Jury Sentencing in Capital Cases


Problem statement

Jury sentencing has been mostly recognized in capital cases to preserve the connection between the modern societal values and the penal system. This link serves to follow the developing standards of morality and decency indicating the societal maturity. Juror’s sentencing decisions provoke disputable points for discussion pertaining to their relevance to the question of guilt. Another problem is that jury sentencing can be also based on prejudicial information but not on the objective assessment of the crime and the accused people. The problem is aggravated when jury’s decisions influence the fate of human lives. There is an assumption that the best way to eliminate subjectivity on the one hand and to provide a fair and consistence sentencing on the other hand is the introduction of a bifurcated process – the one that determines the guilt first and then a sentence is provided by a jury. This standard seems to promising in case the information on guilt does not bear a prejudicial character that might lead to irrational jury sentencing. However, transparent and subjective information cannot fully guarantee that will be accurately used in the imposition of sentence in case it is fulfilled by jurors. This is explained by the fact that most members participating in sentencing are experienced enough to handle the obtained information. In this regard, there have appeared specific standards for monitoring the jury’s discretion in order to preserve the link between communities’ values and the penal system (White, 2008, p. 205)

The history of jury sentencing encounters considerable fluctuation concerning the standards of judging and imposing capital punishment on the criminally accused. In this respect, the United States argues on the problems of mandatory death capital punishment and the way it affects the societal values. This situation is focused on the consequences of jury’s decision-making process both in capital and in non-capital cases. Here, there arise numerous biases pertaining to jurors’ disparity in sentencing decisions due to the changes occurs in the juridical system and United States Supreme Court. The examination of the capital punishment in this retrospective shows that the practice of imposition of death sentences has been strictly rejecting in the American Court. However, Furman decision on mandatory death penalty statutes in 1972 reveals the attempts of the United States to preserve the capital punishment in accordance with the Constitution (Mandery, 2005, p. 240). The above problems consideration displays jury as the main critical point in providing a fair judgment. On the one hand, it provides biases to ethical and moral points of sentencing and other subjective factors influencing the decision. On the other hand, it is dual interaction between legal enactments provided by judges and moral deliberations provided by juries.

The purpose of the research

Relying on the revealed problems, the research will be focused on investigating jury sentencing from several retrospectives. Thus, it is necessary to evaluate the juror’s comprehension in imposing the capital punishment and the necessity to control this. The next aspect to be analyzed is the differences between the sentences imposed by juries and the sentences imposed by judges, which should highlight the veritable function and role of jury sentencing. Finally, it is reasonable to define the factors affecting the final sentence.

The significance of the research

The problem investigated in this research is a multidimensional consideration of social, moral, and political underpinning of the participation of jury in justice and problems connected with this process. More importantly, the research will disclose the real causes and effects of jurors’ participation disguised by the democratic intentions. Finally, the research will greatly contribute to mapping a true picture and the essences of juror’s decisions.

Literature Review

Brief history of the problem and research in the sphere

There is denying the fact that jury trials are considered to be an essential element of judicial system in America (Taylor & Hosch, 2004, p. 587) and this accounts for the richness of scientific research and scrupulous attention of the scholars towards trial participants and their impact and significance for the outcome of trials. Though the present subsection of the paper will focus on the synthesis of contemporary research in the sphere of justice, which will provide a reflection of the changes, tendencies, and factors affecting practice and effect of jury in American court system, there are significant studies conducted by scholars in the first part and the middle of the last century. Blumsten, National Research Council, & Panel on Sentencing Research (1983) state that the existing scholastic literature devoted to criminal sentencing, jury sentencing included, is not guided by a dominant theory or set of theories. While early sentencing research focused on “bivariate relationships between attributes like race and sentencing outcomes” (p. 2). Later research of sentencing analyzed variation of “individual-processual models of sentencing process” (Blumsten, National Research Council, & Panel on Sentencing Research, 1983, p. 3).

As for the history of the issue of jury sentencing and jury effect on the administration of justice, those researchers, who study jury sentencing, trace its development and alterations in the system from ancient and medieval times, (Hoffman, 2003) and from colonial to modern times (Iotcheva, 2003). The study of historical accounts of the development of jury sentencing offers such valuable details as Hoffman’s (2003) statement that from 1800 to 1900, about a half of the sentences in the sphere of non-capital cases was imposed by juries and many states allowed to juries to make sentencing recommendations in noncapital cases (p. 964). Consequently, it can be concluded that the nineteenth century was the time when almost all sentencing schemes were marked by the input from the jury (Hoffman, 2003, p. 964). In general, the study of historical accounts of jury sentencing can be beneficial in terms of the establishment of trends in the development of jury system and factors influencing it.

