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“We’re All Born with Equal Opportunities”: Hegemonic Individualism and Contextual Mitigation among Delaware Capital Jurors

Published onApr 01, 2013
“We’re All Born with Equal Opportunities”: Hegemonic Individualism and Contextual Mitigation among Delaware Capital Jurors


The Supreme Court has ruled that evidence derived from a capital defendant’s life history is crucial for making the reasoned moral judgment that is central to the death penalty’s constitutionality. However, Dunn and Kaplan (2009) suggested that individualism is so embedded in American culture that most people defer to it uncritically, which makes the use of such contextualizing mitigating evidence challenging. Prior studies suggest that capital jurors do not understand mitigation and focus on guilt-related issues when making their sentencing decisions, but they do not examine why this is so. This study extends these prior works by comparing the content of penalty trial transcripts to the evidence discussed by 35 former capital jurors from eight trials (four that ended with a life sentence and four that ended with a death sentence) in Delaware. The results indicate that whether they voted for life or death, the jurors based their sentencing decisions primarily on the individualistic guilt-centered question of culpability because they rejected the relevance of contextualizing life history evidence, thus supporting and extending Dunn and Kaplan’s (2009) theory. Theoretical and practical implications are discussed.


One of the most trying and difficult things American citizens can be asked to do is to sit on a capital jury and try to determine whether someone deserves to live or die. Complicating the gravity of the decision they must make is the fact that they are often bombarded with a deluge of information about the defendant’s background, character, family, propensities, and life history at the penalty phase. Such a responsibility comes after being forced to confront—in the guilt phase—the usually horrific details of a capital murder. This is a monumental undertaking that very few people can even imagine. In Gregg v. Georgia (1976), the Supreme Court attempted to aid sentencers in making this decision and to reduce arbitrariness by approving the use of guided discretion statutes that are supposed to help channel and direct the decision making of capital sentencers. In subsequent cases, it attempted to clarify and perfect these statutes. Particularly important to the Court’s jurisprudence of death are the concept of mitigation and the inclusion of a full range of evidence from the defendant’s past that can shed light on the defendant’s character and propensities (California v. Brown, 1987; Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978; Morgan v. Illinois, 1992; Penry v. Lynaugh, 1989).

However, American culture and the legal system are highly individualistic, which makes mitigation somewhat of an anomaly. Dunn and Kaplan (2009) argued that individualism is so infused in American culture that it    is hegemonic—that is, it is so ingrained in cultural institutions that most people accept it uncritically and without thinking about potential causes of human behavior beyond free will and rational choice. They suggest that individualism is so hegemonic that even capital defense attorneys and experts will be forced to rely upon it in their mitigation cases. If accurate, Dunn and Kaplan’s (2009) theory offers an explanation for why attempts to reduce the arbitrary and discriminatory nature of the death penalty have largely failed (Baldus, Woodworth, Zuckerman, Weiner, & Broffitt,1998; Blume, Eisenberg, Johnson, & Hans, 2008; Bowers, Sandys, & Brewer,  2003;  Bowers, Steiner,   & Sandys, 2001; Donohue, 2011; Johnson, Blume, Eisenberg, Hans, & Wells, 2012; Lenza, Keys, & Guess, 2005; Pierce & Radelet, 2005; Williams & Holcomb, 2001). However, Dunn and Kaplan (2009) only explore one aspect of hegemonic individualism: the construction of mitigation cases by “helping” institutions, defense attorneys, and experts. They say nothing of the decision making processes of capital jurors.

Prior studies have demonstrated that capital jurors are likely to focus predominantly on the facts of the crime when making their decisions (Garvey, 1998; Haney, 1997; Haney, Sontag, & Costanzo, 1994; Sandys & McClelland, 2003) and spend more time discussing culpability and premeditation than they spend talking about the defendant’s life history (Hoffman, 1997), but since these studies did not use trial transcripts, it is not clear why capital jurors do this. My research, therefore, extends the literature in two ways. By using interviews with 35 capital jurors who served on eight different capital trials in Delaware, four with a death sentence and four with a life sentence, this study extends Dunn and Kaplan’s (2009) theory to the jury room. Secondly, by using trial transcripts to explore the specific content of what jurors ignore and what evidence they consider meaningful in making their sentencing decisions, it is able to extend the literature on juror decisions beyond the question of what evidence jurors use to make decisions to an understanding of why. I propose that because individualism is so deeply embedded in all major American social institutions, jurors will uncritically defer to individualistic causal explanations and reject alternative theories of behavior that challenge this hegemonic discourse.

Dunn and Kaplan’s theory of hegemonic individualism

According to recent theoretical work by Dunn and Kaplan (2009), individualism is ingrained so deeply in American culture and institutions that American society can be characterized by the hegemony of individualism. This theory argues that individual responsibility is a fundamental aspect of American society that lies at the heart of capitalism and the classical liberal political experiment upon which the nation was founded. The Founders were strongly influenced by Enlightenment principles of rationality and individualism that depict individuals as the sole causal agents and dismiss the relevance of external causal factors. Because these ideals became enshrined in the Constitution and most American institutions reinforce and even venerate them, individualistic explanations for behavior and life outcomes became naturalized. Individualism is the basis for the civil liberties most Americans cherish; it provides the philosophical foundations for capitalism, and it is the primary focus of courts when adjudicating criminal cases, civil suits,  and even claims of racial discrimination. Because courts “are part of the institutional tapestry” (Dunn & Kaplan, 2009, p. 345) of the US, they serve a “negative educative function” for accomplishing hegemony (Gramsci, 1971, p. 258). The American legal system was also built on Enlightenment ideals and formed primarily during the nineteenth century when psychological individualism was the dominant explanation for human behavior, so it is designed solely to handle questions of individual responsibility and cannot assign blame to social conditions (Barton, 1998; Haney, 1982; Hurst, 1956). Individualism, therefore, has deep roots in American culture and its legal system and influences the way Americans conceptualize and attempt to solve social problems, especially crime (Scheingold, 1984). Through a belief system Scheingold (1984) called the “myth of crime and punishment,” American culture presents crime as “a rather straightforward problem whose diagnosis and treatment are embodied in widely accepted and universally understood moral truths” (p. 59). Crime is a result of bad people who are fundamentally different from everyone else, and harsh punishment is the appropriate response to criminal behavior because it “is both morally justified and practically effective” (Scheingold, 1984, p. 60).

Dunn and Kaplan (2009) argued that individualism is so taken-for-granted that no matter what one’s goal, one will most likely rely upon and reinforce individualism; they suggested that even institutions designed to help those most adversely affected by capitalism and capital defense attorneys seeking to contextualize their clients’ behaviors have to rely on individualizing discourses, thereby reinforcing the theme (Dunn & Kaplan, 2009). As Ewick and Silbey explained, because stories “are constitutive of … social contexts, they are as likely to bear the imprint of dominant cultural meanings and relations of power as any other social practice” (1995, p. 211). This is precisely what Dunn and Kaplan (2009) discovered in their study of one capital murder defendant. “Daniel” had his life de-contextualized by social service agencies, and social interventions on his behalf relied upon individual responsibility as a frame of reference. This reality forced defense attorneys to rely upon individualizing records in their attempts to display mitigating evidence from Daniel’s past and thus to reinforce individualism.

