, judges are well aware of the conse-quences to their careers of unpopular decisionsin capital cases.

y III. The Impact on theImpartiality of Judges

The political liability facing judges who enforcethe Bill of Rights in capital cases underminesthe independence, integrity, and impartiality ofthe state judiciary. Judicial candidates whopromise to base their rulings on “commonsense,” unencumbered by technicalities, essen-tially promise to ignore constitutional limits onthe process by which society may extinguish thelife of one of its members. Justice Byron Whiteonce observed, “If [for example,] a judge’sruling for the defendant . . . may determine hisfate at the next election, even though his rulingwas affirmed and is unquestionably right,constitutional protections would be subject toserious erosion.” Justice William Brennan notedthat the risk of a biased judge is “particularlyacute” in capital cases:

Passions, as we all know, can run toextremewhen the State tries one accusedof a barbaric act against society, or oneaccused of a crime that—for what-ever reason—inflames the community.Pressures on the government to securea conviction, to “do something,” canoverwhelm even those of good con-science. When prosecutors and judgesare elected, or when they harbor politicalambitions, such pressures areparticularly dangerous.15

Rulings in a publicized case can have majorpolitical effects, such as loss of one’s position orany hope of promotion, and judges are awareof this as they make controversial decisions,particularly in capital cases.

The American Bar Association’s Commi-ssion on Professionalism found that “judgesare far less likely to . . . take . . . tough action ifthey must run for reelection or retention everyfew years.”16 In no other area of American laware so many tough decisions presented as in acapital case. And no other cases demonstrate

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so clearly the validity of the ABA Com-mission’s finding.

A judge who faces election is more likelyto sentence a defendant to death than a jurythat heard the same evidence. In some inst-ances, political considerations make itvirtually impossible for judges to enforce theconstitutional protections to a fair trial forthe accused, such as granting a change ofvenue or continuance, or suppressing evidence.Judges have failed miserably to enforce themost fundamental right of all, the SixthAmendment right to counsel, in capital cases.And many judges routinely abdicate theirjudicial responsibility and allow the lawyersfor the state to write their orders resolvingdisputed factual and legal issues in capitalcases.

A. Overrides of Jury Sentences

Four states—Alabama, Florida, Indiana,and Delaware—permit a judge to overridea jury’s sentence of life imprisonment andimpose the death penalty. Alabama judges,who face partisan elections every six years,have overridden jury sentences of life withoutparole and imposed the death penalty forty-seven times, but have vetoed only five juryrecommendations of death. Between 1972and early 1992, Florida trial judges, who facecontested elections every six years, imposeddeath sentences over 134 jury recommendationsof life imprisonment, but overrode only fifty-one death recommendations. Between 1980and early 1994, Indiana judges, who faceretention elections every six years, imposeddeath sentences over eight jury recommen-dations of life imprisonment, but overrodeonly four death recommendations to imposesentences of life imprisonment. Delaware didnot adopt the override until 1991, and thatstate’s judges do not stand for election; the firstseven times judges used it, they overrode juryrecommendations of death and imposed lifesentences.

Indeed, the sentencing decisions of somejudges are a foregone conclusion. Membersof the U.S. Supreme Court have noticedthe tendency of Jacksonville, Florida judgeHudson Olliff to override jury sentences oflife imprisonment and impose death. Anoverride could also be anticipated from anotherFlorida circuit judge,William Lamar Rose, whoprotested the U.S. Supreme Court’s decision in1972 finding the death penalty unconstitutionalby slinging a noose over a tree limb on thecourthouse lawn. In Alabama, three judgesaccount for fifteen of the forty-seven instancesin which jury sentences of life imprisonmentwere overridden and death imposed.

B. Failure to Protect theConstitutional Rights of the Accused

The Bill of Rights guarantees an accusedcertain procedural safeguards, regardless ofwhether those safeguards are supported bypopular sentiment at the time of the trial, inorder to protect the accused from the passionsof the moment. But nothing protects anelected judge who enforces the Constitutionfrom an angry constituency that is concernedonly about the end result of a ruling and mayhave little understanding of what the lawrequires. Judges who must keep one eye onthe next election often cannot resist thetemptation to wink at the Constitution.

As previously discussed, some judges havescheduled capital cases for before an election orhave refused to continue a case until after anelection in order to gain the publicity and otherpolitical benefits that accompany presiding oversuch a trial. In these situations, the judge isunder immense pressure to make rulings thatfavor the prosecution because an unpopulardecision will quickly turn the anticipatedbenefits of association with the case into amajor liability that could result in defeat in theelection.

But even in less politically chargedcircumstances, judges face conflicts between

personal political considerations and their dutyto enforce the law in making decisions ona wide range of issues. For example, amongthe many decisions by trial judges to whichreviewing courts defer are determinationsunder Batson v. Kentucky17 of whether theuse of peremptory jury strikes was raciallymotivated. As previously discussed, manyjudges are former prosecutors. Before goingto the bench, a judge may have hiredthe prosecutor appearing before him as anassistant. Even if the judge is not personallyclose to the prosecutor, she may be dependentupon the prosecutor’s support in the nextelection to remain in office. Therefore, it maybe personally difficult or politically impossiblefor a judge to reject a prosecutor’s profferedreason for striking a minority juror.

Judges may find it difficult to make otherdecisions required by law and remain popularwith the voters. The Mississippi SupremeCourt has acknowledged that the discretion togrant a change of venue places a burden on thetrial judge because “the judge serves at the willof the citizenry of the district . . . [and] mightbe perceived as implying that a fair trial cannotbe had among his or her constituents andneighbors.”18

Even when a judge grants a change ofvenue, the objective may not be to protect theright of the accused to a fair trial. The clerk ofa circuit court in Florida revealed several yearsafter the death sentence was entered againstRaleigh Porter that the presiding judge, RichardM. Stanley, had told the clerk that he waschanging the venue to another county that had“good, fair minded people here who wouldlisten and consider the evidence and thenconvict the son-of-a-bitch. Then, Judge Stanleysaid he would send Porter to the chair.” Thejury returned the expected verdict and JudgeStanley, wearing brass knuckles and a gun atthe sentencing hearing, sentenced Porter todeath.

In Coleman v. Kemp,19 a Georgia trial judgedenied a change of venue from a small ruralcommunity inundated with media coverage of

six murders committed by Maryland prisonescapees. The media coverage included stronganti-defendant sentiments, such as those of thelocal sheriff who publicly expressed his desire to“pre-cook [the defendants] several days, justkeep them alive and let them punish,” and of aneditorial writer who compared the defendantsto rattlesnakes and rabid dogs. A local citizenwho served as a juror in one of the cases testifiedthat news of the murders spread in the smallcommunity “like fire in a broom sage,” that“everybody was so excited and upset over it,”and that the sentiment of “everybody” prior totrial was “fry ’em, electrocute ’em.” The electedtrial judge, faced with a choice between hiscommunity’s urge for a quick and violentresponse to the crime and the defendants’constitutional rights, refused to grant a changeof venue. The local jury convicted thedefendants and the elected Georgia SupremeCourt upheld the convictions.

The difficult job of setting aside theconvictions obtained at three trials that lackedany semblance of fairness was left to the judgesserving life tenure on the United States Courtof Appeals for the Eleventh Circuit. Thepolitical consequences of protecting the rightsof the accused became even more apparentafter the grant of habeas corpus relief. Citizensthroughout Georgia presented petitions con-taining over 100,000 signatures to U.S. Houseof Representatives Judiciary Committee’sSubcommittee on Courts, urging it to impeachthe three members of the Court of Appealspanel who voted unanimously for the newtrials.

The price paid for an elected judiciary inAlabama, California, Georgia, Texas, and otherstates has been the corruption of the judgesand the courts of those states. Once a judgemakes a decision influenced by politicalconsiderations, in violation of the oath he orshe has taken to uphold the law, both thejudge and the judicial system are diminished,not only in that case, but in all cases. Therealization that a ruling in a case was madewith more of an eye toward the next election

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than the requirements of the law canirreparably damage a judge’s self-perceptionand commitment to justice. After the first suchbreach of one’s judicial responsibility, it ismore easily repeated in future cases. Once thepublic understands that courts are basing theirrulings on political considerations—evenwhen the courts are giving the voters theresults they want, as the California SupremeCourt is now doing—it undermines the legi-timacy and the moral authority of courts asenforcers of the Constitution and law.

C. Appointment and Tolerance ofIncompetent Counsel forIndigent Persons

Judges often fail to enforce the mostfundamental protection of an accused, the SixthAmendment right to counsel, by assigningan inexperienced or incompetent lawyer torepresent the accused. As a result of appoint-ments by state court judges, defendants incapital cases have been represented bylawyers—and in at least one instance a third-year law student—trying their cases or withlittle or no experience in trying serious cases,lawyers who were senile or intoxicated or underthe influence of drugs while trying the cases,lawyers who were completely ignorant of thelaw and procedures governing a capital trial,lawyers who used racial slurs to refer to theirclients, lawyers who handled cases without anyinvestigative or expert assistance, lawyers whoslept or were absent during crucial parts of thetrial, lawyers who lacked even the most minimalskills, lawyers who filed one-page to ten-pagebriefs on direct appeal, and other equallyincompetent lawyers who were deficient in anumber of other respects.

When the community that elects the judgeis demanding an execution, the judge has nopolitical incentive to appoint an experiencedlawyer who will devote large amounts of timeto the case and file applications for expert andinvestigative assistance, all of which will only

increase the cost of the case for thecommunity. As a result, judges frequentlyassign lawyers who are not willing or able toprovide a vigorous defense.

For example, judges in Houston, Texashave repeatedly appointed an attorney whooccasionally falls asleep in court, and is knownprimarily for hurrying through capital trials like“greased lightning” without much questioningor making objections. Ten of his clients havereceived death sentences. Similarly, judges inLong Beach, California, assigned the repres-entation of numerous indigent defendants to alawyer who tried cases in very little time, noteven obtaining discovery in some of them. Theattorney has the distinction of having more ofhis clients sentenced to death, eight, than anyother attorney in California.

Local elected judges in Georgia haverepeatedly refused to appoint for retrials ofcapital cases the lawyers who had successfullyrepresented the defendants in postconvictionproceedings, even after the Georgia SupremeCourt made it abundantly clear that counselfamiliar with the case should be appointed.

Local elected judges may base theirassignment of counsel to indigent defendantson political ties or other considerations thanthe ability of the lawyer to provide compet-ent representation. A defense attorney inCleveland contributes thousands of dollarstoward the reelection campaigns of judges andis “notorious for picking up the judges’ dinnerand drink tabs. They, in turn, send [theattorney] as much business as he can handlein the form of case assignments.”20 A studyof capital cases in Philadelphia found that“Philadelphia’s poor defendants often findthemselves being represented by ward leaders,ward committeemen, failed politicians, thesons of judges and party leaders, andcontributors to the judge’s election campaign.”21

The lawyer who received the most appoint-ments one year to homicide cases inPhiladelphia was a former judge whom thestate’s supreme court removed from thebench for receiving union money. He handled

thirty-four murder cases in that year andsubmitted bills for $84,650 for fees andexpenses.

As might be expected, treating theassignment of criminal cases as part of ajudicial patronage system does not alwaysresult in the best legal representation. Thestudy of capital cases in Philadelphia foundthat “even officials in charge of the system saythey wouldn’t want to be represented in TrafficCourt by some of the people appointed todefend poor people accused of murder.”

Regardless of the basis for selection,assignment of cases to lawyers by judgesundermines the fairness and integrity of theadversary system in other ways. Lawyers whoowe their livelihood to judicial appointmentsmay be unwilling to provide zealous represen-tation out of fear that it will cost them futureappointments. So long as this system continues,neither the judges nor the lawyers are trulyindependent and able to play their proper rolein the adversary system.

D. Judges Acting as Prosecutors

The prosecution of high-profile capitalcases is often a stepping stone to a judgeship, ashas been described. Unfortunately, more than afew prosecutors who become judges continue toprosecute from the bench. Although they failto discharge their responsibility to be neutral,disinterested judges, they may continue to reapthe same political benefits from capital casesthat they received as prosecutors.

In a recent Georgia capital trial, a sittingsuperior court judge took the witness standto tell the jury why, while serving as districtattorney, he had sought the death penalty andhad refused to agree to a plea disposition inthe case. After testifying that the governorappointed him to the bench after having“serve[d] the citizens of Hall and Dawsoncount[ies] as their district attorney” for sixyears, the judge summarized the factors he had

considered in making the decision asprosecutor to seek the death penalty forStephen Anthony Mobley:

[The defendant’s] lack of remorse anda personality of “pure unadulteratedmeanness”;

The financial cost of death cases totaxpayers;

Discussion with the victim’s family andtheir support for a death sentence as theappropriate penalty;

Consideration of whether the“last minutesof [the victims’] lives were more horribleto them than in other cases”;

[The judge’s] feeling that Mobley’sdescription of the murder to [one victim]was “unmerciful”;

The strength of the State’s evidence.22

The judge summarized his decision bystating that “I’ve handled many cases withheinous facts of a killing, but I have never,never seen a defendant like Mr. Mobley.”Remarkably, the Georgia Supreme Courtupheld Mobley’s death sentence over thedissent of only a single member.

Edward D. Webster, a former prosecutorin Riverside, California, publicly criticized afederal court of appeals for its decision in acapital case, even though he is now thepresiding superior court judge in Riverside.Judge Webster, speaking “as a formerprosecutor,” expressed his “outrage” at adecision by the United States Court of Appealsfor the Ninth Circuit remanding a capitalhabeas corpus case on grounds that the federaldistrict court had failed to provide funds forexpert assistance in support of the habeaspetition. Judge Webster accused the federalcourt of anti-death-penalty bias and calledupon Congress to prevent all federal courts

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except the Supreme Court from reviewingdeath-penalty cases.

A former prosecutor who now presides asa judge over capital cases in Houston, Texas,William Harmon, stated to a defendantduring a 1991 capital trial that he was doing“God’s work” to see that the defendant wasexecuted. In the same case, Judge Harmontaped a photograph of the “hanging saloon” ofTexas Judge Roy Bean on the front of thebench with his own name superimposed overJudge Bean’s, and referred to the judges of theTexas Court of Criminal Appeals as “liberalbastards” and “idiots.” In another capital case,Judge Harmon, upon a witness’s suggestionthat some death row inmates should betransported to court, stated, “Could we arrangefor a van to blow up the bus on the way downhere?”23 In another capital trial in 1994, JudgeHarmon allowed the victim’s father to yellobscenities at the defendant in the presence ofjurors and the press.

These are among the more pronouncedexamples of judges who have continued theprosecutorial role upon assuming the bench.Other judges may be more sophisticated inunderstanding their role and more subtle intheir approach to capital cases. A judge doesfar more to undermine the fairness of a trialand hasten the imposition of a death sentenceby appointing deficient counsel and in makingdiscretionary rulings, as previously described,than by engaging in conduct such as JudgeHarmon’s.

It is not surprising that such judges areproduced by a system that rewards prosecutorsfor obtaining the death penalty by giving themthe public recognition and support needed tobe elected judges. But this system often doesnot produce judges who will be fair andimpartial in capital cases. It is most difficultfor a prosecutor who has made his nameprosecuting capital cases to refrain as a judgefrom further exploitation of capital cases uponassuming the bench.

y IV. Remedies for theResulting Lack ofImpartiality

Elected judges are expected to “remain faithfulto the values and sentiments of the peoplewho elected them, and to render decisions usingcommon sense rather than newfangled lega-lisms.” But remaining faithful to popularsentiment is sometimes inconsistent with ajudge’s duty to mete out equal justice and toenforce the Bill of Rights. As Justice Jacksonwrote:

The very purpose of a Bill of Rights wasto withdraw certain subjects from thevicissitudes of political controversy, toplace them beyond the reach ofmajorities and officials and to establishthem as legal principles to be applied bythe courts. One’s right to life, liberty,and property, to free speech, a free press,freedom of worship and assembly, andother fundamental rights may not besubmitted to vote; they depend on theoutcome of no elections.24

In contrast, federal judges have life tenureand are appointed by the President with theadvice and consent of the Senate in order toensure the independence of the judiciary andto guarantee that the courts will perform theirroles as protectors of “the rights of individuals.”Recognizing that “a steady, upright, andimpartial administration of the laws” wasessential because “no man can be sure that hemay not be tomorrow the victim of a spirit ofinjustice, by which he may be the gainer today,”Alexander Hamilton wrote in the The FederalistNo. 78: “That inflexible and uniform adherenceto the rights of the Constitution, and ofindividuals, which we perceive to be indis-pensable in the courts of justice, can certainlynot be expected from judges who hold theiroffices by temporary commission.”25

The state bench also differs from thefederal bench in that it is more likely to be astepping stone to a higher political office. Incomparing the state and federal judiciary, ChiefJustice William Rehnquist has pointed out thatthe life tenure of federal judges makes fora “different kind of judge” than someone“looking out of one corner of his eye for thenext political opportunity that comes along.”26

However, the politics of crime have incre-asingly had an impact on nominations to thefederal judiciary and even the Supreme Courthas seemed responsive to the political potencyof the crime issue.

Nevertheless, although some appointeesmay take a political agenda with them to thefederal bench, life tenure still insulates judgesfrom the threat of being voted out of office foran unpopular decision. Every new electionreminds state judges of their vulnerability topopular sentiment. Such constant remindersmake it politically and practically impossiblefor many judges to enforce the Constitutionwhen doing so would be unpopular.

If courts are to have integrity and credi-bility, judges must be selected, evaluated, andassigned cases in a way that makes it possible forthem to uphold the law without imperilingtheir jobs. Political considerations will always bea factor in the selection and promotion ofjudges in both the state and federal courts, andsome who become judges will allow theirpersonal prejudices to interfere with the faithfuldischarge of their duties, regardless of how theyare selected. But the selection and promotionprocess should not allow a judge’s ruling in aparticular case to dominate his or her prospectsfor remaining on the bench. If this is not thecase, judges will continue to work underunreasonable pressures and the public will notview their decisions as fair, impartial, andlegitimate. The judiciary and bar shouldexercise leadership in bringing about thereplacement of judicial elections—bothretention and contested—with merit selectionand periodic performance review. Although

such systems are desirable and may be morelikely after elections that have significantlydiminished the standing of the courts inAlabama, California, Mississippi, Texas, andother states, one can expect that elections willremain in many jurisdictions.

As long as judges are selected at the ballotbox, several less effective measures, small andlarge, should be taken to reduce the influenceof political considerations on judicial rulings.Judges must recognize their constitutional andethical responsibility to disqualify themselvesin cases in which one might reasonablyquestion their impartiality due to politicalpressures. Capital cases should be assigned tojudges who do not face the voters from thelocality of the crime. The discretion of trialjudges in areas where they are under politicalpressures should be limited and reviewingcourts should give more careful scrutiny torulings that are susceptible to influence bypolitical considerations. Regardless of howjudges are selected, they should not appointcounsel for indigent defendants. Removal ofappointment responsibility from judges isnecessary to ensure the independence of thejudiciary and the zealous defense of theaccused.

A. Using Diffuse and IndirectCitizen Input in Appointmentand Evaluation Systems

The elimination of direct and retentionelections is a necessary step to improve thefairness and impartiality of the judiciary.Eleven states and the District of Columbiaalready employ systems in which judges neverface election. The systems in those statesprovide for removal of judges only for mis-behavior or other ethical improprieties,avoiding the opportunity to turn a judicialelection into a popular referendum on ajudge’s rulings in controversial cases.

Although judicial elections appear to beimmensely popular in the United States, judges

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were not always selected and retained this way.The American colonial governments utilizedexecutive selection of judges and service duringgood behavior in an effort to depoliticize thejudiciary.Resentment toward theCrown’s controlof the judiciary resulted in a shift from judgesserving in the pleasure of the executive to judgesserving during good behavior.

Dissatisfaction with the appointedjudiciary during the period of populistJacksonian democracy led to the electionof judges. The public viewed judges as tooprotective of the interests of property owners.States began to adopt systems of electingjudges in an effort to divorce the judiciaryfrom property owners. However, it becameapparent that popular election resulted ina highly politicized judiciary, with politicalmachines often controlling judges. Statesagain began to tinker with judicial selectionmethods, with some eventually adopting aselection plan that included gubernatorialappointment from a list compiled by a judi-cial selection committee, with a subsequentretention election after a certain period oftime. This reform sought to depoliticize thejudiciary and allow judges to make decisionsunswayed by political considerations while stillallowing for some form of input from citizens.But, as has been the case in California, Florida,and other places, even a retention electioncan degenerate into a referendum on a judge’srulings in capital or other controversial cases.Indeed, a strong argument can be made thatretention elections are even worse than directelections where the incumbent is challenged. Inretention elections, there is no comparison tobe made among candidates. The judge standingfor retention may be a target for negative votesfrom various groups dissatisfied with decisionson issues ranging from crime to abortion.Voters may want to express their disapproval ofthe judge with no consideration of whetherthe replacement judge will be any better.

The independence of the judiciary can bebest preserved by a merit selection system in

which a bipartisan judicial qualificationscommission nominates a slate of qualifiedcandidates to the executive, who then nom-inates a judge subject to confirmation by atleast one branch of the state legislature.Meaningful citizen input can come byensuring that a substantial number of personson the judicial qualifications commission arenot lawyers, but people who represent varioussegments of the public. Such a system shouldprovide for terms for judges of substantiallength, such as ten to fifteen years. Retention inoffice for additional terms should dependupon an evaluation of the judge’s performanceby the commission, not a retention election.

One state that employs such a system isHawaii, where the governor selects judgeswith the consent of the senate, from a list ofnominees that a judicial selection commissioncompiles. The judicial selection commission’slist must contain not less than six nominees. Ifa judge indicates at least six months before theend of his term that he wishes reappointment,the commission determines whether the judgeshould be retained. The primary purpose ofthe retention process is to “exclude or, at least,reduce partisan political action.”

There are many positive aspects toHawaii’s selection and retention process. First,it provides for diffuse and indirect input in thejudicial selection and retention process byallowing the governor, the president of thesenate, and the speaker of the house ofrepresentatives, all of whom are elected, toappoint a total of five members of thecommission. Thus, there is public accountabilityin a selection process that provides a layerof protection for judges who may makeunpopular decisions.

Second, a judge serves a term of ten years,after which time the judicial selectioncommission again evaluates and either retainsor rejects the judge. Commission review allowsan informed body to evaluate a judge’s entireten-year record. The commission sees anyunpopular or controversial decisions in the

context of a broader record. In addition, thecommission can review the legal reasons for thejudge’s decision, not just the result.

Third, commission review avoids judicialelectoral campaigns, some of which can bedemagogic, undignified, and unsophisticated.Judges create complicated records of rulingson a variety of issues, and an informed bodyrepresenting the public can examine ajudge’s entire record rather than merelyfocus on a judge’s rulings in the mostnotorious or highly publicized cases.Because a judge knows that an informed bodywill review her performance, she will be lesssusceptible to community pressures and willbe more likely to enforce constitutional andstatutory law. Such a method of selectionwould also result in better judges. Manycapable and highly qualified individuals areunwilling to seek judgeships where theymust stand for election, knowing that theresponsible discharge of their duties in acontroversial case could cost them theirpositions. Such individuals may also beunwilling to solicit campaign contributions tofinance a judicial campaign, knowing that itcreates an appearance of impropriety, engagein campaign tactics that are inconsistent withthe Model Code of Judicial Conduct but maybe necessary to obtain office, or assume thebench knowing that they will be unable todefend themselves when attacked politicallyfor a single ruling or decision.

Fourth, the public may have moreconfidence in and respect for the judiciarybecause it knows that judges who do nothave to worry about offending a particularsegment of the population in order to raisecampaign funds or stay in office are morelikely to be impartial. At the same time,periodic review of judicial behavior protectsthe public from those who are unfit forjudicial service.

Finally, and most importantly, such asystem ensures that when an individual takesthe bench, he or she is independent in the

sense that former United Slates SupremeCourt Justice Owen Roberts described:

When a man goes on the Court heought not to have to depend upon thestrength . . . of his own character toresist the temptation to shade asentence in an opinion or shade a view.[He should not have] to put anumbrella up in case it should rain. Heought to be free to say his say, knowingas the founding fathers meant heshould know, that nothing could reachhim and his conscience was as free ascould be.27

To be independent, a judge must be free todisregard public sentiment when requiredby the law, and to take unpopular, but con-stitutionally mandated, action.

Until recently judicial elections, whetherdirect or retention, attracted little public atten-tion. Judges seldom encountered oppositioneither from opponents or from interest groupsopposing their retention. However, this is nolonger the case. The judiciary in states all acrossthe nation is becoming increasingly politicized.The success in defeating incumbent judges insome states is leading to new efforts in others.No judge can risk alienating a powerful specialinterest group or being viewed as “soft oncrime.” The elimination of both direct andretention elections is essential if courts are to beresponsive to the commands of the law andConstitution instead of the will of the majority.

