Self-Analysis

When I first chose the topic of jury composition, I recognized that it was important in the overall scheme of the justice system. However, as I continued throught the project, I began to realize the exact significance of it, and how the racial composition of a jury can affect the outcome of a trial. All jurors have differing life experiences which help guide them in their deliberations - this is a simple fact. However, I was oblivious to the obvious. I was so certain that because jurors had different life experiences, we could expect them to deliberate fairly and equally. This is not always the case though.

The reason why having a racially diverse jury makes a difference only became clear to me after researching this project. People of different races and socioeconomic backgrounds have different interpretations of the law, and how it should be applied. This in itself was a huge revelation to me. I had never considered the possibility that justice was considered entirely different between races. To me, justice was a clear cut issue which struck down racial lines, and was something everyone could agree upon. Rather, blacks are in general more leery of the police and prosecutors, expecting more evidence than simply police testimony. Whites on the other hand are more likely to convict, and are more naive to prosecutorial techniques. If the two are combined, they will more likely disagree with one another - thus encouraging debate, and more in-depth deliberation, which ultimately leads to a fairer trial.

For me, this project was an unveiling of sorts. I took off the rose colored glasses I had worn, dating back to my upbrining in rural North Carolina. I no longer see the prosecution as a force of good and justice, but rather a conviction machine. This is not to say that they should be entirely distrusted - both prosecutors and criminal defense attorneys can misrepresent the truth - but instead we should always be questioning, and never take anything as direct truth without first analyzing it thoroughly.

Presumption of Innocence--Self Analysis

When I began researching and blogging on the topic of presumption of innocence, I assumed that, though it was often disregarded, most would take the position of innocent until proven guilty (beyond a reasonable doubt). Although this position seems like it would not be difficult to take, it is very difficult to ensure that jurors or judges even presume innocence. To begin with, there is no way to test the jurors before they begin jury duty for inherent biases. Yes, many biases will come out during the interviews etc. of voir dire: the process through which attorneys decide if the jurors will judge fairly. However, many biases relevant to the case at hand will go unnoticed. Regardless of the steps taken to prevent jury bias, people within the jury will hold biases; all people are subject to profiling, holding preconceived notions and judging on a personal level. In the experiment of Tajfel, it is shown that people will, if given the chance to reward someone within their own group or another group, however meaningless the reason for grouping is, they will reward those in their own group. This can be interpreted to show that those who people identify with are more likely to be rewarded or favored by them in the case of courts. This is one of the many inherent ways in which members of a jury will be biased. There are many works dedicated to using juror bias to one’s advantage, even citing ideas which date back to Aristotle. Circumventing jury bias should not be expected in the courtroom, I have come to realize.

I have also come to realize that there aren’t any final solutions to the problem of jury bias and the presumption of guilt. The best measure which can be taken, in my opinion, is setting up officials to oversee and judge the jury on the way they make their decisions. However, with these steps, only the blatantly obvious biases will be exposed, such as the jurors judging the West Memphis Three. where there is no way guilt was proven beyond a reasonable doubt, and other biases will find their ways into the courtroom.

In reality, jury bias exists, regardless of court rules. This is part of the contract jurors have to sign in West Virginia:

The law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a Defendant, unless the jurors are satisfied beyond a reasonable doubt of the Defendant's guilt after careful and impartial consideration of all of the evidence in the case.

Yet, grossly unfair cases, such as that of Earl Washington, have taken place. Within our great country, greater measures, such as the regular establishment of a jury to judge the jury, are necessary if we are to adhere to the court regulations in place; otherwise, biased juries will continue to botch cases.

Self Analysis: Use of Trial Juries

When I initially began blogging about the use of trial juries I was really looking for reasons why juries can't be trusted with such decisions. I did find plenty but most of them weren't back up by research and for the ones that were, that research was outdated. And then I stumbled across a statistic that marked a turning point in my thinking: During a research study conducted by Kalven and Keisel, in only 22% of cases studied would the presiding judge have decided a differing verdict based on the evidence.

Right about then was when I realized that my real problem was rather or not I trusted what I'm sure a portion of that statistic rested upon - the power of the jury to nullify or judge the law or how it was applied as well as the evidence presented in a case. This thought guided my analysis post in which I explored the history and application of the jury veto in the justice system.

Perhaps because I only truly narrowed down on a real topic for the past post, I still feel undecided on whether or not it is truly best for juries, rather than individuals educated on the law, to reach verdicts in criminal or civil cases. I found many instances in which juries appeared to rule for reasons which I'd disapprove - such as on instinct in the Robin Hood Hills case, or out of distrust of a racist cop as in the OJ Simpson trial. But the idea of an ultimate veto power over any legislation by government within the jury room is very alluring.

Many problems, supported by research, remain in the system. For many reasons, mostly relatively innocent ones, juries continue to lack true diversity in their numbers. Jury decisions tend to be reached through deliberations conducted mostly by the few rather than by equal contribution from every member. And jury instructions seem to be insufficient to really help jurors understand the law in every case. If the jury system to be saved, it certainly needs some more reform - such as updating voter registration lists more often than every four years, financial assistance in exchange for jury duty for those jurors that might otherwise apply to be excused, more detailed and comprehensive jury instructions that at least attempt to refute common misconceptions, and more than a passing consideration for using special verdicts at least in all criminal cases rather than a simple "guilty or not guilty." Requiring an explanation for the verdict is the only way to ensure that jurors take responsibility for their decision.

Increasing Research on Cases involving the Mentally Retarded

Before investigating the flaws of the American justice system, I was rather clueless on the issue. Sure I was aware that such cases as Atkins v. VA and Roper v. Simmons had outlawed the execution of the mentally ill and juveniles, but I was not aware of the ways in which the sentencing of capital punishment is determined and the ways in which it is applied arbitrarily. I also found new, interesting evidence of cases where before the death penalty was outlawed for the mentally retarded, the mentally disabled were given unfair trials that made them vulnerable to falsely confessing to crimes due to misrepresentation by their lawyers. In the case of Mario Marquez, who was executed in Texas in 1995 with an IQ of 65, his lawyer did not present the state of his mental retardation; therefore, the counsel found him guilty.

In my theory post, I investigated the arbitrary application of the death penalty in terms of the Eighth Amendment, as well as factors such as race, geography, representation, and gender. Due to this variance in procedure, I proposed a uniform system that applied to all citizens equally. Now, after my research, I realize that it would be difficult to develop a system that pleased and appropriately-fit all parties involved. For my implications post, I believed the future consequences of continuing to practice such inconsistency in capital punishment would lead to the unfair deaths of many more people, as well as a never-ending debate on the issue of capital punishment. I feared that the United States’ usage would prevent other countries, such as those involved in the European Union, from allying with the U.S. The fact that the United States, a country who others turn to for guidance, continues to practice an inhumane form of punishment scared me, due to the fact that other counties may try to model themselves according to our disciplines; therefore, broadening the use of capital punishment. Through my research, however, I realized that because the United States is a leading country, countries will continue to support us despite our usage of capital punishment.