Studies of the general public tend to support Dunn and Kaplan’s (2009) contention that individualism is accepted uncritically, as part of the average American’s commonsense understandings of the world, especially when it comes to understanding crime (Beckett, 1997; Beckett & Sasson, 2000; Cullen, Clark, Cullen, & Mathers, 1985; Haney, 1995, 1997; Sasson, 1995; Scheingold, 1991). Although there are narratives that compete with this dominant cultural narrative, the key to hegemonic discourses is not that they offer complete or uncontroverted explanations. Rather, their success rests on their ability to construct a commonsense viewpoint upon which one is likely to rely even when competing discourses are acknowledged (Gramsci, 1971). So although some surveys suggest that Americans often do identify environmental factors as the cause of crime (Beckett & Sasson, 2000, p. 137), individual disposition is more recognized as a causal factor (Flanagan, 1987), and there has been a marked return to individualistic explanations of crime since the challenges offered to this perspective by the leftist movements of the 1960s. By the 1980s, there was “an increased tendency to locate the origin of crime in a person’s will rather than in his or her social surroundings” (Cullen et al., 1985, p. 324). Throughout the 1990s, surveys found that despite declining crime rates support for harsher punishments was increasing (Beckett & Sasson, 2000), thus suggesting that people were continuing to rely on individualistic explanations for criminal behavior.

It is important to note that there are numerous ways of conceptualizing the idea of “individualism.” In fact, Beccaria’s (1777) treatise that serves as the philosophical underpinnings for deterrence theory explicitly rejects the use of the death penalty (except in rare limited circumstances) because he considered it an affront to individual rights. There is an element to modern capital punishment that dehumanizes and de-individualizes capital defendants (Fleury-Steiner, 2004), and good mitigation is supposed to resist this tendency by enabling jurors to view the defendant as an individual with his own rights, experiences, and ability to suffer rather than as a dehumanized “other” (American Bar Association, 2003, 2008; Bruno, 2010; Holdman & Seeds, 2008; Woodson v. North Carolina, 1976). However, the retributive aspect of the American death penalty is tied to deeply rooted American notions of individual responsibility that are focused exclusively on the role of human agency and free will in explaining behavior while excluding situational or environmental causal explanations for behavior. This is the form of individualism to which Dunn and Kaplan (2009) were referring and on which this inquiry focuses. 

Individualism and capital jurors

Dunn and Kaplan (2009) suggested that mitigation often fails to contextualize the defendant’s behavior, but they did not explore how jurors respond to mitigating evidence, especially when they are forced to confront evidence that contradicts the individualistic ethos. Because of the hegemonic influence of individualism, Dunn and Kaplan’s (2009) theory would predict that even when they are exposed to contextualizing mitigation, jurors would still base their decisions on individualizing discourses. As Ewick and Silbey explain, “our stories are likely to express ideological effects and hegemonic assumptions. … [S]tories … often articulate and reproduce existing ideologies and hegemonic relations of power and inequality” (1995, p. 212). At the same time, Ewick and Silbey (1995) suggest that narratives have the capacity not just to be hegemonic but to be subversive. In the case of capital jurors, however, Haney (2003) argued:

Jurors are predisposed to posit violent acts as the product of an odd combination of equally free and unencumbered evil choices, on the one hand, and monstrously deranged, defective traits, on the other. Indeed in most of the “crime stories” that form the basis of jurors’ “common knowledge” about these issues, they are taught that extreme violence of  the sort that they confront and attempt to comprehend in capital cases is carried out by dehumanized, anonymous figures or monsters rather than real people (p. 470-471).

Studies of capital jurors support this position by finding that most are quite dismissive of mitigation that derives from the defendant’s life history and that the most influential mitigating circumstance is lingering doubt regarding the defendant’s guilt (Garvey, 1998; Sandys & McClelland, 2003). Research indicates that capital jurors tend to misinterpret the judge’s instructions on mitigation and fail to understand its purpose (Bowers, 1996; Tiersma, 1995). Very few capital jurors are affected by mitigating evidence (Sandys & McClelland, 2003), and many jurors mistakenly believe that certain aggravators such as perceived future dangerousness or a “heinous, vile, or depraved” crime require a death sentence (Bowers, 1996; Bowers, Fleury-Steiner, & Antonio, 2003). Consequently, many of them focus entirely on the nature of the crime during the deliberations, ignoring background and context (Haney, Sontag, & Costanzo, 1994). As Bentele and Bowers (2001) discovered, jurors are often preoccupied with evidence of guilt during punishment deliberations, believe that aggravating circumstances mandate (rather than permit) a death sentence, and fail to consider mitigating evidence. Even when the defendant’s background is considered, jurors spend substantially more time discussing things like culpability and premeditation than they do discussing life history or upbringing (Hoffman, 1997). Many capital jurors even erroneously believe they are supposed to exclude any evidence not related directly to the commission of the crime; others dismiss presented mitigation because they do not understand that it is supposed to be considered as such (Haney, 1997).

Through interviews with jurors from one capital case in Georgia, Sarat (1995) found that the central question for jurors was the agency and culpability of the defendant. They assigned the defendant responsibility not just for the murder but for its legal consequences and refused “to accept the picture of a social world of events governed by causes beyond human control; instead, they constructed a moral world of free agents making choices for which they should be held to account” (Sarat, 1995, p. 1129). Overall, jurors from the first phase of the Capital Jury Project were most likely to assign primary responsibility for the defendant’s punishment to the defendant (Bowers, Fleury-Steiner, & Antonio, 2003; Hoffman, 1997). Even when jurors acknowledged and discussed mitigating evidence, they often dismissed such evidence or the mitigation experts as lacking in credibility because the experts’ stories did not comport with the jurors’ own theories of human behavior (Sundby, 1997); many of the jurors even used anecdotal accounts of persons who experienced similar misfortunes as the defendant did but who did not turn out to be criminals to justify their own individualistic belief systems (Fleury-Steiner, 2002, 2004; Sundby, 1997).

However, in none of these prior studies did investigators compare what jurors remembered about the trial or what factors they considered to the evidence actually presented at trial, something that is imperative if we are to draw any conclusions about the effect of hegemonic individualism on jurors’ decisions or the types of evidence that jurors think of as important. My research, therefore, extends these previous studies by using trial transcripts in an attempt to uncover why jurors are primarily concerned with guilt phase evidence. In the process, it expands on the work of Dunn and Kaplan (2009), who only examined the mitigating evidence presented in a single case that resulted in a death sentence, by exploring the sentencing rationales used by jurors in eight capital trials, half of which ended with a life sentence, and comparing those rationales to the stories told by defense attorneys and mitigation experts during the penalty phase in order to explore how individualism works in the jury room. 


The data for this study come from interviews with 35 former capital jurors from eight capital cases (four life and four death) in Delaware. These interviews were conducted as part of the third phase of the Capital Jury Project (CJP3). In order to improve juror recall, only defendants who were sentenced after 2000 were included and, in order to reduce the number of cases that would still be out on appeal (and thus have limited data availability), defendants needed to be sentenced by the end of 2005 to be considered. Eleven persons were sentenced to death in Delaware during this period. Three of them have since had their death sentences overturned, and one refused to allow his attorneys to present any mitigating evidence. These four cases were removed from the analysis. In order to be included in the sample, the penalty phase transcripts needed to be available in order to compare the jurors’ responses to what actually occurred at trial and to try to revive the jurors’ memories. Of the remaining seven death cases, four were chosen because electronic copies of the trial transcripts were readily available for no cost from the Philadelphia Federal Defenders Office, which was handling their appeals. There were 13 persons sentenced to life following a bifurcated capital penalty trial held before a jury during this period.1 Since double-jeopardy protections prevent life sentences from being appealed and because transcribing cases is time-consuming and expensive, most life cases did not have the penalty phase transcription available in the court file. The transcripts had to be either tracked down from the defendant’s current appellate attorney (if one existed) or requested from the court reporter at a prohibitively expensive rate. Only four of the penalty phase transcripts could be located, which limited the sample size to four life and four death cases.