Jury sentencing in capital cases and non-capital cases

Even superficial research of scholarly literature reveals that the greatest attention of scholars has been claimed by jury sentencing in case involving capital punishment. Solid and significant research in this sphere can be explained by the guarantee provided by the Sixth Amendment to the U.S. Constitution, which “ostensibly guarantees as accused person the right to trial by an impartial jury” (Blankenship et al., 1997, p. 325). However, Blankenship et al. (1997) question impartiality of the juror’s in death penalty cases (p. 325). The authors assert that the jurors may cause arbitrary or capricious application of capital punishment in case if sentencing instructions are poorly worded or appear to be ambiguous due to their inability to get at “the differences in the level of proof and requirements for unanimity on the existence of aggravating and mitigating circumstances” (Blankenship et al., 1997, p. 327). The value of the study is in the fact that it, using the example of the Tennessee death penalty cases, the authors have shown that there is the possibility of the Court’s erring due to substitution of professional comprehension of the law for that of the jury (Blankenship et al., 1997, p. 339). Besides, the errors made tended to be to the disadvantage of the accused meaning that due to the awkward sentencing instructions, the accused were sent to death row in the greater part of the cases since a consistent bias of the jury was revealed. The value of the study is in the fact that it proves the existence of juror’s ignorance that has proved to be permanent but there is the possibility to improve their performance in case if sentencing instructions are conveyed clearly, hence urgent need for their revision (Blankenship et al., 1997, p. 342).

Awareness of the responsibility laid on the jurors in terms of passing of capital sentences is one more aspect of jury’s competence that is questioned by researchers (Eisenberg et al., 1996, p. 340). The study conducted by Eisenberg et al. (1996) offers significant findings approving of the attitude of awareness of the jurors to responsibility they should share. The authors made an attempt of testing the assumption that the jurors lacking the requisite sense of responsibility will be more inclined to return a death sentence in comparison with the jurors possessing this sense (Eisenberg et al., 1996, p. 378). Applying the Caldwell model and the Milgram model, the researchers have proven that those jurors who do not accept their responsibility really tend to vote for death in the majority of cases but a weak correlation can be established between the acceptance of responsibility and sentencing outcome (Eisenberg et al., 1996, p. 378). Relying on this study, it is possible to conclude that there are jurors who misunderstand their responsibility in death penalty cases and the situation needs legal improvement, like, for instance, transformation of the Caldwell rule in terms of instruction of the jurors about morality of their decision.

The jurors’ tendency towards passing death sentence to offenders in case of the two alternatives: either capital punishment or life imprisonment has been studied by Blume et al. (2001), who analyzed the adequacy of “at issue” requirement. The main finding resulting from the study that is devoted to the reasonableness of tactics applied during a trial that entitles a defendant to tell the jury that in case if he is sentenced to life imprisonment instead of capital punishment, he will not be eligible for parole but only in case if his future dangerousness is “at issue”, is that future dangerousness is considered to be topical by all jurors during capital trials and there is the necessity to eliminate the “at issue” requirement at all as this will make a significant contribution to the jury’s unbiased verdict (Blume et al., 2001, p. 410).

Considering jury sentencing in capital cases it may be useful to compare it with jury sentencing in non-capital cases and such as analysis has been performed by King (2004). The study has shown that there are several features typical of jury sentencing in both types of cases and all of them primary belong to the sphere of capital cases. King (2004) sings out the following features: inconsistency in the sentences chosen, misunderstanding of sentencing norms and conditions of parole release (both of them have been analyzed in the above mentioned sources), and the “use of jury sentencing as leverage in charge and sentence bargaining by prosecutors” (p. 214).

Since the previous study can be treated as the link between review of the literature on jury sentencing in capital cases and non-capital cases, it is necessary to focus on non-capital cases and jury sentencing as well. King & Noble (2004) state that “jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice” (p. 949). The authors mention democratic contribution of sentencing by jury but state its critical character as sentencing by jury can be regarded as a tool adapted “to deter trials, to accommodate elected judges, and to appease constituents who support ever higher sentences for crime” (King & Noble, 2004, p. 949).

