The Myth of Mitigation: Jurors' Failure to Understand the Law in Capital Cases

Wanda Foglia, Rowan University
William J. Bowers, Northeastern University

ABSTRACT
The United States Supreme Court has held that jurors must be able to consider any mitigating factors that they think make a defendant less blameworthy when deciding the sentence in a capital case (Lockett v. Ohio), and states cannot require juror unanimity for findings of mitigation (Mills v. Maryland; McCoy v. North Carolina). The Supreme Court has not fuled on the standard of proof required for establishing mitigation, but some state statutes explicitly say mitigation must be proven by a preponderance of the evidence and no state requires it be proven beyond a reasonable doubt. States are free to take different approaches to how they instruct jurors to consider mitigating evidence as long as they do not violate constitutional mandates. This paper will review the case law and statutory guidelines relating to mitigating evidence, and previous research showing inadequate understanding of how to handle mitigating evidence. It will then focus on Capital Jury Project data from over 1000 interviews with jurors who actually decided capital cases in 14 states. The results reveal that regardless of the statutory approach adopted by different states, many jurors do not understand how they are supposed to consider mitigating evidence, and the assumptions that the law makes about how mitigation tempers capital sentencing are often legal fictions.

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Updated 05/20/2006