Virginia's capital jurors.

• Author: Garvey, Stephen P.

INTRODUCTION

1. COLLECTING THE DATA

2. GENERAL ATTITUDES TOWARD THE DEATH PENALTY

3. CONFUSION

   1. Aggravating Factors

   2. Mitigating Factors

   3. Mandatory Death

4. FUTURE DANGEROUSNESS

   1. Discussion Among Jurors

   2. Estimates of Release Time

   3. Sentencing Decisions

5. RESPONSIBILITY

   CONCLUSION

   INTRODUCTION

   Next to Texas, no state has executed more capital defendants than Virginia, eighty-seven as of February 11, 2003. (1) Moreover, once the state obtains a death sentence in Virginia, not only is it likely that the sentence will survive appellate review and the defendant will be executed, but the wait between imposition of sentence and execution is likely to be unusually short. (2) This resolve in carrying out the death sentences it imposes, and carrying them out swiftly, has earned Virginia a reputation as one of the nation's "worst" death penalty states, second only perhaps to Texas.

   The fact that Virginia carries out more of the death sentences it imposes than does any other state, (3) and the fact that it does so with such dispatch, tells us something about the conduct of prosecutors and appellate courts. For although Virginia prosecutors do not obtain the death penalty as often as prosecutors in a number of other jurisdictions, (4) they do manage to secure the execution of those sentences they do obtain, due in no small part to the fact that the Virginia Supreme Court and the United States Court of Appeals for the Fourth Circuit, for all practical purposes the courts of last resort for death-row inmates in Virginia, rarely grant relief in capital cases. (5)

   But what happens before a case enters the stream of appellate review, when jurors, not prosecutors and appellate judges, are among the critical actors? How do jurors who sit on capital cases in Virginia think and behave? Do they act any differently than capital jurors in other states?

   We approach these questions through an analysis of data gathered from interviews with jurors who served on Virginia capital cases. After a brief description of the data, we explore four areas of interest: how Virginia capital jurors feel about the death penalty in general; how well they understand the legal rules designed to guide their sentencing decision; how, if at all, their beliefs about the defendant's future dangerousness influence their deliberations and sentencing decision; and how they allocate responsibility for the defendant's fate, as between themselves and other legal actors, and as between themselves and the defendant.

   Our collection of data from capital jurors in Virginia reflects a continuation of the work of the Capital Jury Project (CJP), a nationwide effort to systematically gather and analyze data on the behavior of capital sentencing jurors. (6) The CJP began interviewing jurors in a number of states in 1990, and analyses of CJP data began appearing soon thereafter. (7) Much of the published research using CJP data has been based on interviews with jurors from South Carolina, the state with the largest number of interviews among those states included in the CJP. Because we have access to the South Carolina data, and because South Carolina and Virginia are southern states, both of which quickly reinstated the death penalty following the Supreme Court's decision in Furman v. Georgia, (8) we present our results from Virginia alongside updated results from South Carolina in order to provide some basis for comparison.

   Overall, we find, albeit based on a very limited sample size, that the jurors we were able to interview in Virginia tend to think and act, for both good and bad, in much the same way as do jurors in South Carolina. If Virginia jurors are distinctive in any respect, it's in the attention they devote to considerations relating to the defendant's future dangerousness. South Carolina jurors are preoccupied with the defendant's future dangerousness when they deliberate about his fate, but Virginia jurors are, if anything, even more preoccupied.

1. COLLECTING THE DATA

   Law students at William and Mary's Marshall-Wythe School of Law conducted all but one of the Virginia juror interviews. Each interview, conducted during the fall and winter of 2001, lasted on average between three and four hours, and used a slightly expanded version of the original CJP interview instrument. (9) The instrument covered both the guilt and penalty phases of the trial and included questions about the crime, the defendant, the victim, the victim's family, the jury's deliberations, and the conduct of the trial by the judge and lawyers. The instrument also collected basic demographic and attitudinal information from each juror. In the end the instrument yielded data on over 750 variables.

