Death Cases: Should Jury Sentence?


The debate on who between the judges and jurors should make the ultimate sentencing decision in capital cases has been raging on for decades. While most states in the US have an active provision allowing juries to prescribe death penalties, a few others including Alabama, Arizona, Idaho, Colorado, Montana, and Nebraska have shifted the decision-making to the judges implementing the practice of judicial override. This paper provides an analysis of the issue of whether juries should exercise the powers to prescribe death sentences in capital cases. The work will achieve this through investigating the pros and downsides of the jury system in dispensing justice in capital cases.

In general, the study indicates that juries should not possess the ultimate decision-making right in rendering death verdicts. Instead, their contribution should be to conduct a fact-finding exercise and make an advisory conclusion on whether the aggravating factors outweigh the mitigating ones in the criminal case. The judge, upon reviewing the recommendations of the jurors, should make the final decision concerning the death sentencing if the facts demand so.


The Pros and Cons of Jury Sentencing

The Jury System

The jury system has been a part of the American justice system since gaining independence. In other parts of the world, its incorporation into the process of dispensing justice has been ongoing for around 800 years (Sullivan, 2014). Its continued use implies that there has been some insufficiency in designing judicial systems that consistently dispense the fairest judgments possible in criminal trials. As such, Ross (2014) notes, the jury system is increasingly being used in criminal trials where a death sentence is a prospective recommendation. The case of Woodward v. Alabama (2013) has reinforced the use of juries as final arbiters in cases with a potential death sentence. While dissenting from the denial of certiorari, Justices Sotomayor and Breyer questioned the constitutional grounding of the idea to allocate the ultimate capital decision making powers to judges as opposed to juries (Hans et al., 2015). They opined that jurors should be the final arbiters since this will hedge against the infringement of the Sixth and the Eighth Amendments as jurors are less inclined to prescribe cruel and unusual punishments. Thus, they are highly unlikely to prescribe death penalties in situations that do not have grounds for it.

The Pros of the Jury System

The jury system proponents such as Sullivan (2014) argue that it is best suited for issuing the death sentences since they are unbiased. The jurors are not members of the judicial system and as such bring on board a fresh and objective perspective to the case. Moreover, they are more persistent in their deliberations as to whether there is an aggravating factor that necessitates rendering a death verdict (Kamin & Marceau, 2011). As for the judges, they have been faulted as biased. The fact that in the course of their practice they have encountered similar cases makes them reliant on the past judgments to make the capital punishment decisions. These factors make the judges error-prone. The fresh minds of the jurors thus present an opportunity to examine the facts in a death case with more objectivity, hence, guaranteeing fair judgments (Sullivan, 2014). Consequently, the public and even the suspects tend to accept jury verdicts more than those of the judges.

The Disadvantages of the Jury System

However, if one is keen enough, one would realize that actually the demerits of using the jury system in capital cases outweigh the aforementioned benefits. For instance, as Ross (2014) points out, the jury system does not offer consistency. As such, death cases, which ordinarily should be rigid and highly predictable, are not. The different constitutions of the jury may lead to discrepant, almost contrasting verdicts, even in situations where the circumstances are similar. Moreover, the jurors, being human beings, are influenced by local cultural contexts, values and norms as members of the society (Beckham, Spray, & Pietz, 2007). The very benefit of the fresh perspective brought by the jurors becomes detrimental when consistent application of the law is required (Ross, 2014). The judges, on the other hand, are members of the judicial justice system and are led by clearly prescribed penal codes which make it easier to issue consistent judgments. And since death cases decisions are very high-stakes ones, it will not be prudent to leave the final decision to the jurors who are affected by different values and norms (Shapiro, 2015). Hence, judges, not the jury, should have the final decision-making authority in capital trials.

Furthermore, contrary to the popular viewpoint that jurors are unbiased, in some cases they are. The jury system is not completely protected against the subjectivity on the part of the jurors (Ross, 2014). That is why,  in capital cases, where a death sentence is a recommendation, the jury is comprised of death-qualified jurors (Sullivan, 2014). These are objective persons who are able and free to issue death sentences, yet do not have a heightened affinity or tendency to render the capital punishment verdict. Nevertheless, while these individuals may have an objective view with regards to death sentencing, being humans, they still are susceptible to various types of subjectivities and pressures. For instance, due to the protracted nature of capital cases, some may be influenced to arrive at death sentences to dispense with the case (Hans et al., 2015). One may conclude that jurors are not as objective as experienced judges. They can even be influenced by the public pressure to secure a conviction or acquittal in the society, a feat that is hard to achieve when an independent judge is presiding.

In addition, studies conducted have established that, in most instances, the jurors are not adequately acquainted with the required tenets to enable them to make fair decisions (Sullivan, 2014). The complex and multi-faceted nature of the rules makes it detrimental to appropriate a jury in instances where a person’s life is at stake (Ross, 2014). There are no clearly defined standards that they can consult and uphold to ensure the sanctity of a human’s life. In some other instances, the members of the jury encounter difficulties in comprehending the complex jury instructions in capital penalty trials. Some of them, for instance, face challenges in making the distinction between aggravating factors and mitigating ones (Hans et al., 2015). Such inadequacies on the part of the jurors can at times amount to trivialization of a human life’s worth. If a decision is to be made as to whether a person’s life ought to be terminated or not, then it is sensible that a duly constituted bench of qualified experienced judges makes the final capital sentence decision.

