Jurors' Stories of Death: How America's Death Penalty Invests in Inequality.

Vol. 14 No. 9 (September 2004), pp.742-746

JURORS’ STORIES OF DEATH: HOW AMERICA’S DEATH PENALTY INVESTS IN INEQUALITY, by Benjamin Fleury-Steiner. Ann Arbor, Michigan: University of Michigan Press, 2004. 224pp. Cloth. $59.50. ISBN: 0-472-09860-8. Paper. $24.95. ISBN: 0-472-06860-1.

Reviewed by Paul Lermack, Political Science Department, Bradley University. Email: pnl@bradley.edu

This little study by Benjamin Fleury-Steiner stands at the intersection of two bodies of social science literature. On one side is the study of juries and juror behavior. Important empirical questions must be answered: Can jurors understand complex litigation? Do they tackle their tasks conscientiously? Do they follow the law that the judge gives them, or do they substitute their own values and prejudices? In addition to the memoirs of jurors and the anecdotes provided by journalists, we have systematic surveys, simulations, and other behavioral work by anthropologists, law professors, political scientists, psychologists, social psychologists, sociologists and others. The literature of juror behavior has become vast. Juries are probably our most studied social institution.

On the other side stands the vast literature pro and con on the death penalty. Most of it, even the work done by social scientists, is more driven by emotion than by the dispassion that is needed for rigorous work. However, some careful studies have been done. We know, for example, that over time the death penalty has been imposed on members of racial minorities much more often than their proportions of the population would predict. Some of these studies have been quoted in court rulings that some specific provisions of a state death penalty law violate constitutional requirements of due process or equal protection.

Fleury-Steiner contributes interesting insights to both areas. He wants to “enter the world of those who do make the awful life-or-death decision: former capital jurors” (p.xii). (The publisher’s blurb describes the book as “the first systematic survey of a rarely seen process—how jurors make the life or death decision.”) But his ultimate goal is more policy-influencing than process-describing. He makes what he thinks is a fatal argument against the death penalty. Though his presentation is somewhat disorganized, his argument can be simply restated:

1. The due process clause requires each jury to base its decision on a consideration of the crime, evidence and victim before it.

2. This requires a consideration of the defendant alone, free from stereotypes or assumptions not warranted in the evidence.

3. In America, race is such a pervasive and biasing concept that it distorts all thought; in essence, race—and the stereotypes fostered by racial bigotry—stand between the defendant and the jurors. (African-American jurors, too, he asserts, are affected by the distortions and stereotypes of race.) [*743]

4. Because a defendant cannot be seen clearly for himself (or herself), jurors cannot judge him on the evidence alone. Stereotypes inevitably get in the way.

5. Therefore, the jury cannot fairly judge the defendant on the evidence.

6. Therefore, the death penalty trial inevitably violates the due process clause.

If this argument is valid, supporters of the death penalty will have to acknowledge that it is unconstitutional. The death penalty will be seen as running counter to the basic values of fair play. Fleury-Steiner would go even further to assert that the death penalty is part of the machinery used by those who want to perpetuate unfairness and inequality for political reasons—his subtitle is “How America’s Death Penalty Invests In Inequality.” This is an explosive argument.

If, that is, it can be proved. In this short book, Fleury-Steiner does not present evidence to support all four of the premises. The first two, I suspect, will be accepted by legal scholars as fair descriptions of how the trial process ought to work. “Due process” can mean no less. We could all cite standard texts that assert these premises as ideals, and jury instructions often contain similar statements.

The third premise is more troubling, although it is certainly intuitively obvious. Indeed, it is reminiscent of Jesse Jackson’s observation that slavery is America’s original sin. As a result of it, race affects everything that we do; it must be considered in every political decision we make, and, like sin itself, it is a slippery concept that confounds even our best efforts to bring it under conscious control.

However, it remains to be seen whether the fourth proposition is correct. Even if it is logical that juror perception should be affected by race, can we conclude that juror perception in practice is so affected? As Fleury-Steiner puts the question, “How are racial identities made invidious in death penalty judgments?” (p.13) Since statement four is a real-world or empirical statement, it should be subject to social science techniques for proof or disproof.

Fleury-Steiner supplies evidence. He provides comments of 57 former capital jurors who had participated in 26 trials. Fleury-Steiner uses brief comments of jurors to illustrate how they actually went about their tasks of constructing narratives which were consistent with the evidence, on the basis of which culpability was assessed. The most valuable contribution of this book to the scholarly literature is this portrayal of people describing how they performed the tasks they were charged with. We see jurors wrestling with evidence they have to assimilate, and trying to piece it together. We also see, in descriptions of the deliberations, how the jurors relate to each other. They discuss, and at times negotiate, like they are supposed to.

Inevitably, however, stereotypes creep in. Though the subjects themselves rarely seem conscious of the distorting effects of race on their work, they make comments that Fleury-Steiner interprets as distorted. Defendants, in Fleury-Steiner’s interpretations, are analogized to the bad kid, the outsider, the member of an inferior race, and other common stereotypes. The jurors all seem guilty [*744] of unconscious over-generalization. Though minority jurors seem psychically equipped with a different repertoire of stereotypes—being quicker to resort, for example, to the warping effect of poverty—they seem just as guilty as their non-minority fellows of putting stereotypical variables between the evidence and the defendant.

Fleury-Steiner also uses quotations from interviews to explore other things. Jurors seem uneasy about the death penalty, and squeamish enough about participating to find it necessary to rationalize their work as only “making a recommendation.” Fleury-Steiner interprets juror comments about deliberations to emphasize that the process of hammering out a single story inevitably involves the suppression of dissent and the squelching of scruples. These topics digress from his main point, but they are valuable for themselves like the subplots in a novel. They establish a mood. As Fleury-Steiner paints the picture, the jurors are uneasy with the mechanism of death. Though they do not recognize their own biases and do not concede that they are behaving unjustly, nevertheless they seem unhappy and uneasy.

