Should Death Be So Different?: Sentencing Purposes and Capital Jury Decisions in an Era of Smart on Crime Sentencing Reform

Abstract

We are in an era of "Smart on Crime" sentencing reform. Several states and the federal government have made major changes to their sentencing policies -- from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today's reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment -- such as retribution, incapacitation, rehabilitation, or deterrence -- an undercurrent running through all of these reforms is an effort for sentencing to make sense in light of sentencing goals given the resources available. Therefore, thinking about ultimate purposes or goals in sentencing is necessarily a part of the sentencing reform discourse. For instance, reducing the incarceration rates for low-level nonviolent offenders is an acknowledgment that the theory of incapacitation, which punishes based on future dangerousness, does not require incarceration in these cases. Likewise, such reform measures make a statement about the relatively lower moral culpability of such offenders, meaning that the theory of retribution does not require incarceration either. Further, evidence-based sentencing recognizes that using punishment to rehabilitate such offenders may be possible and therefore these evidence-based practices focus on treating the individual offender through individualized probation conditions, rather than simply defaulting to a term of imprisonment. Of course, in these non-death sentencing situations, it is unclear what particular sentencing purpose is the main focus of the reform efforts. This is because one single sentencing purpose has not been identified as ruling sentencing law and policy in any state nor in the federal sentencing system. But, death is different. The death penalty is a sentencing context in which the purposes have been clearly identified as retribution and general deterrence. This means that the death penalty provides the unique opportunity of having focused conversations about appropriate death penalty reform measures necessary to achieve the specific death penalty purposes. With current general sentencing reform efforts focused on achieving punishment goals while reducing costs, the present version of the death penalty is squarely at odds with any smart on crime strategies. Today, the death penalty is being challenged on a number of fronts -- from wrongful convictions to cruel methods of execution. This paper urges reformers not to neglect a focus on capital juries' fulfillment of sentencing purpose when arguing for or against the utility and fairness of capital punishment. Reforms in the non-death sentencing context can be examples of how to talk about reforming or abolishing the death penalty. It appears as though juries' decisions on whether to impose death from case to case are divorced from our usual thinking on achieving the goals of sentencing in individual sentencing determinations made by judges. Though we do not know a lot about how juries make decisions, we do have evidence that racial bias and other irrelevant factors come into a jury's death penalty decision. In the non-capital context, such biases have spurred reforms such as sentencing guidelines and requirements on the articulation of reasons for sentencing. This Article suggests that similar requirements or guidelines ought to be explored when juries are sentencing individuals to death to better ensure that sentencing goals and purposes are being realized, and to adequately protect defendants. Ultimately, in discussing these reforms, this Article questions whether the stated purposes of retaining the death penalty: retribution and deterrence can ever be realized in our system. When we think about reforming sentencing in general to better serve sentencing goals, the death penalty, and thus the death penalty jury, should be part of this discussion as well. And, if we seriously think through sentencing reform in that way, the continued existence of the death penalty becomes more and more problematic.

Keywords: Death Penalty, Sentencing, Juries