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Capital punishment, Death penalty, Capital sentencing, Capital jurors, Capital Jury Project, CJP, Empathy in capital sentencing


Applied Statistics | Criminal Law | Criminal Procedure


You often hear that one reason capital jurors condemn capital defendants is that jurors don't empathize with defendants. And one reason they don't empathize is that the process of capital sentencing is rigged against empathy. Using data from the South Carolina segment of the Capital Jury Project, I try to examine the role emotion plays in capital sentencing.

Without entering here all the important and necessary caveats, I find that the self-reported emotional responses jurors have toward capital defendants run the gamut from sympathy and pity at one extreme, to disgust, anger, and fear at the other. What causes these responses is hard to say, but it probably depends more on each juror's individual emotional capacities and dispositions, together with the evidence she sees and hears during the trial, than on how well she understands the judge's instructions. The psychology of the juror and the facts of the case seem to matter more than the law. A juror's race, especially in combination with the defendant's race, also appears to make a difference.

Two emotions--fear and sympathy--appear to influence how a juror votes. Sympathy cuts in different directions. It understandably prompts some jurors to cast a vote for life. But many jurors who vote for death insist that they too feel sympathy or pity for the defendant. This insistence is puzzling, but only at first. On reflection it makes perfect sense. Some jurors sympathize with the defendant and accordingly vote for life; others sympathize with him because they voted for death.

Fear tends to work its greatest influence on the minds of the undecided, nudging them toward death. Jurors who at the outset of the jury's deliberations cast their first vote for death tend to be no more afraid of the defendant than do jurors who cast their first vote for life. But among jurors who are undecided at the first vote, fear appears to play a distinct role in the decision of those who cast their final ballot for death.

Publication Citation

Published in: New York University Law Review, vol. 75, no. 1 (April 2000).