As I researched further and began my analysis posting, I found that the Atkins v. VA case left the execution of the mentally retarded in the hands of each individual state. Each state has its own qualifications to determine as to what constitutes being mentally retarded, which includes setting a consistent IQ score. Because of this, the interpretation varies from state which leaves mentally disabled more at risk of being executed in some states than others. I also researched and found that there are many opposing views on whether or not mental retardation should be determined pre-trial of post-trial. Before conducting this investigation, I had no idea that such a multitude of factors were involved with determining mental capacity, which ultimately dictates whether or not one receives the death penalty. At the beginning of my exposition, I believed the total abolition of the death penalty was the best policy because it varies differently based on such factors as race, gender, and geography. After progressing in my research, I definitely still agree that execution of the mentally retarded and juveniles violates the cruel and unusual punishment principle in the Eighth Amendment. Additionally, I think that if the Eighth Amendment applies to certain factions of American citizens, it should apply to all. I am also still steadfast in my belief that capital punishment needs to be abolished. I do not think it is fair that such variance among states should determine whether or not one lives or dies. After researching, however, I have come to understand both sides of the death penalty argument more equally, and I realize that both sides of the debate are well-supported. After becoming more knowledgeable about the issue, it seems that in cases which involve the mentally retarded, pre-trial determination is only fitting because it provides a less-trying trial on those who are personally involved in the case.

As a result of this project, I feel that I have become better informed on the issue of capital punishment and can now argue my previous view from a much stronger background due to sufficient amount of evidence I have encountered. I do not think I would qualify myself as an expert on the topic concerning the way in which our justice system deals with the mentally retarded, but I think I definitely have the authority to take a well-educated stance on the issue. I feel as if this project has caused me to grow as a thinker in the ways that it forced me to take an unbiased position and examine all sides of the situation. As I progressed in the project and began to gather more research, I found that it was easier to narrow down my focus of the topic. This project has taught me many new aspects of the art of argumentation. When participating in debate, I found that you need to be open-minded to the opinions of others as well as being well-researched on your own beliefs. Not only did I learn about arguing through my postings, but I also gained knowledge through my responses to the posts of others. I found that it was useful to others and to me to ask questions as I posted to help clarify my thoughts and present my point of view. By examining the flaws in the justice system, it made me realize that while America may be founded on the principles of equality and democracy, no institution is perfect.

The Analysis: Jury Nullification

The loss of control in a society of so many is truly a frightening prospect - more so perhaps than the prospect of allowing an ordered government, even if corrupt or unfair - enough power to provide order. And such is why as a society we acquiesce to a higher authority in order to provide a source of security to our lives. At times I believe that we take this for granted so much, in a constant tug of war with government for more power as an individual, that we tear a hole in it which could be dangerous. Could the individual manage to make enough of a rift in this structure of justice and law to threaten the order we have arranged for ourselves so carefully in a system of checks and balances?

The practice of jury nullification, or jury veto, the acquittal or conviction of a defendant by a jury as a form of protest, has the potential to be one of these rifts.

The idea was utilized as early as 1734 when a printer named John Zenger was arrested for libel for dragging the name of the English government through the mud within his published articles. At the time, publication was illegal unless regulated by the government. Zenger admitted to the facts but argued that since the things he'd printed about the English government were true, no libel had been committed. Despite the fact that Zenger had admitted to his guilt and that the judge instructed the jury that all they must do is convict based on the law in place and facts on the case, the jury acquitted Zenger of the charges in ten minutes. It was undoubtedly a statement demanding freedom of the press.

There are other "good" applications of jury nullification as well - like the refusal of juries in the North during the civil war to convict slaves for escaping. And this view of jury veto seems to be the one that is prevalent - that a jury of one's peers is better able to judge you and the law you are held to than big, bad government. However, there are also examples in which jury nullification was likely accountable for the neglect of predominately white juries to convict white defendants of lynching. And there are more modern undercurrents of black jury members refusing to convict black defendants for dealing drugs because they were poor or "as a protest of racism in the justice system."

The former was suspected by a judge in a drug case who dismissed the juror, following a complaint from other jury members, which lead to a conviction. The call was later overturned by the 2nd Circuit Court of Appeals who felt obligated to do so because the juror insisted he had simply been unconvinced by the evidence.

The same decision however, contained sharp criticism of this form of protest and upheld the right of a judge to dismiss any juror if they can be positive that the juror does in fact intend to nullify irregardless of the evidence presented in the case. In the words of Judge Cabranes: "Jury nullification is a violation of a juror's sworn duty to follow the law as instructed by the court."

The decision, reached in the late 1990s, was most likely in response to a cloud of controversy during that time surrounding the issue. Several prominent individuals, including a George Washington University Law professor named Butler, publicly encouraged the acquittal of black defendants for nonviolent crimes as a protest against a justice system permeated by racism.

There is no disputing that the practice of jury veto has been used for relative good, relative evil, and the virtually-morally-unexplored (such as assisted suicide or the use of an insanity defense for postpartum murders). What I was left to wonder is this: If a jury was not an entity with the right to judge the law, the application of the law, AND the facts of the case, then why have a jury at all? The same duty, that of analyzing the facts of a case and scrutinizing the evidence presented, could be undertaken just as well, if not better, by a judge or a panel of attorneys. Perhaps the 2nd Circuit simply found it best that the jury veto remain an unadvertised right.

However, on my other shoulder is another question: If a jury of individuals were fully aware of the power, if not the right, to mold, bend, or ignore the laws as they are so carefully laid out in the interest of protecting the order of our society and instead chooses to convict or acquit based on normative rules of behavior - How could we expect any consistency in our justice system? Does this truly portray the ideal of the "impartial" jury?

Several experts are certainly clear on their take of the issue. An English law professor, Sir Robin Auld , declared: "It is a blatant affront to...the criminal justice system - the control of crime - of which they are so important a part." Roscoe Pound, another law professor, on the other hand believes that "jury lawlessness is the great corrective of law in its actual administration." And right smack dab in the middle you have the pragmatists like Thom Brooks who reasons that "juries do not have a constitutional right to ignore the law, but they have the power to do so nonetheless."

The root of the power that Brooks refers to comes from the right of the jury decided in the famous Bushell's case to return a verdict without justification (this is called a general verdict). Opponents of jury nullification have suggested that special verdicts, verdicts returned complete with reasons for the decision, be instated in criminal cases.

