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28 Psychol. Pub. Pol'y & L. 1 (2022)

handle is hein.journals/psypbclw28 and id is 1 raw text is: AW F = AMERICAN * * - PSYCHOLOGICAL _ ASSOCIATION Psychology, Public Policy, and Law © 2022 American Psychological Association ISSN: 1076-8971 2022, Vol. 28, No. 1, 1-31 https://doi.org/10.1037/law0000335 The Continuing Unfairness of Death Qualification: Changing Death Penalty Attitudes and Capital Jury Selection Craig Haney, Eileen L. Zurbriggen, and Joanna M. Weill Department of Psychology, University of California, Santa Cruz The present research examines whether and how the biasing effects of the death qualification process the unique procedure by which prospective jurors are screened for eligibility on the basis of their death penalty attitudes have been affected by the changing landscape of opinions about capital punishment. In-depth telephone surveys were conducted with statewide representative samples of persons eligible for jury service in three distinctly different states California, New Hampshire, and Florida. Despite differen- ces in geographical location, demographic make-up, and death penalty history and politics, very similar patterns of death qualification bias were observed. Persons whose death penalty attitudes qualified them to serve on a capital jury were more punitive overall, less well-informed about the system of death sen- tencing, more willing to use aggravating factors to impose death and less willing to use mitigating factors to impose life in prison without the possibility of parole, and less racially diverse than persons who would be excluded by death qualification. The implications of these results are discussed, including the need for legal authorities to formally acknowledge and to effectively address these serious biasing effects. Keywords: death qualification, death penalty, capital juries, jury selection The death penalty has been the focus of intense public debate in the United States throughout much of the nation's history. Legal decision- makers have taken stock of citizens' attitudes about this topic with an attentiveness reserved for no other legal sanction. This is in part because capital punishment is said to reflect the conscience of the community in which a death penalty verdict is meted out. Indeed, one historian referred to capital punishment as the gold standard of community expression (Laqueur, 1989, p. 355). Perhaps for this reason, just as capital punishment may be one of the most frequently studied topics in This article was published Online First January 24, 2022. Craig Haney https://orcid.org/0000-0001-6861-1113 Joanna M. Weill https://orcid.org/0000-0003-1407-9445 We thank Lois Heaney from the National Jury Project for her invaluable assistance at numerous stages of this research, especially in the case of the California survey. We are also extremely grateful to a consortium of donors whose generosity made it possible for us to conduct these statewide surveys. The consortium of funders included, for the California survey, the Impact Fund, the ACLU of Northern California, the American Society of Trial Consultants, and several private attorneys; for the New Hampshire survey, funding was provided by a private law firm; and in Florida, the consortium of funders included the Bowers Family Foundation, Florida Association of Criminal Defense Lawyers, the Florida Public Defenders Association, and the Tides/Advocacy Fund. In each instance, the authors retained complete autonomy over the design and implementation of the surveys as well as the analysis and interpretation of the results. Preliminary versions of the results were presented at the annual conference of the American Psychological Association and the UC Santa Cruz Annual Graduate Research Symposium, both in 2014. Correspondence concerning this article should be addressed to Craig Haney, Department of Psychology, University of California, Santa Cruz, CA 95064, United States. Email: psylaw@ucsc.edu law and social science, death penalty attitudes along with the issues of whether the death penalty deters and the influence of race on death sentencing are among the most studied aspects of capital punishment. This interest is more than merely academic. Because of the pro- cess of death qualification, death penalty attitudes play a very direct, practical role in the administration of capital punishment. Death qualification is a unique feature of jury selection in capital cases in which potential capital jurors are screened explicitly on the basis of their attitudes about the death penalty. Those who hold what are deemed disqualifying attitudes are dismissed from par- ticipation. Although the practice dates to at least the 19th century (see United States v. Cornell, 1820, & Logan v. United States, 1882), the U.S. Supreme Court first established the standard by which prospective jurors could be constitutionally excluded from capital jury service in Witherspoon v. Illinois (1968). The Wither- spoon standard mandated that only prospective jurors who expressed unequivocal opposition (i.e., explicitly said that they could never impose the death penalty, no matter what the facts or circumstances of the case) could be legally excused for cause on these grounds. Throughout the more than 50 years since Witherspoon was decided, the process of death qualification has been the subject of extensive legal commentary (e.g., Gross, 1984; Schnapper, 1984; White, 1973) and social science research (e.g., Bronson, 1970; Haney, 1984; Thompson, 1989). It also has been the focus of several constitutional challenges, some of which resulted in significant modi- fications of the Witherspoon doctrine itself (e.g., Morgan v. Illinois, 1992; Wainwright v. Witt, 1985). Critics argued that the process cre- ated capital juries that functioned differently in comparison to the kind of juries that were impaneled in every other type of criminal case, and that those differences operated to the disadvantage of

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