Jury lists for each of these trials were compiled from official court records, and jurors who served on both the guilt and the sentencing phases    of the trial (a requirement of the CJP3) were selected systematically. The goal was six jurors from each trial with systematically selected jurors being replaced if efforts to interview them failed. The jurors were ensured confidentiality and compensated for their time. In the end, 35 of the intended 48 jurors were interviewed, 13 from the 4 death cases (all of whom voted for death) and 22 from the 4 life cases (11 of whom voted for death). Although the over-representation of jurors from life cases is a little concerning, it is not overpowering. Since this is a study of mitigation, jurors from life cases (where mitigation is presumably stronger) are likely to be more informative, and because this is an exploratory, qualitative study, representativeness is not an overriding concern. It should also be noted that the Delaware capital sentencing law relegates jurors to an advisory role and gives final sentencing authority to judges.2 This reality may affect the jurors’ decision-making process, a possibility that will be discussed in the conclusion, since it does not require unanimity and insulates jurors from responsibility for the sentencing decision.

Interviews lasted between 2.5 and 4.5 hours, with a median time of just over 3 hours and included both open- and close-ended questions in order   to obtain both depth and breadth from respondents. Thirty-one interviews were conducted in-person, 3 were conducted over the phone, and 1 was conducted half on the phone and half in-person. Although most interviews were completed in one session, 6 were conducted over multiple meetings. The goal of the interviews was to understand the decision-making process of capital jurors and juries, the dynamics of jury interaction, the experiences of capital jurors, and their use of discretion. In addition to asking jurors what they remember about the crime and the defendant and why they voted the way they did, the 53-page, 138-question CJP3 interview guide asks jurors directly about their recall of certain witnesses during the penalty trial, what they remember about such witnesses’ testimonies, the jurors’ impressions of such witnesses, and how certain testimony may or may not have impacted their final punishment decisions. These questions get to the heart of jurors’ receptivity to mitigating evidence and allow jurors’ responses to be linked with the actual mitigating evidence presented by the defense.

Careful reading of the trial transcripts identified four themes upon which defense attorneys relied in their mitigation cases: Life history evidence, the effect of an execution on the defendant’s family, the defendant’s culpability, and the ability of the alternative penalty to punish, incapacitate, or deter. These passages were then coded for whether they were individualizing (focused on causal factors internal to the defendant) or contextualizing (focused on causal forces outside the defendant). Since only trial transcripts and not court exhibits were available, the data on the mitigation comes solely from the trial transcripts. The jurors’ responses were first coded for whether they used dispositional/individualistic or situational/environmental explanations for the defendants’ behavior, and then, for each juror, the mitigating evidence identified in the trial transcripts was coded for whether they ignored/forgot it, remembered it but did not consider it relevant, remembered it but were hostile to it, or considered it important to their sentencing decision. In order to ensure juror confidentiality, pseudonyms will be used to refer to all defendants, and all jurors will be referenced by masculine pseudonyms and pronouns, regardless of their actual gender.3


The reliability of capital jurors’ sentencing recommendations is premised on the jurors providing a “reasoned moral response” (California v. Brown, 1987; Penry v. Lynaugh, 1989) in which they consider all relevant mitigating evidence (Eddings v. Oklahoma, 1982). The Supreme Court has ruled that life history evidence constitutes an important part of mitigation (Rompilla v. Beard, 2005; Wiggins v. Smith, 2003; Williams v. Taylor, 2000), and the American Bar Association (2003, 2008) has instructed capital defenders to investigate and present such factors due to their relevance for understanding how and why capital defendants ended up in their present situations. Prior studies of capital jurors suggest that jurors are not considering important mitigating factors, but none of them examined the trial transcripts to determine what contextualizing mitigation, if any, was actually presented to the jurors. As Dunn and Kaplan (2009) predicted, all eight mitigation cases presented in this sample relied on much individualizing evidence, and there were some cases that contained no contextualizing evidence. However, unlike the case of “Daniel,” there were also cases in this sample that contained contextualizing life history evidence that clearly tried to show how defendants are influenced by environmental factors beyond their control. The analysis reported below focuses on these cases. Interviews with jurors from these same trials suggest that they do not give true consideration to mitigation, even when they support a life sentence. These jurors made it clear that they based their sentencing decisions almost entirely on the defendant’s culpability because they either ignored contextualizing mitigating evidence or rejected it as irrelevant.

Whether they recommended a life or a death sentence, the jurors in this sample nearly universally focused on the criminal act rather than the “character and propensities of the offender” (Del. C., Title 11, §4209 (c), (d), and (e), 2012). Jurors recommended a life sentence if they had doubts as to the defendant’s culpability and recommended a death sentence if they were convinced the defendant intended to kill the victim. Most of the jurors (60%) indicated that they had made up their minds on punishment at the conclusion of the guilt phase. When specifically asked about the presentation of mitigating life history evidence, most jurors either claimed to have no memory of it or explicitly denied its relevance. This finding is consistent with prior research on the decision making of capital jurors, but it extends this knowledge by showing why jurors are focused on culpability: they are beholden to a hegemonic discourse that denies the causal relevance of external factors.

These findings are not a criticism of the jurors for the decisions they made during a psychologically stressful situation, for in most cases they were doing their best to do their duty and uphold the law. On the contrary, what these findings indicate is the power of hegemonic stories. Because hegemonic tales are self-evident (Comaroff & Comaroff, 1991), the stories “that are culturally available for our telling” (Ewick & Silbey, 1995, p. 212) are limited by the dominant narrative. In this way, the stories told by capital jurors “may actually be complicit in constructing and sustaining the very patterns of silencing and oppression” (Ewick & Sibley, 1995, p. 205) that are so conducive to lethal violence in the first place. Rather than engaging in a thoughtful and deliberative weighing process to reach a reasoned moral judgment, these jurors are driven by commonsense ideas of individual responsibility to reject the importance of environment and are therefore left with only one thing upon which to base their sentencing recommendations: culpability. This is precisely what the theory of hegemonic individualism would predict, but it also extends the theory by showing how individualism manifests itself in the minds of capital jurors to influence their decision making.

Life recommendations when intent is in doubt

None of the jurors who voted for life did so because of the horrendous social conditions that may have influenced the defendant; rather, 7 of the 10 jurors who reported recommending a life sentence and 1 juror who claimed he did not serve on the penalty phase despite court records indicating the opposite (and who based upon his answers probably recommended  life) had already decided the defendant should be spared prior to the start of the penalty phase, when they could have first been exposed to the defendant’s past. Even when the jurors were exposed to and could recall contextualizing evidence, they made it clear that such evidence was not meaningful to them, even to those who opposed a death sentence.

The jury from Donald’s trial provides an example of jury decision making. Donald was convicted for his involvement in a robbery-murder of a clerk; video surveillance of the incident made the shooting appear deliberate but spontaneous rather than planned and could not conclusively show whether Donald or a co-perpetrator pulled the trigger. Donald received a life sentence after seven jurors recommended life. Donald’s mitigation case involved a substantial amount of individualizing evidence focused on his role in the crime and culpability for the victim’s death. However, his attorneys also used two social workers to contextualize his behavior through a description of his upbringing, which included evidence that while growing up his mother was a drug addict, his father was absent, and his grandmother was forced to raise him despite being ill-equipped to raise him in a high crime and violent neighborhood. The social workers even testified in detail how these factors led the defendant to associate with anti-social peers beginning at a young age. As Donald’s attorney argued in his opening statement,

[T]hese risk factors are factors that are outside the control of the person who is at risk. They’re things that he didn’t have any control over. And as I said, they’re not excuses. They’re offered to help you understand why this person might be in a situation he’s in as opposed to another person (Penalty Trial of Donald, Day 1, p. 18, emphasis added).