Factors affecting jury sentencing

Research devoted to jurors and jury sentencing has covered wide area of factors that have influence on juror’s attitudes and values and their resulting in sentencing. These diverse factors include demographic and personal factors, such as race, ethnicity, attitudes to specificity of cases, racial issue, etc. Devine et al. (2000) have established that demographic factors such as race, socioeconomic status of the jurors have received great attention of researchers in the sphere. As it has been mentioned in the opening part of the current section, racial issue had been the main focus of scientific research of sentencing. Contemporary researchers (Bower et al., 2001) also focus on the impact of jurors’ race and racial composition of jury on sentencing, focusing on capital cases. The key finding of their study is the proof of the influence of race on capital sentencing. The application of historical analysis has proved to be useful and has shown that racial composition of jury in the past and nowadays differs significantly. This study is a perfect example of a mixture of quantitative as well as qualitative analysis. It demonstrates that introduction of women and black jurors to the capital jury can influence the sentence a lot (Bower et al., 2001, p. 259). Divergent decision-making in case of black and white jurors judging the case of a black offender and white victim can be explained by the fact that jurors see the case differently (Bower et al., 2001, p. 260). While white jurors perceive a black defendant as dangerous to society, the blacks see him/her as remorseful and, consequently, deserving for mercy (Bowler et al., 2001). Besides, white jurors underestimate the defendant’s background and upbringing in comparison with black jurors (Bower et al., 2001).

Besides racial factor, the influence of religion on jurors’ sentences has been the focus of scientific studies. One of the most significant is the one conducted by Miller & Bornstein (2006), who have established that there are attempts of both prosecutors as well as defense attorneys to resort to “religious appeals and testimonies about a defendant’s religious activities” for the purpose of influencing jurors’ sentencing (p. 675). The most significant finding of the study is the conclusion stating that prosecution appeals do not produce valuable influence on jury’s decision while considerable influence of suchlike appeals on the part of defense has been established and explained by perceived sincerity and remorse of the defendant (Miller & Bornstein, 2006, p. 675).

Among other significant factors influencing jury’s decisions of the jury are defendant’s status, level of community involvement of the defendant, and severity of crime committed (Moore & Newton, 2005). Significant impact of status in comparison with other factors has been established. Taylor and Hosch (2004) present similar data, and the also add the evidence for low impact of ethnicity of a defendant on the sentence.

Judge and jury interaction

The analysis of jury in relation to judges can become an promising niche for analysis. Hoffman’s (2003) study of jury sentencing covers judge and jury interaction. His empirical study based on four propositions and, as a result, the researcher refuted all of them:

  1. judges are less susceptible to prejudice than jurors;
  2. sentences imposed by judges are more uniform and therefore more predictable than sentences imposed by juries;
  3. judges are more lenient than juries;
  4. jury sentencing encourage compromise verdicts. (Hoffman, 2003, p. 985-986).

Sentence disparity and the debate in the sphere of sentencing involving judge and jurors is the focus of the study conducted by Smith & Stevenson (1984), who analyzed the existing trend towards more lengthy prison terms (p. 1). The scholars were inspired by the alterations of sentencing strategies introduced in several states “by removing sanctioning authority from juries and investing judges with their power” (Smith & Stevens, 1984, p. 1). However, the analysis of the sentences imposed by judges in comparison with those that were imposed by the jury has shown that the levels of disparity in both types of sentences are almost equal and this finding is of great importance as it shows the direction for reduction of one of the major problems of contemporary sentencing: disparity (Smith & Stevens, 1984, p. 6).

Finally, it is necessary to state that the present literature review has demonstrated that during the last decade, the focus of the research on jury and jury sentencing has been evidently shifting from descriptive to prescriptive as the consequence of issues and reforms implicated for the purpose of jury system improvement and this shift seems to be continuous and topical in the future studies.

Data and Methodolody Used

The purpose of methodology

The main purpose of our research is to pursue the studies dedicated to the analysis of current processes of jury sentencing as the critical component in judgment of different cases. First of all, the survey of the researchers should be oriented on the analysis social and moral factors influencing on the results of justice. Second, it is necessary to study the differences between the jurors’ assessment of the crime and the judges’ one. This will define the tools of justice used by the jurors when delivering a sentence and the factors influencing making important decisions. Finally, the analysis of bench trials will also evaluate the role of jurors’ participation in capital and non-capital cases.


The problems emerged in jury sentencing have a plethora of nuances that should be considered from different points. In particular, it is necessary to pursue the jury’s behavior and the character of its involvement into the process of sentencing. Then, the methodological view will study different political, cultural, and social aspects of legal judgments and level of juror’s concern with moral and legal rightness of their decisions. In addition, it is also necessary to define the frequency of juror’s participations in capital and non-capital case. All this points should be analyzed from the empirical and theoretical retrospectives, which are mutually connected. The final point is crucial in evaluating the jury’s effect, as some legal phenomena like jury nullification, demographic restrictions, size of juries reflect the outcomes of cases. In contrast, there are practical instances that contribute to the alterations to juridical system. Finally, the deliberation on the presence of moral determinations in providing the legal sentence is not of minor importance, as the legal history saw numerous factors when jury sentencing provided a more morally justified decision in case with death punishment. In that regard, the consideration of the issues beyond the law should justify the necessity to include human factor.