   In keeping with CJP guidelines, our goal at the outset was to conduct interviews evenly divided between cases ending in a sentence of death and those ending in a sentence of life imprisonment. (10) We limited our pool of cases to those tried before 1997 in an effort to avoid interfering with ongoing litigation. We had hoped to gather enough data to permit the use of regression analysis to isolate those factors that best predict when Virginia jurors vote for life and when they vote for death. Unfortunately, jurors who sat on cases tried before 1997 turned out to be exceptionally difficult to locate and interview. Some jurors had moved from the locale where the trial had originally been conducted and could not be located; others simply refused to be interviewed, or were disinclined to spend the time needed to complete the entire survey.

   In the end, we were able to conduct in-depth interviews with sixteen jurors, each of whom served on a case involving one of six defendants. Table 1 presents a profile of each defendant. In the case of defendant number 4, one of the jurors served on the original trial and sentencing, which was held in 1993. The other two jurors served at a resentencing hearing, which was held in 1996 after the defendant's original sentence had been reversed on appeal. All told, twelve jurors sat on cases resulting in a sentence of death, and four sat on cases resulting in a sentence of life imprisonment. Cases resulting in death are therefore over-represented in our sample. Three of the four defendants sentenced to death were executed in 2000, and one in 2002. The defendants in four of the cases were black; those in the remaining two were white.

   At this point we should enter three important caveats about the analysis that follows and any conclusion that may be drawn from the data.

   First, our data are based on juror self-reports: our understanding of the facts and circumstances of the cases on which the jurors sat is therefore based entirely on what the jurors told us. We did not undertake any independent substantive review of the case files. Data based on self-reporting are subject to a variety of limitations, (11) not least of which is the risk of memory decay. The jurors we interviewed were asked about an event, albeit one likely to leave a lasting impression, (12) that happened several years ago.

   Second, because the number of jurors we were able to interview was limited, our ability to confidently generalize is likewise limited. Our small sample of Virginia jurors diminishes the power of our statistical tests to detect significant differences. (13) Although most of the differences we report between Virginia and South Carolina jurors are statistically insignificant, we cannot rule out the possibility that our small sample of Virginia jurors has caused us to miss real differences that may nonetheless exist between the two groups. Additional interviews could very well yield different results.

   Third, although we will speak throughout about "Virginia" jurors, we hasten to emphasize that with one exception all of the jurors we interviewed were from what is known as the Tidewater region of Virginia. Insofar as Virginia citizens of the Tidewater region hold beliefs and attitudes uncharacteristic of the population of the state as a whole, our ability to generalize from our results is again limited. In this connection, we would note that some observers of Virginia politics maintain that the Tidewater region is generally less "liberal" than Northern Virginia, but more "liberal" than Western Virginia. (14) Whether these differences in basic political orientation, assuming they exist, spill over into the sentencing behavior of capital juries is, of course, another question altogether.

2. GENERAL ATTITUDES TOWARD THE DEATH PENALTY

   We begin with a series of questions the CJP instrument asked of jurors that were designed to probe their general attitudes toward the death penalty: Do you support or oppose it? What are your beliefs about the way in which it is administered? Would you prefer an alternative to it?

   First, any prospective capital juror can be challenged and removed for cause during voir dire if she would vote against the death penalty as a matter of conscience in every case in which the state requested it, (15) or if she would vote for the death penalty as a matter of principle in any case for which it was authorized by law. (16) Capital jurors are therefore both "death-qualified" and "life-qualified." As a result of the latter process, no prospective capital juror should be allowed to serve if he or she believes that death is the only acceptable punishment for a defendant convicted of murder. Keeping this in mind, consider the results in Table 2, which show how our jurors responded when asked how they currently felt regarding the propriety of the death penalty for someone convicted of murder. The responses of capital jurors from South Carolina are given for purposes of comparison.

   Ten out of the twelve jurors who responded (eighty-three percent) said that the death penalty was either the most appropriate punishment or just one of several appropriate punishments. One juror said the death penalty was the least appropriate punishment. None of these responses is inconsistent with...