B. Judicial Disqualification WhenRulings Could Imperil Election

In jurisdictions in which judges standfor election or retention, judges should bedisqualified from presiding over cases in whichthere is the appearance that political con-siderations could tempt judges in their ruling.The law of judicial disqualification and dueprocess currently provides for this, but courts

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fail to apply this law properly, relying onfictions of impartiality while ignoring politicalrealities.

In Tumey v. Ohio28, the Supreme Court heldas violative of due process a judicial systemin which a mayor sat in judgment of allegedviolators of a Prohibition ordinance, and wasnot paid unless he convicted and fined at leastsome of those brought before him. The Courtconcluded such a system deprives the accused ofdue process in several ways. First, it “subjects [adefendant’s] liberty or property to the judgmentof a court the judge of which has a direct,personal, substantial, pecuniary interest inreaching a conclusion against him in his case.”Second, “It is certainly not fair to each def-endant, brought before theMayor for the carefuland judicial consideration of his guilt orinnocence, that the prospect of such a loss by theMayor should weigh against his acquittal.”Third, any system that “offer[s] a possibletemptation to the average man as a judge toforget the burden of proof required to convictthe defendant, or [that] might lead him not tohold the balance nice, clear and true betweenthe State and the accused, denies the latter dueprocess.” Fourth, given the mayor’s position,“might not a defendant with reason say thathe feared he could not get a fair trial or a fairsentence from one who would have so strong amotive to help his village by conviction and aheavy fine?”

In Ward v. Village of Monroeville, theCourt extended the Tumey principle to pro-hibit a mayor from acting as a judge in a case inwhich his financial interest was not personal,but in which his general mayoral respon-sibilities included revenue production. TheCourt rejected the village’s argument that thissystem does not deprive defendants of dueprocess because the mayor’s decisions werecorrectable on appeal and trial de novo inthe County Court of Common Pleas. JusticeBrennan wrote that “there is nothing to suggestthat the incentive to convict would bediminished by the possibility of reversal on

appeal. . . . [The defendant] is entitled to aneutral and detached judge in the firstinstance.”

The impartiality of judges who promise tobe “tough on crime” is also called into questionby theModel Code of Judicial Conduct. Canon3 provides that a judge “should not be swayedby partisan interests, public clamor or fearof criticism.”29 Canon 5 provides that a judge“shall not (i) make pledges or promises ofconduct in office other than the faithful andimpartial performance of the duties of theoffice; [or] (ii) make statements that commitor appear to commit the candidate withrespect to cases, controversies, or issues thatare likely to come before the court.”30

The Tumey situation is analogous to atypical capital case tried, appealed, or broughtfor postconviction review before an electedjudge. The justices of the Supreme Courts ofCalifornia and Mississippi, the judges of theTexas Court of Criminal Appeals, and trialjudges in Houston and other jurisdictionscertainly know that their future on the courtsand their judicial salaries and pensions areclosely related to their decisions in capitalcases. At the very least, these pressures createthe appearance of partiality.

The legitimacy of judicial decisionsdepends on the appearance of fairness, andelected judges hearing capital cases too oftenmake rulings that appear to be patently unfair. Itis apparent not only to Justice Stevens but alsoto those who observe the courts that judges arefrequently responding to a “higher authority”than the Constitution. In some instances, thatvoice sounds too much like the cries of a lynchmob. Tumey commands judges not have animproper temptation to rule in one way or theother. A judge who will lose his position byruling against the prosecution in a single caseis under far greater pressure not to “hold thebalance nice, clear and true between the stateand the accused” than is a judge whose salarycomes from fines that may be imposed in someof the many cases that come before him. It is

possible to construct fictions of impartialityand impute them to every judge, but the realityis that capital punishment is popular andjudicial elections can become referenda on thedeath penalty.

One step in the right direction would be topermit disqualification of at least one judgewithout attempting to assess the question ofimpartiality. For example, in Maryland, a partywho believes that a fair and impartial trialcannot be had before the assigned judge mayfile a suggestion that the judge is incapable ofaffording him or her an impartial trial andthe case must be removed to another court. Ajudge in a capital case may not refuse to grantthe motion. This at least allows the defendantto decide if the judge originally assigned to hiscase may not be in a position to put asidepolitical considerations, such as a judge facinga tough election. This system is attractivebecause it does not operate on the presum-ption that judges become somehow immuneto influences that would weigh strongly onnon-judges. This system does not attempt todiscern a judge’s actual biases, but recognizesthat the appearance of bias may make itappropriate for another judge to hear the case.On the other hand, when there is no concernabout improper influences, the judge willremain on the case. There is no assurance,however, that the new judge assigned to a casewill not also be facing a tough reelectioncampaign and be subject to the same pressures.

It may be that practical considerationsprevent courts from acknowledging the app-earance of partiality of elected judges due topolitical pressures. If an entire state supremecourt is disqualified, how is the case decided? Ifa judge is disqualified from all criminal casesbecause he promised to be “too tough oncriminals,” how is the criminal docket to bemanaged? The answer to these practicalproblems, however, is not to substitute legalfictions for political reality.

The popular frustration regarding crime ismaking it increasingly difficult for courts to

discharge their constitutional obligation offairness. Judges who realize they cannot holdthe balance nice, clear, and true between thestate and the accused in particular cases becauseof political considerations have a duty to recusethemselves. Lawyers have a duty to move for thedisqualification of judges who are subject tothe temptation to give in to political pressures inthe cases before them. In reviewing disquali-fication issues, trial and appellate courts shouldface the reality of the political pressures that arepresent instead of hiding behind legal fictions.If disqualification in cases in which one mightreasonably question judges’ partiality due topolitical pressures begins to burden dockets, thelegislature and the bar will be forced to devisedifferent selection systems that will minimizethe influence of political pressures on judges.

C. Altering JudicialAssignment Systems

One way to reduce the political pressures onelected judges is to prohibit those judges frompresiding over capital cases in the districts thatelect them. This could be accomplished throughthe judicial assignment system.

For example, in both North and SouthCarolina judges rotate among judicial districtswithin the state. When out of his county ofresidence, the judge is relieved from thepolitical pressure of having to portray himselfas the protector of his community; a judgewould not necessarily stand for election in thevery place in which he had made controversialrulings.

This system would help to diminish therole of political pressure on judicial decisionmaking, but would not eliminate it. A judgecould still seek to impress the voters at homewith his toughness in the case before him inanother district. In a highly publicized case, acontroversial ruling would still be well knownand, even if it were not, an opponent could stillseize upon an unpopular but correct rulingand use it in opposing the judge. Additionally,

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in any system a judge who intends to run forhigher office may want to use his or herposition for visibility.

D. Limiting the DeferenceReviewing Courts Give to JudgesInfluenced by Political Pressures

So long as judges are subject to election orretention, the discretion of trial judges oncrucial matters should be limited by objectivestandards that are carefully reviewed on appealand in postconviction proceedings. Reviewingcourts should acknowledge the reality of thepolitical pressures on trial judges, and, wherethe potential for such influence is present, theyshould carefully scrutinize rulings without thenormal deference accorded to trial judges.

Appellate courts routinely defer to findingsof fact of state trial judges, and review decisionsof trial judges under the highly deferentialabuse-of-discretion and clearly-erroneous stand-ards on critical issues such as granting of achange of venue, allowing a continuance, theextent and scope of voir dire, whether there hasbeen racial discrimination in the exercise ofjury strikes, the impartiality of prospectivejurors, and the admission of certain types ofevidence. Federal courts, when reviewing statecourt judgments in habeas corpus proceedings,are required to give a presumption of correct-ness to findings of fact by the state courts. Thenotion that the trial judge, having observedthe demeanor of the witnesses and heard all ofthe evidence first hand, is in a better position tomake determination of credibility forms muchof the basis for the deference accorded thetrial judge. This deference also rests uponthe prevailing legal fiction that assumes theimpartiality of judges.

In reality, however, political considerationsmay be more important than legal principlesor the demeanor of witnesses. As previouslydiscussed, judges are under immense politicalpressure in making discretionary rulings inhigh-profile capital cases. A classic example is

the case of Sheppard v. Maxwell. The murdertrial of Dr. Samuel H. Sheppard started, afterextensive pretrial publicity, just two weeksbefore a November election in which the chiefprosecutor was a candidate for judge and thetrial judge was a candidate for reelection. TheSupreme Court held that Sheppard was entitledto habeas corpus relief because the trial court hadfailed to protect his right to a fair trial by takingmeasures such as continuing the case until afterthe election, changing venue, and controlling thetrial participants’ release of prejudicial infor-mation to the press.

Unfortunately, since Sheppard, theSupreme Court has not mandated proceduresto minimize the risk of prejudice in suchvolatile situations or required careful scrutinybased on objective standards of similardiscretionary decisions by trial judges. TheCourt has also retreated from its earlierpronouncements that because of the exceptionaland irrevocable nature of the death penalty,capital cases require a heightened degree ofprocedural protection.

A few state supreme courts have recognizedthe political pressures on trial judges andhave fashioned more objective standards andmandatory procedures to reduce the discretionof trial judges in making rulings that maybe politically unpopular. For example, theMississippi SupremeCourt, after acknowledgingthe political pressures that may influence ajudge’s decision on whether to grant a change ofvenue, decided that “some objective standardsshould be available to shield the [trial] courtfrom even the appearance of such subtlecoercion.”31

The Mississippi Supreme Court describedthe political reality for elected trial judges inconsidering a motion to change venue:

[B]y perennially holding that a changeof venue is granted solely at the dis-cretion of the court, we perpetuate aburden on the trial judge. On the onehand, the judge is to act impartially,

dispassionately and with scrupulousobjectivity. On the other hand, inreality, the judge serves at the will ofthe citizenry of the district; the judge is,after all, a public official who mustoccasionally, perhaps even subcon-sciously, respond to public sentimentwhen making the decision to refuse achange of venue. It must be observedthat, in granting a change, the trialjudge might be perceived as implyingthat a fair trial cannot be had amonghis or her constituents and neighbors.

To keep such sentiment from influencingthe judge, the court held that

the accused has a right to a changeof venue when it is doubtful that animpartial jury can be obtained; suchdoubt is implicit when there is presentstrong public sentiment against thedefendant; upon proper application,there arises a presumption that suchsentiment exists; and, the state thenbears the burden of rebutting thatpresumption.

The court also emphasized the importanceof fairness in capital cases:

A heightened standard of review isemployed on appeal where the def-endant’s life is at stake. . . . It followsthen that the trial court should,likewise, be particularly sensitive tothe need for a change of venue incapital cases.

The Georgia Supreme Court also modifiedits standard of review of denials of motions fora change to venue and directed trial judges inGeorgia to grant changes of venue when a capitaldefendant makes “a substantive showing of thelikelihood of prejudice by reason of publicity.32

The Court rejected the argument of the dissentthat the determination of the trial judge wassubject to “special deference” and should not beoverturned unless it was “manifestly erroneous.”

Venue decisions are but one example ofpotential for the influence of improperpolitical considerations on judicial rulingsand the need for reviewing courts to remedypolitically influenced decisions by adoptingand applying objective standards. Where aparticularly notorious crime producesvolumes of publicity, that publicity oftencreates pressure on the judge to score politicalpoints. The more objective standards that theSupreme Courts of Mississippi and Georgiahave adopted lessen the discretion allowed thetrial judge, and allow courts a greater distancefrom the political influences to review trialdecisions. A reviewing court can examinethe testimony, the newspaper articles, andthe tapes of broadcasts and make its owndetermination of whether there is a “likelihoodof prejudice” or the prosecution has rebutted adefendant’s showing that public sentimentmakes the likelihood of an impartial jurydoubtful.

Although these decisions of the SupremeCourts of Georgia and Mississippi providingfor greater protection of the rights of theaccused than the decisions of the U.S. SupremeCourt may appear encouraging, they say moreabout the retreat of the U.S. Supreme Courtfrom protecting the rights of the accused thanthey do about the willingness—or politicalpracticality—of the state courts upholding theConstitution in these situations. Most courtshave shown little inclination to face realitywith regard to many other discretionarydecisions of trial judges that politicalconsiderations may influence. Decisionsrecognizing the political pressures on electedjudges and adopting and applying moreobjective standards to limit discretion are therare exceptions to thousands of decisionsroutinely deferring to decisions by trial judges

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on a wide range of issues. The deference infederal habeas corpus actions to state courtfactfinding, as well as other increasingly severerestrictions on habeas review, insulate manydecisions by state courts from federal review.

Nevertheless, a reexamination of thedeference given to elected judges on discre-tionary matters is urgently needed. The out-comes of the judicial elections in California,Texas, Mississippi, and other states discussedin this Article are exposing for all to see thepolitical pressures that influence the decisionsof judges who face election or retention. It is ofcourse impossible to know the number ofjudges who simply give in, either consciouslyor subconsciously, to their political pressuresor the number of judicial rulings and opinionsthat political considerations influence. But thepolitical realities are apparent to anyone whopractices in the courts and observes thesepressures at work. In many of the jurisdictionswhere the death penalty is frequently imposed,the political reality is that the elected statecourt judge cannot even consider grantingrelief to one facing the death penalty.

If judges continue to be voted off trialand appellate courts for their decisions incapital cases and are replaced with judgeswho are little more than conductors onrailroads to the execution chambers, it willbe impossible for courts to maintain thefiction that judges who face election areimpartial without risking public ridicule andimmense damage to the perception of thelegitimacy and credibility of the courts.Until more fundamental reform of judicialselection is feasible, courts must acknow-ledge and deal with the political pressureson judges. In addition, full federal habeascorpus review of state court convictionsshould be restored. The once Great Writ ofhabeas corpus barely survives the blows thathave rained upon it from the efforts of theSupreme Court and the Congress to expediteexecutions, achieve finality, and reduce

friction between the state and federal courts.Yet as numerous examples set out in thisArticle make clear, only federal judges havethe independence and job security thatenable them to enforce the protections of theConstitution when doing so would be vastlyunpopular. If the Constitution is to serve itspurpose as fundamental law that protects usfrom “our baser selves” when there is “ademand for vengeance on the part of manypersons in the community against one whois convicted of a particularly offensive act,”33

its enforcers must be judges who cannot beswept from office for making a controversialdecision.

E. Appointment of CounselIndependent of Judges

Regardless of how judges are selected, theyshould not be responsible for the appointmentof counsel for poor persons accused of crimes.An independent judiciary should be inde-pendent not only of political influences and theprosecution, but also of the defense. Judges havea different role to play in the adversary systemthan the management of the defense. Inaddition, defense counsel should be inde-pendent of the judge in order to fulfill theobligation of providing zealous representationto the accused.

The American Bar Association recommendsthat there be a defender office or a specialappointments committee to select counselfor indigent defendants. Removing theresponsibility for the representation of def-endants from judges and placing it with aprogram charged with protecting only the bestinterests of the defendants will not completelydepoliticize the process or always ensureadequate counsel, but it would be an importantstep toward a properly working adversarysystem and effective representation of indigentdefendants.

y ConclusionJustice Hugo Black once observed that“[u]nder our constitutional system, courtsstand against any winds that blow as havensof refuge for those who might otherwisesuffer because they are helpless, weak, out-numbered, or because they are . . . victims ofprejudice and public excitement.”34 This role isof particular importance in capital cases,where the winds of public excitement blowespecially hard against the poor, members ofracial minorities, and the despised who standaccused of heinous crimes. Judges are notlegislators; they have a different role thansimply carrying out the wishes of their con-stituents to impose the death penalty.

Capital cases put extraordinary pressures onall participants in the legal system.Even themostconscientious and independent judge faces anenormous challenge of reining in the emotionsthat accompany a brutal crime and the loss ofinnocent life. If decisions about guilt andpunishment are to be made fairly, objectively,and reliably, it is critical that judges be guidedby the Constitution, not personal politicalconsiderations.

Yet in high-visibility capital cases in whichpublic opinion is overwhelmingly one-sidedthough often ill-informed, the political press-ures may be so great that a judge who has aninterest in remaining on the bench cannotignore them. In today’s political climate, acommitment to fairness is too often perceivedas “softness” on crime—a political liability fora judge who must run for office. The lackof electoral clout of those facing the deathpenalty makes the political equation easy;however, the cost to justice and the rule of lawis significant.

Nevertheless, it appears unlikely that eventhe most modest proposals discussed inthis Article will be implemented in manyjurisdictions—particularly those where theyare most urgently needed—in the near future.In part, this is because there are many peoplewho prefer judges who follow the election

returns to judges who follow the law. It is alsopartly because the judiciary and the bar persistin hiding behind the legal fiction that judgesare impartial instead of acknowledging thereality that in many instances they are not.The U.S. Supreme Court indulges in wishfulthinking about what the state courts should be,instead of facing what they are, including thepolitical pressures on those judges.

It is, however, time for open and honestdiscussion of the political pressures on judgeswho must stand for election and retention.The integrity, credibility, and legitimacy of thecourts are at stake. Judges themselves shouldlead the discussion by disqualifying themselvessua sponte from cases in which they recognizethat political considerations may keep themfrom holding the balance “nice, clear and true.”But it may be necessary for lawyers to promptthe discussion by filing motions for recusal incases in which such pressures are present. Thejudiciary and the bar have a duty to explain tothe public the difference between the repres-entative function of legislative bodies and theadjudicatory function of courts. These steps areurgently needed to bring about reforms thatwill increase the likelihood that the only “higherauthority” to which judges are responsive is theConstitution and laws of the United States.

y Notes1. 115 S. Ct. 1031, 1039 (1995) (Stevens, J.,

dissenting) (quoting Duncan v. Louisiana, 391 U.S.145, 156 (1968)).

2. Maura Dolan, State High Court Is StrongEnforcer of Death Penalty, L.A. Times,Apr. 9, 1995, at A1.

3. Dolan, State High Court Is Strong Enforcer ofDeath Penalty, supra note 7, at A1 (quoting ProfessorClark Kelso).

4. Elliot C. Kessler, Death and Harmlessness:Application of the Harmless Error Rule by the Bird andLucas Courts in Death Penalty Cases—A Comparison &Critique, 26 U.S.F. L. REV. 41, 85, 89 (1991).

5. Coker v. Georgia, 433 U.S. 584 (1977).6. Harris v. Alabama, 115 S. Ct. 1031, 1039 n.5

(1995) (dissenting opinion).

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7. Lisa Stansky, Elected Judges Favor DeathPenalty, Fulton County Daily Rep. (GA), Nov, 24, 1989,at 11 (quoting Dean Gerald Uelman of Santa ClaraUniversity Law School, who has studied the relationbetween methods of selection and judicial behavior).

8. Gerald Uelmen, Elected Judiciary, inEncyclopedia of the American Constitution 170-71(Leonard W. Levy et al. eds., Supp. 1 1992).

9. See Stephen B. Bright, Counsel for the Poor:The Death Sentence Not for the Crime but for the WorstLawyer, 103 YALE L.J. 1835 (1994).

10. John Harwood, Approving Atwater: GOPCommittee Backs Its Chairman, St. Petersburg Times,June 17, 1989, at 1A.

11. Richard Cohen, Playing Politics with theDeath Penalty,Wash. Post, Mar. 20, 1990, at A19.

12. Leslie Phillips, Crime Pays as a Political Issue,USA Today, Oct. 10, 1994, at 1A.

13. Hance v.Zant, 696 F.2nd 940, 952-53 (11thCir.).14. Phil Gast, District Attorney Criticizes Court

for Rejecting Sentence, Columbus Enquirer (Ga.), Sept.17, 1983, at A-1, A-2.

15. Wainwright v. Witt, 469 U.S. 412, 459 (1984)(Brennan, J., dissenting) (citations omitted).

16. American Bar Ass’n, Report of Commissionon Professionalism, 112 F.R.D. 243, 293 (1986).

17. 476 U.S. 79 (1986).18. Johnson v. state, 476 So. 2d 1195, 1209 (Miss.

1985).19. 778 F.2d 1487 (11th Cir. 1985).20. James F. McCarty, Law and Disorder with

Rumpled Suits and Befuddled Ways, ThomasShaughnessy Has Managed to Become the Matlock of

Cuyahoga County, Plain Dealer (Cleveland), Oct. 23,1994, at 8, 13.

21. See Fredric N. Tulsky, Big-time Trials,Small Time Defenses, Phila Inquirer, Sept. 14, 1992,at A1, A8.

22. Mobley v. State, 455 S.E.2d 61, 69-70 (Ga. 1995).23. Nichols v. Collins, 802 F. Supp. 66, 78-79 (S.D.

Tex. 1992) (granting writ of habeas corpus).24. West Virginia State Bd. Of Educ. v. Barnette,

319 U.S. 624, 638 (1943).25. The Federalist No. 78, (Alexander Hamilton)

(Clinton Rossiter ed., 1961).26. Chief Justice William Rehnquist, Press

Conferences 5 (Mar. 15, 1989) (unofficial transcript,on file with Boston University Law Review).

27. Robert W. Raven, Does the Bar Have anObligation to Help Ensure the Independence of theJudiciary? 69 Judicature 66, 67 (1985) (quoting JusticeRoberts).

28. 273 U.S. 510 (1927)29. Model Code of Judicial Conduct Canon 311(2)

(1990). For further discussion of the Model Code ofJudicial Conduct and elected judges, see Ross, supranote 120, at 128-30 (applying the 1972 Model Code tothe problem of elected judiciaries).

30. Model Code of Judicial Conduct Canon5A(3)(d)(i), (ii) (1990).

31. Johnson v. State, 476 So. 2d 1195, 1209(Miss. 1985).

32. Jones v. State, 409 S.E. 2d 642, 643 (Ga. 1991).33. Furman v. Georgia, 408 U.S. 238, 344-45

(1972) (Marshall, J., concurring).34. Chambers v. Florida, 309 U.S. 227, 241 (1940).


1. Why do Bright and Keenan argue that a judge who opposes the death penalty “may thereby sign his ownpolitical death warrant”? What evidence do they provide in support of this?

2. What types of judicial selection systems are found in the states with the death penalty? Accordingto Bright and Keenan, why is it problematic that more than half of the states elect judges and sentencepeople to death?

3. What are the effects of electing judges who must render decisions in capital cases—how does electionaffect the impartiality of judges in these types?

4. What are the remedies advocated by Bright and Keenan? In your opinion, which of these would be themost effective? The most politically palatable?

�

R E A D I N G

This study, like most research on jury decision making, uses a mock jury approach.Gerstenfeld investigates whether stereotypes and prejudice encourage people,particularly Whites, to characterize a crime as a hate crime when the accused is Black.Participants in the study, who were told that they were to act as jurors in a criminal case,read a description of a criminal case in which a defendant had been charged with threecrimes, one of which was a hate crime; they then decided whether the defendant wasguilty or not. The results of the study revealed that the mock jurors were more likelyto find the White defendant than the Black defendant guilty of a hate crime; this wasparticularly true if the defendant was White and the victim was Black.

Juror Decision Making in Hate Crime Cases

Phyllis B. Gerstenfeld

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Although hate crimes themselves are probably asold as civilization, and although they certainlyhave existed throughout the history of theUnited States (e.g., Petrosino, 1999), hate crimelaws themselves are a relatively new pheno-menon. The first hate crime laws were enacted inthe early 1980s; by the end of the century, nearlyevery state and the federal government had somekind of hate crime law. In the summer of 2000,Congress was acting to broaden the federal law.

Like much legislation, hate crime lawshave been primarily the result of a socialmovement based on such “triggering events” asthe murder of gay University of Wyomingstudent Matthew Shepherd (Jacobs & Henry,1996; Jenness & Grattet, 1996). The laws havenot been based on social science, and in fact,there has been virtually no social scienceresearch conducted on how these laws operatein the real world. Instead, most of the aca-demic discussion has focused on hate crimevictims (e.g., Herek & Berrill, 1992; Matsuda,Lawrence, Delgado, & Crenshaw, 1993; Torres,

1999) or offenders (e.g., Byers, Crider, &Biggers, 1999; Hamm, 1993) or on the legalquestions these laws raise (Dunbar, 1999;Gellman, 1991; Gerstenfeld, 1992).

The practical effects of hate crime laws areparticularly problematic. These laws, unlikeany others, require the determination of theoffender’s motive (Gellman, 1992). Becausemotives tend to be ambiguous, this determin-ation may be colored by the beliefs of thedecision makers (e.g., victims, witnesses, policeofficers, prosecutors, jurors). The law enforce-ment data show a surprising phenomenon:African Americans are disproportionatelylikely to be accused of committing hate crimes(Gerstenfeld, 1998). Whereas Gerstenfeld(1998) suggests several explanations for this,one possibility is that stereotypes and preju-dices may lead people to be more likely to labela crime hate motivated when it is committedby an African American. This article describesa study that was meant to explore thispossibility.

SOURCE: Criminal Justice Policy Review, Volume 14, Number 2, June 2003. © 2003 Sage Publications.