Some more intriguing resources:
FoxNews: An example of "bad" jury nullification in a tort case: the article is presented for information on facts of the case. Notice how much the jury awards the plaintiffs compared to the net worth of the defendants. According to a study published by the Buffalo Law Journal, jurors award 20% more on average than a judge would in civil cases.
State of New York: Index of Jury Instructions given for different types of cases
National Jury Project: "Jury Consultants" business website. It's a bit surprising that it's allowable for businesses like these to be hired to assist attorneys in making their voir dire decisions (Voir Dire are questions asked of the jury in an attempt to ascertain if they would be more or less likely to be on the side of the attorney asking. Each attorney can eliminate one juror for any reason other than gender or race in what is called a peremptory challenge.
Law and the Parameters of Acceptable Deviance: I really encourage everyone to take a quick look at this Criminal Law Journal article by Mark Edwards published last year on PADs (Parameters of Acceptable Deviance). I referred to it before as a normative application of the law or application based on popular sentiment about what is acceptable rather than whether behavior is technically illegal or not. He talks about what behaviors jurors and others will find acceptable though they are illegal (and thus acquit) as well as behaviors found to be unacceptable (that may lead to a conviction despite a defendant not technically being guilty). An example of this, as he notes, would be a defendant accused of gang activity and a conviction because the jury notices he has tattoos sporting gang insignia...or perhaps because he listens to a certain type of music or dresses a certain way.

Self-Analysis

Initially, as I began writing this blog, I was definitely against the death penalty. As I continued to research the US judicial system in dealing with the methods employed for the death penalty, my opinion slightly changed as I read about both sides of the issue. I still am against the death penalty, but I feel like it is an essential part of our justice system. I feel like harsh crimes deserve harsh punishments; however, we must also keep in mind the rights of the defendants. As a result, we must do whatever we can in order to make it as humane as possible. In my theory post, I proposed that lethal injection was by far the most humane method employed for the administration of capital punishment. The methods used in the execution of criminals have evloved over the years as people have become more aware of the rights of the defendants as well as those of the victims. The court has reviewed the humanenes of the death penalty in court cases such as Atkins vs. Virginia. At one point, the death penalty was altogether outlawed, but years later it was reinstated as part of our judicial system. Lethal injection is the most widespread method used in the United States today. This issue involves many other correlated elements. The fact that the death penalty itself receives so much opposition makes it difficult to consider whether or not the methods employed in executions are humane.
In researching for this blog, I learned a lot about the death penalty and the ways in which it is administered. This assignment, as opposed to a paper, involved more interaction with other people. I was able to learn a lot about other topics as I responded to other people’s blog posts. I was able, through this blog assignment, to be more openminded in accepting other people comments on my point of view even if they contradicted my personal beliefs. I learned that the actions of the US judicial system, though they might not have an immediate impact on my life at this stage, will impact me as an adult living in this country.

Analysis of Jury Composition

As I began my blog on jury composition I approached it with a modernistic viewpoint. I considered jury composition to be a worry of the past - something that history had corrected over time. I was completely unaware that it was a problem which still lingered on today. Despite many advances in our country for minority rights, the rights of minorities still have yet to be secured in one of the most important parts of our government - the judiciary.

Entering into this project I considered jury composition to be a matter concerning just minorities. I was completely unaware how the issue could also affect caucasians as well. In the O.J. Simpson case there was an entirely disproportionate number of black jurors in comparsion to white jurors. Although this was perhaps a rarity, it is nonetheless proof that we must keep in mind the rights of all citizens as we continue to push towards equality in the justice system. When me make efforts to help the traditionally disenfrancised, we must make certain that we do not overcompensate. Although that point is far from being reached, it is an important thing to keep in mind nontheless.

For the topic of jury composition, a solution is required. We are promised a "jury of our peers", yet for many, this is a promise unfulfilled by the government. Of course, it can be debated, what is a jury of our peers? Is it simply a jury proportionate to the nationwide racial distribution? Or, rather, is it proportionate to the composition of the locale in which the trial is taking place? Perhaps the traditional answer would have been the latter. However, the former appears to be the most likely to ensure a diverse jury capable of better interpreting the truth; a fact which was demonstrated in the cases Emmet Till and OJ Simpson.

Why would a jury based on national racial composition be more effective than one based on local composition? Simply put, a jury reflective of nation wide statistics is guaranteed to be diverse, however the diversity of specific locations can vary greatly. For example, the city of Detroit is 81.6% black, whereas Seattle is only 8.4% black. Local values can be dramatically different from those held nationwide, as they are subjective to the experiences of an unexposed people. One should be able to receive an equal trial regardless of where the crime was committed, and jury composition plays a pivotal role in achieving equality.

The composition of our juries is a large flas in our justice system. However, it is far from an uncorrectable - in fact, there are many small changes which can eliminate the problem. One such example is in Indiana, where the jury pool has been expanded by simply comparing lists of drivers and taxpayers. Equally, a similar reform has passed in Pennsylvania, in which those on lists for welfare and food stamps are considered as well. This reform is particularly important, because minority status and socioeconomic status are often linked, thus increasing the potential number of minority jurors.

The aforementioned reforms, although small, can make a huge difference in the racial composition our juries. It makes logical sense that if more minorities are summoned for jury duty that the actual number who serve will be greater. However, simply summoning more minorities can still leave holes. There is still the peremptory challenge, which can still be used to weed out potential jurors. But, with a greater number of potential minority jurors, it becomes increasingly difficult for prosecutors to remove all of them. Nonetheless, the peremptory challenge still needs to be modified. The mere concept of being able to dismiss a person, potentially on race, alienates the equal protection clause in our constitution, and is therefore violating some of the most basic rights given to us. If minorities are unable to represent themselves in all facets of our government, their voice is not heard, and they will continue to be oppressed.

Ending oppression, specifically in our court system, is a goal which may be statistically impossible to achieve, despite reforms. In some cases, the best we can do is hope to do is simply hope to improve upon the current situation. For example, consider a small town in which the number of whites far exceeds minorities. Even if new lists statistically increase the probability of minority jurors being summoned, a highly disproportionate population (say 50:1) could still be statistically impossible to overcome. As well, it would be impractical in these situations to enforce a quota for juries, because with a limited number to choose from, people would have to serve on juries many times over to ensure equality. This would most likely lead to unhappy jurors (and everyone knows happy people make better decisions) and inevitably work against fairness. Unfortunately, no amount of reform for representation can make the cities and towns from which jurors are chosen more diverse. The only conceivable ways to handle such cases would be to have them moved to a different locale, or to have jurors picked from other locations - both of which would retard the legal process and violate the concept of a "jury of peers".

Although the importance of diverse juries seems clear, there are still instances where nothing is being done to correct it. In fact, exactly the opposite is taking place in Michigan, where the state Supreme Court adopted a rule discouraging the pursuit of diverse juries through aggressive or imaginative approaches. If there is no reform in how our juries are selected, there will continue to be travesties like the O.J. Simpson trial. After so many years of allowing inequality, haven't the court systems learned from their mistakes? One can only hope that the progressive reforms passed in Indiana and Pennsylvania infect the rest of the country as well, for the sake of fairness.