This idea was reiterated during the expert testimony when one of the social workers testified that the risk factors Donald experienced were, “For the most part, not in their [sic] control” (Penalty Trial of Donald, Day 2, p. 76), and in his summation, the defense attorney again reminded the jury “that people just aren’t plain evil; that otherwise good kids can end up being at risk to do violence from many factors outside their control” (Penalty Trial of Donald, Day 3, p. 31, emphasis added) and asked the jurors to consider how Donald would have turned out if he had not been exposed to so many negative experiences.

Despite this attempt to contextualize Donald’s behavior, none of the interviewed jurors who voted for life used this evidence in reaching their recommendation. In explaining why they voted the way they did, the jury members who supported a life sentence either ignored or downplayed the contextual evidence and focused instead on Donald’s culpability. One juror, Chris, even insisted that no evidence as to what the appropriate sentence should be was even presented and that the jurors were dismissed following the guilty verdict.4 Although his vote was coded as “missing” because of this faulty memory, he indicated in the interview that he believed Donald did not deserve a death sentence: “I definitely didn’t think he should be given a death sentence” because “there was no doubt in my mind then [when evidence of the co-perpetrators’ involvement was presented] he was not the guilty one.” Chris’s belief that a co-perpetrator fired the fatal bullet led him to conclude that the defendant did not deserve death, and he made it clear that nothing beyond that question entered into his decision making.

The other five jurors from this case who were interviewed all recalled serving on the penalty trial, but the same line of reasoning and justification was evident in the decision-making processes of the two who recalled recommending a life sentence. Mark, who voted for life, was able to recall that the defense presented evidence of the defendant’s upbringing, but he said that neither defense expert was effective. Rather, Mark was unable to recommend a death sentence because he realized during the penalty phase that he did not know if the defendant was the gunman:

In my mind I came to  the  realization  of  whether  he  was the gunman or whether he wasn’t, I couldn’t tell you that … Whether he was an accomplice or pulled the trigger, I can’t tell you that … I can’t tell you whether he pulled the trigger  [so] I can’t tell you whether he should get the chair or lethal injection—I’m not sure how Delaware does it … I [decided on] life in prison because I still was not convinced [whether] he did not pull the trigger or he did.

Mark later indicated that uncertainty about culpability was most helpful to him in reaching his punishment decision and that even though the jury discussed whether or not someone’s marginalized upbringing is relevant, the jury’s sentencing recommendation was “based on the fact that we believed he was associated with it, but we could never—if I remember right—finger him with the gun or determine that he was the person that pulled the trigger.” Tom, the other interviewed pro-life juror, suggested after the interview was over that jurors do not care about life history, and when he was asked during the interview if he recalled the testimony of either defense social worker who testified during the punishment phase, he said that he did not. When asked what evidence was most helpful to him in reaching his punishment decision, he responded, “There really wasn’t any specific.” When asked why not, he answered,

Because I came in there knowing that based on our previous verdict on him not necessarily being the one that pulled the trigger that I was not comfortable having a person sentenced to death for that uncertainty. From a moral standpoint I didn’t think that was appropriate.

The pro-life jurors in Ted’s case demonstrated a similar logic. During a botched robbery attempt, Ted’s gun discharged as he struggled with one victim, who was struck in the chest and killed. A second victim was chased down and beaten but allowed to live. Again, the defense used individualizing discourse by highlighting Ted’s lack of intent, reminding the jury that Ted was convicted of negligently killing someone during a robbery, and providing psychological testimony of Ted’s internal problems. However, the defense also presented contextualizing evidence of Ted’s terrible childhood, including the fact that he was an unwanted child; he was abused and neglected; his father abused and raped his mother; he was abandoned on a porch at age 11, which caused him to believe neither parent wanted him; his father burglarized and burned the house in which he and his mother were living after his parents separated; and due to cramped space in the apartment into which they moved, he often spent nights on the streets as a pre-teen. A forensic nurse testified that Ted was so afraid of his father that he allowed a burn on his leg to go untreated for two days because he did not want his father to know he spilled soup on himself when he was supposed to be asleep (Penalty Trial of Ted, Day 3, p. 31-66). Many of Ted’s life choices were framed as the result of constrained options rather than free will. For example, his choice to roam the streets at night was cast as the result of it being “too crowded in the house” and Ted having nowhere to sleep, which then introduced him to a world of crime at a young and impressionable age (Penalty Trial of Ted, Day 3, p. 54). Although they conceded Ted made choices, the defense also suggested that “perhaps other people couldn’t have made different decisions” (Penalty Trial of Ted, Day 1, p. 39).

Nine jurors recommended a life sentence, but none of the jurors could accurately recall any of the life history testimony that was presented. Rather, the four interviewed jurors who recommended a life sentence based their decision on doubts they harbored over Ted’s intent. In the words of Gary:

I just did not believe that he went there to intentionally kill him. I know he went there to rob him. I couldn’t give somebody a death penalty if I wasn’t absolutely one hundred percent sure that he went there with the intentions of killing him. I wasn’t a hundred percent sure, and nothing could change my mind.

Gary also indicated that the primary discussion during the punishment deliberations centered on the defendant’s criminal intent. Richard corroborated this account by conceding that the jury “had decided early on that it was not premeditated” and indicated that the jury felt that since they did not believe the murder was premeditated and “didn’t get the impression that he was a hardened criminal,” they “really should not put him to death.” The other two interviewed pro-life jurors also confirmed these observations. Paul stated that during the guilt trial the jury “had come to the decision that he didn’t plan to kill him so that it shouldn’t be a death penalty,” and Matt indicated:

Most of the jurors, myself included, thought that yes, he was responsible for killing this person, but we didn’t feel like it was a premeditated “I’m gonna walk up and just shoot the person,” so most of us had the feeling that yes, he should go to jail for it, but no, he should not get the death penalty.

Throughout the interview, Matt indicated his belief that the murder was not intentional or planned, and when asked if he would have favored a death sentence if he thought the killing was intentional, he replied affirmatively. Matt indicated that the single most important factor in the jury’s punishment decision was how intentional the killing was, and when asked why the defendant’s intent was so important to him in making his punishment recommendation, he stated,

Because if I felt he intentionally went out to kill somebody, personally speaking. I would have voted for the death penalty, but it’s hard for me to put somebody—be the person that votes to put somebody to death when I’m not necessarily convinced that that was what they were intending to do from the beginning (emphasis added).

Death for those who intend death

This culpability-based reasoning may not sound problematic among jurors who recommended a life sentence. After all, if they felt the defendant was simply not culpable enough to deserve a death sentence, there may have been no need to analyze the evidence any further. However, Matt’s indication that he would have voted for death if he felt the killing was intentional suggests he would not have been swayed by any array of mitigating circumstances. When looking at those jurors who did decide the defendant intended death, it is clear that they too ended their analysis at this point and decided that death was the appropriate sentence without giving consideration to mitigation. In other words, the decision-making processes demonstrated by the jurors who recommended life are more pronounced, and far more concerning, among the jurors who voted for death.