Section III � Juror Decision Making in Hate Crime Cases 275

y Stereotypes andPerception

Extensive research has demonstrated thatstereotypes in general, and stereotypes aboutrace specifically, are pervasive in our culture(Brigham, 1971; Fiske, 1993). By about age 3,children are able to categorize people on thebasis of race (Brigham, 1971; Katz, 1976, 1983;Milner, 1975), and attitudes about race developsoon afterward (Devine, 1989; Goodman,1964; Katz, 1976). When we see a person of aparticular race, our stereotypes about thatrace are automatically activated (Devine,1989; Ford, Stangor, & Duan, 1994; Macrae,Bodenhausen, Milne, & Jetten, 1994; Macrae,Stangor, & Milne, 1994; Moskowitz & Roman,1992). These stereotypes affect our perceptionsin many ways. The influence of stereotypeson cognitive processes is greatest when theinformation that we receive is ambiguous(Fiske, Neuberg, Beattie, & Milberg, 1987).

At least under some conditions, informationthat confirms preexisting stereotypes tendsto be recalled better (Fiske, 1993; Hamilton,Sherman, & Ruvolo, 1990; Hamilton & Trolier,1986; Jones, 1982).Another effect of stereotypesis that subcategory information seems to berecalled better for one’s own group than forother groups (Linville & Jones, 1980; Linville,Salovey, & Fischer, 1986). There is also evi-dence that people are better at rememberingnegative information about members of otherraces than they are at remembering negativeinformation about in-groupmembers (Howard& Rothbart, 1980). People also better recallinformation that is consistent with stereotypesthan information that is inconsistent (Fyock &Stangor, 1994; Macrae & Shepherd, 1989;Stangor & McMillan, 1992). This helps us toprocess information more quickly, but italso leads to self-perpetuation of stereotypes(Macrae, Hewstone, & Griffiths, 1993).

Although there seems to be stronginfluence of stereotypes on recall, stereotypes

influence other processes, such as attribution,as well. In general, people make more favorableattributions about their own group than aboutothers (Hamilton & Trolier, 1986). Again, thisis not surprising, inasmuch as we tend to seeourselves as more similar to members of ourown groups.

How people make causal attributions isalso affected by group membership. Formembers of our own group, we view positiveinformation as having an internal cause andnegative information as being situationallycaused. For members of other groups, theseattributions are reversed (Hewstone & Jaspars,1984; Taylor & Jaggi, 1974).

Our ratings of people of other races tendto be more polarized than ratings of membersof our own group. For example, when Whiteindividuals are given information about lawschool applicants or candidates for a job, theywill rate well-qualified Blacks higher than well-qualified Whites, but they will also rate poorlyqualified Blacks lower than poorly qualifiedWhites (Linville & Jones 1980; McConahay,1983, 1986). Linville and Jones (1980) andLinville et al. (1986) argue that the reason forthis is thatWhites have more complex schemasabout Whites than about Blacks, and so thepositive or negative information has lessimpact on the overall evaluation.

These effects of stereotypes appear to beautomatic and, to some extent, unrelated towhether a person is high in prejudice. Althoughperception of a minority group member willautomatically activate the stereotype schema,relatively unprejudiced observers will, giventhe opportunity, further process incominginformation to avoid having the informationbiased by stereotypes. However, if observers arenot given the opportunity to undertake thisadditional processing (for example, if they arenot conscious that the stereotype schema hasbeen activated), even the judgments of peoplelow in prejudice will be affected by stereotypes(Devine, 1989). These findings are unsettlingbecause in the realm of real life, such as in hate

crime trials, the information is apt to beambiguous and decision makers may nothave the opportunity to counteract the effectsof stereotypes. Moreover, it has been suggestedthat attempts to suppress stereotypic thoughtsmay actually result in those thoughts having agreater effect upon judgments (Macrae et al.,1994).

Research that has replicated real-lifedecisions has supported this fear. For example, asdescribed above, the race of the applicant causespolarized appraisals in hiring and admissions(Linville & Jones, 1980; McConahay 1983, 1986).How might race affect jury decision making inhate crime cases?

y Stereotypes andHate Crimes

To answer this question, it is first important torealize that today, the most common themeof stereotypes about Blacks is that they areaggressive, hostile, or criminal (Devine, 1989).Therefore, when a non-Black sees a Blackperson (particularly a young, Black male)aggression and criminality feature prominentlyin the schema that is automatically activated, andso these attributes might color an interpretationof ambiguous acts a person commits.

Research supports this hypothesis. Duncan(1976) showed videotapes of an ambiguousshove (that ostensibly was occurring live inan experiment) to White college students. Theparticipants rated the shove as more violentwhen it was performed by a Black actor thanwhen it was performed by a White actor. Theyalso made more dispositional attributions forthe Black actor andmore situational attributionsfor the White actor. Similar results have beenfound for children who are asked to rate theambiguous behavior of children in a story (theresults even held for participants who wereBlack) (Sagar & Schofield, 1980) and for collegestudents who were supposed to decide punish-ments for job-related transgressions and for

criminal acts (Bodenhausen & Wyer, 1985;Macrae & Shepherd, 1989). Additionally, a studyby McArthur and Solomon (1978) suggests thatthese results may occur not only when the actoris Black but whenever the victim is salient(salience was produced through having thevictim wear a leg brace or have red hair).

Race apparently has an effect not just ondeterminations of aggression in general butin jury decision making in criminal casesspecifically. Several studies have indicatedthat mock jurors are more likely to convict adefendant of a different race and to give hima harsher sentence (the defendants in thestudies, as in reality, are mostly male)(Ugwuegbu, 1979), and that Black defendantsin general receive more convictions andharsher sentences than Whites (Pfeifer &Ogloff, 1991). Study participants are morelikely to ignore base-rate information whenthe defendant is a minority (Hewstone, Benn,& Wilson, 1988). In a review of the literatureon racism in the courtroom, Nickerson, Mayo,and Smith (1986) conclude,

The law may not see color, but jurorsand judges and lawyers do. Researchhas shown that a substantial pro-portion of jurors do not even believethat defendants in criminal cases areinnocent until proven guilty . . . andour analysis suggests that minoritydefendants are seen as even lessinnocent than others. (p. 274)

These findings are not confined to thelaboratory. In real criminal cases, Blacks aretreatedmore harshly thanWhites by the criminaljustice system (Mann, 1993; Nickerson et al.,1986). Additionally, it has been demonstratedthat race differentials exist at all stages of juvenilejustice processing (Bishop & Frazier, 1996;Krisberg&Austin, 1993).A rather extensive bodyof research has shown that race plays a part incapital cases as well, in that Blacks who killWhites are significantly more likely to receive the

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death penalty than other offenders (Baldus &Woodworth 1998; Bowers, 1984; Gross &Mauro,1989). The U.S. Supreme Court, althoughupholding the constitutionality of capitalpunishment, acknowledged the validity of thesestudies (McCleskey v. Kemp, 1987).

Does race affect decisions in hate crimecases as well? Several commentators haveexpressed fear that hate crime laws mightultimately hurt minorities, in part becauseminorities will be disproportionately accusedof these crimes (Fleisher, 1995; Gellman, 1991;Greene, 1994). This issue has not previouslybeen addressed empirically.

Craig and Waldo (1996) conducted twostudies on how people view hate crimes. In thefirst study, they gave college students a series ofopen-ended questions about hate crimes.Examples of these questions are “The typical hatecrime involves . . .” and “The typical perpetratorof a hate crime is . . .”(p.118). In the second study,students were read a description of an assault thatwas either hate motivated or ambiguous. Severalfactors were varied, including the type of hatecrime (race, religion, sexual orientation, orambiguous) and the gender of the victim. In bothof these studies, the researchers found thatparticipants’ perceptions about hate crimesvaried according to the demographiccharacteristics of both the offenders and thevictims.

The Craig and Waldo (1996) studyprovides some support for the hypothesisthat race may make a difference in hate crimecases. However, that study was not designedspecifically to look for such effects, nor did itattempt to replicate real-life decision making.The present study is the first to focusspecifically on whether juror decisions inhate crime cases are affected by the defendant’srace. It was hypothesized that participantswould be more likely to find the defendantguilty of a hate crime when he was Black thanwhen he was not, would be more certain ofBlack offenders’ guilt, and would give Blackoffenders more severe sentences.

y Method

Overview

A mock juror design was used to examinewhether three main variables—the offender’srace, the victim’s race, and the participant’s levelof racism—affected the participant’s decisionsin a case in which the defendant was chargedwith a hate crime.

Participants

The sample consisted of 190 volunteers, allof whom were residents of California’s CentralValley. Of these, 101 were undergraduate stud-ents, and the remaining 89 were nonstudentadults. There were no significant differencesbetween the students and nonstudents on anyof the dependent variables. Participants’ agesranged from 18 to 86, with a mean of 28.9.Seventy-seven were male and 113 were female.The self-reported racial and ethnic backgroundof the participants was as follows: 110 (58%)White, 42 (22%) Latino, 17 (9%) Asian/PacificIslander, 6 (3%)AfricanAmerican, and 13 (7%)“other.”

Procedure

The participants were told that they wereto act as jurors in a criminal case. After signinga consent form, each participant was givena manila envelope containing the materialspacket. The first page of the packet was aninstruction sheet that told the participantswhat their general task was and gave themsome directions as to how to proceed.

The second page of the packet was a jurorquestionnaire. This asked some generaldemographic information about the partici-pants: age, gender, and race/ethnicity. Partici-pants were asked not to write their nameanywhere, to ensure confidentiality.

The next item in the packet was the casesummary.1 It began by stating that the

defendant, John Williams, had been chargedwith three crimes: felony assault, felony assaultwith a deadly weapon (ADW), and hate crime.It also gave definitions of these crimes; thesedefinitions were adapted from the CaliforniaPenal Code. The two levels of assault wereincluded to take some emphasis off of the hatecrime charge; it was desired that participantsnot realize that the hate crime was the primaryfocus of the study. Participants were told thatthey could not find the defendant guilty of bothassault and ADW2 and that they should onlyconsider the hate crime charge if they convictedthe defendant of one of the assault charges.

Next came a two and one-half pagesummary of the evidence in the case, aspresented by both the prosecutor and thedefense. Participants were randomly given oneof six versions of the case summary. Theseversions differed in the race of the offenderand victim (Black/Black, Black/ White,Black/Jewish, White/White, White/ Black,and Jewish/Black), in the specific racial slursuttered by the defendant (“You Black [White,Jewish] son of a bitch,” and “You Black[White, Jewish] bastard.”), and in the nameof the hate group to which the defendantbelonged (“African Americans United,”“Aryan Activists United,” or “JewishAmericans United”).3 All other details of thecase were identical.

Next, the packet contained two pages ofjury instructions. These instructions informedthe participants of their duty to find thedefendant guilty beyond a reasonable doubt ornot guilty, defined reasonable doubt, anddefined each crime.

The packet also contained a jury decisionform. On this form, participants were asked tostate whether the defendant was guilty or notguilty of each crime. For those crimes for whichthey found the defendant guilty, they wereasked to choose one of three sentence optionsfor the defendant. For each of the charges, theywere asked to state, on a scale of 1 to 10, howcertain they were of the defendant’s guilt.

Once they completed their jury task, theparticipants completed an opinion surveyform. This form contained the item fromMcConahay’s (1986) Modern Racism Scale,hidden among dummy questions. The parti-cipants’ scores on this scale permitted a test ofDevine’s (1989) findings that even people withlow levels of prejudice can, unconsciously,behave in a racist manner.

y Results

The defendant in this case was charged withassault, ADW, and bias crime. Only nine of theparticipants (4.7%) found the defendant notguilty of either assault charge. This was asexpected, as his guilt was fairly obvious. Fifteenparticipants (7.9%) found the defendant guiltyof assault but not ADW; again, it was fairlyobvious that the defendant had used a deadlyweapon (a broken beer bottle). The remainingparticipants found the defendant guilty ofADW. Overall, 98 of the participants found thedefendant guilty of a hate crime (i.e., 54% ofthose who found him guilty of one of the assaultcharges), and 84 (46%) did not. This confirmsthat the case was ambiguous, as desired.

The Effects of Offenderand Victim Race

There was a significant difference betweenthe six conditions on whether the participantsfound the defendant guilty of a hate crime.There was also a significant difference betweenthe conditions as to how certain the parti-cipants were of the defendant’s guilt.However, the conditions did not differ signifi-cantly as to the sentence given to the defendant.Themean guilt determination, certainty of guilt,and sentences for each condition are presentedin Table 1.

What accounts for these differences? Furtheranalysis revealed that participants made different

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decisions when the offender and victim were ofdifferent groups thanwhen theywere of the samegroup.That is, peopleweremore likely to find thedefendant guilty of a hate crime when the actorswere of different groups. People were also morecertain that the defendant was guilty of a hatecrime when he was a member of a differentgroup than the victim.Again, however, there wasno overall significant difference in sentences.

Participants made different decisions whenthe offender and victim were of the same groupthan when they were of different groups.Therefore, two sets of ANOVAs were run todetermine whether the offender’s race hadan effect on participants’ decisions. One set ofANOVAs was run for conditions in which theoffender and victim were of the same race andanother for when they were of different races.

When the offender and the victim were ofthe same group, the race of the victim had asignificant effect on whether the participantsfound him guilty of a hate crime and on thedegree to which they were certain of his guilt.The direction of these differences, however,was actually opposite to the hypotheses: Whiteoffenders were more frequently convicted ofthe hate crime than were Black offenders, and

participants were more certain of the Whiteoffender’s guilt. Interestingly, participants werealso more certain of the White offender’s guiltof ADW than of the Black offender’s when theoffender and the victim were of differentgroups.

On the other hand, there was a differenttrend for the sentence: Black offenders receivedhigher average sentences than Whites (3.2years vs. 2.6 years) for the hate crime, althoughthis difference was nonsignificant. Perhapsa significant difference would have emergedwith a larger sample; only 20 participants whohad offenders and victims of the same race hadthe opportunity to choose a sentence for thehate crime.4 When a post hoc comparisonwas done of the sentences received by Blackoffenders versus those received by Jewish orWhite offenders (regardless of whether theoffender and victim were of the same group),the difference approached, but did not quitereach, significance.

When the offender and victim were ofdifferent races, the race of the offender had noeffect on the guilt determination, the sentence,or the certainty of guilt. This, too, was contraryto the original hypotheses.

Condition Guilt Determinationa (M)*** Certainty of Guilt (M)*** Sentence (M)

White offenderWhite victim 1.45 5.58 2.60Black victim 1.71 7.61 3.00

Black offenderWhite victim 1.55 6.38 3.00Black victim 1.18 3.57 3.20Jewish victim 1.63 6.97 3.16

Jewish offenderBlack victim 1.66 6.88 2.95

a. 1 = Not guilty; 2 = Guilty.

***p < .00l.

Table 1 Mean Guilt Determinations, Certainty of Guilt, and Sentence for Each Condition

Racism

After completing their jury task, par-ticipants were given the Modern Racism Scale,the items for which were embedded amongseveral other opinion questions. Devine (1989)argues that stereotypes are automaticallyactivated and that they affect perceptionswithout a person’s being consciously aware oftheir effects. Furthermore, she suggests, racismmay be consciously controlled. Therefore, if aperson is unaware that his or her stereotypeshave been activated, those stereotypes willinfluence decision making regardless of theperson’s level of racism. To test this hypothesis,a median split was performed on the racismscale, and participants were labeled as havingeither low or high levels of racism on each scale.Participants with scores of 32 and below wereclassified as low in racism.An ANOVA was thenrun to see if there was a relationship betweenlevels of racism and juror decisions.

The only significant relationship wasbetween level of racism on the Modern RacismScale and sentence in the hate crime case. Thedirection of this relationship was interesting:People who scored low on the racism scaletended to give higher sentences (M = 3.10) thanpeople who scored high (M = 2.74).

y Discussion and Conclusions

Although the psychological research offers goodreason to suspect that hate crime laws may havea paradoxical effect on minorities, this studysuggests that this fear may be misplaced. Con-trary to the original hypothesis, AfricanAmerican offenders were not treated moreharshly by the jurors in this case, and, in fact, theopposite was true: The White offender wasconvicted more frequently and the jurors weremore certain of his guilt. Therefore, the results ofthis study lend support to the idea that perhapshate crime laws are one viable and reasonablyharmless method for governments to fight hate.

On the other hand, care must be taken indrawing conclusions from this study. Therewere a number of factors that compromisedthe study’s external validity. Foremost amongthose factors was the design of the study itself:Participants read a summary of a case, ratherthan sitting through an actual trial, and thedecisions were made by individual jurors,rather than juries after deliberation. Further-more, many of the statistical findings of thisstudy were nonsignificant, and great careshould be taken in interpreting nonsignificantfindings. They may be due to such factors asType II statistical error, rather than reflecting“true” results.

However, it must be remembered that thiswas the first study to examine decisions in hatecrime cases. As such, it should be consideredsomewhat exploratory. Its greatest strengthis that it suggests many avenues for futureresearch.

At the same time, however, this study doesbegin to answer some important questionsabout the operation of hate crime laws. Theconclusions that can be drawn from this studyabout the role of the offender’s race arecomplex. To begin with, it seems clear thatpeople are more likely to identify a crime ashate motivated when the offender and victimare of different groups, in contrast to whenthey are of the same group. There is somelogic to this: It does seem likely that peoplemore often harbor hatred of groups otherthan their own.

On the other hand, there is danger in theassumption that crimes between people ofdifferent groups are racially motivated. Purelyas a matter of probability, the odds are thatmembers of minority groups who commitcrimes are more likely to victimize someoneof another race than are members of themajority. If crimes between people of differentgroups are attributed to hate, then minoritiesare more likely to be accused of hate crimes.Furthermore, during an altercation, racial slursmay be exchanged when the people involved

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are of different races. This does not necessarilyindicate, however, that race was the motive forthe attack.

A real example of this was cited in the caseof UWM Post v. Board of Regents of the Univ. ofWis. (1991), in which a federal district courtheld a campus hate speech code unconstitu-tional. According to the court, a White studenthad been disciplined under the code for callinga Black student “nigger” during an argument.Even the Black student asserted to the univer-sity that the other student had used the termas a general one of disrespect, as was done inmany Black and racially mixed neighborhoods,and that the White student was not expressingracial animus (p. 1180).

It is not clear, however, exactly what cueslead a person to believe that an incident is a hatecrime. Is it enough that the actors be of differentgroups? What part does evidence of racial slursand hate group membership play? Constitu-tional problems may arise if people are con-victed of hate crimes merely because of theirspeech and their group membership.

The law enforcement data (Gerstenfeld, 1998)suggest that Blacks are disproportionately likelyto be named as both offenders and victims ofhate crimes. The results of this study providesupport for one explanation for this pheno-menon: that crimes in which the offender andvictim are of different races are apt to belabeled as hate crimes. This explanation neednot suppose that people are being biased whenthey make these determinations. It mightmerely be a matter of statistics, as Blacksare disproportionately accused of crimes ingeneral. Another explanation for the lawenforcement data, however, was that becauseof stereotypes, people are more likely tointerpret a crime as hate motivated when theoffender is Black than when he is White. Thisstudy permitted an analysis of this hypothesis.

In fact, contrary to hypotheses, the biasagainst Black offenders was not evident in thisstudy. When the offender and victim were ofdifferent races, the offender’s race did not

affect any of the dependent variables. Whenthey were of the same race, the offender’s racewas a factor but in the exact opposite way aspredicted: It was White defendants who wereconvicted more often, and participants weremore certain of White defendants’ guilt.

There are several explanations for theseunexpected results. One possibility, of course,is that any bias the jurors had was againstWhites, rather than Blacks. This seemsunlikely, however, as it runs counter tovirtually all previous research.

Amore real possibility is that the race factorwas simply too overt or artificial in this study.Because the case was a written summary, ratherthan a real trial, the race of the defendant and ofthe victim had to be specifically mentioned. Attrial, of course, these variables would generallybe too obvious to bear mentioning; perhapsactually naming the races involved increasestheir conscious salience. Having been madeconsciously aware of the issue of race, parti-cipants might have chosen to act in a “politicallycorrect” or socially desirable manner.

A third possibility is that the particularcase that was used in this study did activate astereotype—but the stereotype did not pertainto Blacks. In this case, the materials statedthat the defendant belonged to a hate group.Although hate groups composed of membersof minority groups do exist, when most peoplethink of hate groups, they probably think ofWhite supremacist groups (such as the Ku KluxKlan and the Skinheads). Therefore, evidenceof a hate crime may actually be more consistentwith the schema of Whites than of Blacks.5 Totest this explanation, it would be useful toconduct an experiment in which no evidenceof hate group membership was introduced.

The data in this study revealed anotherinteresting relationship: Although Whites weremore often convicted of hate crimes andparticipants were more certain of their guilt,they did not receive harsher sentences. In fact, itwas Black defendants who received longersentences, although this difference did not quite

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reach a statistical level of significance. Clearly,this needs to be explored with larger samplesizes. If Black offenders do, indeed, receiveharsher sentences, what could account for thispattern?

Devine (1989) suggests that when peoplebecome aware that their race schemas havebeen activated, those who are low in racismwill make the effort to ignore those schemas.On the other hand, when people are not awareof the activation of the schema, even peoplelow in racism will be affected by stereotypes.Perhaps that is what was operating here.Whenparticipants made decisions as to the def-endant’s guilt, they were aware that racewas an issue and tried not to be affectedby stereotypes. When it came to sentencing,however, they may have been less aware of thestereotypes, and those stereotypes may havebeen stronger. After all, by the time they wereable to choose a sentence, they had alreadydecided that the defendant was a dangerouscharacter, for they had already convicted himof assault or ADW and a bias crime. The ideaof a dangerous criminal is highly consonantwith stereotypes about Black men.

Thus, this study could be seen to providesupport for Devine’s (1989) work. It does notprovide strong support for the argument thatminorities are harmed by hate crime laws, yet itdoes not entirely refute it, either. It is importantthat further research be conducted to examinethese issues more closely.

One interesting finding of this study wasthat there was no relationship between parti-cipants’ ethnic groups and their responses to thejuror task. White participants might have beenhypothesized to react differently than membersof minority groups. On the other hand, perhapsit is erroneous to separateWhites from“minoritymembers”: California is very close to having nosingle ethnic majority. Instead, Whites will soonbe the largest of a large number of minorities.A more accurate question, perhaps, is, “DoWhite participants react differently than Blackparticipants?” There were not enough Black

participants in this study to permit such acomparison: Only 6 identified themselves asAfrican American. It would be interesting torepeat this study among large samples of severaldifferent ethnic groups, so that comparisonscould be made.

Another issue addressed by this study wasthe relationship between participants’ level ofracism and their responses in the juror study. Itwas hypothesized that levels of racism wouldnot be related to decisions about hate crimes.This hypothesis was based on the work ofDevine (1989), who suggested that even peoplelow in racism might be affected by stereotypesif they were not aware that those stereotypeshad been activated. In other words, it takescognitive effort to counteract the effects ofstereotypes on decision making.

The data in this study were as hypothesized,in that racism scores were not related to hatecrime conviction or certainty of the defendant’sguilt. However, this study does not necessarilysupport Devine’s (1989) theory. In Devine’sstudy, both racist and nonracist participantsmade stereotype-based (i.e., racist) choiceswhen they were unaware that they had beenprimed with racial cues. In the present study,neither participants high in racism nor thoselow in racism discriminated against the Blackoffenders in convictions or certainty of guilt. Infact, if anything, the participants were biasedagainst White defendants.

The results are further clouded by twocomplications. First, people who scored low onthe Modern Racism Scale gave significantlyhigher sentences for the hate crime than thosewho scored high. Second, Black offendersreceived higher sentences for the hate crimethan did Whites, although this difference wasnot significant.

What might account for this pattern ofresults? One possibility, as discussed above, isthat the matter of race was too salient in thiscase. In other words, when it came to decidingwhether the defendant had committed a hatecrime, participants were aware that their


stereotypes had been activated. When it cameto the sentencing decision, however, perhapsthey were less aware of this. Another possi-bility, also discussed above, is that thestereotype that was activated in this case was ofa White racist. The participants who were lowin racism were, perhaps, more appalled at whatseemed to be a race-related attack and soimposed more severe sentences.

What does all of this imply about the hatecrime laws themselves? Unfortunately, what wasalready a muddy issue has not been mademuch clearer. This study does not support thehypothesis that Black defendants will be treatedmore harshly than White defendants in hatecrime cases, at least when there is evidence ofthe defendant’s hate groupmembership. On theother hand, the data do suggest that offenderswho choose victims of a different race are morelikely to be convicted of a hate crime than thosewho choose victims of the same race. Becausemembers of minority groups are, purely as amatter of chance, more likely to have victimsof different groups, this means that minoritygroup members might be more likely to beconvicted of hate crimes. Furthermore, thisstudy implies nothing about decision making atother steps in the judicial process. Jurors haveas much time as they wish to deliberate andmake their decisions and thus may have theopportunity to become aware of, and tocounteract, their biases. Police officers, wit-nesses, and victims, however, often must makemore immediate decisions (and often underconditions of great stress) and so may be morelikely to be influenced by stereotypes.