Presumption of Innocence: Impossible

There is no way to guarantee that jurors hold an unbiased approach to the trial at hand. While sitting upon the jury box, one is prone to applying their own morals and ethics to the case, and in doing so, they judge not according to the rules of law but to their own rules. This is discussed in greater depth in regards to tort reform in The Power of the Value-Driven Bias. In these cases, which are often civil, the jury is forced to decide whether a wrongful act which did not break any contract entitles the prosecutor to some sort of compensation. For instance, the bride from New York who recently sued her florist for providing flowers which were not the right hue. In a case such as this, it is impossible to judge the case without bringing your own views into the picture—the nature of a case like this, in which restitution is decided, even asks for the juror to judge according to his or her morals, which always shape a biased inclination of some sort. In many court cases, this goes to show, the jurors of the court are forced to judge taking into account their personal bias, and this is inconsistent with the right to an unbiased jury.

Even the slightest presupposed judgment by jurors, which is often created after seeing and profiling a person (or defendant), leads to large problems. Confirmation Bias happens after one makes an assumption; it is looking at evidence only in the way which fits your assumption and disregarding other evidence. In the case of the Robin Hood Woods murders, the jurors and judge obviously hold a confirmation bias because bite marks on the victims did not match any of the defendant’s own dental impression. Juror selection, the goal seemingly to select unbiased jurors, even goes so far as to use bias in their favor. Just look at Consultant Hirschhorn’s comment:

"If there's somebody I'm on the fence about and I think a couple of the other jurors will bond with and bring that person along, I'll keep him on…I look for whether it's an intellectual relationship, whether they have common interests, common goals, common life experiences."

It is impossible to guarantee a jury without bias—pyschologists say that evidence agrees. Impartiality needs to be examined by officials outside of the juror box do determine whether the case has evoked too much personal bias and is therefore unlawful.

Trials of the Mentally Retarded

The ways in which the justice system of the United States handles issues concerning the mentally ill deserve closer examination. Before the precedent set in Atkins v. Virginia case in 2002, the mentally retarded were subject to capital punishment. This procedure was often applied unfairly due to such factors as the mentally ill falsely confessing to crimes, and their little capability to aid their counsel in providing significant assistance. The process for determining the qualifications of being deemed “mentally retarded”, however, is controversial. One result of the Atkins v. VA case is that state and local courts are now responsible for implementing the banning of the mentally retarded; therefore, they must determine what constitutes one as mentally handicapped, another debatable issue. People also argue whether or not mental retardation should be determined before or after a trial, which also initiates argument.

The American Association on Mental Retardation describes the disability as “characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” The disability must originate before the age of 18 . According to the AAMR, this determinant, as well as scoring below 70 on an IQ test and having problems abiding in the everyday world are required for one to be considered mentally retarded. Due to the Atkins v. VA case, the courts now entrust the states to define their own interpretations of what is considered having a mental disability. This new provision leads to debate due to the variance in standards among states. In California, courts chose not to adopt the IQ score of 70 as being the clear decisive factor on mental retardation, where other states have set a definite number for interpretation. Many deem this method of setting a limit as too restrictive. In Idaho, one can not be considered mentally retarded if they exhibit an IQ of 71, one point above the limiting factor, even if they exhibit all other characteristics of mental disability. This instance brings about the issue where one could be considered mentally disable in one state; therefore, being spared from capital punishment. In another state, however, the interpretation could be applied oppositely, which could result in death. The United States needs to realize that through these varied ways of capital punishment application, many peoples' lives are more at stake in some states than others, which is not fair. This issue leads to further debate over which test is best suited to assess IQ. In the Vidal case in 2004, the courts ruled that the FSIQ test is the most suitable. Opponents of capital punishment believe that because there is no standard for accessing whether or not one is mentally handicapped, this method is arbitrary, and instigates debate. Advocates of the death penalty, however, argue that because Atkins. V. VA invested the interpretation of mental retardation into the power of the state and local courts, they hold the right to create policies of which seem fitting to their individual needs.

More debate arises in terms of mental retardation and execution once states decide on the process of determining whether or not one is mentally disable. Those who represent the mentally retarded advocate for this interpretation to be decided by an unbiased jury or judge before the trial takes place . Prosecutors in states that use the death penalty heavily, such as Virginia and Louisiana, favor determinacy to be conducted by those who found the defendant originally guilty of murder after the trial. Most states, however, employ pre-trial determination because it is less costly and less trying on family members due to the fact that prosecution for the death penalty does not have to occur. If a decision on mental retardation is made before the trial, it dismisses the possibility of the defendant being wrongfully convicted as a result of false confessions. People who support post-trial determination believe that a jury does not possess the certain level of expertise that can be gained through the procession of the trial. Usually, one’s stance on the pre-trial/post-trial issue derives from political position. Those who are in favor of the death penalty most commonly support post-trial determination, and those opposed prefer for mental retardation to be assessed before the trial begins.

The power of the state and local courts to be able to establish their own standards for determining mental retardation shows the way in which enforcement of the death penalty is beginning to decline. This establishment is arbitrary along with such factors of race, age, and demographics because it varies between states. The application of capital punishment is fluctuating due to the interpretation of the Eighth Amendment and to which cases it applies. Because the Eighth Amendment has already served to outlaw capital punishment in terms of juveniles and the mentally retarded, it brings up the issue of applying the amendment to all facets of consideration. Should Florida’s use of lethal injection in execution be deemed cruel and unusual punishment, and ultimately unconstitutional, under the Eighth Amendment? A correlation exists between those who see the death penalty as arbitrary and those who favor pre-trial determination, where these people tend to be opponents of capital punishment. One can note the same trend between those who believe individual states should be able to decide upon a policy that is appropriate to their needs and those who believe post-trial determination of mental retardation is most efficient, who usually are advocates of capital punishment. If such variation in administering the death penalty continues, states will continue to execute offenders on an unequal basis.

Jury Composition - The Implications

The racial make-up of juries is crucial to the maintenance of justice in our country. Jury composition has wide scale implications in the convictions of the accused. Up to this point I have discussed jury composition in regards to all-white juries only, however it is important that juries are equal in all regards. For instance, in the O.J. Simpson trial the jury was composed of 9 blacks, 2 whites, and one hispanic. 10 of the jurors were women. Although it is impossible to say to what extent the composition of jury had on the outcome of the trial, it would be illogical to dismiss it.

In the case of Orenthall James Simpson, the composition of his jury was such that he most likely benefitted from the jury. For others, this is not the case. Tyrone Peter Darks was convicted in the State of Oklahoma by an all-white jury notwithstanding a lack of evidence and sentenced to receive the death penalty. The implications of jury composition plays a critical part in the probability of a successful conviction. In the same light, it can also be to the defense's advantage to manipulate the jury in its favor as well, creating all-white juries, as is the case in an Alabama trial against two Klu Klux Klan members.

In 1955, Emmett Till was brutally murdered by Roy Bryant and his half brother, J.W. Milam for whistling at a white girl. Considering this to be unacceptable behavior, Bryant and Milam kidnapped Till and beat him to death. His body was later found in a stream. An all-white jury acquitted Bryant and his brother in just 67 minutes of deliberation - the 67 minutes was simply to "make it look good". Bryant and Milam later bragged about committing the murder, but because of double jeopardy, they couldn't be tried for the crime again. The racist all-white jury allowed two blatantly guilty men to get away with brutally beating up a 14 year old boy. But as significant as this is (and a huge implication of jury composition in itself), the civil rights movement which was spawned as a result of this (and thus indirectly jury composition) was epic.

