Why are jurors rejecting the death penalty?

Brandon L. Garrett,  the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, recently wrote for Slate:. 

Capital punishment has now been outlawed in 19 states. In the places where it remains legal, jurors are increasingly reluctant to impose it. Just 30 people were sentenced to death in the United States last year, and only 27 counties out of more than 3,000 nationwide sent anyone to death row. In the mid-1990s, by contrast, more than 300 people were sentenced to death, with capital punishment being undertaken in as many as 200 counties each year.

Jurors have even started to reject the death penalty in Texas, which has sentenced more people to death than any other state in modern times. Texas prosecutors are seeking the death penalty less often, and when they do, they’re frequently failing to persuade juries to impose it. In 15 capital trials in the state since 2015, just eight have resulted in death sentences.

So, what has changed the minds of jurors? It’s not that they’re morally opposed to the death penalty. In fact, jurors who object on principle can be disqualified from serving in capital trials. These are people who are open to imposing the ultimate punishment but decide to reject it after hearing a convicted murderer’s life story, including evidence of mental health issues, childhood abuse, and other mitigating circumstances.

Take the case of James Holmes, who was convicted of 24 counts of capital murder for opening fire in a theater in Aurora, Colorado, in 2012. After a lengthy trial in which defense attorneys presented detailed evidence about Holmes’ mental health problems, jurors chose a life sentence in 2015. Or consider the less well-known case of Russell Brown, who was found guilty of the capital murder of a state trooper in Virginia. In August 2016, the jury rejected a death sentence after experts testified that Brown was insane.

Another reason for the decline in death sentences is that murders have steadily declined across the country, beginning in the mid-’90s. (There has, however, been a recent spike in the murder rate in certain large cities.) When my co-authors and I analyzed death sentencing data by county from 1990 through 2016, we found that a drop in the murder rate was strongly associated with the decline in death sentencing.

But death sentences have fallen far faster than murders. One reason may be the growth in adequately resourced defense lawyers. In general, states that have statewide offices to represent defendants at capital trials, as opposed to locally appointed lawyers, have experienced far greater declines in death sentencing. Those offices have the resources to hire experts who can present mental health evidence and explain the defendant’s social history.

Virginia created regional defense offices to handle death penalty cases in 2004. Defense lawyers began calling more witnesses, presenting more mental health evidence, and telling a more complete story about the defendant’s background at sentencing. Although death sentences in Virginia used to be routine, there now hasn’t been a single one in seven years.

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