The penalty phase transcripts from the trials of Steve and Charlie, both of whom were sentenced to death, reveal that while defenders use an individualized focus on culpability, they also present contextualizing mitigation. However, in neither case did any of the interviewed jurors discuss this evidence. To the contrary, it was made clear that mitigation was not even considered in the jurors’ recommendations. None of the 3 jurors who were interviewed from Steve’s case could recall the mitigation experts, and both jurors interviewed from Charlie’s trial decided the defendant deserved a death sentence before the penalty phase even began. Most strikingly, the interviews with 11 jurors who voted for a death sentence in trials in which they were outnumbered by a life majority are instructive. Digging their heels in for death, these jurors’ narratives reveal the power of commonsense assumptions about human behavior and the preoccupation of jurors with individual responsibility to the detriment of defendants.

While driving around, Charlie noticed someone with whom he had had a prior altercation. He got out of the car, pulled his hood over his head, followed the victim into a local business, and shot him to death. In the process, a young boy was killed by a stray bullet. Charlie’s jury unanimously recommended   a death sentence. As Dunn and Kaplan (2009) would suggest, Charlie’s defense team presented rich life history evidence that relied on individualizing discourses, such as his limited mental ability, substance abuse problems, learning disorders, clinical depression, head injuries, school failure, and self-esteem and mood problems. However, they also went beyond individualizing evidence by presenting evidence that Charlie needed interventions throughout his life that he never received. Using a social worker and a psychiatrist, the defense argued that it is likely that Charlie would have been a significantly different person had he received the interventions he needed or if he had a better and more supportive home environment. As the defense attorney stated in his opening statement, “Is [Charlie] an evil person that was begotten evil and is evil to this day, or is [Charlie] somebody who … was neglected and never got what was required for him?” (Penalty Trial of Charlie, Day 1, p. 77). Numerous examples of experiences over which Charlie had no control were presented, including a lack of positive male role models, functioning “as sort of an unwanted child,” a lack of emotional support, his parents’ refusal to get him needed counseling, and a deep sense of mistrust and rejection that was triggered when he discovered that his step-father was not his biological father (Penalty Trial of Charlie, Day 2, p. 212-242). The social worker explained to the jury that “it would have made a difference if he had had a sounder environment that supported his needs and found constructive ways for him to identify himself” (Penalty Trial of Charlie, Day 2, p. 237-238).

Although both jurors who were interviewed from Charlie’s case were able to remember details about his upbringing when asked about the defense’s experts directly, they did not use that evidence in their sentencing decisions. Frank decided the defendant deserved a death sentence “When    it became obvious he was the guy that committed what I felt was a coldblooded killing … [because I] felt he had done it mercilessly with no remorse.” John explained that the “the nail in the coffin” was when “[the defendant’s] brother could not corroborate the defense’s position [at the guilt stage]” because the defendant’s innocence claim “didn’t make sense.” Neither of these interviews suggests that these jurors considered or weighed any of the contextual factors that they recalled from the penalty phase. In both instances, they had decided the defendant was unfit to live based solely on his guilt; the presented life history evidence was not a factor in their decisions.

A similar pattern appears in Steve’s case. Steve was involved in the beating and execution-style killings of two young men under the direction of an older man whom he admired as a father figure. Nine jurors recommended a death sentence and the judge concurred. As in Charlie’s trial, the defense presented both individualizing and highly contextualizing mitigating evidence that illuminated the defendant’s disturbing upbringing. Steve’s attorneys told the jury in their opening that they were going to present evidence to explain that Steve was “at high risk to commit violent acts” (Penalty Trial    of Steve, Day 1, p. 28), and through the testimonies of a social worker and psychologist, they tried to show that “what happens to people when they are children matters tremendously to how they turn out as adults” (Penalty Trial of Steve, Day 2, p. 94). Rather than situating the blame for the conditions Steve experienced within Steve’s person, the social worker tried to explain that the risk factors he experienced existed in the environment into which he was born, but that they explain “why he is the way he is as an adult” (Penalty Trial of Steve, Day 2, p. 136). Furthermore, instead of relying on individualistic explanations, the defense’s psychologist attempted to demonstrate “how all experiences can have an impact on us as we go through life” (Penalty Trial of Steve, Day 2, p. 159) and to make the jury “understand what sort of impact [Steve’s experiences] had on [him]” (Penalty Trial of Steve, Day 2, p. 160). The experts testified that Steve grew “up in a chaotic environment” in which he received little love, support, or validation until he met the co-perpetrator, who appears to have profoundly influenced his behavior as a father figure (Penalty Trial of Steve, Day 2, p. 104-105, 135, 166-168). Steve’s biological father was a teenager when Steve was born and was never involved in his life (Penalty Trial of Steve, Day 2, p. 103). Throughout his life, Steve’s mother had several relationships with other men, but it was not until she began dating the co-perpetrator that Steve became connected to any of them as a father figure. The defense psychologist told the jury that the co-perpetrator “was an important source of support;” without this person in his life, Steve likely would not have acted the way he did because the co-conspirator was really the first person to provide Steve with validation (Penalty Trial of Steve, Day 2, p. 166). Unfortunately, validation came in the form committing horrific acts of violence (including a prior murder).

None of the three jurors who were interviewed could recall the defense’s experts, and only one mentioned Steve’s upbringing as being part of the mitigation case. Asked what the defense attorney stressed most as the reason why Steve should be spared, these jurors responded: because the defendant had a daughter, he would leave loved ones behind, and that his accomplice was more blameworthy. In attending to the mitigating evidence, Larry recalled that the “defense said it wasn’t really his fault. It was his upbringing, the kind of life he lived and painted it as somebody else’s issue. He just happened to be in a bad circumstance,” but Larry made it clear that none of this resonated in his sentencing decision. To the contrary, the most important factor in the jury’s decision according to Larry was the defendant’s “repetitiveness in the same type of crimes” and the evidence that was most useful for Larry was “the testimony of the repetitiveness and the callousness” of the defendant’s actions. James said “the nature of the crime” was the most helpful evidence in reaching his decision, that the jurors opposed to the death penalty were concerned that the defendant did not do it, and that the jurors who were most in favor said, “That basically he was guilty.” The focus of these decisions was on the defendant’s culpability. The only evidence from the defendant’s past the jurors used was his past criminal history. Ray, the third juror interviewed from this trial, indicated that the jury only deliberated the defendant’s punishment for a “couple hours. We pretty well decided most of it during the first [phase],” which implies that the jurors were only concerned with the defendant’s level of guilt, regardless of his terrible childhood experiences or the undue influence the co-perpetrator had on his behavior.

The interviews with numerous death recommenders whose defendants were spared confirm these findings. As in the death cases, several death jurors from the life cases made use of abridged background information, focusing on the defendant’s prior acts of criminal violence rather than his experiences as a victim. Arthur, a pro-death juror from Donald’s trial told the interviewer that the defendant’s background was the most helpful evidence in helping him reach his sentencing decision “because it presented the case that this was a pattern of history,” rather than because it helped the juror understand how the defendant came to the decisions he made or to associate with those he did. The “background” to which the juror was referring was not Donald’s mother’s drug addiction, the absence of a father-figure in his life, his early childhood exposure to drugs and violence, or his grandmother’s inability to properly supervise him in the environment in which he was raised. It only referred to his criminal past.

Similarly, Ted was spared because most jurors had doubts that he intended to kill the victim. Those who did not harbor such doubts, on the other hand, recommended a death sentence. In justifying his death recommendation in Ted’s trial, Brett said, “I was pretty convinced that he would kill again,” and he later went on to indicate that during punishment deliberations the jury debated how much responsibility fell on Ted relative to his co-perpetrators and that the most helpful evidence to him was how the forensic evidence supported the co-conspirators’ testimonies that Ted was the triggerman. Eric also focused on culpability, indicating that the use of a gun in the commission of a robbery implied the defendant intended to use it:

Interviewer: Why did you think [defendant deserved a death sentence at the conclusion of guilt trial but before penalty trial started]?