Arising from this deliberation, the methodological paradigm will be based on grounded theory consisting in singling out the key points out of cases represented in the findings of the involved researches (Bachman and Schutt, 2003). According to this theory, the research process will first involve the coding of data. Hence, the problem of jury sentencing will be split on several concepts like 1) sentencing of capital cases, 2) sentencing of non-capital cases, 3) jury’s role in making a legal sentence ,4) jury as a dual actor, and 5) cultural and ethnical prejudice influencing the jury’s decision.

The second step will be consideration of these concepts in combination with each other for proving the existed theories and defining the existed ones. Through these contrast and comparison devices, the research will regard a ratio of legal and moral constituents in the process of sentencing. By analyzing the cases revealed in the researches, it is possible to pursue the regularity in jury’s decisions and link them with the evidence provided by historical evaluation.

Study Design

For our research, a combination of qualitative and quantitative analysis, as on the one hand, the study is aimed at defining the problems connected with criminal justice and clarifying the numerical data on the number of states allowing and banning the participation of jurors of sentencing. The research will be more focused on explorative, as it will investigate similar cases. In particular with the help of qualitative research we will regard to racial and religious aspects of jury sentencing investigated by Iontcheva (2003), and Miller and Bornstein (2006). Further, with the help of qualitative research, it is possible to track the attitude of the legal system. Hence, Read et al. (2006) explore the difference between the bench trial and jury thus defining the positive and negative aspects of both. Finally, qualitative investigation promotes the analysis of jury and judge interaction throughout the human historic. The application of quantitative analysis will help to summarize the frequency of influencing factors and the number of participants and states practicing the jury sentencing.

Population and Sampling

The target population for observation will be destines for people of various origin and social status who had been convened to the court to perform jury duties. The jury groups have been selected randomly and they will be analyzed according to their status, their ethnical and national attitudes, and political views. A wide range of requirements to the jury’s participants will allow to pursue different angle of their interaction with the judges. It is also worth saying that the research does not put an emphasis on gender characteristics but it is more focused on the results of sentences.

Investigative approaches

The research is based on the observation of the results obtained from different researches mentioned in literature review. In particular, this observation should reveal the following points:

  1. The frequency of jury’s sentencing to death punishment versus the jury’s sentencing to non-capital punishment. Here, it is necessary to investigate the reasons and causes of such decisions, both legal and moral.
  2. The outcomes of interaction between the jury and judge measuring the sentences. The main task of our observation is to reveal the limitations imposed on jury by the court.
  3. The observation will also allow to identify which factors (racial, human, legal, religious, political) are the most frequently revealed in the researched investigated in this particular study.

Based on the above objects of study, the independent variable component is the process of jury sentencing, as it is affected by such factors as race, religion, responsibility and political environment. The legal system and the judge can explicitly influence the jurors’ decisions by imposing legal limitation of the criminal case. In that regard, the influencing factors will be considered to be independent variables.

Data Collection

For our research, it is relevant to choose the descriptive statistics, as it allows to present qualitative descriptions in an available form. By means of this approach, we are planning to describe single variables and their connection with other factors to analyze the outcomes of its interconnection (Babbie, p. 467).


Our research is more focused on the very process of jury’s sentencing and its character and quality. In this respect, the factors influencing its decision are studying in this retrospective. Besides, the paper is also more concerned with recent tendencies of jury and the theoretical and empirical biases connected with this process.

Prelininary and Expected Findings

As the research is studied from three aspects, specific empirical and theoretical points have been revealed pertaining to jury’s imposition of capital and non-capital judgment, jury-judge debates and issues affecting the jury’s sentences.

Regarding the first aspect, we have found that, when choosing between life imprisonment and capital punishment, jury’s members are more inclined to sentence the prisoners to death (Blume et al., 2001). This is explained by the fact that those prisoners convicted in a first-level murder have more chances for parole when they are subjected to life imprisonment. Therefore, the jury’s decision is predetermined by the desire to deprive the defendant of this right. In contrast, non-capital jury is a very rare phenomenon in our time, as it hardly receives any support from the court and legal system.