It is very important that more research beconducted to study these issues. This researchmay help inform policy makers as to thenecessity for hate crime laws, the impact (bothpositive and negative) of the laws, the potentialeffects of drafting laws in different ways, thebest ways to implement the laws, and possiblealternative or supplemental methods of red-ucing hate. As the first empirical research doneon this topic, this study serves the purpose of

clarifying which issues must be examined andof identifying some potential confounds to beavoided in future work. Based on the results ofthis study, it is possible to make several specificsuggestions as to the direction that futureinvestigations might take.

First, research ought to be done undermore realistic circumstances. Rather thansimply reading a summary of a case, partici-pants should watch a simulation of an actualtrial, perhaps on videotape. The artificiality ofdesigns such as that used in this study has beena source of criticism by judges and other legalscholars. Furthermore, participants should beallowed to deliberate and make decisions asjuries, rather than individual jurors. There isample evidence that decision making in a groupcontext is different from individual choices.6 Alarger sample size should also be used, so thatthe study will be more sensitive to differencesbetween conditions.

Another area that should be studied is theeffects of including information about thedefendant’s hate group membership. Thisinformation would be legally relevant, as onecriticism of hate crime laws has been that theymay result in people being punished becausethey belong to hate groups (a constitutionallyprotected activity), rather than because oftheir actions. Furthermore, if evidence abouthate group membership were excluded, theparticular stereotypes that are most salient toparticipants might be different, and thus theirresponses might be different as well. Exclusionof hate group evidence also increases therealism of the case, as the majority of hatecrimes are committed by people who do notbelong to organized hate groups.

The jury decision is only one of severalsteps within the adjudication of a hate crime.Before a case ever reaches a jury, decisionshave been made by victims, witnesses, policeofficers, prosecutors, defense attorneys, andjudges. In fact, one criticism that has beenmade of hate crime laws is that they permit toomuch discretion on the part of prosecutors,

perhaps allowing the prosecutors’ own biasesto operate (Hernandez, 1990). Certainly, veryfew hate crime cases ever go to court. Othershave commented that enacting hate crime lawsdoes not change the levels of prejudice ofthe people who enforce them (Greene, 1994).As stated above, there may actually be moreopportunity for the effects of bias in the initialstages of a crime than there are once it goesbefore a jury. Therefore, research should beconducted that focuses on these other aspectsof the justice system.

There is little question that when a personis singled out for criminal attack because ofhis or her race, religion, sexual orientation, orethnicity, it can be emotionally devastatingfor the victim and for the community. Alegislature rushing headlong into passing hatecrime laws, however, will not necessarilyassuage this devastation, nor will it necessarilydeter future acts. This is particularly true if thelaws themselves only serve as a vehicle for evenmore bias.

This study should be considered abeginning exploration of the real-life effectsof hate crime laws. As the constitutionalarguments have reached a logical and legaldead end, inquiry should turn to othermatters, including the issues addressed by thisstudy. It is hoped that this study will serve asan impetus for a great deal of further researchinto hate crimes and hate crime laws. If policymakers are more informed about the realityof these acts and these laws, then perhaps theywill be able to shape more effective methodsof eliminating hate.

y Notes1. The facts of the case were adopted from a real

incident that occurred in Oregon in 1992, in which ayoung male Skinhead brutally attacked an intoxicatedBlack man whomay have been harassing the Skinhead’sgirlfriend at a convenience store. An ambiguous casewas deliberately used: In a pilot study, 14 of 26participants concluded that this was a hate crime. Hadthe case been unambiguous, any racial effects would

have been masked. Also, in real life it is very often notclear whether an incident was hate motivated.

2. This would be true in a real life case, becauseassault is a lesser included offense of assault with adeadly weapon. A defendant cannot be convicted ofboth an offense and a lesser included offense.

3. The combinations with the Jewish offenderand with the Jewish victim were included to permit amore careful testing of the hypothesis. If only Blackand White offenders and victims were used, and adifference was found between them, it would not becertain whether the difference was due to stereotypesabout Blacks or was due to minority status per se. AJewish actor was chosen for two reasons. First, using aJewish actor contributes to the realism of the case, asJews are actually common targets of hate crimes.Furthermore, the commonly held stereotypes aboutJews are quite different from those about Blacks andprimarily focus on money issues rather than crime.Therefore, if stereotyping, rather than minority status,is what influences juror decisions, it would be expectedthat Jewish and Black offenders would receive differentverdicts.

4. This was due, in part, to the fact that relativelyfew people who had offenders and victims of the samerace found the defendant guilty of a hate crime;therefore, relatively few had the opportunity to choosea sentence.

5. It should be noted that levels of hate crimedetermination and certainty of guilt were at leastas high for Jewish offenders as for White offenders.Because Jews are not often associated with hate groupsin the media, the explanation for this is unclear. It maybe due to general lack of knowledge about Jewishpeople (the area in which the study was conducted hasa very small Jewish population) or perhaps partly dueto knowledge of Israeli extremist groups.

6. For a discussion of how this issue relates tojury size, see the Supreme Court case of Ballew v.Georgia (1978).

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Section III � Gazing Into the Crystal Ball 287


1. Why might people be better able to remember or recall negative stereotypes about members ofraces/ethnicities other than their own?

2. What evidence does Gerstenfeld provide in support of her statement that “the most common theme ofstereotypes about Blacks is that they are aggressive, hostile or criminal”?

3. What did the Craig and Waldo study reveal about perceptions of hate crimes?

4. What were the results of the Gerstenfeld study? Are they consistent with the concerns of critics of hatecrime statutes, who argue that these lawsmay be usedmore frequently against Blacks than againstWhites?

5. Are there any methodological problems with the research design used in this study? Howmight the designbe improved?

R E A D I N G

Capital juries in the State of Texas must answer three questions in the affirmative in order tosentence a defendant to death.Of these, themost important is“whether there is a probabilitythat the defendant would commit criminal acts of violence that would constitute acontinuing threat to society.” The jurors, in other words, must predict the offender’s futuredangerousness. This study examines the degree to which these predictions are accurate. Theauthors compare the institutional and postinstitutional behavior of two groups of offenders:107 defendants in capital murder cases whowere sentenced to life in prison and 92 offenderswhose death sentences were later reduced. The results of their analyses raise questions aboutthe ability of jurors to make accurate predictions of future dangerousness.

Gazing Into the Crystal Ball

Can Jurors Accurately PredictDangerousness in Capital Cases?

JamesW.Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorensen

�

SOURCE: “Gazing into the Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?” by James W. Marquart,Sheldon Ekland-Olson, and Jonathan R. Sorensen in Law & Society Review, 23, pp. 449–468, 1989. Reprinted with permissionof Blackwell Publishing Ltd.

y I. IntroductionBetween 1924 and 1972, the state of Texasexecuted 361 persons for the crimes of murder,

rape, and armed robbery. Prosecutors, jurors,and judges had wide discretion in decidingwhether to execute an offender. No one raiseda serious legal challenge to the death penalty

until 1972, when the United States SupremeCourt decided Furman v. Georgia and itscompanion case Branch v. Texas (408 U.S.238). In this landmark decision, the Courtdeclared that capital punishment as admin-istered constituted cruel and unusual punish-ment because of the broad disparity andarbitrariness in sentencing practices. Thisdecision invalidated death statutes in thirtystates and the District of Columbia.

Almost immediately, states began restruct-uring their capital statutes to comply withFurman. In Texas, House Bill 200 was passed bythe sixty-third legislature in an attempt to limitdiscretion in capital sentencing; it becameeffective on June 14, 1973 (Kuhn, 1974). Thisnew statute limits capital punishment tooffenders who knowingly and intentionallycommit murder in one of five circumstances.1 Asixth circumstance was added in 1985.2 When aperson is found guilty of murder and at least oneof these circumstances exists, a punishmenthearing is held. The jury in the punishment stageof the bifurcated proceedings must address thefollowing three questions:

1. whether the conduct of the defendantthat caused the death of the deceasedwas committed deliberately and with thereasonable expectation that the death ofthe deceased or another would result;

2. whether there is a probability that thedefendant would commit criminal actsof violence that would constitute acontinuing threat to society; and

3. if raised by the evidence, whether theconduct of the defendant in killing thedeceased was unreasonable in responseto the provocation, if any, by thedeceased (Tex. Crim. Proc. Code art.37.071b (1985)).

The state must prove these facts beyond areasonable doubt.3 The jury must answer “yes”

to all three questions before the death penaltymay be imposed. Affirmative responses tothe questions result in an automatic deathsentence. A negative answer to any questionresults in automatic life imprisonment.4 Texaslaw also provides for a mandatory review bythe Court of Criminal Appeals (Tex. Crim.Proc. Code art. 37.071 c-f (1985)). The UnitedStates Supreme Court upheld the Texas statutein Jurek v. Texas (428 U.S. 262 (1976)).

Questions 1 and 3 are nearly alwaysanswered affirmatively. Of the seventy-fourcapital murder cases tried between June 14, 1973,and February 4, 1976, eighteen resulted in lifesentences (3 were from plea bargains). Of thefifteen that went through a punishment hearing,the jurors in every instance answered “no” to thesecond question (Crump, 1977: 535). In onlythree of the fifteen cases did jurors also answer“no” to the first question. Our data on casesbetween 1974 and 1988, discussed in a latersection, reveal the same pattern (see also Black,1976; Davis, 1976; Scofield, 1980). Thus, it isQuestion 2 that prevents capital punishmentfrom being mandatory and hence unconstitu-tional. In other words, it is the prediction offuture dangerousness that is the determiningfactor between a life and a death sentence inTexas.

No research has measured the accuracy ofjuror predictions of future dangerousness incapital murder trials. In this paper, after areview of the literature, we shall first examinethe evidence on which predictions are made inresponse to Question 2 of the Texas capitalstatute and then examine the evidence thatoffenders sentenced to death did in fact“constitute a continuing threat to society.”This latter check on jury predictions ofdangerousness is made possible through a“natural experiment” in which we examine theinstitutional and post-release behavior ofninety-two persons sentenced to death inTexas who later had their sentences reduced(by commutation or otherwise) in 1974–88. Inall ninety-two cases, the jury answered “yes” tothe continuing threat question, deciding (and

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predicting) that these individuals were toodangerous to be permitted to live. The behaviorof this group is then compared to all defendants(N = 107) in capital murder trials who weresentenced to life from 1974 to 1988 becausejuries had failed to affirmatively answerQuestion 2 in the punishment proceeding.

y II. PredictingFuture Violence

The criminal justice system regularly dependson three types of prediction. The first isanamnestic, with predictions based on pastbehavior of the individual (see, e.g., Dix, 1981).The second is actuarial, with predictions basedon the behavior of persons with similar chara-cteristics (e.g., drug courier profiles). The third,and perhaps most common, is clinical, withpredictions based on the clinical judgment of anexpert, usually a psychologist or psychiatrist(Barefoot v. Estelle, 463 U.S. 880 (1983)).

Predictions of future behavior are routinelyaccepted by the criminal justice system (Jurek).While all prediction is difficult, violent behavioris relatively infrequent, and the low base ratemakes accurate predictions particularly proble-matic. As many researchers have observed,overprediction (a high rate of false positives) isthe norm (see Floud and Young, 1982; Morrisand Miller, 1985; Monahan, 1981).

Studies measuring the accuracy of predi-ctions of violence among the mentally illillustrate this pattern of overprediction.Steadman and Cocozza (1974) examined theeffect of Baxstrom v. Herold (328 U.S. 107(1966)), which resulted in the transfer of 967patients from a hospital for the criminallyinsane to civil hospitals. Only 3 percent ofthose committed to civil hospitals were violentenough to be returned to maximum securityinstitutions. About one-fifth of those releasedwere arrested (they averaged two and one-halfyears in the community), but only 2 percentwere ever convicted of subsequent violentcrimes. Thornberry and Jacoby (1979) followed

the 586 patients released from a maximumsecurity hospital for the criminally insane as aresult of Dixon v. Attorney General of theCommonwealth of Pennsylvania (325 F. Supp.966 (M.D. Pa. 1971)). Like Steadman andCocozza, they found that a minority of thereleased patients were seriously assaultiveduring confinement. More important, only 14percent of the former patients assaulted othersin the free community within four years aftertheir release.

One prior study has assessed dangerousnessamong what is arguably the most dangerous ofpopulations: capital offenders. Marquart andSorensen (1988; in press) examined the level ofviolent behavior over fourteen years by Texasoffenders whose death sentences were reversedin Furman. They found that although prisonpersonnel claimed that the group of Furmancommutees would pose a disproportionate threatto prisoners and guards, and to citizens in theevent of parole, this threat did not materialize.Over the fourteen years, one commutee com-mitted a second murder while on parole. Themajority of the offenders were model inmates;among those paroled, most adjusted to the “freeworld”without serious arrest or conviction.

The Texas death penalty statute studied byMarquart and Sorensen required no explicitpredictions of future dangerousness. Under thecurrent post-Furman statute, however, juriesmust make an explicit prediction about thedangerousness of the offender. The questionposed here is whether such predictions are in factrelated to future behavior.

y III. A Test of JuryPredictions ofDangerousness

To test the accuracy of jury predictions ofdangerousness, we compared 92 offenderssentenced to capital punishment who sub-sequently had their sentences commuted orreversed to capital offenders who had received alife sentence.A control group of inmates—those

convicted of capital murder but sentenced tolife imprisonment—was extracted from thepopulation of murderers who entered the TexasDepartment of Corrections (TDC) from 1974to 1988. This control cohort (N = 107) consistsonly of those prisoners convicted of capitalmurder who had their life sentencesdetermined by juries during the punishmentproceedings. Defendants found guilty of capitalmurder but given life imprisonment as a resultof a plea bargain were not included in thisanalysis. Texas law also stipulates that juveniles(those who are 15 or 16 years old at the time ofthe offense) certified to stand trial as adults incapital cases may be found guilty of capitalmurder; however, they are automaticallysentenced to life after a finding of guilt ratherthan having their penalties determined byjuries. These cases were also excluded from theanalysis (see Stadnik, 1989). We also excluded19 offenders who were convicted of capitalmurder and sentenced to life imprisonmentbut for whom the jury predicted dangerousnessby responding affirmatively on Question 2.These 19 offenders will be included in a lateranalysis in this paper. In short, the controlgroup represents those 107 lifers who, like the92 prisoners whose sentences were commutedor reversed, experienced both stages in theTexas capital sentencing scheme.

Of the final group of those released fromdeath row (N = 92), the majority (82) werereleased by commutation; this group alsoincludes those who were retried and sentencedto prison and those who had their originalcases dismissed. Commutations were grantedmostly in the 1980–83 period due to appellaterulings on jury selection procedures andquestions of admissible evidence (see, e.g.,Adams v. Texas, 448 U.S. 38 (1980); Estelle v.Smith, 451 U.S. 454 (1981)). Prior researchsuggests that these commutations were sup-ported by local prosecutors who felt theymight lose an expensive retrial (Ekland-Olson,1988). The commutations usually led to a

sentence of life imprisonment. Some deathrow inmates, however, were either retried andreceived non-capital sentences or commutedto serve time on concurrent sentences thatranged from six years to life. Two had theircases dismissed and served no additionalprison time after their release from death row.

Once the final list of persons releasedfrom death row and the life-sentence capitalinmates was obtained, three data sources wereutilized: TDC records, the records of theTexas Board of Pardons and Parole, and trialtranscripts at the court of criminal appeals.Demographic information, prior criminalhistory, institutional conduct, and currentstatus were recorded for each of the releaseesbased on a manual search of the inmates’institutional files at the TDC’s ClassificationOffice. Post-institutional information wasgathered on those offenders released on parolethrough the Texas Board of Pardons andParole. From the court transcripts we gatheredpsychiatric testimony and other insights intothe evidence the jury had considered indetermining that the defendant constituted acontinuing threat to society. In the followingsections, we shall inspect this evidence andthen examine the institutional and post-release behavior of the commutees during1974–88 to determine the degree to whichthese offenders did in fact represent acontinuing threat of violence to society.

y IV. Jury Predictions ofDangerousness

In the sentencing phase of a Texas capitalmurder trial, the jury must predict thatthe defendant will “commit criminal acts ofviolence that would constitute a continuingthreat to society” if it is to impose capitalpunishment. This must be established beyonda reasonable doubt. What evidence do jurorsuse in reaching this conclusion?

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A. Prior Record

One factor juries consider is the defen-dant’s prior criminal history (an anamnesticprediction). Table 1 displays criminal datagathered from extensive case files maintainedby the Board of Pardons and Parole andthe TDC, and supplemented by cross-checkswith records from the Texas Department ofPublic Safety. Researchers disagree aboutwhich variables to use for prior record (seeTonry, 1987). Some scholars maintain that toobtain a “complete” picture of a defendant’scriminal history arrests, indictments, and allother “contacts” with the system should bereported. Others insist that only convictiondata should be used as the most accuratedepiction of previous criminality. Table 1reports both.

Table 1 shows that the criminal back-grounds of former death row inmates andthose who were sentenced to life were similar.These data suggest that the juries’ decisionto sentence to death or life was not basedprimarily on the defendant’s prior record. Interms of prior incidents, nine out of teninmates from both groups had some contactwith the police (e.g., under investigation fora crime). Well over three-quarters of theoffenders from each group had no convictionsfor violent assaultive behavior. If convictionsfor violent offenses had been the sole factorused to predict future dangerousness, only18 percent of the death-sentenced and 17percent of the life-sentenced (control cohort)prisoners could have been considered threatsto society. Only three of the former death rowand two control cohort inmates had a priormurder conviction. In addition, two-thirds ofeach group had never been imprisoned. Theseconviction data suggest that most offendersin both groups were not violent, repetitivecriminals. Instead, based on conviction data,they could be best described as propertyoffenders who eventually committed a capitalhomicide.

B. Instant Offense

Jurors need not focus solely on adefendant’s prior history of violent crime, forthey are also presented with extensive and some-times graphic details about the immediateoffense. All capital murders are not treatedequally by prosecutors and jurors. Ekland-Olson (1988) has shown that rape-homicidecases are more likely to result in a deathsentence than are robbery-murders. It isreasonable to assume that some of thisdifferential final disposition is due to the jury’sperception that the individual who rapes andthen kills is a more violent threat and thusmore deserving of execution than one whorobs and kills. Similarly, the level of violencemay vary within various types of murders.Because the prosecution usually presentsthis evidence, jurors are quite aware thatthe offense involved an unusual amount ofbrutality. On these facts alone, they may makepredictions about the violent potential of theoffender in the future.

Table 2 presents data on the type of capitalmurder for which the offender was indicted. Atleast 50 percent of each group were convicted ofrobbery-murders. The two groups were alsovery similar in the rest of the felony murdertypes, with no major or significant difference.From these data it is apparent that jurors didnot rely solely on the type of homicide inmaking predictions about future dangero-usness. They were confronted with fairlyextensive criminal records and at times withstark patterns of violence in the instant offense.

C. Expert Opinion

A review of the trial transcripts suggeststhat juries also used psychiatric testimony inmaking a prediction about the defendant’sfuture dangerousness. We reviewed twentycases involving death-sentenced inmates inwhich expert clinical testimony was used. The

testimony generally followed the same patternin which defendants were labeled “sociopaths,”or people who felt no remorse for their acts andwere highly effective manipulators. Whenasked if there was a probability that thedefendant would commit criminal acts ofviolence that would constitute a continuingthreat to society, psychiatrists typically ans-wered “yes,” despite defense counsel objectionsthat the question invaded the jury’s province toanswer that same question. The followingtestimony from different cases reveals thispattern:4

He will continue his previous behavior,there is no reason to think he willchange this in any way (Adams v.Texas,1409 (1977)).

Well, again from a medical standpointor a psychiatric standpoint, [thedefendant] . . . is going to go aheadand continue his previous behaviorand pose a very serious threat to thelives of other human beings as longas he is allowed to operate within oursociety (Hughes v. Texas, 2563–64(1975)).

Well, certainly at times [the defendant]. . . can be very pleasant and these typeof things, but nomatter what society heis in with regard to his destructivebehavior, he will continue to exhibitthis, and this type of behavior will onlycontinue, no matter where he might be(Robinson v. Texas, 921 (1975)).

Some psychiatrists specialize in capitalmurder cases. One such psychiatrist, James P.Grigson, has been nicknamed “Dr. Death” andhas testified for the prosecution in nearlyone-third of the Texas cases involving deathrow inmates (Richards, 1988; Ewing, 1983).Grigson’s very strong opinions are illustratedby his testimony in cases in which the offender

was sentenced to death but later received acommutation:

Prosecutor: In your opinion, will he killagain?

Grigson: Yes he certainly will if there is anyway at all he was given theopportunity to, he certainlywill. . . . Well, society can restricthim, confine him; yet even inareas of confinement, this behav-ior [killing people] will continue(Boulware v. Texas, 1991–92(1974)).

Prosecutor: Can you tell us whether or not, inyour opinion, having killed in thepast, he is likely to kill in thefuture, given the opportunity?

Grigson: He absolutely will, regardlessof whether he’s inside aninstitutional-type setting orwhether he’s outside. No matterwhere he is, he will kill again.

Prosecutor: Are you telling me, then, thateven if he were institutionalized,put in a penitentiary for a lifesentence—would he still be adanger to guards, prisoners, andother people around him?

Grigson: Yes. He would be a danger in anytype of setting, and especially toguards or to other inmates. Nomatter where he might be, he is adanger (Rodriguez v. Texas, 2136(1978)).

Prosecutor: Say, if a person were put in a rigidsetting, would you think these actsof violence would continue, ifgiven an opportunity, even inthe rigid setting, say of perhapsprison guards?

Grigson: Oh, absolutely. It certainly wouldcontinue.

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Prosecutor: So, a person like the defendant, ifgiven the opportunity, would bea menace to even the prisonguards?

Grigson: Yes. As well as other prisoners.

Prosecutor: Do you feel that he would be acontinuing threat to whateversociety he might be in?

Grigson: Yes. He certainly will be (Collinsv. Texas, 2083–84 (1975)).

Implicit in these answers is Grigson’s firmbelief that there is no hope of treating, curing,or rehabilitating these offenders, as the fol-lowing remark illustrates:

A lot of research is being done and alot of money has been spent, a lot ofpeople are involved in trying todevelop something but at the presenttime and thus far we can see medicine,psychiatry has absolutely nothing

Initially Sentencedto Life Imprisonment

Type of Past Activities Released from Death Row (N = 92) (Control Cohort) (N = 107)

Prior incidentsa

0 11% 9%1–2 24% 21%3–5 30% 29%5 or more 35% 41%

Prior violent incidentsb

0 60% 69%1–2 29% 25%3 or more 11% 6%

Convictions for UCR violent crimesc

0 82% 83%1–2 15% 16%3 or more 3% 1%

Convictions for UCR property crimesd

0 54% 61%1–2 21% 27%3 or more 25% 12%

Adult incarcerations0 66% 69%1–2 27% 28%3 or more 7% 3%

a. Includes every known contact with a police agency, regardless of whether it resulted in an official disposition.

b. Includes all violent arrests and contacts with the police from serious (e.g., murder) to minor (e.g., fighting).

c. Includes murder, aggravated assault, armed robbery, and rape.

d. Includes burglary, auto theft, arson, and larceny.

Table 1 Prior Criminal History

whatsoever to offer that modifies orimproves the sociopathic behavior. Wedon’t have anything (Moore v. Texas,3269 (1974)).

Whatever the merits of the positions takenby psychiatrists in capital murder trials, theAmerican Psychiatric Association (APA), inBarefoot v. Estelle (463 U.S. 880 (1983)), statedthat predictions such as “100% certainty thatthe defendant will kill again” are prejudicial tothe defendant (see also Worrell, 1987; Green,1984; Levine, 1984). The APA, in Barefoot,concluded that “psychiatric testimony offuture dangerousness impermissably distortsthe fact-finding process in capital cases.”According to some psychologists (Faust andZiskin, 1988), clinicians are no more accuratein their predictions than lay persons. Currentlymany defendants on death row in Texas arecontesting psychiatric predictions on which

their sentences were based (Dallas MorningNews, April 10, 1988: 1).

Psychiatrists are often presented withhypothetical situations that essentially present thefacts of the case. This increasingly popularmethodallows psychiatrists to predict future behaviorwithout having examined the defendant (seeAppelbaum, 1984). The hypothetical describes theprior criminal acts committed by the defendantand the details of the instant offense. Even thoughmost of the defendants’ previous offenses arenon-violent, the prosecution uses these crimes todemonstrate a pattern of criminal behavior as wellas a failure to be rehabilitated. In the punishmentstage of one death-sentenced inmate, the state’sattorney referred to the defendant’s failure to berehabilitated from using drugs:

Prosecutor: You take what we know abouthim: He’s been to the pen-itentiary. Did he get off dope

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Initially Sentenced toReleased from Life Imprisonment

Homicide Characteristics Death Row (N = 92) (Control Cohort) (N = 107)

Elements of capital murderRobbery 50% 52%Police officer 14% 13%Rape 12% 13%Burglary 11% 8%Hired/paid killer 8% 11%Kidnapping 4% 1%Othera 1% 2%

Weapon involvedFirearm 74% 69%Knife 11% 16%Club 5% 6%Strangulation/beating 10% 9%

Relationship to victimStranger 75% 73%Non-stranger 25% 27%

a. Includes murder to collect on insurance policies, murder during arson, and murders involving multiple victims.