The implications of the jury composition were great enough to encourage a Civil Rights movement, in the face of a horrible tragedy. But a movement of that magnitude should not be required to attain justice. The justice system should inherently be efficient without the protesting of thousands of people. There needs to be a standard in our juries - there needs to be a set number of minorities, as well as a variety of political ideologies and religious beliefs. There needs to be consensus across a diverse group of people, and until that happens, there will continue to be wrongful convictions as well as murderers roaming free

Contrasting views on methods of execution as "cruel and unsual punishemt"

The debate over the humaneness of the methods employed in the death penalty encompasses several other closely-tied issues. The big question remains: is the death penalty, itself, humane? If it is, then who is to decide which method is the most humane? As I mentioned in my previous blog post, lethal injection is the more humane than other methods of execution used in the United States today. Though we have come a long way from the brutal and publically humiliating methods of past centuries, methods such as electrocution, hangings, and gas chambers continue to be in practice today. Why? Because there will always be proponents of the death penalty who claim that “an eye for an eye” is the way to provide justice, that if a person, a criminal, has caused pain to an innocent victim, he or she deserves to be punished in the most harsh method available. This leads me to ask the question of whether killing someone because they killed someone else, provides the victims, or their families, with any consolation. I agree with Ghanhi's statement that "an eye for an eye makes the whole world go blind." I ended my last blog drawing the conclusion that death is never humane and that, no matter how we look at this issue of the methods by which a person is killed, capital punishment will always involve causing someone pain and suffering.
Proponents of the death penalty claim that all methods of execution are humane because in their view the death penalty is aimed at providing justice to the victim. In an attempt to provide justice to the victim, they easily overlook the rights of the accused. John McAdams sums up this view in declaring, “If we execute murderers and there is in fact no deterrent effect we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims.” He goes on to say that he “would much rather risk the former.” I agree with the fact that the criminal should be punished and the severity of the punishment, or the severity of the method of execution, should fit the crime that has been committed. However, I don’t think we should overlook the fact that the defendant, too, is guaranteed the same basic rights as the victim under the United States Constitution.
Opponents of the death penalty, view all methods as inhumane. They believe in the fact that killing is never an acceptable solution or a means of providing justice. Their principle argument against the death penalty is its violation of the fundamental human right to life. They claim that the death penalty contradicts the constitutional protection against “cruel and unusual punishment” promised to all US citizens under the eighth amendment. Studies have led to the conclusion that the death penalty, as a whole is not a crime deterrent. Opponents of the death penalty often reference the Bible in claiming that taking a human life is punishable in the eyes of God. The fact that hundreds of death row inmates have been proven innocent after having been sentenced to death also gives substantial support to this viewpoint. They view even the use of lethal injection, the method I propose is the most humane, to deprive people of their constitutional rights. Groups such as Amnesty International are taking measures in order to reduce the number of leatal injections administered in the United States each year. The efforts of this group and many others alike have been successful in that ten states in the United States have banned lethal injection as a means of execution. The Supreme Court is now reevaluating the use of lethal injection as "cruel and unusual." The fact that many previous executions have been flawed futher strengthens the argument of this position. Many of the executioners were not qualified to administer such executions and, as a result, caused the execution to go wrong-- causing tremendous pain to the inmate in the process. They also make reference to wrongful convictions in the past that have placed innocent people on death row and even led to the execution of several others.
In dealing with whether or not a method is humane, we must also consider whether or not it applies equally to everyone. Embedded in this argument is the idea that the death penalty is a means of providing justice; meaning that it should apply equally to everyone. However, this is not always the case. Sadly enough, but very apparent in today’s society, the conviction of a victim to the death penalty is largely influenced by his or her socioeconomic status and race. Today, more Whites support the use of the death penalty than Blacks. How can we deal with whether a method of execution is humane when the method of conviction is itself flawed?
My argument, however, centers not around whether or not the death penalty, itself, is humane but around which method of execution is most humane. Though I personally am against the death penalty, I accept the fact that it is a part of our justice system. Having accepted it as a means of providing justice to the victims I agree with law professor David Row at the University of Houston in that we should do our best in order to make the punishment of the criminals as humane as possible. A wider use of lethal injection as opposed to other methods of execution in the future will solve this dilemma. Lethal injection uses the same anesthetic drugs that are used in surgeries today. This proves the fact that the victim is receiving the same treatment as a person in a hospital. However, as the Supreme court continues to review cases that deal with the humaneness of the death peanlty, the methods that are used to administer it are still questioned. There is, as of right now, a temporary decrease in the number of executions as courts review the humameness of the practice of lethal injection. Whether this decrease is temporary remains questionable.

The Future Consequences of Problems in the Justice System

As previously mentioned, our country’s method of capital punishment is administered arbitrarily in many different aspects including race, geography, age, and mental capabaility. If the United States’ court system does not implement a standardized plan for applying the death penalty, the issue will continually be subject to debate. What kind of example is the United States setting by not abolishing the death penalty and by once applying it to juveniles and the mentally retarded, when many other civilized countries, those establishments which are also sophisticated socially and technologically, have done away with the procedure? These countries have replaced capital punishment with a life sentence in prison. The very idea that our country once practiced the execution of the mentally retarded is appalling. Many situations prove that a mentally retarded person’s eagerness to satisfy can cause them to falsely admit to crimes. Jason Misskelley’s situation, where officials interrogated him for hours and displayed pictures of the mutilated boys that could have scared the young man into wrongly confessing, exemplifies the problems of our court system trying those who are mentally challenged. What does the fact that the United States trials those who are incapable of understanding their constitutional rights say about the establishment as a country? This point is exemplified in the case of Robert Wayne Sawyer, who was executed in Louisianne despite his proven mental retardation. When Sawyer's lawyer asked him to explain reasonable doubt, which is a level of comprehension that one must possess before deciding one is guilty, he revealed his misunderstanding and mental handicap by responding that the “smoke was reasonable out.” What if other countries fail to network with us due to our stance on the death penalty because they feel we are too barbaric? Such establishments as the European Union require that a country practice abolishment of death penalty in order to partake in membership. The United Nations, a group which facilitates international cooperation, has opposed the death penalty in Article 3 of the Universal Declaration of Rights, which opposes anything that compromises one's right to life. Amnesty International is a group that strives to promote international abolition. Is the United States, as a leading institution, promoting death and indirectly, warfare by enforcing capital punishment? Even though the United States has employed discreditable practices in the past of executing many, the country is gradually implementing better policies such as abolishing capital punishment for the mentally retarded and juveniles. To totally ensure that everyone is treated fairly under such amendments in the Constitution as the Eighth and Fourteenth, there needs to be a constant plan for carrying out the death penalty. If a standardized implementation, where all facets under consideration (race, geography,etc.) are treated equally, cannot be reached, the death penalty needs to be abolished. The United States needs to catch up with other civilized countries such as those of Western Europe and develop a more humane justice system. If the United States fails to take a stand, people will continually be tried under unreasonable circumstances, and capital punishment will remain an unrelenting debate.

