Judicial instructions provide the law that jurors are to follow when making their decisions. These decisions range from decisions about negligence and compensation in civil trials to guilt or innocence decisions in criminal trials and, ultimately, life and death decisions in capital trials. The purpose of judicial instructions in all trials is to guide jurors in their decisions. One area of law in which judicial instructions are most important is capital sentencing, where jurors are asked to decide between a life or death sentence for a person convicted of a capital crime. The Supreme Court has acknowledged the importance of such a decision and, in an attempt to reduce arbitrary and capricious sentencing, held that states must provide jurors with “guided discretion.”

However, guided discretion is ambiguous and has been translated into varied procedures across different states. Although these varied procedures have been constitutionally upheld, there is reason to suspect they may be inadequate. That is, they may indeed lead to arbitrary and/or biased sentencing. Thus, this research aims to assess bias in capital sentencing instructions empirically. Instructions differ in the extent to which they

a) provide a death as a default sentence,
b) focus on future dangerousness, and
c) emphasize mitigation. Suppose one set of instructions consistently yields a greater number of death sentences while another consistently results in life sentences, given the same case material. In that case, the adequacy of guided discretion is seriously questioned.

Capital Sentencing

It is constitutionally acceptable for states to differ in their procedures and outcomes. However, at what point do different procedures yielding consistently different outcomes become effectively biased and unconstitutional? Although states have tried to guide jurors in their decisions, social science research has shown that arbitrary and biased sentencing still exists. Six independent lines of research provide “factual evidence” suggesting that the death penalty is applied in a biased and/or arbitrary manner.

The first line of research provides evidence of consistent racial bias. The remaining five show that sentencing may be arbitrary. The second line of research has shown that prisoners with commuted sentences are no more dangerous than prisoners with death sentences. Third, there are more reversals in capital cases than in other cases.

Fourth, there is some evidence that innocent people have been sentenced to death. Fifth, there is little consistency between judges’ and juries’ decisions for death. Finally, citizens and jurors who have served on capital cases report that the death sentence is arbitrary.

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