Table 2 Type of Homicide


when he went to the pen fordope? No. He goes on to heroin.You take that evidence, you stickit together with . . . [the details ofthe offense], and then you askyourself is there a probability,more than not, that if this manwere allowed to reenter societyhe would commit criminal actsof violence? Is there any doubt inyour mind whatsoever?

Nobody can say for certain, butwe can darn sure say there’s aprobability. There’s no doubtabout that, and we can darn suresay this was deliberate killing.Between this dough hook andthis roller and this 10-inchbutcher knife, that’s about asdeliberate as it gets (Grijalva v.Texas, 6663–4 (1978)).

While there is little direct evidence that suchtestimony affects jury decisions, it is regularlypresented, and the Supreme Court has at leastbeen willing to assume that the testimony affectsjury decisions (Barefoot at 905).

D. Other Bases forPredicting Dangerousness

The state’s attorneys consistently citedthe three kinds of evidence—the testimony ofpsychiatrists, the past criminal acts of thedefendant, and especially the heinousnessof the immediate offense—when concludingthat defendants are a continuing threat tosociety. They also appealed to the civil dutyof the jurors and their willingness (establishedduring voir dire) to impose the death penalty inan appropriate case. The following excerptsfrom two cases typify the attorneys’ arguments:

Now, a person that will . . . [committhat type of act] has got to be a threatto society. It has got to be a threat to

all of us, to our wives, to our families,to everybody in this country. Whatwould be more of a threat to society, ishe going to stop, is he going to stopwith these two? We don’t know. Howdo we know? Are you going to go intothe jury room and say two is okay, Idon’t think he will do it again?(Granger v. Texas, 6 (1979)).

I tell you now that unless you doobserve the evidence, and base yourdecision, and find beyond a reason-able doubt and find the answer to beyes in this case, that upon your headswill lie the next man that’s deaddue to . . . [the defendant’s] hands(Fortenberry v. Texas, 4719 (1977)).

In summary, jurors in capital cases mustdecide whether the offender represents acontinuing violent threat to the communitybased on the facts of the case, including theoffender’s prior record. In some cases theyare also confronted with expert psychiatrictestimony anddramatic appeals to their civil duty.

y V. Evidence ofDangerousness

We next examine the behavior of the ninety-two prisoners sentenced to death in partbecause the jury determined they representeda continuing threat, but who were later eitherreleased into the general prisoner populationor paroled to the broader community.

A. Institutional Behavior

To evaluate the institutional behavior ofthese inmates, we compared their behaviorwith three comparison groups: (1) the controlgroup of all 107 prisoners convicted of capitalmurder during 1974–88 who were sentenced tolife imprisonment, but not predicted to be

dangerous during the punishment stage oftheir trials; (2) the entire prison population in1986; and (3) all inmates housed in a singlehigh security prison (the Darrington Unit) inthe TDC in 1986. If jurors acting under thecurrent statute are effective at predicting thefuture dangerousness of convicted murderers,we would expect that the 92 inmates under thesentence of death who were later released fromdeath row would have a record of more violentinstitutional conduct than any of the com-parison groups.

It is difficult to make direct comparisonsbetween these groups due to the differences intime spent in prison, or the “at risk” period.However, it is possible to make some generalobservations regarding prison behavior aswell as the degree to which the commuteesconstituted a menace or disproportionatethreat to other inmates and the custodial staff.The best indicator of a “continuing threat”concerns murders and violent assaults, espe-cially those involving weapons. The data inTable 3 reveal that the yearly rate of weapon-

related rule violations for those released fromdeath row was somewhat lower than the ratefor other groups.5 One commuted capitalmurderer (Noe Beltran), however, was involvedin a gang-related prison murder in July 1988.Beltran, a member of the Hispanic prison gangthe Texas Syndicate (TS), and several fellowgang members murdered another TS memberin a power struggle. He thus became the firstinmate in Texas since the inception of state-imposed executions in 1924 to be released fromdeath row and returned with a second deathsentence. However, murder in prison was not ascommon as the clinical predictions promised.Nor were the death row releasees, compared tothe other groups, more violently assaultive orpredatory, or a disproportionate threat to otherinmates and staff.

We examined the evidence of positiveinstitutional behaviors as well as rule-breakingactivity, including time-earning status or class,good time accumulated, and programenrollment. As of January 1, 1989, approx-imately 90 percent of both the former death

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Released from Systemwide DarringtonDeath Row Life Sentence (1986) (1986)

Prison Rule Infraction (N = 90b) (N = 107) (N = 38,246) (N = 1,712)

Murder of an inmate 1 (.18) 0 3 (.007) 1 (.05)

Aggravated assault on 4 (.72) 7 (.90) 266 (.69) 23 (1.3)an inmate with a weapon

Sexual abuse of an 0 1 (.13) 48 (.12) 1 (.05)inmate by threat

Murder of an officer 0 0 0 0

Striking an officer 4 (.72) 12 (1.56) 4144 (10.8) 308 (17.9)

Total infractions 9 (1.61) 20 (2.60) 4461 (11.66) 333 (19.54)

a. The first number represents the actual number of infractions; the number in parentheses is the average yearly rate per 100 inmates.

b. Excludes institutional rule violations by two commutees who were discharged from death row to the community and did not serve anytime in the general prison population.

Table 3 Reported Serious Violent Rule Violationsa


row inmates and the life-sentenced controlcohort who were still incarcerated held trustystatus.6 Further, four of the former death rowprisoners received a total of thirteen furloughs(a 4-day stay with family members); two life-sentenced inmates had a total of fourteenfurloughs. Inmates from both groups com-pleted these furloughs without incident. Two-thirds of both groups have never been in solitaryconfinement, a punishment for serious dis-ciplinary infractions. One former death rowinmate graduated cum laude with a bachelor’sdegree in psychology from Sam Houston StateUniversity in May 1988. One-fifth of offendersin both groups (27% of commuted capitaloffenders and 22% of the control group) hadclean records with no minor violations of anytype recorded during their prison stay.

Despite these “glowing marks,” someformer death row prisoners, albeit a minority,have been disciplinary problems. Eight havebeen identified as prison gang members,and they have been confined indefinitely inadministrative segregation or high securityhousing areas. Six control group members havebeen identified as gangmembers and have beenhoused in administrative segregation wings.

B. Post-Release Behavior

Of the ninety-two commutees, seventy-eight remain in prison. Of the fourteen who areno longer in prison, two died in the generalprisoner population; another died while onparole in a construction accident in late 1987more than one year after his release. The othereleven include one inmate who was transferredto a federal prison in NewYork in 1977 and wasparoled in 1983. Four other inmates dischargedtheir sentences. The remaining six inmateswere paroled. As of April 1989, the average timespent in the broader community by theseeleven inmates was 4.5 years. One of the six wasreturned to prison for a serious violent crime.7

Of the life-sentenced control cohort,ninety-four (88%) have never been released to

the free society; one died in prison. Of theremaining thirteen, four had their cases re-versed or dismissed. Nine have been paroled,spending an average of four years (at thiswriting) in the outside community; one of thenine parolees was returned to prison. Thisinmate has been released and returned toprison four times over the past seven years forthe possession of drugs, aggravated assault,and aggravated robbery. He is currently out onparole.

C. Jury Predictions AmongLife-Sentenced Prisoners

The difference between the two categoriesof capital offenders we are examining lies inthe responses juries gave to the three questionsin the sentencing phase of the bifurcated trial.Table 4 presents the pattern of these responsesamong the 126 inmates who received a lifesentence after being convicted of capitalmurder. These data show that the decision togive life versus death in Texas rests squarelyon Question 2—future dangerousness. In 85percent (N = 107) of the cases (the controlcohort), the jury failed to predict that thedefendant would pose a continuing threat tosociety. This finding parallels Crump’s (1977)research conducted over a decade ago.

Table 5 presents the prison behavior ofall 126 life-sentenced inmates in response toQuestion 2. Of those 19 inmates jurorspredicted would be a continuing violent threat,4 (21%) engaged in violent assaultive behaviorin the prison setting, while 15 (79%) did notcommit any aggressive or predatory acts asprisoners. Among the inmates predicted not tobe continuing threats, 10 (12%) did in factcommit violent acts. If the juries predicted nofuture prison violence for all cases, they wouldhave been accurate in 110 (87%) instances,with no false positives and 13 percentfalse negatives. Instead, juries made correctpredictions in 76 percent of the 104 cases,with 14 percent false positives and

10 percent false negatives. Even when the jurywas deadlocked (badly split such as 6–6, 7–5,or 8–4) on the question of dangerousness, themajority of the inmates were not violent inprison.

Nevertheless, it can be argued from thesedata that Texas juries in capital cases havesome predictive power. In this sense, the law isworking successfully. However, there is a gooddeal of hidden irony. For example, one capitaloffender, Noe Beltran, was given a deathsentence but later received a commutation.The Texas Court of Criminal Appeals rever-sed his death sentence, ruling there was

insufficient evidence to predict futuredangerousness. In 1988, however, Beltranmurdered a fellow gang member and receiveda new death sentence. On the other hand, inthe celebrated case represented in The ThinBlue Line (1988), Randall Dale Adams waspredicted (by Dr. James Grigson) to be adanger, spent time on death row, had his deathsentence commuted to life, and was recentlyreleased from prison. It is widely acknow-ledged that Adams is innocent. Finally,one life-sentenced capital offender who waspredicted not to be a future threat has beenreleased from prison and returned severaltimes for committing new violent felonies. It isvery difficult to resolve the implicationsof these findings. Predicting future danger-ousness appears to depart little from gazing ina crystal ball when it comes to determining thefate of capital murderers.

y VI. ConclusionThe Texas capital statute, enacted in 1973,was an attempt to restrict the arbitrary andcapricious imposition of the death penalty.The new statute was created to limit capitalpunishment to society’s most dangerous off-enders. Question 2, which asks jurors topredict whether there is a probability that thedefendant would commit future criminal actsof violence, is clearly the major sentencingquestion that Texas jurors decide.

This paper analyzed the behavior ofninety-two persons, each of whom jurorsjudged to be a continuing violent threat tosociety. The former death row offenders spentan average of just over six years in the generalprison population. A minority of these inmatescommitted a handful of violent offenses atrates comparable to or lower than otherinmates. One, however, killed another prisonerin a gang-related murder. Overall these formerdeath row prisoners were not a dispro-portionate threat to the institutional order,

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Response Question 1 Question 2 Question 3a

Yes 76% (96)b 15% (19) 91% (29)

No 21% (27) 67% (85) 6% (2)

Deadlock 2% (3) 17% (22) 3% (1)

a. This question was asked in only 25% of the cases.

b. The number in parentheses is the number of defendants.

Table 4Jury Responses to the ThreeQuestions Among CapitalOffenders Sentenced to Life

Predicted to Be a Continuing Threat

Prison Behavior Yes No Deadlocked

Violent in prisonYes 4a (21%) 10b (12%) 2 (9%)No 15 (79%) 75 (88%) 20 (91%)

Total (N = 126) 19 85 22

a. These are actual figures rather than percentages.

b. One of these 10 prisoners was released on parole, committed asubsequent armed robbery, and was returned to prison.

Table 5Prison Behavior of Life-SentencedInmates Compared to QuestionPredictions


other inmates, or the custodial staff. Indeed,their total rate of assaultive institutionalmisconduct was lower than those of both thecapital murder offenders who were given a lifesentence and the general prisoner population.Further, the majority of infractions werecommitted by a minority of the capitalprisoners; most never committed any seriousrule violations after their release from deathrow. Likewise, most never spent time insolitary confinement.

Behavior in prison is one thing. Behaviorwhen released may be another. Twelve formerdeath row inmates were eventually releasedto free society. One committed a secondhomicide, a brutal slaying in some ways similarto the offense for which he was originallysentenced to death. This, of course, is adisturbing finding. At this point, on the basisof a sample of twelve, the post-prison behaviorof the former death row inmates cannot beassessed (1 of these 12 died while on parole).

Moreover, even if we were confident thatone of twelve released prisoners would commit afuture violent act, the policy implications areunclear. Should we kill all twelve persons, or allninety-two, because an unknown minorityin their midst are likely to be repeat offenders?Punishment, particularly capital punishment,on the basis of predictions of future behaviorwill always involve a large proportion of falsepositives. There is nothing to suggest a futurethat offers “100 percent certainty” in theprediction of violence. The data presented hereindicate that overprediction is the norm. TheTexas capital murder statute, as currently drawn,cannot avoid the dilemma.

Traditionally, it is argued that under theUnited States Constitution false positives arean anathema: Better that a hundred guilty gofree than one innocent be sentenced to death.This raises the question of whether, in thecontext of the Texas predictive capital punish-ment scheme, future jurors should be told ofthe predictive record of their predecessors. Thefinding that past jurors have overpredicted

violence may serve to caution future jurorsin their deliberations. While this servesan important purpose, assignment ofpunishment to an individual offender evenpartially on the basis of the past behavior ofsimilarly situated offenders also clearly entailsimportant pitfalls.

The Supreme Court of New Jersey, in NewJersey v. Davis (477 A.2d 308, 314 (1984)), hasheld that in the penalty phase of a capital casethe defendant “may offer in evidence, throughexpert witness, testimony relating to empiricalstudies, including presentation and analysis ofstatistical data, that is generally relevant to issueof the defendant’s potential for rehabilitationwhen defendant presents character as miti-gating factor.” In a parallel argument, JusticesMarshall and Brennan dissented when theUnited States Supreme Court refused to reviewa South Carolina case involving predictivestatistical evidence in Patterson v. SouthCarolina (471 U.S. 1036 (1985)). They noted, inparticular, the findings of Jurek, which held thatin the predictive context of the Texas deathpenalty statute the jury should have beforeit “all possible relevant information about theindividual defendant whose fate it mustdetermine” (1975: 276). Arguably, generalstatistical information might not be consideredrelevant in that it does not apply to theimmediate defendant. However, this line ofargument is undercut by Barefoot, in whichthe Court approved the relevance of expertpsychiatric predictions of the offender’s futuredangerousness, even though the expert neveractually examined the defendant. It is onlya small step from generalized psychiatricconclusions, based on hypotheticals, topredictions based on statistical patterns.

While this line of reasoning would seem tofavor the defendant, Goodman (1987) hasconvincingly argued that reliance on statisticalpatterns for predictions of violence and theassignment of punishments may create perni-cious distinctions when expanded to include arange of demographic comparisons. What if it

were found that one racial category of capitaloffenders was more likely than another tocommit future acts of violence? Should thisevidence be introduced during the sentencingphase of capital murder trials to soften or,alternatively, to maximize the punishment?In this context, as Goodman (ibid., p. 521)correctly notes, “A procedure that allowsjudgments about an individual’s blameworth-iness to be based on statistical correlations toanonymous prior malefactors is deeply incon-sistent with the general principles undergirdingour system of law.”

The data presented in this paper suggestthat jurors err in the direction of false positiveswhen it comes to predicting future danger-ousness. What we do not know on the basis ofthese data is whether jury decisions in Texaswould be different if jurors were not requiredto predict dangerousness as a precondition forsentencing an offender to death.We know thatutilitarian justifications for punishment arepreferred by the public over retributivistsentiments. Yet there is evidence that supportfor the death penalty is not based solely oninstrumental motives; that is, respondents whoclaim to favor the death penalty for reasons ofdeterrence often report that they would bewilling to support it even if it served nodeterrent purpose (Sarat and Vidmar, 1976;Vidmar and Dittenhoffer, 1981).

Jurors in Texas may be reacting to theinstant offense, the same way jurors do inCalifornia, Florida, Georgia, and other death-sentencing states. If so, the structure of thestatute in Texas simply preserves the fictionthat jurors are basing this crucial decisionon anything approaching consistently validpredictions of future behavior. Even for thosewho have committed very violent acts in thepast, the data simply do not bear out thisrational, utilitarian image of capital sentencing.Further research is needed to assess whetherjurors, consciously or unconsciously, decidethat an offender deserves to die and then tailortheir responses to the questions accordingly.

y Notes1. The circumstances were as follows:

♦ the person murdered a peace officer orfireman who was acting in the lawfuldischarge of an official duty and who thedefendant knew was a peace officer orfireman;

♦ the person intentionally committed themurder in the course of committingor attempting to commit kidnapping,burglary, robbery, forcible rape, or arson;

♦ the person committed the murder forremuneration or the promise of remun-eration or employed another to commit themurder for remuneration or the promise ofremuneration;

♦ the person committed the murder whileescaping or attempting to escape from apenal institution; or

♦ the person, while incarcerated in a penalinstitution, murdered another who wasemployed in the operation of the penalinstitution (Tex. Penal Code § 19.03 (1974)).

2. The sixth circumstance was: the personmurdered more than one person: (a) during the samecriminal transaction; or (b) during different criminaltransactions but the murders are committed pursuantto the same scheme or course of conduct (Tex. PenalCode § 19.03 (1985)).

3. Question 3 is given to the jury only if theevidence warrants it; otherwise jurors consider onlyQuestions 1 and 2.

4. The quoted expert testimony comes from theindicated page(s) in the trial transcript of the named case.

5. To calculate the average yearly rates of Level 1rule violations (serious violent behavior) for theformer death row prisoners, we computed the rate perprisoner (4/90 = .44). We then divided this rate by theaverage number of years spent in prison by theseoffenders (.044/6.3 = .007). For the control cohort wefollowed the same procedure: 7/107 = .065; and then065/7.2 (average time spent in prison) = .009.

6. Trusty status in the Texas prison system is areward for good behavior. Trusties receive more goodtime than non-trusties. Trusties can also work withoutarmed supervision both in the institution and outsidethe prison compound.

7. In 1975 Kenneth Dee Stogsdill was convictedin Texas of capital murder (a dismemberment slaying).

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In 1977 his capital murder case was overturned by theTexas Court of Criminal Appeals due to a lack ofevidence. However, he was sentenced to ten years forburglary and sexual assault connected to the samecrime for which he was originally sentenced to death;he was released from prison in 1980. Stogsdill thenmoved to California, where in 1985 he was convictedof first degree murder (a dismemberment slaying) andsentenced to a 25-year to life term.

y References

APPELBAUM,Paul S. (1984)“Hypotheticals, PsychiatricTestimony, and the Death Sentence,” 12 Bulletin ofthe American Academy of Psychiatry and Law 169.

BLACK, Charles L., Jr. (1976) “Due Process for Death:Jurek v. Texas and Companion Cases,” 26 CatholicUniversity Law Review 1.

CRUMP, David (1977) “Capital Murder: The Issues inTexas,” 14 Houston Law Review 531.

DAVIS, Peggy C. (1976) “Texas Capital SentencingProcedures: The Role of the Jury and theRestraining Hand of the Expert,” 69 Journal ofCriminal Law and Criminology 300.

DIX, George E. (1981) “Expert Prediction Testimony inCapital Sentencing: Evidentiary and ConstitutionalConsiderations,”19American Criminal LawReview 1.

EKLAND-OLSON, Sheldon (1988) “StructuredDiscretion, Racial Bias and the Death Penalty:The First Decade After Furman in Texas,” 69Social Science Quarterly 853.

EWING. Charles P. (1983) “‘Dr. Death’ and the Casefor an Ethical Ban on Psychiatric and Psycho-logical Predictions of Dangerousness in CapitalSentencing Proceedings,” 8 American Journal ofLaw and Medicine 407

FAUST, David, and Jay ZISKIN (1988) “The ExpertWitness in Psychology andPsychiatry,”241 Science 31.

FLOUD. Jean, andWarrenYOUNG (1982)Dangerousnessand Criminal Justice. Totowa, NJ: Barnes and Noble.

GOODMAN,Daniel S. (1987) “Demographic Evidencein Capital Sentencing” 39 Stanford Law Review 499.

GREEN,William (1984)“Capital Punishment,PsychiatricExperts and Predictions of Dangerousness,” 13Capital University Law Review 533.

KUHN, Michael (1974) “House Bill 200: TheLegislative Attempt to Reinstate Capital Punish-ment in Texas,” 11 Houston Law Review 410.

LEVINE, Murray (1984) “The Adversary Process andSocial Science in the Courts: Barefoot v. Estelle,” 12The Journal of Psychiatry and Law 147.

LIPSON. Mark and Errol MORRIS (1988) The ThinBlue Line. New York: Miramax.

MARQUART, James W. and Jonathan P. SORENSEN(in press) “A National Study of the Furman-Commuted Inmates,” The Loyola of Los AngelesLaw Review.

———(1988) “Institutional and Post-Release Behaviorof the Furman-Commuted Inmates in Texas,” 26Criminology 677.

MONAHAN, John (1981)PredictingViolent Behavior: AnAssessment of Clinical Techniques. Beverly Hills-Sage.

MORRIS. Norval, and Marc MILLER (1985)“Predictions of Dangerousness,” 6 Crime andJustice: An Annual Review of Research 1.

RICHARDS, Bill (1988) “Doctors Seek Crackdown onColleagues Paid for Testimony in MalpracticeSuits,”Wall Street Journal (November 7).

SARAT, Austin, and Neil VIDMAR (1976) “PublicOpinion, the Death Penalty, and the EighthAmendment: Testing the Marshall Hypothesis,”1976Wisconsin Law Review 171.

SCOFIELD, Giles R. (.1980) “Due Process in theUnited Stales Supreme Court and the Death of theTexas Capital Murder Statute,” 8 American Journalof Psychiatry and. Law 1.

STADNIK, Edward F. A. (1989) “Institutional Behaviorof Capital Murderers Receiving Life Sentences inTexas from 1974-1988.” M.A. Thesis College ofCriminal Justice, Sam Houston Slate University.

STEADMAN, Henry, and John COCOZZA (1974)Careers of the Criminally Insane: Excessive SocialControl of Deviance. Lexington, MA: LexingtonBooks.

THORNBERRY, Terence P. and Joseph E. JACOBY(1979) The Criminally Insane: A CommunityFollow-Up of Mentally III Offenders. Chicago:University of Chicago Press.

TONRY, Michael (1987) “Prediction and Classi-fication: Legal and Ethical Issues,” 9 Crime andJustice: An Annual Review of Research 367.

V1DMAR, Neil, and Tony DITTENHOFFER (1981)“Informed Public Opinion and Death PenaltyAttitudes,” 23 Canadian Journal of Criminology 43.

WORRELL, Claudia M. (1987) “Psychiatric Predictionof Dangerousness in Capital Sentencing: TheQuest for Innocent Authority,” 5 BehavioralSciences and the Law 433.

y Cases Cited

Adams v. Texas, 448 U.S. 38 (1980).Barefoot v. Estelle, 463 U.S. 880 (1983).Baxstrom v.Herold, 383 U.S. 107 (1966).Boulware v. Texas, No. 52,139, Tex. Crim. App. (1974).Branch v. Texas, 408 U.S. 238 (1972).Dixon v. Attorney General of the Commonwealth ofPennsylvania, .325 F. Supp. 966 (M.D. Pa. 1971).

Estelle v. Smith, 451 U.S. 454 (1981).Furman v. Georgia, 408 U.S. 238 (1972).Hughes v. Texas. No. 51,827 Tex. Crim. App. (1975).

Jurek v. Texas, 428 U.S. 262 (1976).Patterson v. South Carolina, 471 U.S. 1036 (1985).Robinson v. Texas, No. 51,800 Tex. Crim. App. (1975).Rodriguez v. Texas, No. 62,274 Tex. Crim. App. (1978).State v. Davis, 477 A.2d 308 (1984).

y Statutes CitedTEX. HOUSE BILL 200, 63d Leg., June 14, 1973.TEX. CRIM. PROC. CODE art. 37.071b–f (1985).TEX. PENAL CODE § 19.03 (1974, 1985).

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1. Briefly summarize the Supreme Court’s decisions in Furman v. Georgia and Gregg v. Georgia.

2. How did Texas structure its death penalty statute in response to the Supreme Court’s concerns inFurman? What role does the jury play?

3. Why is the study described here referred to as a “natural experiment”?

4. The first question the authors ask is, “what evidence do jurors use in making predictions ofdangerousness?” How do they answer this question? Are there differences in the characteristics ofoffenders who were predicted to be dangerous in the future and those who were not?

5. The authors argue that if jurors can accurately predict dangerousness, one would expect those sentencedto death to behave differently than those sentenced to life in prison. What did they find?

6. Of the 12 former death row inmates who were eventually released from prison, 1 committed a secondhomicide. What are the policy implications of this finding? How would you answer the question posedby the authors: “Should we kill all twelve persons, or all ninety-two, because an unknown minority intheir midst are likely to be repeat offenders?”