So the picture is of unwilling conscripts unknowingly but inevitably violating the rule of law by injecting biases into what is supposed to be a dispassionate and bounded process. As with any process designed in accordance with majority prejudices, the outcome is that the socially favored make out well while the disfavored are harmed. The death penalty perpetuates inequality. If this is what the mechanism of death looks like, we would be morally required to heed the calls for its abolition.

But how typical of the overall process is the experience of Fleury-Steiner’s 57 jurors? The data come from the Capital Jury Project, “a national study of the experiences of citizens who served as jurors on death penalty cases” (p.30) which sampled capital trials since 1988. William J. Bowers of Northeastern University was the principal investigator. Fleury-Steiner worked on the project for seven years. He wrote his dissertation from it, has published several articles, and is now assistant professor of sociology and criminal justice at the University of Delaware. We can assume that in the overall project the necessary scientific rigor was maintained.

But the jurors who are quoted in this work are not representative of the presumably much larger group of interviewees of the Capital Jury Project. Fleury-Steiner tells us that as he worked with the data and reviewed the interviews, he noted “consistencies” (p.34) that led him to make “subsequent analytical interpretations.” He uses the 57 jurors he quotes to illustrate these interpretations: “Specifically, I have not tried to obtain a representative sample that can be generalized to all jurors in penalty trials. . . . I have sought out interviews where jurors provide the richest detail and clearest insights about the underlying decision process” (p.35) In other words, after Fleury-Steiner decided what the underlying decision process was, he chose the jurors whose comments most clearly illustrated the various aspects of it—aspects which he had already decided were there. The interpretation did not arise from the data (at least not from the limited data that he provides in this book.) Instead, the data [*745] were chosen because he could use them to illustrate the interpretation.

The data, therefore, are not capable of falsifying proposition four above. They were chosen precisely because they did not falsify it. They may be interesting, even useful, but we do not know if they are typical of all capital trials, unusual, extremely rare, or even unique. They are just comments of some jurors who worked on some trials. We cannot learn from them whether or not the distortions of race inevitably bias all capital jury decision making.

Fleury-Steiner could have given his theory, and his data, more conceptual depth by comparing them to the work of other people who have studied juror behavior. But, surprisingly, there is no literature chapter here. The bibliography lists at least a dozen scholarly publications that come out of the Capital Jury Project, so certainly someone has had to put research findings into the perspective of the larger scholarly literature. But that literature is largely absent here. (Some documentation is provided for storytelling theory, and some scholarly works on the death penalty are noted.) In a bibliography that cites work by Angela Davis, Michel Foucault and Derek Bell (and Dinesh D’Souza and George H. W. Bush!), Kalvan and Zeisel are absent. Hans and Vidmar, Hastie, Wrightsman, Kassin and Willis, Jonakait, and Simon are not mentioned.

To take one example, Fleury-Steiner devotes Chapter 7 to deliberations, arguing that dissidents or holdouts (whom he calls resisters) are manipulated into agreeing with the majority in ways that inevitably work to the disadvantage of the poor and downtrodden. He seems unaware that forty years ago the Chicago Jury Project found deliberations to be dominated by leaders disproportionately male, better off, successful and assertive, and attractive. These leaders impose mainstream values and suppress dissent. Fleury-Steiner’s data replicate these early findings, enriching them with a fuller treatment of the critical variable of race. The presence of these supportive scholarly ancestors, in turn, bolsters Fleury-Steiner’s own findings by making them more likely, more what a social scientist would have expected. But his chapter does not contain the necessary footnote.

To be fair, Fleury-Steiner’s preconceived notions do not come out of thin air. They were formed from, or are at least informed by, his seven years of working with the rigorous data of the larger project. He says that he presents his views here “so that future research can provide a more rigorous and exacting test” (p.35). Perhaps in the long run he will be proved right.

But for now, the evidence does not support Fleury-Steiner’s conclusions that the death penalty “is beyond ‘arbitrary’” (p.129); that it is part of a “war on equality” (p.133); and that it inevitably invests, in an unconstitutional way, in the privileging of the lives of insiders above those of the poor, the dispossessed and the members of minority groups (p.135). Opponents of the death penalty are waiting for THE BOOK that will present unmistakable proof that the death penalty so badly violates our sense of fair play that all support for it will fail, and all voices immediately demand an end to these shameful executions. [*746] Interesting it may be, but this is not that book.

REFERENCES:

Hastie, Reid (ed.). 1993. INSIDE THE JUROR: THE PSYCHOLOGY OF JUROR DECISION MAKING. New York: Cambridge University Press.

Hastie, Reed, Steven Penrod, and Nancy Pennington. 1983. INSIDE THE JURY. Cambridge, MA: Harvard University Press.

Hans, Valerie P., and Neil Vidmar. 1986. JUDGING THE JURY. New York: Plenum Press.

Jonakait, Randolph N. 2003. THE AMERICAN JURY SYSTEM. New Haven: Yale University Press.

Kalven, Harry, Jr., and Hans Zeisel. 1966. THE AMERICAN JURY. Boston: Little, Brown.

Simon, Rita (ed.). 1975. THE JURY SYSTEM IN AMERICA. Beverly Hills, CA: Sage.

Wrightsman, Lawrence S., Saul M. Kassin, and Cynthia E. Willis (eds.). 1987. IN THE JURY BOX: CONTROVERSIES IN THE COURTROOM. Beverly Hills, CA: Sage.

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