Bowers, W. J., Sandys, M., & Steiner, B. (1998). Foreclosed impartiality in capital sentencing: Jurors’ predispositions, guilt-trial experience, and premature decision making. Cornell Law Review, 83, 1476-1556.
The bifurcation of the capital trial into separate guilt and sen-tencing phases is the most decisive and uniform change in the ad-ministration of the death penalty under the capital statutes approved in Gregg v. Georgia 1 and companion cases. By law, jurors make the life or death sentencing decision at a separate penalty trial after the determination of guilt in accordance with carefully drawn sentencing instructions. These sentencing instructions are in-tended to guide the exercise of sentencing discretion by articulating those aggravating and mitigating considerations that are relevant to this decision. In this way, the exercise of capital sentencing discre-tion is to be guided and thus freed of constitutionally impermissible caprice, arbitrariness, and discrimination. The Supreme Court has underscored the importance of a separate and independent sen-tencing decision in Morgan v. Illinois, 2 requiring that capital jurors give effect to the statutory considerations that are appropriate for the sentencing decision. 3 Interviews with 916 capital jurors in eleven states reveal, how-ever, that many jurors reached a personal decision concerning pun-ishment before the sentencing stage of the trial, before hearing the evidence or arguments concerning the appropriate punishment, and before the judge’s instructions for making the sentencing deci-sion. Moreover, most of the jurors, who indicated a stand on pun-ishment at the guilt stage of the trial said they were “absolutely convinced” of their early stands on punishment and adhered to them throughout the course of the trial. This Article examines the sources of such early punishment de-cision making. Specifically, it explores (1) the extent to which these stands are the product of jurors’ predispositions toward death as punishment and (2) the extent to which early punishment decisions derive from jurors’ experiences and deliberations during the guilt portion of the trial. The analysis reveals a substantial failure to purge capital sentencing ofjurors who are predisposed to death as punishment and who will not give effect to the constitutional pro-tections of the sentencing guidelines. Discussion of defendant punishment occurred during 33% of guilt deliberations. Almost half of jurors decided on “correct” punishment during guilt trial; 67% of these favored death sentence. 67% of jurors “absolutely convinced” of correct punishment before start of sentencing trial; 60% held to this position throughout. Taking early pro-death stand strongly related to pro-death penalty attitude index.