Eric (Juror): Because I understand that it’s possible to have someone die without you wanting that to happen or planning that to happen, but that wasn’t what happened here. [Defendant] deliberately brought a gun and [victim] ended up dead.

Interviewer: So because he deliberately brought this gun?

Eric: Yes, and he had to have reason for bringing that. The end of the day, somebody died because of that (emphasis added).

Lastly, Roger was judged by jurors who only took a similarly partial view of his past. In his penalty phase, two social workers testified that before killing an acquaintance during a robbery, Roger had experienced a terribly deprived childhood in which he was exposed to numerous risk factors. He moved more than once a year during his pre-teen years while living in a high crime city and experiencing domestic violence and mistreatment. He had numerous family members involved in drugs and crime and attended a failing school system, among other substantial disadvantages (Penalty Trial of Roger, Day 2, p. 68-100; Day 3, p. 31-47). One of his attorneys stated to the jury that because of “the environment that he was in, it was almost inevitable that this was going to happen” (Penalty Trial of Roger, Day 1, p. 32). One of the social workers testified “that what happens to you when children is—is critical in understanding how you turn out as an adult” (Penalty Trial of Roger, Day 3, p. 25). The closing arguments of Roger’s defense counsel presented an explicit challenge to hegemonic individualism. The lawyer argued that none of the risk factors experienced by Roger were his fault, but they explain the decisions he made as an adult. He even suggested to the jury that “a person’s free will should only be judged in the context of the person’s life. We are, to a large extent, the products of our environment” (Penalty Trial of Roger, Day 3, p. 109-111).

Roger’s jury recommended a life sentence by a seven-to-five margin. The primary reason given by the five jurors who voted for death was fear of future dangerousness, which they inferred from his criminal history, while at the same time overlooking his social history:

Interviewer: What evidence or testimony was most helpful to you in reaching your punishment decision? Why? Please explain.

Ron (Juror): His background. It showed me this wasn’t just a one-time deal. There was a history of violence.

Interviewer: So you’re talking about his criminal background?

Ron: Yes.

Interviewer: And this showed you?

Ron: This wasn’t just a one-time deal. It made me feel like this wasn’t a mistake, that there was a history there, and it was going to go on and on and on.

Interviewer: You felt he was going to continue in this pattern?

Ron: Yes, because it just kept going. It wasn’t like a one-time deal, he was a role model, and he just made a mistake one day. It wasn’t like he snapped.

The history provided by the defense’s two social workers, who testified to the far reaching negative impact of Roger’s past experiences, was overlooked. The most helpful evidence to these jurors was the evidence that suggested Roger would be violent in the future. Elliot revealed that he supported a death sentence for Roger “because they showed to me that he had no intention … of getting rid of the weapon where he would actually intended to kill again. Otherwise, he would have ditched the firearm and conceal[ed] it, but he went on to commit other crimes.” Karl leaned in favor of death “because I think if he was out again he would probably rob somebody else again or rob a store.”

Ben, who actually expressed that the only thing he could really remember from the penalty phase was Roger’s difficult childhood, went as far to say, “there would have been more [victims] … If he knew there was anybody else in the house, I believe he would have killed whoever was there.” He later said that “the fact that if the opportunity presented itself or if the necessity would have presented itself, more people would have been killed,” was the most helpful evidence to him in reaching his sentencing decision. Despite recalling Roger’s upbringing, Ben focused his sentencing decision on the defendant’s acts of violence, something the final death juror did as well. Nicholas, the last remaining death supporter, recalled Roger’s background very well, but when asked what factors were important in the jury’s and his decision, he did not mention this evidence. The most important factor to the jury in deciding punishment, according to Nicholas, was “That he shot the victim in the back.” Those most in favor of the death sentence argued that the killing was premeditated, and the evidence most helpful to Nicholas in reaching his sentencing recommendation was, “What he did and how he did it.” If the crime appeared to be more of an accident, Nicholas suggested he may have supported a life sentence, but he concluded that the crime “was just cold and calculating.”

Taken as a whole, the death recommendations in this sample do not appear to be a function of jurors weighing all the evidence in aggravation against all the evidence in mitigation and concluding that the aggravating side is heavier. Rather, they seem to derive from a simple logic. Did the defendant intend to kill the victim? If the jurors were convinced that he did, they supported a death sentence. The defense’s presentation of mitigating life history evidence did not seem to influence these jurors or even get factored into their weighing process.

So why were these jurors so focused on the defendants’ culpabilities and dismissive of mitigation even when contextualizing evidence was presented? The responses of several jurors indicate that what was under the surface of these highly individualizing decisions was a strong adherence to commonsense notions of individual responsibility and a distrust or disbelief of any evidence that challenged this belief. Most of the jurors claimed they could not recall the defense’s presentation of life history evidence, even when they were reminded of this evidence by the interviewer, but even those who did recall such evidence rejected it as irrelevant. Not a single juror identified the defendant’s social background or life history as a factor used to determine sentence, and many explicitly denied the relevance of factors outside the defendant.

Some, like Larry from Steve’s trial, construed the contextualizing evidence as an attempt to excuse the defendant’s behavior rather than an explanation for it: “he made [his bad childhood] his mantra, didn’t seem to take responsibility. It was always who he was with.” Others rejected contextual evidence as irrelevant: “He may have had some problems, but he still committed the crime, and I think as far as having an impact I don’t, I don’t recall that that—it didn’t have much of an impact on me” (Frank from Charlie’s trial when asked about the social worker’s testimony of Charlie’s childhood experiences). A similar reaction was expressed by John, the other juror interviewed from Charlie’s trial: “[The defense] did present some background information as to his upbringing and how he found himself in the type of situation he was in, but … you still don’t kill somebody” (emphasis added). As Cliff from Donald’s trial put it, “I felt like [the defendant] did it to himself. I would say he’s the number one thing. I mean you did it, so you’re number one. You’re really responsible for yourself.” In Ted’s trial, Richard, the only juror who could remember that the defense used a forensic nurse, expressed the belief that the nurse’s testimony (which attempted to connect the events of Ted’s childhood to his subsequent behavior), “was really stretching it,” and therefore “was not credible.”

The jurors’ opposition to contextual explanations for human behavior is best summarized by Elliot, who served on Roger’s trial. Roger’s attorneys explicitly attacked the tenets of individualism by arguing that his childhood experiences were not his fault, that he had little control over his environment, and that we are largely “products of our environment” (Penalty Trial of Roger, Day 3, p. 109-111). Elliot, who was identified as the most influential juror by the others, explained how this defense strategy really bothered him. When asked if there was anything about the crime he kept thinking about, he replied:

That they leveraged his upbringing as part of his defense when I don’t particularly agree with that type of defense when we’re all born with equal opportunities and equal choices, just whether or not we choose to act on good choices, so that bothered me that still entered into the defense (emphasis added).

Elliot framed Roger’s criminality solely as a consequence of personal failings and individual choices by overlooking the existence of a differential opportunity structure and thus constructing an image of a world in which important contextual factors like extreme poverty, an inability to receive a quality education, and early experiences with crime and violence are irrelevant. Interestingly, the only penalty phase defense witness Elliot could recall was the social worker, but when he was asked his thoughts about the testimony, Elliot answered, “That doesn’t work well on me because everyone has choices, so it wasn’t a good defense for me.” He was then asked if the social worker’s testimony backfired on the defense. He responded:

Yeah, I would agree with that statement. When someone tries to use someone’s upbringing, regardless. Helen Keller, she grew up without hearing or sight and couldn’t speak, yet she chose to do a good thing. She could have went another way, but that’s her. Disabilities never shut her down.