7. Based on the data discussed in this article, how would you answer the question posed in the title?

�

R E A D I N G

In a provocative essay published in the Yale Law Journal shortly after O. J. Simpson’sacquittal, Paul Butler, a Black law professor at GeorgeWashington University Law School,argued for “racially based jury nullification.” That is, he urged Black jurors to refuse toconvict Black defendants accused of nonviolent crimes, regardless of the strength of theevidence mounted against them. Butler’s position on jury nullification was that the“black community is better off when some nonviolent lawbreakers remain in thecommunity rather than go to prison.” Arguing that there are far too many Black men in

Section III � Racially Based Jury Nullification 303

prison, Butler suggested that there should be a presumption in favor of nullification incases involving Black defendants charged with nonviolent, victimless crimes, such aspossession of drugs.

Racially Based Jury Nullification

Black Power in the Criminal Justice System

Paul Butler

y Introduction

I was a Special Assistant United States Attorneyin the District of Columbia in 1990. Iprosecuted people accused of misdemeanorcrimes, mainly the drug and gun cases thatoverwhelm the local courts of most Americancities. As a federal prosecutor, I represented theUnited States of America and used that powerto put people, mainly African-American men,in prison. I am also an African-American man.While at the U.S. Attorney’s office, I made twodiscoveries that profoundly changed the wayI viewed my work as a prosecutor and myresponsibilities as a black person.

The first discovery occurred during atraining session for new Assistants conductedby experienced prosecutors. We rookies wereinformed that we would lose many of ourcases, despite having persuaded a jury beyonda reasonable doubt that the defendant wasguilty. We would lose because some blackjurors would refuse to convict black def-endants who they knew were guilty.

The second discovery was related to thefirst, but was even more unsettling. It occurredduring the trial of Marion Barry, then thesecond-term mayor of the District of

Columbia. Barry was being prosecuted by myoffice for drug possession and perjury. Ilearned, to my surprise, that some of my fellowAfrican-American prosecutors hoped that themayor would be acquitted, despite the fact thathe was obviously guilty of at least one of thecharges—he had smoked cocaine on FBIvideotape. These black prosecutors wantedtheir office to lose its case because they believedthat the prosecution of Barry was racist.

Federal prosecutors in the nation’s capitalhear many rumors about prominent officialsengaging in illegal conduct, including drug use.Some African-American prosecutors wonderedwhy, of all those people, the government choseto “set up” the most famous black politician inWashington, D.C. They also asked themselveswhy, if crack is so dangerous, the FBI hadallowed the mayor to smoke it. Some membersof the predominantly black jury must have hadsimilar concerns: They convicted the mayor ofonly one count of a fourteen-count indictment,despite the trial judge’s assessment that he had“‘never seen a stronger government case.’”1

Some African-American prosecutors thoughtthat the jury, in rendering its verdict, jabbed itsblack thumb in the face of a racist prosecution,and that idea made those prosecutors glad.

SOURCE: “Racially-Based Nullification: Black Power in the Criminal Justice System,” by Paul Butler in Yale Law Journal, vol. 105,pp. 677–725, 1995. Reprinted by permission of the author.

As such reactions suggest, lawyers andjudges increasingly perceive that some African-American jurors vote to acquit black def-endants for racial reasons, a decisionsometimes expressed as the juror’s desire notto send yet another black man to jail. Thisessay examines the question of what role raceshould play in black jurors’ decisions to acquitdefendants in criminal cases. Specifically, Iconsider trials that include both African-American defendants and African-Americanjurors. I argue that the race of a black def-endant is sometimes a legally and morallyappropriate factor for jurors to consider inreaching a verdict of not guilty or for anindividual juror to consider in refusing to votefor conviction.

My thesis is that, for pragmatic andpolitical reasons, the black community isbetter off when some nonviolent lawbreakersremain in the community rather than go toprison. The decision as to what kind ofconduct by African-Americans ought to bepunished is better made by African-Americans themselves, based on the costs andbenefits to their community, than by thetraditional criminal justice process, which iscontrolled by white lawmakers and whitelaw enforcers. Legally, the doctrine of jurynullification gives the power to make thisdecision to African-American jurors who sitin judgment of African-American defendants.Considering the costs of law enforcement tothe black community and the failure of whitelawmakers to devise significant nonincarcerativeresponses to black antisocial conduct, it isthe moral responsibility of black jurors toemancipate some guilty black outlaws.

Part I of this essay describes two criminalcases in the District of Columbia in whichjudges feared that defendants or their lawyerswere sending race-conscious, “forbidden” mes-sages to black jurors and attempted to regulatethose messages. I suggest that the judicial andpublic responses to those cases signal a

dangerous reluctance among many Americansto engage in meaningful discourse about therelationship between race and crime. In Part II,I describe racial critiques of the criminal justicesystem. I then examine the evolution of thedoctrine of jury nullification and suggest, inlight of this doctrine, that racial considerationsby African-American jurors are legally andmorally right. Part III proposes a framework foranalysis of the kind of criminal cases involvingblack defendants in which jury nullificationis appropriate, and considers some of theconcerns that implementation of the proposalraises.

My goal is the subversion of Americancriminal justice, at least as it now exists.Through jury nullification, I want to dismantlethe master’s house with the master’s tools. Myintent, however, is not purely destructive; thisproject is also constructive, because I hope thatthe destruction of the status quo will not lead toanarchy, but rather to the implementationof certain noncriminal ways of addressingantisocial conduct. Criminal conduct amongAfrican-Americans is often a predictablereaction to oppression. Sometimes black crimeis a symptom of internalized white supremacy;other times it is a reasonable response to theracial and economic subordination everyAfrican-American faces every day. Punishingblack people for the fruits of racism is wrong ifthat punishment is premised on the idea that itis the black criminal’s “just deserts.” Hence, thenew paradigm of justice that I suggest in Part IIIrejects punishment for the sake of retributionand endorses it, with qualifications, for the endsof deterrence and incapacitation.

In a sense, this essay simply may argue forthe return of rehabilitation as the purpose ofAmerican criminal justice, but a rehabilitationthat begins with the white-supremacist beliefsthat poison the minds of us all—you, me, andthe black criminal. I wish that black peoplehad the power to end racial oppressionright now. African-Americans can prevent the

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application of one particularly destructiveinstrument of white supremacy—Americancriminal justice—to some African-Americanpeople, and this they can do immediately. Ihope that this essay makes the case for why andhow they should.

y I. Secret MessagesEveryone Hears

Americans seem reluctant to have an openconversation about the relationship betweenrace and crime. Lawmakers ignore the issue,judges run from it, and crafty defense lawyersexploit it. It is not surprising, then, that someAfrican-American jurors are forced to sneakthrough the back door what is not allowed tocome in through the front: the idea that “racematters” in criminal justice. In this part, I telltwo stories about attempts by defense attorneysto encourage black jurors’ sympathy for theirclients, and then I examine how these attemptsprovoked many people to act as though the ideaof racial identification with black defendantswas ridiculous or insulting to black people. Infact, the defense attorneys may well have beenattempting to encourage black jurors’ sympathyas part of their trial strategies. The lesson of thestories is that the failure of the law to addressopenly the relationship between race and crimefosters a willful and unhelpful blindness inmany who really ought to see and allowsjury nullification to go on without a principledframework. This essay offers such a frameworkand encourages nullification for the purpose ofblack self-help.

A. United States v. Marion Barry

The time is January 1990. The mayor of theDistrict of Columbia is an African-Americanman named Marion Barry. African-Americansmake up approximately sixty-six percent of the

population of the city. The mayor is so popularin the black community that one local news-paper columnist has dubbed him “Mayor forLife.” Barry is hounded, however, by rumors ofhis using drugs and ‘“chasing women.’” Barrydenies the rumors and claims that they areracist.

On January 18, 1990, themayor is contactedby an old friend, RasheedaMoore, who tells himthat she is visiting for a short time, and staying ata local hotel.2 The mayor stops by later thatafternoon and telephones Ms. Moore’s roomfrom the lobby of the hotel. He wants her tocome downstairs to the lobby for a drink, butshe requests that he come up to her room. Themayor assents, joins Ms. Moore in the room,and the two converse.At some point,Ms.Mooreproduces crack cocaine and a pipe, and invitesthe mayor to smoke it. He first demurs, thenconsents, and after he inhales smoke from thepipe, agents of the FBI and the MetropolitanPolice Department storm the room. It turns outthat Ms. Moore is a government informant, andthe police have observed and videotaped theentire proceeding in the hotel room. The mayoris arrested and subsequently charged withone count of conspiracy to possess cocaine, tencounts of possession of cocaine, and threecounts of perjury for allegedly lying to the grandjury that had investigated him. The mayorpublicly asserts that he is the victim of a racistprosecution.

It is the last week in June 1990. The mayoris on trial in federal court.3 The judge is white.Of the twelve jurors, ten are African-American.Rasheeda Moore, the government’s star wit-ness, is expected to testify. The mayor has fourpasses to give to guests he would like to attendhis trial. On this day, he has given one pass toMinister Louis Farrakhan, the controversialleader of the Nation of Islam. Farrakhan haspublicly supported Barry since his arrest, inpart by suggesting that the sting operation andthe prosecution were racist. When Farrakhanattempts to walk into the courtroom, a U.S.

deputy marshal bars his entry. When Barry’sattorney protests, the judge states, outside ofthe jury’s hearing, that Farrakhan’s ‘“presencewould be potentially disruptive, very likelyintimidating, and he is a persona non grata forthe [rest] of this case.’”4 Rasheeda Moore thentakes the stand.

The next day, the Reverend GeorgeStallings appears at the trial with one of Barry’sguest passes in hand. Stallings is a black RomanCatholic priest who, the previous year, receivedextensive publicity when he accused theCatholic Church of being hopelessly racist, leftit, and founded his own church.When Stallingsreaches the courtroom, the deputy marshal,following the instructions of the judge, doesnot let him enter. The judge explains, againoutside of the jury’s hearing, that Stallings is‘“in my judgment, not an ordinary member ofthe public and his presence would very likelyhave the same effect as Mr. Farrakhan’s.’” Thejudge also indicates that there are ‘“others whofit the same category.’” Barry’s attorney, asks fora list of those persons. The judge replies, “‘Ithink you will know themwhen you see them.’”

In the wake of these two episodes, theAmerican Civil Liberties Union, representingBarry, Farrakhan, and Stallings, files an emer-gency appeal of the trial judge’s decision. Itargues that the judge’s refusal to allow Barry’sguests to attend the trial violated Barry’s SixthAmendment right to a fair trial and the FirstAmendment rights of the guests. In response,the judge’s attorneys state that the judge exc-luded Farrakhan and Stallings because theirpresence in the courtroom would send an‘“impermissible message”’ of ‘“intimidation’”and ‘“racial animosity’” to jurors and witnesses.The judge’s attorneys argue that the excludedpersons’ views of the prosecution had beenhighly publicized and that their appearance atthe trial was consistent with Barry’s “‘publiclyavowed strategies of seeking a hung jury andjury nullification.’” The judge’s attorneys arguethat Farrakhan and Stallings attended the trial“‘not to view the proceeding or to show

generalized concern, but instead to send aforbidden message to the jury and witness.’”

The U.S. Court of Appeals for the Districtof Columbia Circuit rules that Farrakhanand Stallings should have presented theirconstitutional claims to the trial judge prior toseeking relief in the appellate court.5 Accor-dingly, it remands the case back to the trialjudge. Because the trial has been haltedpending appeal, however, the D.C. Circuit,in light of the “exigent circumstances,” listsseveral “pertinent considerations” for the trialjudge on remand. The considerations mainlyconcern the judge’s power to regulate theattendance of those who threaten physically todisrupt a courtroom. The court does note,though, that:

No individual can be wholly excludedfrom the courtroom merely becausehe advocates a particular political,legal or religious point of view—evena point of view that the district courtor we may regard as antithetical to thefair administration, of justice. Nor canan individual be wholly excludedfrom the courtroom because his pres-ence is thought to send an undesirablemessage to the jurors except that ofphysical intimidation.

The trial judge hears the message of thecourt of appeals. In lieu of resolving Farrakhanand Stallings’s constitutional claims, he insteadseeks assurances from their attorneys that theirclients know how to conduct themselves ina courtroom. Indeed, the judge provides theattorneys with his own “special rules” ofdecorum regarding the trial, stating that “anyattempt to communicate with a juror maybe punished as criminal contempt of court.Farrakhan and Stallings’s attorneys assure thecourt that their clients will act with decorum inthe courtroom. The trial continues. The mayoris eventually convicted of one of the indict-ment’s fourteen counts (for perjury), but not

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of the count in which he smoked the cocaineon videotape.

B. The Attorney WhoWore Kente Cloth

It is now June 11, 1992. John T. Harvey, IIIis an African-American criminal defenseattorney who practices in the District ofColumbia. Harvey represents a black man whois charged with assault with intent to murder.The case is scheduled for arraignment before awhite judge. At the arraignment, Harvey wearsa business suit and tie, and his jacket isaccessorized by a colorful stole made of kentecloth. Kente cloth is a multihued woven fabricoriginally worn by ancient African royalty, andmany African-Americans have adopted it as afashion statement and a symbol of racial pride.

In pretrial proceedings, the judge hadwarned Harvey that he would not be permittedto wear kente cloth before a jury. According toHarvey, the judge told him that wearing thefabric during a jury trial “‘was sending a hiddenmessage to jurors.’”6 The judge had informedHarvey that he had three options: He couldrefrain from wearing the kente cloth; he couldwithdraw from the case; or he could agree totry the case before the judge, without a jury.Harvey’s client decided to plead guilty. At theJune 11 hearing, however, Harvey refuses toenter his client’s plea before the judge becausehe doubts that the judge will be impartial. Thejudge then removes Harvey from the case, “‘noton the basis of [the] kente cloth, but on thebasis that [Harvey] will not enter a plea which[his] client wishes to enter.’”

The same day, another client of Harvey’s isscheduled to go to trial, also for assault withintent to kill, before another white judge.During the voir dire, the judge asks if anyof the jurors are familiar with Harvey, whosebattle with the other judge was well publicized.Four of the potential jurors know of thecontroversy. “‘[T]he concern we think wehave here,’” the judge says, is “‘that we won’t

influence a juror improperly.’”He also informsthem of case law in another jurisdictionsuggesting that a court may prevent a Catholicpriest from wearing a clerical collar in court.When Harvey asks the judge to inform thepotential jurors of contrary cases, the judgerefuses.

Ultimately, the judge allows Harveyto wear the cloth, but he suggests that whenHarvey submits an attorney fee voucher to himfor approval, he might not allow Harvey to bepaid for the time the kente cloth issue hasconsumed. Harvey’s client is tried before anall-black jury and is acquitted.

C. The Judicial and PopularResponse: Willful Blindness

As described above, the trial judge’sattempt to exclude Farrakhan and Stallingsfrom Barry’s trial met with disapproval fromthe D.C. Circuit. In the case of John Harvey, nohigher court had occasion to review the judge’sprohibition against the kente cloth but, asdiscussed below, much of the public reactionto the judge’s prohibition was critical. Theseresponses scorned the trial judge’s fears thatblack jurors might acquit on the basis of racialidentification rather than the “evidence.” TheD.C. Circuit and many observers, however,failed to acknowledge the significance of the“forbidden” message. I believe that this failurewas deliberate. It reflected an intention to avoidserious consideration of the issue of black jurorsacquitting black defendants on the basis ofracial identification. Simply put, the D.C.Circuit and some of the public did not want toface the reality that race matters, in general andin jury adjudications of guilt and innocence.

1. The D.C. Circuit: We Hate Fights

The D.C. Circuit’s per curiam opiniondiscussed the issue before it as though the judge’sconcern was that Barry’s invitees would causesome type of physical disruption. The courtlisted a series of live “pertinent considerations,”7

four of which actually were not pertinentbecause they involved the physical disruption ofcourtrooms or physical threats to witnesses. Theonly relevant consideration was so vague that itwas nearly useless: The trial judge must exercisehis discretion to exclude people from attendingcriminal matters “consistently with the First andFifth Amendment rights of individuals to attendcriminal trials.” The court’s discussion of thisconsideration is even more ambivalent: No onecan be “wholly” excluded from a trial, even if headvocates a point of view that “wemay regard asantithetical to the fair administration of justice”or if his presence sends an“undesirable message”to jurors. Because the appellate court did notsuggest a procedure for partial exclusion ofcourtroom spectators, the trial judge’s responsewas to pretend as though he had been concernedall along about physical disruption andsubsequently to insist that Farrakhan andStallings act in accordance with his rules ofdecorum. In the view of the D.C. Circuit, trialguests should keep their hands and their feet tothemselves, but their messages may run amuck.In reality, Farrakhan’s and Stallings’s mannersin the courtroom were an issue created bythe appellate court. Ironically, the trial judge’sresponse—the patronizing insistence thatFarrakhan and Stallings agree to behavethemselves—smacks of racism more than doeshis initial decision to exclude them from thecourtroom.United States v. Barry suggests that no

trial spectator can be barred from a courtroomunless she threatens physically to disrupt thetrial. In this respect, the court established asevere restriction on the discretion of judges tocontrol public access to trials. Not all courtshave taken this position; however. Two of thefew other federal appellate courts that haveconsidered symbolic communication by trialspectators have found it appropriate to regulatethis type of communication. In one case, theNinth Circuit slated that “[w]hen fair trialrights are at significant risk . . . the firstamendment rights of trial attendees can andmust be curtailed at the courthouse door.8 In

another case, the Eleventh Circuit ordered theretrial of a man convicted of the murder of aprison guard, partly because of the presence, atthe first trial, of numerous uniformed prisonguards.9 The court was concerned that theguards’ presence posed an unacceptable risk ofprejudicing the jurors.

Significantly, the decisions from theNinth and Eleventh Circuits involved cases inwhich the presence of the spectators was notthought to implicate race. The D.C. Circuit isthe first appellate court to consider a“forbidden” racial message. My intention innoting this distinction is not to criticize therestrictive standard the D.C. Circuitestablished; indeed, there are potentiallytroubling implications of standards that allowtrial judges more discretion in terms of which“secret” messages to regulate. I suggest,however, that the D.C. Circuit’s holding wasnot mandated by clear constitutional dictatesand was not supported by precedent fromother federal jurisdictions. Indeed, otherappellate courts have considered and regulatedthe contents of the messages that trialspectators were thought to be sending. Thosecases suggest that the D.C. Circuit could havetalked about race, and yet it did not.

2. The Skeptics: What’sRace Got to Do with It?

The response of a number of com-mentators to the controversy over JohnHarvey’s kente cloth was disdainful of the trialjudge’s apprehension about race-based appealsto black jurors. For example, the WashingtonTimes characterized one of the judge’s concernsas “[s]heer, unadulterated goofiness.”12 Theeditorial continued:

[The judge] apparently believes thatthe [kente] cloth is no innocent fabricbut rather possesses hypnotic powersof seduction, powers that will turn thejudicial system on its head and holdjurors in its sway. . . .

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. . . [W]hile most of us commonfolk are puzzled by this kind ofjudicial behavior, lawyers are widelyinured to the fact that judges are freeto act like fools with impunity—evenwhen it is an abuse of discretion, anabuse of power, a waste of time and aninjustice to someone who has comebefore the court seeking justice.

The National Bar Association, an African-American lawyers’ group, expressed a similarconcern, and one black attorney called thejudge’s actions ‘“almost unbelievable’” andwondered why the judge ‘“injected race’” intothe trial proceedings by making an issue of thekente cloth. Even the prosecutors in the kentecloth case “remained conspicuously silent” andrefrained from endorsing the judge’s concernsabout the cloth.

D. The Forbidden Message Revealed

I am fascinated by the refusal of theseactors to take seriously the possibility and legalimplications of black jurors’ sympathy withblack defendants. The criminal justice systemwould be better served if there were lessreluctance to consider the significance of racein black jurors’ adjudications of guilt orinnocence. The remainder of this essay arguesthat race matters when a black person violatesAmerican criminal law and when a black jurordecides how she should exercise her powerto put another black man in prison.

The idea that race matters in criminaljustice is hardly shocking; it surely does notsurprise most African-Americans. In the Barryand Harvey stories, I believe that it was knownby all of the key players: judges, jurors,attorneys, defendants and spectators. Thetrial judges in those cases were correct:Somebody—the controversial black dema-gogue, the radical black priest, the kente-cloth-wearing lawyer—was trying to send the blackjurors a message. The message, in my view,was that the black jurors should consider the

evidence presented at trial in light of the ideathat the American criminal justice systemdiscriminates against blacks. The message wasthat the jurors should not send another blackman to prison.

There is no way to “prove” whatFarrakhan’s and Stallings’s purposes were inattending Barry’s trial—nor can I “prove” theintent of the kentecloth-wearing lawyer.I believe that my theory that they wereencouraging black jurors’ sympathy is reason-able, based on the relevant players’ statements,the trial judge’s observations, and commonsense and experience. Even if one is unwillingto ascribe to those players the same raciallybased motivations that I do, acknowledgementand concern that some black jurors acquitblack defendants on the basis of race areincreasing, as my experience at the U.S.Attorney’s Office showed. For the remainder ofthis essay, I focus on the legal and socialimplications of this conduct by black jurors.

y II. “Justice Outside theFormal Rules of Law”

Why would a black juror vote to let a guiltyperson go free? Assuming that the juror is arational actor, she must believe that she and hercommunity are, in some way, better off withthe defendant out of prison than in prison.But how could any rational person believe thatabout a criminal? The following section des-cribes racial critiques of the American criminaljustice system. I then examine the evolution ofthe doctrine of jury nullification and argue thatits practice by African-Americans is, in manycases, consistent with the Anglo-Americantradition and, moreover, is legally and morallyright.

A. The Criminal Law and African-Americans: Justice or “Just Us”?

Imagine a country in which more thanhalf of the young male citizens are under the

supervision of the criminal justice system,either awaiting trial, in prison, or onprobation or parole. Imagine a country inwhich two-thirds of the men can anticipatebeing arrested before they reach age thirty.Imagine a country in which there are moreyoung men in prison than in college. Nowgive the citizens of the country the key to theprison. Should they use it?

Such a country bears some resemblance to apolice state. When we criticize a police state, wethink that the problem lies not with the citizensof the state, but rather with the form ofgovernment or law, or with the powerful elitesand petty bureaucrats whose interests the stateserves. Similarly, racial critics of Americancriminal justice locate the problem not so muchwith the black prisoners as with the state and itsactors and beneficiaries. As evidence, they citetheir own experiences and other people’s stories,African-American history, understanding gainedfrom social science research on the power andpervasiveness of white supremacy, and uglystatistics like those in the preceding paragraph.

For analytical purposes, I will create a falsedichotomy among racial critics by dividingthem into two camps: liberal critics and radicalcritics. Those are not names that the critics havegiven themselves or that they would necessarilyaccept, and there would undoubtedly bedisagreement within each camp and theoreticaloverlap between the camps.Nonetheless, for thepurposes of a brief explication of racialcritiques, my oversimplification may be useful.

1. The Liberal Critique

According to this critique, Americancriminal justice is racist because it is controlledprimarily by white people, who are unable toescape the culture’s dominant message of whitesupremacy, and who are therefore inevitably,even if unintentionally prejudiced. These whiteactors include legislators, police, prosecutors,judges, and jurors. They exercise their discretionto make and enforce the criminal law in a

discriminatory fashion. Sometimes thediscrimination is overt, as in the case of MarkFuhrman, the police officer in the O.J. Simpsoncase who, in interviews, used racist language andboasted of his own brutality, and sometimes it isunintentional, as with a hypothetical white jurorwho invariably credits the testimony of a whitewitness over that of a black witness.

The problem with the liberal critique isthat it does not adequately explain the extent ofthe difference between the incidence of blackand white crime, especially violent crime. Forexample, in 1991, blacks constituted aboutfifty-five percent of the 18,096 people arrestedfor murder and non-negligent manslaughterin the United States (9924 people). Oneexplanation the liberal critique offers for thisunfortunate statistic is that the police pursueblack murder suspects more aggressively thanthey do white murder suspects. In other words,but for discrimination, the percentage of blacksarrested for murder would be closer to theirpercentage of the population, roughly twelvepercent. The liberal critique would attributesome portion of the additional forty-threepercent of non-negligent homicide arrestees(in 1991, approximately 7781 people) to raceprejudice. Ultimately, however, those assum-ptions strain credulity, not because many policeofficers are not racist, but because there is noevidence that there is a crisis of that magnitudein criminal justice. In fact, for all the faults ofAmerican law enforcement, catching the badguys seems to be something it does ratherwell. The liberal critique fails to accountconvincingly for the incidence of black crime.

2. The Radical Critique

The radical critique does not discount therole of discrimination in accounting for some ofthe racial disparity in crime rates, but it also doesnot, in contrast to the liberal critique, attributeall or even most of the differential to police andprosecutor prejudice. The radical critique offersa more fundamental, structural explanation.

