Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have long criticized juries for administering punishment.
Of particular concern to the Supreme Court has been the problem of jury discretion in capital cases. Finding ways to control the deliberations of the capital jury to prevent them from rendering decisions which are as arbitrary as being "struck by lighting" has been the primary focus of the Supreme Court at least since the early 1970's. If one considers the plurality opinion in Furman as a great wall erected to prevent continued movement toward implementation of arbitrary and capricious death sentences, the public movement which followed to reinstate capital punishment affected the mortar with which the wall was erected. The jurisprudence that followed the calls for control over the arbitrary behavior of the capital jury has wavered in recent years from the commitment to place controls over the death penalty, and to insure it is a true last resort for the worst of the worst.
The rise in crime that occurred during the early seventies combined with the political rhetoric that emerged from partisan politics made the Supreme Court and the death penalty fair game for controversy. A shift in the political climate along with a change in the leadership and the personnel of the Supreme Court made the fragile wall of protection erected in Furman increasingly vulnerable to attack. Shifts in the Supreme Court majority have led to grave concerns about the fairness of capital punishment in the decades following Furman. With aggressive state action to pass new death penalty statutes in order to resume executions, inevitably the Court has become less protective of the values advanced in the Furman opinions.
One of the primary casualties of the post-Furman decline in constitutional protection advances in the form of various controls on juries that decide capital cases. Decisions during the 1980's regarding what a capital jury may consider, what they may not hear, and what type of statutory instructions and forms must guide them demonstrated some promise that Furman concerns would, at times, be seriously regulated. However, over the last several decades the Court has issued opinions which indicate that it is more concerned with state autonomy in administering the death penalty than the defendant focused concerns of Furman.
In my view, instructions to the capital jury are the primary vehicle of procedural protection against unjust imposition of the death penalty. Unfortunately, the Supreme Court has approached its capital punishment jurisprudence without due regard to the scientific research that is available regarding how consideration of death sentences is different from other jury decisions. This article is an attempt to discuss what went wrong with the Supreme Court's jurisprudence regulating capital juries and proposes some solutions that direct how the Court might increase scrutiny of jury instructions when reaching life and death decisions.
When the Wall Has Fallen: Decades of Failure in the Supervision of Capital Juries, 26 Ohio Northern Law Review, 741 (2000)