THE PROBLEM WITH HOW JURIES DECIDE GUILT AND PUNISHMENT

Our justice system puts a lot of trust in juries. In Florida, a jury is a panel of six or twelve people, picked at random from the people that live in the county where the trial is taking place, and who have a valid driver’s license or state-issued ID. Some people act like jury service is their full-time job. Some people avoid jury service like it’s the plague. Even Donald Trump gets called for jury duty.

The number of jurors has come into question over the years. After George Zimmerman was acquitted of second-degree murder for killing Trayvon Martin, people raised questions about why Zimmerman’s fate was decided by six people, instead of twelve. At least one state lawmaker began calling for upping the number of jurors for all felony trials to twelve. In Florida, only death penalty cases have twelve jurors, while all other criminal trials, including second-degree murder, have six. Although all jurors must agree on a verdict of guilt, it only takes a simple majority of jurors to decide to impose the death penalty.

We rely on juries to render a verdict which, translated from the Latin origin (veredictum), means “to speak the truth.” Juries are supposed to come to a conclusion that isn’t based on race, ethnicity, appearance, religion, creed, sex, gender, or age. Jurors are supposed to decide based only on the evidence or lack thereof. But do juries do this?

Verdicts Based on Appearances

A recent study shows that juries are far more likely to give people with “untrustworthy” faces the death penalty. The study, using pictures from Florida of equal numbers of death row inmates and inmates serving a life sentence for murder, found a very strong correlation between having an “untrustworthy” face and getting a death sentence instead of life in prison.

Juries are statistically more likely to impose the death penalty on African-Americans who appeared “stereotypically” African-American when the victim was white. Death row defendants get the death penalty for the killing of a white victim 77% of the time, even though about half of all homicide victims are African-American. I don’t think we can say that jurors are imposing the death penalty this way on purpose. I sure hope not.

What Juries Really Do When They Decide Based on Appearance

There is an old pseudo-scientific theory, long discredited, called Phrenology. Its basic idea was this: because the brain controls emotions, intelligence, and behavior, the shape of someone’s skull can determine what a person’s mental acuity or behavior will be. Smart people generally have one type of skull, while not-so-smart people have another, or so the theory went. As you can imagine this theory was a favorite of racists who used it to back up their (idiotic, scientifically discredited, etc.) claims of genetic superiority of the white race. Phrenology was used as a justification to do horrible things to other human beings. The Phrenologists, as they were called, were nothing more than racists clothed in the fake justification of fake science.

So what are jurors really doing when they impose the death penalty based on race or facial appearance? Are they not, unconsciously at best, making themselves amateur phrenologists? Defendants who appear more African-American than others get the death penalty more often than those that don’t, which on some level means that juries are deciding they are more deserving to die than other defendants facing the same charges. Can we, in the light of that statistic and the other evidence of juror bias, still claim that juries are impartial?

No Clear Solution

The Sixth Amendment guarantees anyone accused of a crime “an impartial jury of the state and district wherein the crime shall have been committed.” So how do we ensure that criminal defendants are actually getting one?

Some are suggesting that, instead of real, live trials in a courtroom with live jurors and witnesses, we should have virtual reality courtrooms with generic avatars for defendants, jurors, and witnesses. Think Second Life, but for criminal trials. Some people have suggested getting rid of juries altogether, mentioning that South Africa ditched the jury system due to fears of racial prejudice and the reluctance of many people to serve on juries.

Absent a Second Life renaissance or a change of the U.S. Constitution, I don’t think we’re going to see these changes any time soon. Can you imagine the nightmare of each county court system trying to create virtual reality courtrooms that work? Do you remember healthcare.gov?

For now, at least, I believe we should focus on educating potential jurors on their innate biases. Research has show that when people are informed about their potential innate racial biases, they are able to overcome them. Perhaps creating a new jury instruction, or adding a new part to the oath they take as jurors where jurors must swear to not decide the case based on race, appearance, religion, gender, sex, age, or creed. But something needs to be done.