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It suggests that criminal law is racistbecause, like other American law, it is aninstrument of white supremacy. Law is madeby white elites to protect their interests and,especially, to preserve the economic status quo,which benefits those elites at the expense ofblacks, among others. Due to discriminationand segregation, the majority of African-Americans receive few meaningful educationaland employment opportunities and, accord-ingly, are unable to succeed, at least in the termsof the capitalist ideal. Some property crimescommitted by blacks may be understood as aninevitable result of the tension between thedominant societal message equating possessionof material resources with success and happinessand the power of white supremacy to preventmostAfrican-Americans from acquiring“enough”of those resources in a legal manner. “Black-on-black” violent crime, and even “victimless”crime like drug offenses, can be attributed tointernalized racism,which causes someAfrican-Americans to devalue black lives—either thoseof others or their own. The political processdoes not allow for the creation or implemen-tation of effective “legal” solutions to this plight,and the criminal law punishes predictablereactions to it.

I am persuaded by the radical critiquewhen I wonder about the roots of the uglytruth that blacks commit many crimes atsubstantially higher rates than whites. Mostwhite Americans, especially liberals, wouldpublicly offer an environmental, as opposed togenetic, explanation for this fact. They wouldprobably concede that racism, historical andcurrent, plays a major role in creating anenvironment that breeds criminal conduct.From this premise, the radical critic deducesthat but for the (racist) environment, theAfrican-American criminal would not be acriminal. In other words, racism creates andsustains the criminal breeding ground, whichproduces the black criminal. Thus, when manyAfrican-Americans are locked up, it is becauseof a situation that white supremacy created.

Obviously, most blacks are not criminals,even if every black is exposed to racism. To theradical critics, however, the law-abidingconduct of the majority of African-Americansdoes not mean that racism does not createblack criminals. Not everyone exposed to avirus will become sick, but that does not meanthat the virus does not cause the illness of thepeople who do.

The radical racial critique of criminaljustice is premised as much on the criminallaw’s effect as on its intent. The system isdiscriminatory, in part, because of thedisparate impact law enforcement has onthe black community. This unjust effect ismeasured in terms of the costs to the blackcommunity of having so many African-Americans, particularly males, incarcerated orotherwise involved in the criminal justicesystem. These costs are social and economic,and include the perceived dearth of men“eligible” for marriage, the large percentage ofblack children who live in female-headedhouseholds, the lack of male “role models” forblack children, especially boys, the absence ofwealth in the black community, and the largeunemployment rate among black men.

3. Examples of Racismin Criminal Justice

Examples commonly cited by both liberaland radical critics as evidence of racism incriminal justice include: the Scottsboro case; thehistory of the criminalization of drug use; pastand contemporary administration of the deathpenalty; the use of imagery linking crime to racein the 1988 presidential campaign and otherpolitical campaigns; the beating of Rodney Kingand the acquittal of his police assailants;disparities between punishments for white-collar crimes and punishments for other crimes;more severe penalties for crack cocaine users thanfor powder cocaine users; the Charles Murrayand Susan Smith cases; police corruption

scandals in minority neighborhoods in NewYork and Philadelphia; the O. J. Simpson case,including the extraordinary public and mediafascination with it, the racist police officer whowas the prosecution’s star witness, and theresponse of many white people to the jury’sverdict of acquittal; and, cited most frequently,the extraordinary rate of incarceration ofAfrican-American men.

4. Law Enforcement Enthusiasts

Of course, the idea that the criminal justicesystem is racist and oppressive is not withoutdissent, and among the dissenters are someAfrican-Americans. Randall Kennedy succinctlyposes the counterargument:

Although the administration ofcriminal justice has, at times, beenused as an instrument of racial opp-ression, the principal problem facingAfrican-Americans in the context ofcriminal justice today is not over-enforcement but under enforcementof the laws. The most lethal dangerfacing African-Americans in theirday-to-day lives is not white, racistofficials of the state, but private,violent criminals (typically black) whoattack those most vulnerable to themwithout regard to racial identity.13

According to these theorists, whom I willcall law enforcement enthusiasts, the criminallaw may have a disproportionate impact on theblack community, but this is not a moral orracial issue because the disproportionateimpact is the law’s effect, not its intent. For lawenforcement enthusiasts, intent is the mostappropriate barometer of governmentalracism. Because law enforcement is a publicgood, it is in the best interest of the blackcommunity to have more, rather than less, of it.Allowing criminals to live unfettered in the

community would harm, in particular, theblack poor, who are disproportionately thevictims of violent crime. Indeed, the logicalconclusion of the enthusiasts’ argument is thatAfrican-Americans would be better off withmore, not fewer, black criminals behind bars.

To my mind, the enthusiasts embrace lawenforcement too uncritically: They are blind toits opportunity costs. I agree that criminal lawenforcement constitutes a public good forAfrican-Americans when it serves the socialprotection goals that Professor Kennedyhighlights. In other words, when locking upblack men means that “violent criminals . . .who attack those most vulnerable” are off thestreets, most people—including most lawenforcement critics—would endorse theincarceration. But what about when locking upblack men has no or little net effect on publicsafety, when, for example, the crime withwhich he was charged is victimless? Puttingaside for a moment the legal implications,couldn’t an analysis of the costs and benefits tothe African-American community presentan argument against incarceration? I argue“yes” in light of the substantial costs to thecommunity of law enforcement. I accept thatother reasonable people may disagree. Butthe law enforcement enthusiasts seldom ack-nowledge that racial critics even weigh thecosts and benefits; their assumption seemsto be that the racial critics are foolish orblinded by history or motivated by their ownethnocentrism.

5. The Body Politic andthe Racial Critiques

I suspect that many white people wouldagree with the racial critics’ analysis, even ifmost whites would not support a solutioninvolving the emancipation of black criminals.I write this essay, however, out of concern forAfrican-Americans and how they can use thepower they have now to create change. Theimportant practicability question is how many

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African-Americans embrace racial critiques ofthe criminal justice system and how many arelaw enforcement enthusiasts?

According to a recent USA Today/CNN/Gallup poll, sixty-six percent of blacksbelieve that the criminal justice system is racistand only thirty-two percent believe it is notracist. Interestingly, other polls suggest thatblacks also tend to be more worried aboutcrime than whites; this seems logical when oneconsiders that blacks are more likely to bethe victims of crime. This enhanced concern,however, does not appear to translate intoendorsement of tougher enforcement oftraditional criminal law. For example, sub-stantially fewer blacks than whites support thedeath penalty, and many more blacks thanwhites were concerned with the potentialracial consequences of the strict provisions ofthe Crime Bill of 1994. While polls are not,perhaps, the most reliable means of measuringsentiment in the African-American community,the polls, along with significant evidence frompopular culture, suggest that a substantialportion of the African-American communitysympathizes with racial critiques of thecriminal justice system.

African-American jurors who endorsethese critiques are in a unique position to acton their beliefs when they sit in judgment of ablack defendant. As jurors, they have the powerto convict the defendant or to set him free.Maythe responsible exercise of that power includevoting to free a black defendant who the jurorbelieves is guilty? The next section suggeststhat, based on legal doctrine concerning therole of juries in general, and the role of blackjurors in particular, the answer to this questionis “yes.”

B. Jury Nullification

When a jury disregards evidence presentedat trial and acquits an otherwise guiltydefendant, because the jury objects to thelaw that the defendant violated or to the

application of the law to that defendant, it haspracticed jury nullification. In this section,I describe the evolution of this doctrineand consider its applicability to African-Americans. I then examine Supreme Courtcases that discuss the role of black people onjuries. In light of judicial rulings in these areas,I argue that it is both lawful and morally rightthat black jurors consider race in reachingverdicts in criminal cases

1. What Is Jury Nullification?

Jury nullification occurs when a juryacquits a defendant who it believes is guilty ofthe crime with which he is charged. In findingthe defendant not guilty, the jury refuses to bebound by the facts of the case or the judge’sinstructions regarding the law. Instead, thejury votes its conscience.

In the United States, the doctrine of jurynullification originally was based on thecommon law idea that the function of a jurywas, broadly, to decide justice, which includedjudging the law as well as the facts. If jurorsbelieved that applying a law would lead to anunjust conviction, they were not compelledto convict someone who had broken thatlaw. Although most American courts nowdisapprove of a jury’s deciding anything otherthan the “facts,” the Double Jeopardy Clauseof the Fifth Amendment prohibits appe-llate reversal of a jury’s decision to acquit,regardless of the reason for the acquittal. Thus,even when a trial judge thinks that a jury’sacquittal directly contradicts the evidence,the jury’s verdict must be accepted as final.The jurors, in judging the law, function as animportant and necessary check on governmentpower.

2. A Brief History

The prerogative of juries to nullify hasbeen part of English and American law forcenturies. In 1670, the landmark decision inBushell’s Case14 established the right of juries

under English common law to nullify on thebasis of an objection to the law the defendanthad violated. Two members of an unpopularminority group—the Quakers—were prose-cuted for unlawful assembly and disturbanceof the peace. At trial, the defendants, WilliamPenn and William Mead, admitted that theyhad assembled a large crowd on the streets ofLondon. Upon that admission, the judge askedthe men if they wished to plead guilty. Pennreplied that the issue was not “‘whether I amguilty of this Indictment but whether thisIndictment be legal,’” and argued that thejurors should go “behind” the law and use theirconsciences to decide whether he was guilty.The judge disagreed, and he instructed thejurors that the defendants’ admissions compelleda guilty verdict. After extended deliberation,however, the jurors found both defendants notguilty. The judge then fined the jurors forrendering a decision contrary to the evidenceand to his instructions. When one juror,Bushell, refused to pay his fine, the issuereached the Court of Common Pleas, whichheld that jurors in criminal cases could not bepunished for voting to acquit, even whenthe trial judge believed that the verdictcontradicted the evidence. The reason wasstated by the Chief Justice of the Court ofCommon Pleas:

A man cannot see by anothers eye, norhear by anothers ear, no more can aman conclude or inferr the thing to beresolv’d by anothers understanding orreasoning; and though the verdict beright the jury give, yet they beingnot assur’d it is so from their ownunderstanding, are forsworn, at leastin foro conscientiae.15

This decision “changed the course of juryhistory.” It is unclear why the jurors acquittedPenn and Mead, but their act has been viewedin near mythological terms. Bushell and his

fellow jurors have come to be seen asrepresenting the best ideals of democracybecause they “rebuffed the tyranny of thejudiciary and vindicated their own truehistorical and moral purpose.”16

American colonial law incorporated thecommon law prerogative of jurors to voteaccording to their consciences after theBritish government began prosecutingAmerican revolutionaries for political crimes.The best known of these cases involved JohnPeter Zenger, who was accused of seditiouslibel for publishing statements critical ofBritish colonial rule in North America. Inseditious libel cases, English law requiredthat the judge determine whether thestatements made by the defendant werelibelous; the jury was not supposed toquestion the judge’s finding on this issue. Attrial, Zenger’s attorney told the jury that itshould ignore the judge’s instructions thatZenger’s remarks were libelous because thejury ‘“ha[d] the right beyond all dispute todetermine both the law and the facts.’” Thelawyer then echoed the language of Bushell’sCase, arguing that the jurors had ‘“to seewith their eyes, to hear with their own ears,and to make use of their own consciencesand understandings, in judging of the lives,liberties or estates of their fellow subjects.’”17

Famously, the jury acquitted Zenger, andanother case entered the canon as a shiningexample of the benefits of the jury system.

After Zenger’s trial, the notion that juriesshould decide “justice,” as opposed to simplyapplying the law to the facts, became relativelysettled in American jurisprudence. In additionto pointing to political prosecutions of whiteAmerican revolutionaries like Zenger, moderncourts and legal historians often cite withapproval nullification in trials of defendants“guilty” of helping to free black slaves. In thesecases, Northern jurors with abolitionist senti-ments used their power as jurors to subvertfederal law that supported slavery. In United

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States v. Morris,18 for example, three defendantswere accused of aiding and abetting a runawayslave’s escape to Canada. The defense attorneytold the jury that, because it was hearing acriminal case, it had the right to judge the law,and if it believed that the Fugitive Slave Act wasunconstitutional, it was bound to disregard anycontrary instructions given by the judge. Thedefendants were acquitted, and the governmentdropped the charges against five other peopleaccused of the same crime. Another successstory entered the canon.

3. Sparf and Other Critiques

In the mid-nineteenth century, asmemories of the tyranny of British rule faded,some American courts began to criticize theidea of jurors deciding justice. A number of thestate decisions that allowed this practice wereoverruled, and in the 1895 case of Sparf v.United States,19 the Supreme Court spokeregarding jury nullification in federal courts.

In Sparf, two men on trial for murderrequested that the judge instruct the jury thatit had the option of convicting them ofmanslaughter, a lesser-included offense. Thetrial court refused this request and insteadinstructed the jurors that if they convicted thedefendants of any crime less than murder, or ifthey acquitted them, the jurors would be inviolation of their legal oath and duties. TheSupreme Court held that this instructionwas not contrary to law and affirmed thedefendants’ murder convictions. The Courtacknowledged that juries have the ‘“physicalpower”’ to disregard the law, but stated thatthey have no “‘moral right’” to do so. Indeed,the Court observed, “If the jury were at libertyto settle the law for themselves, the effect wouldbe . . . that the law itself would be mostuncertain, from the different views, whichdifferent juries might take of it.” Despite thiscriticism, Sparf conceded that, as a matterof law, a judge could not prevent jury

nullification, because in criminal cases ‘“[a]verdict of acquittal cannot be set aside.”’ Ananomaly was thus created, and has been afeature of American criminal law ever since:Jurors have the power to nullify, but, in mostjurisdictions, they have no right to be informedof this power.

Since Sparf, most of the appellate courtsthat have considered jury nullification haveaddressed that anomaly and have endorsed it.Some of these courts, however, have not beenas critical of the concept of jury nullificationas the Sparf Court. The D.C. Circuit’s opinionin United States v. Dougherty20 is illustrative.In Dougherty, the court noted that the abilityof juries to nullify was widely recognizedand even approved “as a ‘necessary counter tocase-hardened judges and arbitrary pro-secutors.’” This necessity, however, did notestablish “as an imperative” that a jury beinformed by the judge of its power to nullify.The D.C. Circuit was concerned that “[w]hatmakes for health as an occasional medi-cine would be disastrous as a daily diet.”Specifically:

Rules of law or justice involve choiceof values and ordering of objectivesfor which unanimity is unlikely inany society, or group representingthe society, especially a society asdiverse in cultures and interests asours. To seek unity out of diversity,under the national motto, theremust be a procedure for decision byvote of a majority or prescribedplurality—in accordance with demo-cratic philosophy. To assign the roleof mini-legislature to the variouspetit juries, who must hang if notunanimous, exposes criminal lawand administration to paralysis, andto a deadlock that betrays rather thanfurthers the assumptions of viabledemocracy.

The idea that jury nullification under-mines the rule of law is the most commoncriticism of the doctrine. The concern is thatthe meaning of self-government is threatenedwhen twelve individuals on a jury in essenceremake the criminal law after it has alreadybeen made in accordance with traditionaldemocratic principles. Another critique ofAfrican-American jurors engaging in raciallybased jury nullification is that the practice byblack jurors is distinct from the historicallyapproved cases because the black jurors are notso much “judging” the law as preventing itsapplication to members of their own race. Thereader should recognize that these are moral,not legal, critiques because, as discussed above,the legal prerogative of any juror to acquit iswell established. In the next section, I respondto these moral critiques.

C. The Moral Case for JuryNullification by African-Americans

Any juror legally may vote fornullification in any case, but, certainly, jurorsshould not do so without some principledbasis. The reason that some historical exam-ples of nullification are viewed approvinglyis that most of us now believe that the jurorsin those cases did the morally right thing;it would have been unconscionable, forexample, to punish those slaves who com-mitted the crime of escaping to the North fortheir freedom. It is true that nullificationlater would be used as a means of racialsubordination by some Southern jurors, butthat does not mean that nullification in theapproved cases was wrong. It only means thatthose Southern jurors erred in their cal-culus of justice. I distinguish racially basednullification by African-Americans fromrecent right-wing proposals for jury nullifi-cation on the ground that the former issometimes morally right and the latter is not.

The question of how to assign the powerof moral choice is a difficult one. Yet we should

not allow that difficulty to obscure the fact thatlegal resolutions involve moral decisions,judgments of right and wrong. The fullness oftime permits us to judge the fugitive slave casedifferently than the Southern pro-white-violence case. One day we will be able todistinguish between racially based nullificationand that proposed by certain right-wingactivist groups. We should remember that themorality of the historically approved cases wasnot so clear when those brave jurors acted.After all, the fugitive slave law was enactedthrough the democratic process, and thosejurors who disregarded it subverted the rule oflaw. Presumably, they were harshly criticizedby those whose interests the slave lawprotected. Then, as now, it is difficult to see thepicture when you are inside the frame.

In this section, I explain why African-Americans have the moral right to practicenullification in particular cases. I do so byresponding to the traditional moral critiquesof jury nullification.

1. African-Americans and the“Betrayal” of Democracy

There is no question that jury nullifi-cation is subversive of the rule of law. Itappears to be the antithesis of the view thatcourts apply settled, standing laws and do not“dispense justice in some ad hoc, case-by-casebasis.”21 To borrow a phrase from the D.C.Circuit, jury nullification “betrays ratherthan furthers the assumptions of viabledemocracy.” Because the Double JeopardyClause makes this power part-and-parcel ofthe jury system, the issue becomes whetherblack jurors have any moral right to “betraydemocracy” in this sense. I believe that theydo for two reasons that I borrow from thejurisprudence of legal realism and criticalrace theory: First, the idea of “the rule of law”is more mythological than real, and second,“democracy,” as practiced in the UnitedStates, has betrayed African-Americans far

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more than they could ever betray it.Explication of these theories has consumedlegal scholars for years, and is well beyondthe scope of this essay. I describe the theoriesbelow not to persuade the reader of theirrightness, but rather to make the case that areasonable juror might hold such beliefs, andthus be morally justified in subvertingdemocracy through nullification.

2. The Rule of Law as Myth

The idea that “any result can be derivedfrom the preexisting legal doctrine” either inevery case or many cases, is a fundamentalprinciple of legal realism (and, now, criticallegal theory). The argument, in brief, is that lawis indeterminate and incapable of neutralinterpretation. When judges “decide” cases,they “choose” legal principles to determineparticular outcomes. Even if a judge wants tobe neutral, she cannot, because, ultimately, sheis vulnerable to an array of personal andcultural biases and influences; she is onlyhuman. In an implicit endorsement of thedoctrine of jury nullification, legal realists alsosuggest that, even if neutrality were possible, itwould not be desirable, because no generalprinciple of law can lead to justice in every case.

It is difficult for an African-Americanknowledgeable of the history of her people inthe United States not to profess, at minimum,sympathy for legal realism. Most blacks areaware of countless historical examples in whichAfrican-Americans were not afforded thebenefit of the rule of law: Think, for example,of the existence of slavery in a republicpurportedly dedicated to the proposition thatall men are created equal, or the law’s supportof state-sponsored segregation even after theFourteenth Amendment guaranteed blacksequal protection. That the rule of law ulti-mately corrected some of the large holes in theAmerican fabric is evidence more of itsmalleability than of its virtue; the rule of lawhad, in the first instance, justified the holes.

The Supreme Count’s decisions in themajor “race” cases of the last term underscorethe continuing failure of the rule of law toprotect African-Americans through consistentapplication. Dissenting in a school dese-gregation case,22 four Justices stated that “[t]heCourt’s process of orderly adjudication hasbroken down in this case.”The dissent noted thatthe majority opinion “effectively . . . over-rule[d] a unanimous constitutional precedentof 20 years standing, which was not evenaddressed in argument, was mentioned merelyin passing by one of the parties, and discussedby another of them only in a misleading way.”Similarly, in a voting rights case,23 JusticeStevens, in dissent, described the majorityopinion as a “law-changing decision.” And inan affirmative action case,24 Justice Stevensbegan his dissent by declaring that, “[i]nsteadof deciding this case in accordance withcontrolling precedent, the Court today deliversa disconcerting lecture about the evils ofgovernmental racial classifications.” At the endof his dissent, Stevens argued that “themajority’s concept of stare decisis ignores theforce of binding precedent.”

If the rule of law is a myth, or at least is notapplicable to African-Americans, the criticismthat jury nullification undermines it losesforce. The black juror is simply another actorin the system, using her power to fashiona particular outcome; the juror’s act ofnullification—like the act of the citizen whodials 911 to report Ricky but not Bob, or thepolice officer who arrests Lisa but not Mary, orthe prosecutor who charges Kwame but notBrad, or the judge who finds that Nancy wasillegally entrapped but Verna was not—exposes the indeterminacy of law, but does notcreate it.

3. The Moral Obligation toDisobey Unjust Laws

For the reader who is unwilling to concedethe mythology of the rule of law, I offer

another response to the concern aboutviolating it. Assuming, for the purposes ofargument, that the rule of law exists, there stillis no moral obligation to follow an unjust law.This principle is familiar to many African-Americans who practiced civil disobedienceduring the civil rights protests of the 1950s and1960s. Indeed, Martin Luther King suggestedthat morality requires that unjust laws notbe obeyed. As I state above, the difficulty ofdetermining which laws are unjust should notobscure the need to make that determination.

Radical critics believe that the criminal lawis unjust when applied to some antisocialconduct by African-Americans: The law usespunishment to treat social problems thatare the result of racism and that should beaddressed by other means such as medical careor the redistribution of wealth. Later, I suggesta utilitarian justification for why African-Americans should obey most criminal law: Itprotects them. I concede, however, that thislimitation is not morally required if one acceptsthe radical critique, which applies to allcriminal law.

4. Democratic Domination

Related to the “undermining the law”critique is the charge that jury nullification isantidemocratic. The trial judge in the Barrycase, for example, in remarks made after theconclusion of the trial, expressed this criticismof the jury’s verdict: ‘“The jury is not a mini-democracy, or a mini-legislature. . . . They arenot to go back and do right as they see fit.That’s anarchy. They are supposed to followthe law.” A jury that nullifies “betrays ratherthan furthers the assumptions of viable demo-cracy.” In a sense, the argument suggests thatthe jurors are not playing fair: The citizenrymade the rules, so the jurors, as citizens, oughtto follow them.

What does “viable democracy” assumeabout the power of an unpopular minoritygroup to make the laws that affect them? It

assumes that the group has the power toinfluence legislation. The American majority-rule electoral system is premised on the hopethat the majority will not tyrannize theminority, but rather represent the minority’sinterests. Indeed, in creating the Constitution,the Framers attempted to guard against theoppression of the minority by the majority.Unfortunately, these attempts were expressedmore in theory than in actual constitutionalguarantees, a pointmade by some legal scholars,particularly critical race theorists.

The implication of the failure to protectblacks from the tyrannical majority is thatthe majority rule of whites over African-Americans is, morally speaking, illegitimate.Lani Guinier25 suggests that the morallegitimacy of majority rule hinges on twoassumptions: 1) that majorities are not fixed;and 2) that minorities will be able to becomemembers of some majorities. Racial prejudice“to such a degree that the majority consistentlyexcludes the minority, or refuses to informitself about the relative merit of the minor-ity’s preferences,” defeats both assumptions.Similarly, Owen Fiss26 has given three reasonsfor the failure of blacks to prosper throughAmerican democracy: They are a numericalminority, they have low economic status, and,“as a ‘discrete and insular’ minority, they arethe object of ‘prejudice’—that is, the subjectof fear, hatred, and distaste that make itparticularly difficult for them to form coalitionswith others (such as the white poor).”

According to both theories, blacks areunable to achieve substantial progress throughregular electoral politics. Their only “demo-cratic” route to success—coalition buildingwith similarly situated groups—is blockedbecause other groups resist the stigma of theassociation. The stigma is powerful enough toprevent alignment with African-Americanseven when a group—like low income whites—has similar interests.

In addition to individual white citizens,legislative bodies experience the Negrophobia

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described above. Professor Guinier defines suchlegislative racism as

a pattern of actions [that] persistentlydisadvantag[es] a fixed, legislativeminority and encompasses consciousexclusion as well as marginalizationthat results from “a lack of interracialempathy.” It means that where aprejudiced majority rules, its repres-entatives are not compelled to identifyits interests with those of the African-American minority.

Such racism excludes blacks from thegoverning legislative coalitions. A permanent,homogeneous majority emerges, which effec-tively marginalizes minority interests and“transform[s] majority rule into majoritytyranny.” Derrick Bell calls this condition“democratic domination.”

Democratic domination undermines thebasis of political stability, which depends onthe inducement of “losers to continue to play thepolitical game, to continue to work within thesystem rather than to try to overthrow it.”Resistance by minorities to the operationof majority rule may take several forms,including “overt compliance and secretrejection of the legitimacy of the politicalorder.” I suggest that another form of thisresistance is racially based jury nullification.

If African-Americans believe that demo-cratic domination exists (and the 1994 con-gressional elections seem to provide compellingrecent support for such a belief), they shouldnot back away from lawful self-help measures,like jury nullification, on the ground that theself-help is antidemocratic. African-Americansare not a numerical majority in any of the fiftystates, which are the primary sources ofcriminal law. In addition, they are not evenproportionally represented in the U.S.House ofRepresentatives or in the Senate. As a result,African-Americans wield little influence overcriminal law, state or federal. African-Americans

should embrace the antidemocratic nature ofjury nullification because it provides them withthe power to determine justice in a way thatmajority rule does not.