By drawing on a single highly atypical (and quite ironic5) example, this juror is able to reassure himself, and his fellow jurors, that anyone is capable of achieving success and that those who do not are to blame for their own failures. Considering the high degree of influence other jurors attributed to this juror, it follows that this rejection of contextualizing evidence appeared in other interviews. For example, Karl recalled that Roger had a rough life, “but it just didn’t really make a difference that you had a big rough life. A lot of people have a rough life. I’m sure the victim probably had a rough life.”

These accounts clarify why jurors rely upon culpability to determine sentence: they are beholden to a hegemonic form of individualism that denies the relevance of contextualizing evidence. This is more than just the effects of “structural aggravation” (Haney 2005), where jurors are bombarded with aggravating evidence in the guilt stage and make their sentencing decisions too early. It is also not just the result of defenders seeking “a Pyrrhic victory—winning one death penalty case while losing a more sustained battle against the ideology of individualism that fuel’s their client’s social exclusion” (Dunn & Kaplan 2009, p. 360). Although these factors are clearly part of the equation, the jurors’ reactions to contextualizing penalty phase evidence indicate that they are either deaf or outright hostile to such causal explanations. It is not just that capital jurors prefer to focus on elements of the crime when making their sentencing decisions, nor is it just a failure among defense attorneys to contextualize their clients’ actions. Rather, jurors explicitly deny the causal importance of environmental influences.


Capital mitigation is a “unique site for studying the law’s relationship to individualism” (Dunn & Kaplan, 2009, p. 363) because unlike other areas of the law, the Supreme Court has repeatedly held that mitigation is highly contextual and requires an evaluation of the defendant’s life and family history (California v. Brown, 1987; Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978; Penry v. Lynaugh, 1989; Rompilla v. Beard, 2005; Wiggins v. Smith, 2003; Williams v. Taylor, 2000; Woodson v. North Carolina, 1976). However, as Dunn and Kaplan (2009) demonstrated, mitigation often fails to contextualize defendants’ behaviors and reinforces individualistic discourse. This finding caused Dunn and Kaplan (2009) to ponder whether the American legal system is “so fundamentally individualizing that it is incapable of hearing other accounts of the human experience” (p. 363). Yet, Dunn and Kaplan (2009) did not examine the behavior of actual decision makers. My research attempted to extend their theory beyond the way defenders portray their clients to understanding the behavior of actual decision makers.

Through an examination of eight capital trial transcripts and interviews with 35 jurors who served on those trials, my study demonstrated that hegemonic individualism may indeed be influencing capital jurors and can explain why they are preoccupied with culpability when making their sentencing recommendations. The responses of these jurors indicate that they did not pay attention to life history evidence, rejected it as irrelevant, or believed they were supposed to make their sentencing decision based entirely upon culpability. The life history evidence that was presented in these eight cases made little or no impact on the jurors’ sentencing decisions. Garvey (1998) identified “lingering doubt” as the most powerful mitigating circumstance among capital jurors in his research. It appears that this is the lynch-pin to most jurors’ decisions in this research as well, but by using the trial transcripts, my study was able to identify why jurors are preoccupied with culpability: they fail to see the relevance of contextualizing evidence. Those who voted for a life sentence indicated that doubts about the defendant’s culpability were the reason. When the jurors did not harbor doubts about intent, they were supportive of a death sentence.

While in some instances the jurors’ individualistic focus likely stemmed from the individualistic nature of the mitigation case, these interviews also suggest that even when the defense offered contextualizing evidence, the jurors were preoccupied with culpability because they were not interested in the defense’s theories of external causation or, in some cases, were downright hostile to such explanations; the jurors’ sentencing decisions reflect an individualistic interpretation of the world and of human behavior. Although it is perfectly legal for jurors to consider all the evidence and conclude that aggravating evidence outweighs mitigating evidence, jurors are required to at least consider all relevant mitigating evidence (Eddings v. Oklahoma, 1982). It is important to understand that these findings are not a condemnation of the decisions made by these 35 persons. Rather, they are indicative of the powerful force of hegemonic tales and of the inability of guided discretion statutes to overcome taken-for-granted cultural understandings that are rarely questioned because they are commonsensical. Although individualistic explanations fly in the face of the bulk of the criminological literature (Pratt, Cullen, Blevins, Daigle, & Madensen, 2006), they form the dominant cultural narrative in the United States, and their pervasive influence among capital jurors suggests that Dunn and Kaplan (2009) are indeed correct about individualism exerting a hegemonic influence and that Justice Blackmun was accurate in his assertion that humans are simply incapable of devising a capital sentencing system that is able “to deliver the fair, consistent, and reliable sentences of death required by the Constitution” (Callins v. Collins, 1994, p. 1145-1146).

In few other situations are most white, middle class Americans forced to confront the horrifyingly criminogenic social conditions in which most capital defendants lived their lives (Haney, 2004). Yet, even when confronted with this evidence, these jurors continued to cling to a comfortable cultural master narrative that places the blame for things ranging from crime to poverty squarely on the shoulders of individuals rather than acknowledging that society may hold some responsibility. Acknowledging that human beings are social creatures who are strongly impacted by their social environments does not absolve them of responsibility for their actions, nor does it suggest that criminals should be treated leniently. However, the hegemony of individualism does absolve society of responsibility for the great harms it has inflicted on its members and its role in creating conditions conducive to lethal violence while simultaneously disempowering the rest of society from devising meaningful social solutions to social problems such as crime and poverty.

While this research advances the literature in numerous ways and helps increase knowledge about both mitigation and individualism, it is not without its limitations. The use of post-hoc interview data with former capital jurors has some potential pitfalls. Jurors may have confused the timing of different events or forgotten much of the evidence presented at trial and discussions held during deliberations. However, since my project tried to discover what types of evidence are most effective and leave the most impression, this fact is not entirely damning; the time lapse may help pinpoint those testimonies or bits of evidence that left the greatest mark on jurors. Furthermore, evidence from the first phase of the Capital Jury Project (CJP1) suggests that there are no significant differences between the responses of jurors interviewed earlier and the rest of the sample, suggesting that faulty memory does not distort responses (Bowers & Foglia, 2006).

Asking jurors what factors most influenced their decisions after they have made those decisions also risks the justification bias. As Fleury-Steiner (2004) explains, “Capital jurors’ stories can often be heard explicitly as justifications for how and why they made particular decisions. Recounting their experiences, they employ moral justifications as a storytelling technique to persuade the interviewer” (p. 33). Jurors who are being interviewed after they have returned a sentencing recommendation may be searching for acceptable rationales to justify their recommendation rather than accurately recalling what influenced their original decisions. Evidence from the CJP1, however, suggests that hindsight bias does not influence jurors’ responses (Bowers & Foglia, 2007), but even if it does, there is little that can be done to combat this problem unless researchers are permitted to record jury deliberations. Of course, that methodology has its own risks, such as inducing the Hawthorne Effect, in which the very act of observing behavior influences the behavior one is trying to observe. Lastly, the risk of invalid data due to the justification bias is reduced in this project since I was looking for jurors’ use (or lack of use) of legally relevant factors rather than their use of extra-legal variables that they should not have considered and may very well wish to hide from interviewers.

