Death Penalty Research in Nebraska: How Do Judges and Juries Reach Penalty Decisions?

• Jurisdiction: United States,Federal,Nebraska
• Citation: Vol. 81
• Publication year: 2021

81 Nebraska L. Rev. 757. Death Penalty Research in Nebraska: How Do Judges and Juries Reach Penalty Decisions?

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Death Penalty Research in Nebraska: How Do Judges and Juries Reach Penalty Decisions?

Richard L. Wiener, M.L.S., Ph.D.*
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 757
II. Aggravating Factors as Predictors of the Death
Sentence Outcomes. . . . . . . . . . . . . . . . . . . . . . . . 764
III. Number of Aggravating Factors, Mitigation, and
Predicting Death Sentences . . . . . . . . . . . . . . . . . . . 768
IV. Socioeconomic Status of Victims and Sentence
Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
V. Minorities Advancing to the Penalty Phase in Capital
Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . 776

I. INTRODUCTION

After I finished reading Professor Baldus' (and colleagues') report, Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999),(fn1) I spent a great deal of time deciding how a research psychologist such as myself could best respond to this thorough analysis of the manner in which homicide cases have been adjudicated in the Nebraska state courts. A number of possible approaches emerged in my thinking. First, there was the work's contribution to scientific theory and the accumulation of knowledge, the bottom line for all empirical investigations. A psychologist must ask about the contribution that any individual study makes to the accumulation of scientific theory and facts, in this case, the way in which sentencing decisions are reached in first degree murder trials. Sentencing decisions influence and are influenced by human thought, affect, and action. As a psychologist, I am interested in what the Baldus team's Nebraska homicide data tell us about the psychology of sentencing (i.e., the role of cognition, attitude, and affect) in the process by which judges impose punishments upon defendants. The Baldus team collected an enor-

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mous amount of data.(fn2) They coded details from a variety of difficult to interpret sources for 185 death-eligible decisions. The sample defines the existing capital murder universe of defendants for the period between 1973 and 1999.(fn3) The outcomes of Nebraska prosecutors' determinations of whether to seek the death penalty and the outcomes of judicial sentencing in cases where the prosecutors asked for the death penalty are well documented in this work. The overall strength of the project lays in the external validity of the study, that is, the ability to generalize the findings beyond the current sample of cases, prosecutors, judges, offenders, and periods of time. In that sense, the Baldus and colleagues' study is the final word on death sentencing in Nebraska as it was practiced before the Supreme Court's holding in Ring v. Arizona.(fn4)

This point, of course, brings me to the second way in which I could make my comments, that is by addressing the way in which this empirical report impacts the legal analysis of the capital murder scheme in Nebraska, which unlike most other states that make the death penalty available for first-degree murder, assigns the burden of deciding whether to impose the death penalty to trial judges and not to jurors.(fn5) From a psychologist's point of view, this process results in an extremely interesting judgment and decision task for the single judge or the three-judge panel charged with evaluating the facts in any given case to determine how to assign punishment.

The Justices of the United States Supreme Court also considered the principles of punishment and sentencing when they ruled in Ring. The Court held that Arizona's penalty scheme in capital murder trials was in violation of the Sixth Amendment's guaranty of a jury trial because Arizona judges, and not jurors, determined whether statutory aggravating circumstances existed.(fn6) The finding of aggravating circumstances is what makes the defendant eligible for the death penalty. The holding in Ring will require changes in the way Nebraska courts try capital murder cases and the way in which sentencing decisions are reached.(fn7) As a psychologist, I am interested in whether the data reported in the Baldus study(fn8) will assist the state legislature to revise its capital murder scheme, not only to meet the newly articulated standards of Ring, but also to improve the quality of the decision process in Nebraska's homicide dispositions. At the outset, I found Justice Ginsburg's legal analysis in Ring compelling. Nonetheless, I

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believe that this case represents a lost opportunity to use social science and psychological data to examine the homicide sentencing decisions of judges and juries. An important question to consider is whether the Nebraska Legislature can make use of empirical data (in this case the Baldus team's findings) to analyze its current sentencing scheme in capital murder trials in a way that the Supreme Court was unable or unwilling to do in its analysis in Ring.

A third approach to commenting on the Baldus team's study is to go beyond what it tells us about substantive policy recommendations and to learn from it more about the way in which social scientists might use empirical investigations to make policy recommendations. The findings reported in this piece have implications for the ways in which Nebraska's legislature might adjust its sentencing scheme to promote consistency and efficiency while staying within the guidelines of the Sixth Amendment of the U.S. Constitution. It also offers an example of how one group of scholars used empirical data to reach conclusions about homicide dispositions in state court. As a psychologist, I would be remiss not to comment on the methodological strengths and weaknesses of the Baldus team's research. The methodological rigor in the research forms the basis to evaluate the reliability and validity of the groups' conclusions. Unfortunately, in all empirical investigations there are tradeoffs that investigators cannot avoid. That is, they "buy" protections against certain types of potential errors by relaxing methodological rigor in other areas and as a result increase risk of other types of methodological ills. For this reason, the soundest empirical conclusions emerge from programs of research that combine maximally different methodological tools. It is therefore important to understand what the Baldus team's data can say (with utmost scientific confidence) about the disposition of homicide cases in Nebraska.

Without doubt, the most profitable analysis of the Baldus team's findings would require a careful review of its implications for the substantive accumulation of scientific knowledge, the Sixth Amendment's requirements for jury trials, the Eighth Amendment's requirement that sentencing not be arbitrary and capricious,(fn9) and its contribution to the empirical analysis of policy. The unabridged version of such an analysis would rival the page length of the original paper and would take this symposium far from the purposes that its editors intended. Nonetheless, an abridged version will at least need to ask three sets of questions of the most significant findings in the report. For each of these findings I will raise two questions about the theory and accumulation of findings: 1) How do the findings relate to what we know about decisionmaking in capital crimes? and 2) What do the finding

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tell us about the way in which judges (and other decisionmakers) draw inferences about legal issues relevant to the dispositions of homicide cases? With regard to the social implications of the empirical and legal analysis in the report, I will ask two questions of the findings: 1) Do the findings have implications for how people think, feel, or behave in legal contexts? and 2) Do the findings have the potential to impact the social world beyond the policy implications that the author's discussed? Finally, I will inquire about the methodology of this impressive policy analysis and ask: 1) What are the methodological strengths and weaknesses of each of the findings? 2) What are the limitations of the methodology? and 3) How could alternative approaches add to the findings?

If I applied this analysis to each of the thirteen or fourteen important and interesting findings of this long and impressive empirical report, I would once again exceed the original article in page length. I would certainly take this piece beyond its circumscribed purpose, to raise some issues that the authors of the empirical work may reflect upon in order to push their own thinking in directions that they might not have considered going and, as a result, help interpret the meaning and significance of this important piece of work. The work is detailed and the analyses are complex. As suggested above, the Baldus group's research is the final word on death sentencing in Nebraska as it was practiced from 1977 to 1999. However, the cost of collecting existing archival data at this level of detail is that it limits the researcher to asking questions that are answerable only by the types of variables that are available in the existing data archives.

Psychologists refer to this as an issue of construct validity. The question becomes does the study sample broadly not only over time, people, and places-or time, jurisdictions, courtrooms, judges, and offenders in this case-but also whether the researcher has sampled broadly across the kinds of questions that are interesting in the study of sentencing. Such factors might include but are not limited to questions about:

1. the attitudinal and ideological beliefs of the judges,

2. the affective responses of the judges to the fact patterns as offered during the hearings,

3. the...