Second, Hoffman (2003), and Stephen and Smith (1984) who dedicated their scientific paper to the investigation of jury-judge relations have revealed several cases proving that there is a considerable gap in the quality of decisions made by each of the stakeholders. By evaluating the sentencing competence of judged and jurors, Hoffman have assumed that “judges are less susceptible to prejudice than jurors” and, correspondently, the sentenced provided by them are more unanimous and adequate (Hoffman, 2003, p. 985). Like Hoffman, Smith and Stevens (1984) have also compared the judges’ and jury’s decisions and have withdrawn the fact judges impose higher sentences on the defendant than jurors do. Indeed, the researchers explain this severity of sentence by the idea that their judgments are not morally predetermined but are based on legal and more general issues.

Taking into consideration the independent variable influencing jury sentencing, it has been found that the most frequent among them are those based on racial prejudices, moral behavior, political determination, religious affiliation, and social status. In particular, the jury is often composed of divergent national groups in order to minimize the racial factor. Further, numerous researchers (Iontcheva, 2003; King and Noble, 2004) believe that the role of jury’s participation is motivated by the courts’ intention of democratize the judicial system thus viewing the jurors as a tool for adopting the judges’ election in public and providing the space for moral judgment in legal sphere.

The preliminary findings of the research leave much space for discussion in this sphere. In particular, the research is expected to define the reasons for elimination of jury’s participation in non-capital sentencing and the standard for imposing the sentences in the court. Another angle of our research is also focused on identifying that jury’s sentences are more morally justified than the judges’ ones. Finally, it is necessary to defines that political and racial prejudiced also distorts the objectivity of the sentence decisions.

Reference List

Babbie, E. R. (2009). The Practice of Social Research. US: Cengage Learning.

Bachman, R., and Schutt, R. K., (2003). The practice of research in criminology and criminal justice.

Blankenship, M.B., Luginbuhl, J., Cullen, F.T., & Rederick W. (1997). Juror’s comprehension of sentencing instructions: a test of the death penalty process in Tennessee. Justice Quarterly, 14(2), 325-351.

Blume, J.H., Garvey, S.P., & Johnson S.L. (2001). Future dangerousness in capital cases: always “at issue”. Cornell Law Review, 86(397), 397-410.

Blumsten, A., National Research Council (U.S.), and Panel on Sentencing Research. (1983). Research on Sentencing: The Search for Reform. Washington, D.C.: National Academic Press.

Bowers, W.J., Steiner, B.D., & Sandys M. (2001). Death sentencing in black and white: an empirical analysis of the role of juror’s race and jury racial composition. Journal of Constitutional Law,3(1), 171-274.

Devine, D.J., Clayton, L.D., Dunford, B.B., Seying, R., & Pryce J. (2000). Jury decision making 45 years of empirical research on deliberating groups. Psychology, Public Policy, and Law, 7(3), 622-727.

Eisenberg, T., Garvey, S.P., & Wells M.T. (1996). Jury responsibility in capital sentencing: an empirical study. Buffalo Law Review, 44, 339-380.

Hoffman, M.B. (2003). The case for jury sentencing. Duke Law Journal, 52(5), 951-1010.

Iotcheva, J. (2003). Jury Sentencing as Democratic Practice. Virginia Law Review, 89(2), 311-383.

King, N.J. (2004). How different is death? Jury sentencing in capital and non-capital cases compared. Ohio State Journal of Criminal Law, 2(195), 195- 214.

King, N.J., and Noble, R.L. (2004). Felony jury sentencing in practice: A three-state study. Vanderbilt Law Review, 57(3), 885-962.

Mandery, E. J. (2005). Capital punishment: a balanced examination. US: Jones & Bartlett Learning.

Miller, M.K, & Bornstein B.H. (2006). The use of religion in death penalty sentencing trials. Law and Human Behavior, 30(6), 675-684.

Moore, M., & Newton D. (2005). The Influence of a Defendant’s Status, Level of Community Involvement, and the Severity of Crime upon Degree of Juror Sentencing. Web.

Smith, B.L., and Stevens E.H. (1984). Sentence disparity and the judge-jury sentencing debate: an analysis of robbery sentence in six Southern states. Criminal Justice Review, 1-9.

Taylor, T.S., & Hosch H.M. (2004). An Examination of Jury Verdicts for Evidence of a Similarity-Leniency Effect, an Out-Group Punitiveness Effect or a Black Sheep Effect.. Law and Human Behavior, 28(5), 587-598.

White J. E. (2008). Contemporary Moral Problems. US: Cengage Learning.

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