The Implications: The Jury: Pandora's Box?

A jury trial is a display of "apparent foolishness in asking the ignorant to use the incomprehensible to decide the unknowable."
- A. Basdekis, Yale Law Journal

Add to the mix media influence, racial inequality, and any number of other concerns, and Basekis isn't the only one who has lost faith in the jury system. We have enough examples of people that the justice system has failed (like West Memphis, Dobie Williams, Joseph O'Dell, Earl Washington, Mario Marquez), some of them losing a life or over a decade of their lives as a result, that I for one am left to scream for reform. But lest we falsely condemn juries as inadequate after a few questionable verdicts, how many of these preconceptions about juries have been backed up by research?

The debate surrounding the use of juries for conviction or sentencing of criminal cases or deciding rewards in civil cases revolves around several common assumptions about juries as laid out by Shari Diamond in December of this past year, published in the Buffalo Law Review Journal. Some of these have been backed up by research and I thought that it would be helpful to discuss those here.

Many people assume that juries will favor the plaintiff in tort cases (civil cases) – either compensating them for injuries which many not be the fault of the defendant or over-compensating to make a point. Research however has found that plaintiff's win about half of tort cases ranging anywhere from 26% of medical malpractice cases to 69% of animal attack cases. Research does show that juries tend to overcompensate - they award 20% more on average than a judge would have.

As a side note, sometimes there are discrepancies between civil cases and criminal cases because of this as in the OJ Simpson trial - though a criminal jury returned a non-guilty verdict, a civil jury later found him financially culpable for his wife’s death and awarded the Goldman family $8.5 million dollars in compensation.

Shari Diamond found that more affluent people believe that the jury is made up of those too stupid to get out of jury duty and therefore they aren't being tried by a jury of their peers. This claim is actually refuted by research. She also discovered that less educated members of society believe that the more educated dominate the justice system in every way. Because the master list of voters (which jurors are pooled from) is only updated every four years and minorities, less educated citizens, and younger voters tend to move around more than other categories of citizens, they are more likely to be under-represented in a jury. The same groups are also more likely to be given a pass on jury duty because of financial difficulties.

The belief that an attorney's right to peremptory challenge (right to excuse a limited number of jurors for any reason whatsoever) results in juries low in diversity is unfounded. After the Supreme court ruled that challenges based on race or sex are unconstitutional, studies have shown that the makeup of a jury doesn't change much from the makeup of those who are summoned for duty in the first place (this includes race, gender, occupation and background).

Once on the jury, some members are definitely more influential than others. The Chicago Jury Project in the 1950s found that men of the upper-class tend to do most of the talking during jury deliberations (James, 1959). The same study also found that three jurors dominated over half of the talking time. However, in the 1950s juries were made up predominantly of white men and since then the Jury Selection and Service Act of 1968 mandated that "jury pools include all eligible voters." Nowadays, people from groups who have been "historically advantaged" have more influence during deliberations because other jurors assume that they are more equipped to make such decisions. Some relatively recent studies have found that men talk more frequently than women in the jury room and higher status members tend to talk more than lower status members (Kirchmeyer, 1993). A study in the 60s determined that forepeople are twice as likely to be dubbed an influential person during deliberations by other jury members. Knowing all this, would reforms aimed toward farther increasing the diversity of the jury really help anything at all? Which leads us to our next, perhaps false, idealistic assumption as put by Erin York and Benjamin Cornwell of the University of Chicago:

"A representative jury is assumed to draw on the group's diverse perspectives, while overlooking the external status differentials that make the group diverse."

Several sociology studies have shown that all small groups of people have tendencies to distribute influence unevenly among them for various reasons. These tendencies referred to include preferring the tall to the short, men to women, the upper class to lower class, etc. in leadership positions. (In other words, any number of superficial factors would make certain members of the jury more influential than others during deliberations.)

The fact that much research regarding juries and what impacts their decisions is outdated becomes a point of dissension in the debate regarding them and how they might improve and so conducting more research on topics like how juries actually reach a decision would be extremely helpful to the debate. I mean, whose to say that three jurors out of a dozen still dominate discussions about conviction if the last study confirming that was in the 50s?

Irregardless, it seems as if it simply should be recognized by all that the idea of a jury as a diverse group of people that can somehow work together without being unduly influenced by any one member is simply impossible. There goes that ideal. And if a jury isn't able to capitalize on being an "impartial jury of peers" then there is no point whatsoever in using a jury to decide cases - except a smoke screen.

Is the termiation of life EVER humane?

As Supreme Court justice Thurgood Marshall stated, “The endorsement [of capital punishment] was premised on the promise that [it] would be administered with fairness and justice, [but instead], the promise has become a cruel and empty mockery.” The debate over how humane the death penalty is has gained the interest of the media and has caused the various aspects of capital punishment such as the methods employed for the execution of criminals to be questioned. As I proposed in my previous blog, I feel as if the most humane method employed in the execution of the death penalty is lethal injection. In considering this proposition, what does the future hold for the death penalty?
Since eliminating the death penalty from the US justice system is nearly impossible solution to the debate over the constitutionality of the methods employed in executions, the alternative is to administer capital punishment in as humane a method as possible. The US is already moving toward making this a reality. Today, nearly 81 percent of all executions performed make use of lethal injection as opposed to other less humane methods of execution. In fact, 375 out of the last 378 executions performed were by lethal injection. There has been a decline in the application of the alternative methods of execution that I had described in my last blog. For instance, only 14.7 percent of executions now make use of electrocution, while even fewer, 1.1 percent, use lethal gas as a means of execution. If this trend continues, lethal injection will completely replace other "cruel and unusual" methods of execution.
Even if lethal injection becomes the only method used in capital punishment, the debate over the humaneness of it will continue. Though some people believe that lethal injection is completely humane and painless, others will continue to argue their stance that even lethal injection contradicts the constitutional protection provided to US citizens by the eighth amendment. I support the fact that lethal injection may not be completely painless, but no method of taking someone’s life will be completely painless. If we accept death as a means of retribution in our justice system, we must also accept that, inherent in it, is the idea that we must cause the person some pain. In my view, taking a person’s life is never humane, but what alternative do we have?

Jury Composition - Then and Now

For both the prosecution and defense, the composition of the jury is paramount in achieving a desired outcome. Jurors are summoned across a wide section of the population - namely, anyone who is a U.S. citizen, is registered to vote, and has a valid drivers license in locale at which the court proceedings are being held. How is it then, that despite such loose (and therefore inclusive) requirements that there are imbalances in the racial composition of juries (this imbalance extends to gender, age, and socioeconomic status as well)?