D. “[J]ustice Must Satisfy theAppearance of Justice”: TheSymbolic Function of Black Jurors

A second distinction one might drawbetween the traditionally approved examples ofjury nullification and its practice by con-temporary African-Americans is that, in the caseof the former, jurors refused to apply a particularlaw, e.g., a fugitive slave law, on the grounds thatit was unfair, while in the case of the latter, jurorsare not so much judging discrete statutes as theyare refusing to apply those statutes to membersof their own race. This application of raceconsciousness by jurors may appear to beantithetical to the American ideal of equalityunder the law.

This critique, however, like the “betrayingdemocracy” critique, begs the question ofwhether the ideal actually applies to African-Americans. As stated above, racial critics answerthis question in the negative. They, especially theliberal critics, argue that the criminal law isapplied in a discriminatory fashion. Further-more, on several occasions, the Supreme Courthas referred to the usefulness of black jurors tothe rule of law in the United States. In essence,black jurors symbolize the fairness andimpartiality of the law. Here I examine thisrhetoric and suggest that, if the presence of blackjurors sends a political message, it is right thatthese jurors use their power to control or negatethe meaning of that message.

As a result of the ugly history of dis-crimination against African-Americans in thecriminal justice system, the Supreme Court hashad numerous opportunities to consider thesignificance of black jurors. In so doing, theCourt has suggested that these jurors perform asymbolic function, especially when they sit oncases involving African-American defendants,

and the Court has typically made thesesuggestions in the form of rhetoric about thesocial harm caused by the exclusion of blacksfrom jury service. I will refer to this role of blackjurors as the “legitimization function.”

The legitimization function stems fromevery jury’s political function of providingAmerican citizens with “the security . . . thatthey, as jurors actual or possible, being part ofthe judicial system of the country can preventits arbitrary use or abuse.”27 In addition to, andperhaps more important than, seeking thetruth, the purpose of the jury system is“to impress upon the criminal defendant andthe community as a whole that a verdict ofconviction or acquittal is given in accordancewith the law by persons who are fair.”28

This purpose is consistent with the originalpurpose of the constitutional right to a jurytrial, which was “to prevent oppression by theGovernment.”29

When blacks are excluded from juries,beyond any harm done to the juror who suffersthe discrimination or to the defendant, thesocial injury of the exclusion is that it “under-mine[s] . . . public confidence—as well [it]should.”

30Because the United States is both a

democracy and a pluralist society, it isimportant that diverse groups appear to havea voice in the laws that govern them. Allowingblack people to serve on juries strengthens“public respect for our criminal justice systemand the rule of law.”31

The Supreme Court has found that thelegitimization function is particularly valuable incases involving “race-related” crimes. Accordingto the Court, in these cases, “emotions in theaffected community [are] inevitably . . . heatedand volatile.”32 The potential presence of blackpeople on the jury in a “race related” case calmsthe natives, which is especially important in thistype of case because “[p]ublic confidence in theintegrity of the criminal justice system is essentialfor preserving community peace.”33 The very factthat a black person can be on a jury is evidencethat the criminal justice system is one in which

black people should have confidence and onethat they should respect.

But what of the black juror who endorsesracial critiques of American criminal justice?Such a person holds no “confidence in theintegrity of the criminal justice system.” If she iscognizant of the implicit message that theSupreme Court believes her presence sends, shemight not want her presence to be the vehicle forthat message. Let us assume that there is a blackdefendant who the evidence suggests is guilty ofthe crime with which he has been charged and ablack juror who thinks that there are too manyblack men in prison. The black juror has twochoices: She can vote for conviction, thus sendinganother black man to prison and implicitlyallowing her presence to support publicconfidence in the system that puts him there, orshe can vote “not guilty,” thereby acquitting thedefendant or at least causing a mistrial. Inchoosing the latter, the juror makes a decisionnot to be a passive symbol of support for asystem for which she has no respect: Rather thansignaling her displeasure with the system bybreaching “community peace,” the black jurorinvokes the political nature of her role in thecriminal justice system and votes “no.” In a sensethe black juror engages in an act of civildisobedience, except that her choice is better thancivil disobedience because it is lawful. Is the blackjuror’s race-conscious act moral? Absolutely. Itwould be farcical for her to be the sole color-blind actor in the criminal process, especiallywhen it is her blackness that advertises thesystem’s fairness.

At this point every African-Americanshould ask herself whether the operation of thecriminal law in the United States advancesthe interests of black people. If it does not, thedoctrine of jury nullification affords African-American jurors the opportunity to control theauthority of the law over some African-American criminal defendants. In essence blackpeople can “opt out” of American criminal law.

How far should they go? Completely toanarchy? Or is there some place between here

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and there, safer than both? The next partdescribes such a place, and how to get there.

y III. A Proposal for RaciallyBased Jury Nullification

To allow African-American jurors to exercisetheir responsibility in a principled way, I makethe following proposal: African-American jurorsshould approach their work cognizant of itspolitical nature and their prerogative to exercisetheir power in the best interests of the blackcommunity. In every case, the juror should beguided by her view of what is “just.” For thereasons stated in the preceding parts of thisessay, I have more faith in the average blackjuror’s idea of justice than I do in the idea that isembodied in the “rule of law.”

A. A Framework for CriminalJustice in the Black Community

In cases involving violent malum in secrimes like murder, rape, and assault, jurorsshould consider the case strictly on the evidencepresented, and, if they have no reasonable doubtthat the defendant is guilty, they should convict.For nonviolentmalum in se crimes such as theftor perjury, nullification is an option that thejuror should consider, although there should beno presumption in favor of it.A jurormight votefor acquittal, for example, when a poor womansteals from Tiffany’s, but not when the samewoman steals from her next-door neighbor.Finally, in cases involving nonviolent, malumprohibitum offenses, including “victimless”crimes like narcotics offenses, there should be apresumption in favor of nullification.

This approach seeks to incorporate themost persuasive arguments of both the racialcritics and the law enforcement enthusiasts.If my model is faithfully executed, the resultwould be that fewer black people would go toprison; to that extent, the proposal amelioratesone of the most severe consequences of law

enforcement in the African-American com-munity. At the same time, the proposal, bypunishing violent offenses and certain others,preserves any protection against harmfulconduct that the law may offer potentialvictims. If the experienced prosecutors at theU.S. Attorney’s Office are correct, some violentoffenders currently receive the benefit of jurynullification, doubtless from a misguided ifwell-intentioned attempt by racial critics tomake a political point. Under my proposal,violent lawbreakers would go to prison.

In the language of criminal law, theproposal adopts utilitarian justificationsfor punishment: deterrence and isolation. Tothat extent, it accepts the law enforcemententhusiasts’ faith in the possibility that lawcan prevent crime. The proposal does not,however, judge the lawbreakers as harshly asthe enthusiasts would judge them. Rather,the proposal assumes that, regardless of thereasons for their antisocial conduct, peoplewho are violent should be separated fromthe community for the sake of the nonviol-ent. The proposal’s justifications for theseparation are that the community is pro-tected from the offender for the durationof the sentence and that the threat ofpunishment may discourage future offensesand offenders. I am confident that balancingthe social costs and benefits of incarcerationwould not lead black jurors to release violentcriminals simply because of race. While Iconfess agnosticism about whether the lawcan deter antisocial conduct, I am unwillingto experiment by abandoning any punish-ment premised on deterrence.

Of the remaining traditional justificationsfor punishment, the proposal eschews theretributive or “just deserts” theory for tworeasons. First, I am persuaded by racial andother critiques of the unfairness of punishingpeople for “negative” reactions to racist opp-ressive conditions. In fact, I sympathize withpeople who react “negatively” to the countlessmanifestations of white supremacy that black

people experience daily. While my proposaldoes not “excuse” all antisocial conduct, it willnot punish such conduct on the premise thatthe intent to engage in it is “evil.” Theantisocial conduct is no more evil than theconditions that cause it, and, accordingly,the “just deserts” of a black offender areimpossible to know. And even if just desertswere susceptible to accurate measure, I wouldreject the idea of punishment for retribution’ssake.

My argument here is that the consequencesare too severe: African-Americans cannot affordto lock up other African-Americans simply onaccount of anger. There is too little bang for thebuck. Black people have a community that needsbuilding and children who need rescuing andas long as a person will not hurt anyone, thecommunity needs him there to help. Assumingthat he actually will help is a gamble, but not areckless one, for the “just” African-Americancommunity will not leave the lawbreaker be: Itwill, for example, encourage his education andprovide his health care (including narcoticsdependency treatment) and, if necessary, sue himfor child support. In other words the proposaldemands of African-Americans responsible self-help outside of the criminal courtroom as well asinside it.When the community is richer, perhapsthen it can afford anger.

The final traditional justification forpunishment, rehabilitation, can be dealt withsummarily. If rehabilitation were a meaningfuloption in American criminal justice, I would notendorse nullification in any case. It would becounterproductive for utilitarian reasons: Thecommunity is better off with the antisocial personcured than sick. Unfortunately, however, reha-bilitation is no longer an objective of criminal lawin the United Stales and prison appears to have anantirehabilitative effect. For this reason, unless ajuror is provided with a specific, compellingreason to believe that a conviction would resultin some useful treatment for an offender, sheshould not use her vote to achieve this end,because almost certainly it will not occur.

B. Hypothetical Cases

How would a juror decide individual casesunder my proposal? For the purposes of thefollowing hypothesis, let us assume criminalprosecutions in state or federal court andtechnically guilty African-American defendants.Easy cases under my proposal include adefendant who possessed crack cocaine and adefendant who killed another person. Theformer should be acquitted and the lattershould go to prison.

The crack cocaine case is simple: Becausethe crime is victimless, the proposal presumesnullification. According to racial critiques,acquittal is just, due in part to the longersentences given for crack offenses than forpowder cocaine offenses. This case should beparticularly compelling to the liberal racialcritic, given the extreme disparity betweencrack and powder in both enforcement of thelaw and in actual sentencing. According to arecent study, African-Americans make up 13%of the nation’s regular drug users but theyaccount for 35% of narcotics arrests, 55% ofdrug convictions, and 74% of those receivingprison sentences. Most of the people who arearrested for crack cocaine offenses are black;most arrested for powder cocaine are white.Under federal law, if someone possesses fiftygrams of crack cocaine, the mandatory-minimum sentence is ten years; in order toreceive the same sentence for powder cocaine,the defendant must possess 5000 grams. Giventhe racial consequences of this disparity, I hopethat many racial critics will nullify withouthesitation in these cases.

The case of the murderer is “easy” solelyfor the utilitarian reasons I discussed above.Although I do not believe that prison will serveany rehabilitative function for the murderer,there is a possibility that a guilty verdict willprevent another person frombecoming a victim,and the juror should err on the side of thatpossibility. In effect, I “write off” the blackperson who takes a life not for retributive

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reasons, but because the black communitycannot afford the risks of leaving this person inits midst. Accordingly, for the sake of potentialvictims (given the possibility that the criminallaw deters homicide), nullification is notmorallyjustifiable here.

Difficult hypothetical cases include theghetto drug dealer and the thief who burglarizesthe home of a rich family. Under the proposal,nullification is presumed in the first case becausedrug distribution is a nonviolent, malumprohibition offense. Is nullification morallyjustifiable here? It depends. There is no questionthat encouraging people to engage in self-destructive behavior is evil; the question thejuror should ask herself is whether the remedy isless evil. I suspect that the usual answer wouldbe “yes,” premised on deterrence and isolationtheories of punishment. Accordingly, the drugdealer would be convicted. The answer mightchange, however, depending on the particularfacts of the case: the type of narcotic sold,the ages of the buyers, whether the dealer“marketed” the drugs to customers or whetherthey sought him out, whether it is a first offense,whether there is reason to believe that the drugdealer would cease this conduct if given anotherchance, and whether, as in the crack case, thereare racial disparities in sentencing for this kindof crime. I recognize that, in this hypothetical,nullification carries some societal risk. The risk,however, is less consequential than with violentcrimes. Furthermore, the cost to the communityof imprisoning all drug dealers is great. I wouldallow the juror in this case more discretion.

The juror should also remember that manyghetto “drug” dealers are not African-Americanand that the state does not punish thesedealers—instead, it licenses them. Liquor storesare ubiquitous on the ghetto streets of America.By almost every measure, alcoholism causesgreat injury to society, and yet the state does notuse the criminal law to address this severe socialproblem. When the government tried to treatthe problem of alcohol use with criminal lawduring Prohibition, a violent “black” market

formed. Even if the juror does not believe thatdrug dealing is a “victimless” crime, she mightquestion why it is that of all drug dealers, manyof the black capitalists are imprisoned, andmany of the non-black capitalists are legallyenriched. When the juror remembers that thecost to the community of having so manyyoung men in jail means that law enforcementalso is not “victimless,” the juror’s calculus ofjustice might lead her to vote for acquittal.

As for the burglar who steals from the richfamily, the case is troubling, first of all becausethe conduct is so clearly “wrong.” As anonviolent malum in se crime, there is nopresumption in favor of nullification, though itremains an option. Here, again, the facts of thecase are relevant to the juror’s decision of whatoutcome is fair. For example, if the offensewas committed to support a drug habit, Ithink there is a moral case to be made fornullification, at least until drug rehabilitationservices are available to all.

If the burglary victim is a rich white person,the hypothetical is troubling for the additionalreason that it demonstrates how a black juror’ssense of justice might, in some cases, lead her totreat defendants differently based on the classand race of their victims. I expect that thisdistinction would occur most often in propertyoffenses because, under the proposal, no violentoffenders would be excused. In an ideal world,whether the victim is rich or poor or black orwhite would be irrelevant to adjudication of thedefendant’s culpability. In the United States, mysense is that some black jurors will believe thatthese factors are relevant to the calculus ofjustice. The rationale is implicitly premised on acritique of the legitimacy of property rights in asociety marked by gross economic inequities.While I endorse this critique, I would encouragenullification here only in extreme cases (i.e.,nonviolent theft from the very wealthy) andmainly for political reasons: If the rich cannotrely on criminal law for the protection of theirproperty and the law prevents more direct self-help measures, perhaps they will focus on

correcting the conditions that make others wantto steal from them. This view may be naive, butarguably no more so than that of the blackpeople who thought that if they refused to ridethe bus, they could end legally enforcedsegregation in the South.

C. Some Political andProcedural Concerns

1. What if White PeopleStart Nullifying Too?

One concern is that whites will nullifyin cases of white-on-black crime. The bestresponse to this concern is that often whitepeople do nullify in those cases. The whitejurors who acquitted the police officers whobeat up Rodney King are a good example.There is no reason why my proposal shouldcause white jurors to acquit white defendantswho are guilty of violence against blacks anymore frequently. My model assumes that blackviolence against whites would be punished byblack jurors: I hope that white jurors would dothe same in cases involving white defendants.

If white jurors were to begin applying myproposal to cases with white defendants, thenthey, like the black jurors, would be choosingto opt out of the criminal justice system. Forpragmatic political purposes, that would beexcellent. Attention would then be focused onalternative methods of correcting antisocialconduct much sooner than it would if onlyAfrican-Americans raised the issue.

2. How Do You Control Anarchy?

Whywould a juror who is willing to ignore alaw created through the democratic process beinclined to follow my proposal? There is noguarantee that she would. But when we considerthat black jurors are already nullifying on thebasis of race because they do not want to sendanother black man to prison, we recognize thatthese jurors are willing to use their power in apolitically conscious manner.Many black peoplehave concerns about their participation in the

criminal justice system as jurors and might bewilling to engage in some organized politicalconduct, not unlike the civil disobedience thatAfrican-Americans practiced in the South in the1950s and 1960s. It appears that some blackjurors now excuse some conduct—likemurder—that they should not excuse. Myproposal, however, provides a principledstructure for the exercise of the black juror’s vote.I am not encouraging anarchy. Instead, I amreminding black jurors of their privilege to servea higher calling than law: justice. I am suggestinga framework for what justice means in theAfrican-American community.

3. How Do You Implement the Proposal?

Because Sparf, as well as the law of manystates, prohibits jurors from being instructedabout jury nullification in criminal cases,information about this privilege would haveto be communicated to black jurors beforethey heard such cases. In addition, jurors wouldneed to be familiar with my proposal’sframework for analyzing whether nullificationis appropriate in a particular case. Dis-seminating this information should not bedifficult. African-American culture—throughmediums such as church, music (particularlyrap songs), black newspapers and magazines,literature, storytelling, film (including musicvideos), soapbox speeches, and conventiongatherings—facilitates intraracial communic-ation. At African-American cultural events,such as concerts or theatrical productions, theaudience could be instructed on the proposal,either verbally or through the disseminationof written material; this type of politicalexpression at a cultural event would hardly beunique—voter registration campaigns areoften conducted at such events. The proposalcould be the subject of rap songs, which arealready popular vehicles for racial critiques,or of ministers’ sermons.

One can also imagine more directapproaches. For example, advocates of thisproposal might stand outside a courthouse

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and distribute flyers explaining the proposal toprospective jurors. During deliberations, thosejurors could then explain to other jurors theirprerogative—their power—to decide justicerather than simply the facts. Sparf is oneSupreme Court decision whose holding israther easy to circumvent: If the defenseattorneys cannot inform the people of theirpower, the people can inform themselves.And once informed, the people would have aformula for what justice means in the African-American community, rather than having todecide it on an ad hoc basis.

I hope that all African-American jurors willfollowmy proposal, and I am encouraged by thesuccess of other grass-roots campaigns, likethe famous Montgomery bus boycott, aimed ateliminating racial oppression. I note, however,that even with limited participation by African-Americans,my proposal could have a significantimpact. In most American jurisdictions, juryverdicts in criminal cases must be unanimous.One juror could prevent the conviction of adefendant. The prosecution would then have toretry the case and risk facing another African-American juror with emancipation tendencies. Ihope that there are enough of us out there,fed up with prison as the answer to blackdesperation and white supremacy, to causeretrial after retrial, until, finally, theUnited States“retries” its idea of justice.

y ConclusionThis essay’s proposal raises other concerns,such as the problem of providing jurors withinformation relevant to their decision withinthe restrictive evidentiary confines of a trial.Some of these issues can be resolved throughcreative lawyering. Other policy questions arenot as easily answered, including the issue ofhow long (years, decades, centuries?) blackjurors would need to pursue racially based jurynullification. I think this concern is related tothe issue of the appropriate time span of otherrace-conscious remedies, including affirmativeaction. Perhaps when policymakers acknowledge

that racematters in criminal justice, the criminallaw can benefit from the successes and failuresof race consciousness in other areas of the law.I fear, however, that this day of acknowledge-ment will be long in coming. Until then, Iexpect that many black jurors will perceive thenecessity of employing the self-help measuresprescribed here.

I concede that the justice my proposalachieves is rough because it is as susceptibleto human foibles as the jury system. I amsufficiently optimistic to hope that my proposalwill be only an intermediate plan, a stoppingpoint between the status quo and real justice. Ihope that this essay will encourage African-Americans to use responsibly the power theyalready have. To get criminal justice past themiddle point, I hope that the essay will facilitatea dialogue among all Americans in which thesignificance of race will not be dismissed orfeared, but addressed. The most dangerous“forbidden”message is that it is better to ignorethe truth than to face it.

y Notes1. Christopher B. Daly. Hurry Judge Castigates

Four Jurors: Evidence of Guilt was “Overwhelming.”Jurkson Tells Forum. Wash. Post, Oct. 31. 1990, at Al(quoting U.S. District Judge Thomas Penfield Jackson).The trial judge’s comments were made after the verdict.

2. The following account is drawn from MichaelYork, Excerpts from Videotape of Barry’s Arrest at theVista Hotel,Wash. Post, June 29, 1990, at A22.

3. The trial decision can be found at UnitedStates v. Barry, No. 90-0068, 1990 WL 174907 (D.D.C.Oct. 26, 1990), aff ’d, 938 F.2d 1327 (D.C. Cir. 1991).

4. Saundra Torry, Stallings Excluded FromHarry Trial: ACLU to Appeal Judge’s Actions BarringBishop, Farrakhan,Wash. Post, June 30, 1990, at A13.

5. United Stales v. Barry. Nos. 90-3150, 90-3149,& 90-3151, 1990 Wl. 104925 (D.C. Cir. July 5, 1990).

6. Black D.C. Atty. Is At Odds with Judge OverKente Cloth. Jet, June 22, 1992, at 35.

7. United States v. Barry,Nos. 90-3149,& 90-3151,1990WL 104925, at 1-2 (D.C. Cir. July 5, 1990).

8. Norris v.Risley, 918 F.2d 828,832 (9thCir. 1990).9. Woods v. Dugger, 923 F.2d 1454 (11th Cir.),

cert. denied, 502 U.S. 953 (1991). In this case, the

hidden message was pro-conviction, see id. al 1459-60,unlike the pro-acquittal messages in the casesinvolving Barry and Harvey.

10. Norris v. Risley, 918 F.2d 828, 832 (9th Cir,1990).

11. Woods v. Dugger, 923 F.2d 1454 (11th Cir.),cert. denied, 502U.S. 953 (1991). In this case, the hiddenmessage was proconviction, unlike the proacquittalmessages in the cases involving Barry and Harvey.

12. Kente Cloth in the Dock, Wash. Times, June13, 1992, at D2.

13. Randall Kennedy, “The State, Criminal Law,and Racial Discrimination: A Comment,” 107 HarvardLaw Review (1994), at 1259.

14. 124 Eng Rep 1006 (C.P 1670).15. Bushell’s Case, 124 Eng. Rep. at 1013.16. Philip B. Scott, Jury Nullification: An

Historical Perspective on a Modern Debate, 91 W. VA.1 REV. 389, 414 (1989), quoted in M. Kristine Creagan,Jury Nullification: Assessing Recent Legislative Develop-ments, 43 CASE W. RES. L. REV. 1101, 1109 (1993).

17. James Alexander, A Brief Narrative of the Caseand Trial of John Peter Zenger, Printer of The New YorkWeekly Journal 93 (Stanley N. Katz, ed., 1963) (1736).

18. 26F.Cas.1323 (C.C.D.Mass.1851) (No.15.815).19. 156 U.S. 51 (1895).20. 473 F.2d 1113 (D.C. Cir. 1972).21. Michael S. Moore, A Natural Law Theory of

Interpretation, 58 S. (AL. L. REV. 277, 313 (1985).22. United States v. Dougherty, 473 F.2d 1113,

1136 (D.C. Cir. 1972).23. Miller v. Johnson, 115 S. Ct. 2475 (1995).24. Missouri v. Jenkins, 115 S. Ct. 2038 (1995)

(holding that district court order to attract nonminoritystudents to school district in furtherance of interdistrictgoal was beyond scope of court’s authority).

25. See Lani Guinier, No Two Seats: The ElusiveQuest for Political Equality; 77 VA. L. Rev. 1413, 1479(1991).

26. OwenM. Fiss.Groups and the Equal ProtectionClause, 5 PHIL. & Pub. Aff. 107, 152 (1976).

27. Powers v. Ohio, 499 U.S. 400 (1991).28. Balzac v. Porto Rico, 258 U.S. 298, 310 (1922).29. Duncan v. Louisiana, 391 U.S. 145, 155 (1968).30. Georgia v. McLollum, 505 U.S. 42, 49 (1992).31. Batson v. Kentucky, 476 U.S. 79, 99 (1986).32. See McCollum, 505 U.S. at 49.33. Id.

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1. Why did Butler contend that “the black community would be better off when some nonviolent lawbreakersremain in the community rather than go to prison”? Do you agree or disagree with his analysis?

2. What are the “secret messages everyone hears” in the two cases Butler discussed (i.e., Marion Barry andthe attorney who wore kente cloth)?

3. Why does Butler advocate racially based jury nullification—what justifies this course of action, in his view?

4. Butler argued that nullification should be confined to nonviolent crimes and that defendants chargedwith violent crimes, such as murder, rape, and armed robbery, should be convicted if there is proofbeyond a reasonable doubt of guilt. Why is nullification not morally justifiable (in Butler’s opinion) incases of offenders charged with violent crimes?

5. The more difficult cases, according to Butler, involve defendants charged with nonviolent propertyoffenses or with more serious drug trafficking offenses. How does he answer the question, “Isnullification morally justifiable” in these types of cases?

6. Randall Kennedy, a Black law professor, critiqued Butler’s proposal in his book,Race, Crime, and the Law(Kennedy, 1997, pp. 305–307). He objected to Butler’s expression of more sympathy for nonviolent Blackoffenders than for “the law-abiding people compelled by circumstances to live in close proximity to thecriminals for whom he is willing to urge subversion of the legal system.” He asserted that law-abidingBlack people “desire more rather than less prosecution and punishment for all types of criminals.” Howmight Butler answer Kennedy’s criticisms?

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