Moreover, since the jurors are laypersons, even with the necessary instructions, it is possible for them to get manipulated, both overtly and covertly by the defendants and their counsels. The lawyers of the accused can easily lead the jurors to a predetermined conclusion through crafty presentation and showmanship (Hans et al., 2015). Ross (2014) observed that critics argue that there are robust mechanisms to fight against such manipulation, most of which are hinged on the fact that the jurors are conversant with the court’s procedures and the potential sideshows. However, there have been no empirical studies that conclusively determine that the jurors are apt at sifting through presentation and showmanship to get the facts of the case. In fact, the contrary seems to be the case (Kamin & Marceau, 2011). As a matter of fact, the jurors, seek to avoid such a manipulation by becoming more and more skeptical to the presentations made by the defense teams, which is a form of biasness in itself, albeit subtle. Hence, they become more conviction-prone, easily agree with the arguments made by the prosecution and are quick to dispel popular points by the defense such as pleading insanity (Hans et al., 2015). Obviously, by being skeptical, the jury encourages miscarriage of justice which may result in a death of an innocent person (Shapiro, 2015). What makes this form of subjectivity more aggravating is the fact that, in most instances, the subjectivity is subtle; thus, it cannot be detected even by the jurists themselves. The implication is that many people may end up being sentenced to death just because the jurists are subconsciously reactive to popular narratives that portray them as easy to be manipulated (Shapiro, 2015).

What exacerbates the negative influence of the situation and makes the jury unfit to hand down death sentence verdicts is that there are no mechanisms to check the objectivity of the jurist’s decisions. These persons are protected by the jury secrecy provisions (Hans et al., 2015). The case of R v. Connor and Mirza (2004) affirmed the decision that the jury should enjoy secrecy with regards to its levels of deliberation. In the case, the judges held that under the common rule, after the verdict had been delivered, what was said by the jurists during their deliberations in private cannot be deemed admissible in a court of law (Ross, 2014). This basically means that the prosecution and even the defendants cannot question how the verdict has been arrived at. In fact, one will be held in contempt of the court if he/she tries to coerce someone into sharing any information from the jurors on how the decision has been made (Beckham, Spray, & Pietz, 2007). The implications here are that the suspects will remain convicted as they cannot investigate or make reasonable enquiries as to how the verdict was formed. Where a death sentence decision is reached, there will be no recourse except appealing to a higher court; this endangers the life of suspects, some of whom may be wrongly convicted to death (Shapiro, 2015). 

Of great importance to this debate is also the fact that juries have a low death sentencing rate as compared to judges-presided capital cases. Studies have established that juries are 17% more likely than judges to sentence a person to life imprisonment in cases that merited a death sentence (Hans et al., 2015). Thus, the argument has been that jurors are soft. Some, though death-qualified, cannot stomach sentencing a fellow human being to death. Again, just like being overzealous and skeptical, exercising too much restraint also leads to miscarriage of justice (Ross, 2014; Kamin & Marceau, 2011). Even the most heinous of crimes that demand the termination of a suspect’s life can have the suspect serving a life sentence. The judges, on the other hand, have a higher marginal propensity to sentence suspects to death, which, is unhealthy and manifests unfairness in the criminal justice system as well (Shapiro, 2015).

The Use of the Hybrid Decision Making System

To address the aforementioned insufficiencies in using juries to make capital punishment decisions, yet hedge against the overzealousness of the judges, it is imperative to use a hybrid decision making system in capital cases. It should incorporate both the contributions of the jury and that of the judges with the latter retaining the final capital decision making authority (Hans et al., 2015). The jury’s contribution should be to conduct a fact-finding exercise and make an advisory verdict as to whether, in the capital case, the aggravating factors outweigh the mitigating ones (Ross, 2014). The jury should investigate the facts and establish at least one unanimous aggravating factor that will ground the prescription of a death sentence. The determination of the aggravating factors should be beyond reasonable doubt. The jury’s recommendations should then be forwarded to the judge. The judge, upon consulting the jury’s verdict, will make a capital punishment judgment. The safeguards of the hybrid system exist in the form of validation of the verdicts entered by the jury and the consideration of the jury’s findings in making the final capital sentencing decision (Hans et al., 2015). To avoid misdirection, the death sentence decision must be qualified by the judge in order to stand. Ultimately, the hybrid system seems more efficient and effective in conducting fair capital trials as it sufficiently addresses the inherent downsides of both the judicial and the jury systems.


In conclusion, it is evident that juries should not possess the ultimate capital decision making authority. The jury system has a host of advantages, but its disadvantages clearly outweigh its pluses making it susceptible to miscarriage of justice which is detrimental to the public’s trust and confidence in the American criminal justice system. Among its major downsides one can mention the lack of consistency in handing down death sentences, inadequate mechanisms to hedge against jurors’ inherent biasness, and easiness of manipulation of the jury. Moreover, the jury secrecy provision makes it hard to check the appropriateness in reaching the verdict while the little guidance coupled with complex jury instructions in capital penalty trials further reduce the likelihood of dispensing justice. Juries, therefore, should not have the ultimate capital punishment decisions, instead, the judges should. The most appropriate setting that will guarantee fair trials should be one that combines both of these systems to form a hybrid approach where both arbiters make distinct but complementary capital penalty decisions.

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