The reason for underrepresentation of minorities on juries throughout the United States is found in juror evaluations. Jurors are sifted through in a multiple stage selection process which is intended to determine their suitability. First, jurors can be excused for a number of personal reasons such as economic hardship, mobility, and a failure to respond to a summons. Second, potential jurors are brought into the courtroom where they are questioned in order to determine any preconceived notions they may have about the case. The judge may choose to excuse any person he finds impartial. As well, prosecutors are allowed to dismiss a limited number of jurors for any particular reason in a process called the peremptory challenge. Although the ultimate goal of such a stringent selection process is to ensure justice, it can often be manipulated by prosectuors, especially with the possibilities granted by the peremptory challenge.

In the jury selection pool, minorities are frequently the ones left behind after the straining process is complete. In order to maintain a job, minorities are more likely to request exemption from jury duty. Then, prosecutors can further concentrate the number of minority jurors through peremptory challenges, which results in minority underrepresentation.

Notwithstanding this fact, minorities are better represented in juries today than ever before. Integral to this advancement is the supreme court decision in Batson v. Kentucky. Batson was a black man, convicted by an all white jury of burglary. In the juror selection process, black jurors were excused with no reasoning by the prosecution under the peremptory challenge. Batson claimed that, because the jury wasn't representative, it was an unfair trial, which violated equal protection under the 14th amendment. The court ruled in his favor, requiring that prosecutors provide a "a neutral explanation for challenging black jurors". Prior to this decision (1985) prosecutors were able to dismiss without reason which explains the inequality in cases like the Emmett Till case.

The verdict in Batson v. Kentucky is critical for the securement of a fair trial for minorities. It has paved a path to equality. However, the verdict has still left room for prosecutors to continue to remove minority jurors - they only need a plausible reason for doing so (which is rarely questioned). It is a good step, which has been reaffirmed recently in Miller-El v. Dretke. The next measure in securing minority rights is the removal of the peremptory challenge, which largely affects the racial composition of juries.

presumption of Iinnocence as it is

Because the current situation sheds light on an insufficient judicial process to insure an assumption of innocence, changes need to be made in selecting those who affect individual court cases. It is inevitable that some who are selected as jurors or even judges will not adhere to the policy of presuming innocence—just look at this juror’s blog before the court case even began when he posted that he had to “listen to the local riff-raff try and convince me of their innocence.” Though jurors are usually decided upon by both the defense and the prosecuting attorney, some jurors, such as the one just mentioned, will slip through their fingers, and the jury will not uphold its obligation in whole. People will die and serve unfair sentences because jurors will come in to duty with an a priori notion that the defendant is guilty. And so will judges, just like the judge of the Robin Hood Woods murder cases did. Though some states have already taken it upon themselves to create tests and to come up with other ideas to end biased thinking in the jury box, the prevalent unsavory, biased approach to trials will continue and leave many nondeserving victims behind in its path.

Presumption of Innocence--Is It Possible?

In actuality, the presumption of innocence cannot always be achieved, even in American courtrooms. For many, innocent until proven guilty does not even make sense. The need to prove one guilty beyond reasonable doubt, to many, is unnecessary because this process will inevitably result in releasing many guilty men because of insubstantial evidence. Though the line of thinking which is a foundation to our judicial system is that no innocent should suffer, even if it means many guilty will not suffer, those who participate in the court systems often ignore or are ignorant and do not follow this line of thought. The consequence of those who aren’t knowledgeable or ignore court standards is that the courtroom is not always just.

In the case of the Robin Hood Woods murders, I do not believe that the jury even knew or respected their legal obligation to presume innocence, and, though the judge must have known his obligation, he did not act in accordance. It is acknowledged by the Supreme Court of Arkansas that the only substantial evidence in this case is from the statement of a nearly retarded boy after being subjected to an unorthodox interrogation. The judge in the case of the Robin Hood Woods murder had the responsibility of filtering out evidence which does not pertain to the case, yet emotionally moving evidence such as an ‘expert’ proclaiming that members of Satanist cults wear black shirts made the cut for related evidence. Did the judge truly think that this person’s opinion served as germane evidence (there was not even evidence that the crime was performed by any sort of cult) or does this qualify as evidence which was meant to push the jury towards making an assumption of guilt based on fear and emotion? If the judge did indeed let the so called expert in for reasons which were not related, this argument is backed in that a leader of the court system allowed evidence meant to sway the jury, without basis in fact, to presume guilt before innocence and therefore violated the laws inherent in the legal system.

A Uniform Procedure for All

One of the major problems with capital punishment is that it is not equally applied in all facets of the issues. Like in all areas of the death penalty, there are opponents and advocates of the execution of the mentally retarded. People oppose capital punishment for the mentally handicapped because of previous rulings which state that execution violates the Eighth Amendment and because the United States’ government should try to rehabilitate its citizens rather than to punish them. Advocates, however, believe if one faction of people is exempt from the penalty, then all citizens should be excused under the Eighth Amendment. People also favor the use of the death penalty for the purpose of retribution. When dealing with the mentally retarded, people do not sympathize with one's incapability to comprehend the magnitude of one's actions and still want those responsible to suffer.

The application of the death penalty under the constrictions of the Eighth Amendment has now been extended to juveniles as well due to the Roper v. Simmons Case. As a result of this case, one must be of legal age to receive capital punishment. Experts have conducted studies that prove that in cases such as Earl Washington’s, many of the accused that are mentally retarded have the mental capacity of a young child. What does this say about our justice system if one of the most advanced countries in the world was trying children and people of their intellectual aptitude at one point in time? In order to resolve this debate over the usage of capital punishment, my theory is that the system should develop a uniform system for execution throughout the nation. If the death penalty cannot be applied equally to all, it should be abolished entirely. This is because the death penalty is not only administered disproportionately in terms of mental retardation and juveniles, but also in terms of geography and race. Due to these controversial factors and moral arguments, debate arises. Additionally, shouldn’t the United States try to rehabilitate all criminals as it does with the mentally retarded? Is the death penalty showing a certain type of selective process through capital punishment?

"Justice for All"

We all toss around idealistic ideas in hopes that they can be used as inspiration for production of the real thing – but “justice for all” is in particular a far reaching one - particularly when one is being tried for a murder they haven’t committed and can look forward to being judged by a jury. The idea is novel enough - in an effort for fairness a diverse group of an accused’s peers will watch a parade of evidence be presented to them and together will deliberate until they agree on a verdict. In the meantime however, that same theory presupposes that while a diverse group represents a myriad of values and cultures, it also can put aside differences that enable some individuals to be more influential than others during deliberations. It also assumes that this jury, though they are common people, can thoroughly understand the law as it applicable in this case, that they are culpable for the decision reached, and will not be easily manipulated by sly tactics employed by attorneys on either side. If, say, a jury is composed of a few upper class members and a bunch of lower class jurors, will deliberations and therefore the judgment be reached predominately by those few? And if so, as if likely, will those few truly be representative of a jury of your peers? If a jury is confused about the application of the law in this case, say by being convinced that in order to consider mitigating factors they must all agree that a mitigating factor exists when in fact that isn’t the case, will a sentence be handed down that is fair to the specific case of the murder being considered? Add to that the likelihood that you are appointed a lawyer who has five other cases, is being paid $5 an hour, and usually shows up either sleep deprived or perhaps slightly intoxicated, and soon, if you are on trial for murder, fully aware of all of the things that can go wrong, even as an innocent you would sit and watch with beads of sweat constantly flowing. (Which will undoubtedly be mistaken by the jury as a sign of sure guilt.)

The solution to these problems is multi-pronged. While it is tempting to declare that the jury is unfixable and must be abolished in favor of conviction and sentencing by a judge, recent research has indicated that in fact juries often come back with similar findings that a judge found in the same case. (Specifically, as found by Kalven and Zeisel during a survey of criminal trial judges, the judges disagreed with the findings of the jury in 22% of the cases.) And a jury gives the added bonus of being able to occasionally practice jury nullification in cases where public sentiment is perhaps rapid changing. (This is congruous with the fact that mankind tends to become more ethical as time goes on because he can afford to.) In other words, a jury is certainly more malleable than a judge who must behave as a function of the law as it is and this can be a plus. Instead, there are ways to redesign the jury in such a way that it is more reliable – such as improving pattern jury instruction, and requiring that a jury provide reasons for a decision in a case that reflect the law.

Lethal Injection as the Solution

Capital punishment has been practiced in the United States for years. It serves as punishment for the most serious crimes committed; so, it follows that the methods employed in order to punish these sometimes-dangerous criminals must fit the crime committed; however, who has the responsibility of deciding whether or not the methods used in order to punish these criminals are humane? We do. Should committing a crime deprive a person from his or her basic rights and liberties? Of course not. Does torturing a person in a gas chamber truly teach them a lesson about the crime they have committed? Not necessarily. Are these criminals excluded from the constitutional protection against “cruel and unusual punishment?” Definetly not!
Keeping these questions in mind, the debate over whether or not the methods of execution involve the failure to adhere to the constitutional protection against “cruel and unusual punishment” will continue as long as the death penalty is used as punishment for crime. In Furman v. Georgia, the court ruled that the death penalty was “cruel and unusual punishment; however, in the ruling of Gregg v. Georgia, the Supreme Court overturned its previous decision and declared that the death penalty does not constitute “cruel and unusual punishment." Clearly, even the US Supreme Court has wavered on the issue of whether or not the death penalty itself is humane; therefore, it logically follows that the methods used for executions have also been constantly questioned. So, what measures must be taken in order to terminate this debate? The termination of the death penalty as punishment seems to provide one possible solution; however, his would require a drastic transformation in the US judicial system. This would then create the problem of how the most serious legal offenses should be punished.
I personally feel that though this problem has no straightforward solution, measures should be taken in order to make the death penalty as humane as possible. Compared to methods such as gas chambers and electric chairs, lethal injection provides a slightly more humane method of killing. Each state, at this point, sets its own standards as far as who receives the death penalty, and it is left upon each state to determine which method they will use. I feel like as far as the ethical aspects of capital punishment are concerned, lethal injection provides the best solution to this debate. Though this would be the ideal solution, I do not see this solution actually being put into practice. Debating the issue of the humaneness of the methods of execution used in the United States is an issue that requires us to first deal with other issues closely correlated with it such as the inherent bias present in the conviction of criminals to the death penalty in the first place.

In Theory: The Jury as a Microcosm

Friday October 26 –

Just like a parent must determine how to allow a child independence without enabling them to engage in self-destructive activities, a democratic government is charged with simultaneously governing and being governed by its constituents. As a crucial part of this body, the justice system was framed with conflicting goals – to protect the people from themselves, (by creating laws that could be strictly enforced enough to achieve that goal) while also considering the rights of the accused and assuring that the innocent are not unjustly treated. To do this, the governing institution must be distant enough from the people that they can be governed by it and it can be a constant assurance to them but also close enough so that it doesn’t overpower them. In general, the justice system must be conducted with rules that are constant enough to treat similar crimes and similar criminals in a similar manner but also must be fluid enough to still reflect the values of the people which it governs. One of the institutions utilized in order to achieve those goals with fluidity fits it quite perfectly in theory – the jury.

While a jury of one’s peers is a conglomerate representative of evolving values within modern society, they are also instructed about the guidelines for conviction regarding the crime which they will judge. The hope is that they are counseled enough to be able to apply the law fairly and justly according to its rigid standards but not faithful enough to it, as a judge or lawyer may be, that they must do so blind of evolving standards. In order words, they are there in theory to maintain the law as it is unless of course it no longer serves its purpose (jury nullification).

In practice however, the use of a jury has proven to be, put lightly, problematic. Various research studies conducted since the 1970s using post trial juries and mock juries indicate that they often miscomprehend instructions they are given, tend to be more highly influenced by the opinions of certain members of the group, like upper-class men, can be subject to jury tampering, and may hold certain biases that affect their deliberations in an inherent manner. More recent studies suggest that improving the instructions given to juries can reduce the first problem but the others are difficult to reduce unless the jury is as informed and knowledgeable about the law as any practicing it as a profession.

Though the debate around juries often involves contradictory reasons for its inadequateness (such as simultaneously declaring that juries have decided a verdict after introductory statements as well as decide based on the opinion of upper-class jury members or the foreman), the simple fact that research can indicate any number of reasons for a jury to reach a verdict that has little to do with evidence seems to be an indicator that juries simply live up to expectations. Following trials in which a jury has clearly decided a case merely on instinct about the nature of the defendants' personalities (such as the Robin Hood Hills case) or even on the racist tendencies of a witness (such as the OJ Simpson trial), one has to wonder if the justice system might be better off relying on the judgment call of an elected gavel bearer. Have we had it wrong all along?

Presumption of Innocence

It is widely known that, in the court systems of The United States, the court is to hold a presumption of innocence in regards to any defendant, hence the phrase “innocent until proven guilty.” However, it is also easily witnessed that juries and even judges sometimes abandon this practice. In the case of Coffin v. U.S. in 1895, it was ruled that the presumption of innocence should be the initial approach of those in the court and that guilt must be proven. It is much easier to prove that one is not exempt from suspicion, meaning there is a possibility of guilt, than to prove that one is the perpetrator of some crime.

In the case of the Robin Hood Woods murders, one can easily discern that evidence was insufficient to prove that any of the boys were guilty. Though this fact is almost universally agreed upon, the boys were convicted of the crime. Prejudice amongst the jury brought about the idea that these boys were the murderers and the defendants were unsuccessful in proving their own innocence, so they were sentenced to life in prison or capital punishment. The fact that nothing was proven and more lives were thrown away is absurd. The presumption of innocence in this case, like many others, gave way to a presumption of guilt, and the defendants were forced into a position where they had to prove that some physical evidence made them unable to commit the crime. In order for the court systems to operate in a legitimate manner, all defendants must be assumed innocent; otherwise, the innocent will be subject to unfair trials.