The use of only eight trials from one state makes it impossible to generalize the findings of this study to even Delaware, let alone the nation, especially since Delaware uses an atypical sentencing procedure that may affect juror behavior. For example, Bowers, Foglia, Giles, and Antonio (2006) found that jurors in hybrid sentencing states like Delaware are less likely to take responsibility for their sentencing decisions, and the jurors in this sample also denied responsibility and suggested that they spent little time deliberating the sentence with other jurors (Kleinstuber, in press). It is possible that by truncating penalty deliberations, this sentencing scheme causes jurors to give less consideration to penalty phase evidence of all kinds, especially contextualizing evidence that challenges their commonsense beliefs. However, since the findings regarding the jurors’ focus on culpability confirm earlier studies from other states, it does not appear that this is a major concern. Additionally, the purpose of the study was not to reach broadly generalizable conclusions but to conduct an in-depth and detailed exploration of the mitigation process that would have been impossible with a large sample size. It should also be noted that because my research only looked at capital jurors who convicted their defendant, the possibility exists that jurors who acquitted their defendant and potential jurors who were not selected for some reason (such as not being death-qualified) may have focused on other types of evidence in the penalty phase, had they served there. Considering the extreme nature of the death penalty and the well documented differences between death-qualified jurors and the general public—more punitive, more conservative, more conviction-prone, more likely to be white males (Fitzgerald & Ellsworth, 1984; Fleury-Steiner, 2004; Haney, 1984; Young, 2004)—this study cannot conclude that individualism is a potent theme beyond the realm of capital sentencing.

Therefore, more studies of both mitigation and of individualism are needed. In order to fully understand mitigation and its effect on capital case outcomes, further in-depth and statistical analyses from other states are clearly needed, and it is important to study how different variables such as geographic location or type of defense counsel affect the workings of mitigating evidence. This study does not take any systematic look at race or gender, but both are definitely important factors when it comes to capital sentencing and jurors’ ability to feel empathy for the defendant (Haney, 2004; Lyon, 2004). For example, it has been found that the presence of even a single black male on a jury reduces the odds of a death sentence in black defendant/white victim cases (Bowers, Steiner, & Sandys, 2001), and it has been suggested that women may be more contextual in their decision making (e.g., Gilligan, 1982). So, future studies of mitigation should consider studying how the race and gender of the defendant, victim, and juror affect mitigation. Furthermore, to be able to conclude that individualism is truly hegemonic in society, it needs to be shown to actually influence things beyond the death penalty. Research needs to explore whether Americans’ views about a whole range of social problems and social policies really are related to individualism or if their opinions and beliefs are more nuanced and complex than that.


American Bar Association (ABA). (2003). Guidelines for the appointment and performance of defense counsel in death penalty cases, revised edition. Chicago, IL: ABA.

ABA. (2008). Supplementary guidelines for the mitigation function of defense teams in death penalty cases. Hofstra Law Review, 36, 677692.

Baldus, D.C., Woodworth, G., Zuckerman, D., Weiner, n.A., & Broffitt, B. (1998). Racial discrimination and the death penalty in the post-Furman era: An empirical and legal overview, with recent findings from Philadelphia. Cornell Law Review, 83, 1638-1770.

Barton, T.D. (1998). Troublesome connections: The law and post-Enlightenment culture. Emory Law Journal, 47, 163-236.

Beccaria, C. (1777). An essay on crimes and punishments (5th ed.). (Trans.). Dublin, Ireland: John Exshaw.

Beckett, K. (1997). Making crime pay: Law and order in contemporary American politics. New York, NY: Oxford University Press.

Beckett, K. & Sasson, T. (2000). The politics of injustice: Crime and punishment in America. Thousand Oaks, CA: Pine Forge.

Bentele, U. & Bowers, W.J. (2001). How jurors decide on death: Guilt is overwhelming; aggravation requires death; and mitigation is no excuse. Brooklyn Law Review, 66, 1011-1080.

Blume, J., Eisenberg, T., Johnson, S., & Hans, V. (2008). The death penalty in Delaware: An empirical study. Ithaca, NY: Legal Studies Research Paper Series, Cornell Law School.

Bowers, W.J. (1996). The capital jury: Is it tilted toward death? Judicature, 79, 220-223.

Bowers, W.J., Fleury-Steiner, B.D., & Antonio, M.E. (2003). The capital sentencing decision: Guided discretion, reasoned moral judgment, or legal fiction. In J.R. Acker, R.M. Bohm, & C.S. Lanier (Eds.) America’s experiment with capital punishment: Reflection on the past, present, and future of the ultimate penal sanction (2nd ed.) (pp. 413468). Durham, NC: Carolina Academic Press.

Bowers, W.J., & Foglia, W. (2006). Effects of memory on evidence of problems with capital juror decision-making. Paper presented at the annual meeting of the American Society of Criminology (ASC), Los Angeles Convention Center, Los Angeles, CA.

Bowers, W., & Foglia, W. (2007). Does hindsight bias explain evidence of flaws in capital jurors decision-making? Paper presented at the annual meeting of the American Society of Criminology (ASC), Atlanta Marquis Marriot, Atlanta, GA.

Bowers, W.J., Foglia, W.D., Giles, J.E., & Antonio, M.E. (2006). The decision maker matters: An empirical examination of the way the role of the judge and jury influence death penalty decision-making. Washington & Lee Law Review, 63, 931-1010.

Bowers, W.J., Sandys, M. & Brewer, T.W. (2003). Crossing racial boundaries: A closer look at the roots of racial bias in capital sentencing when the defendant is black and the victim is white. DePaul Law Review, 53, 1497-1538.

Bowers, W.J., Sandys, M., & Steiner, B.D. (1998). Foreclosed impartiality in capital sentencing: Jurors’ predispositions, guilt-trial experience, and premature decision making. Cornell Law Review, 83, 1476-1556.

Bowers, W.J., Steiner, B.D., & Sandys, M. (2001). Death sentencing in black and white: An empirical analysis of the role of jurors’ race and jury racial composition. University of Pennsylvania Journal of Constitutional Law, 3, 171-274.

Bruno, P.J. (2010). The mitigation specialist. The Champion, 34, 26-29.

California v. Brown, 479 U.S. 538 (1987).

Callins v.Collins, 510 U.S. 1141 (1994).

Comaroff, J. & Comaroff, J. (1991). Of revelation and revolution. Chicago, IL: University of Chicago Press.

Cullen, F.T., Clark, G.A., Cullen, J.B., & Mathers, R.A. (1985). Attribution, salience, and attitudes toward criminal sanctioning. Criminal Justice and Behavior, 12, 305-331.

Del. C. Title 11, §4209. (2012). Retrieved from

Donohue, J.J. (2011). Capital punishment in Connecticut, 1973-2007: A comprehensive evaluation from 4686 murders to one execution. Retrieved from

Dunn, K. & Kaplan, P.J. (2009). The ironies of helping: Social interventions and executable subjects. Law & Society Review, 43, 337-368.

Eddings v. Oklahoma, 455 U.S. 104 (1982).

Ewick, P. & Silbey, S.S. (1995). Subversive stories and hegemonic tales: Toward a sociology of narrative. Law & Society Review, 23, 197-226.

Fitzgerald, R. & Ellsworth, P.C. (1984). Due process vs. crime control: Death qualification and jury attitudes. Law and Human Behavior, 8, 31-51.

Flanagan, T. (1987). Change and influence in popular criminology: Public attributions of crime causation. Journal of Criminal Justice, 15, 231243.

Fleury-Steiner, B. (2002). Narratives of the death sentence: Toward a theory of legal narrativity. Law & Society Review, 36, 549-576.

Fleury-Steiner, B. (2004). Jurors’ stories of death: How America’s death penalty invests in inequality. Ann Arbor, MI: University of Michigan Press.

Garvey, S.P. (1998). Aggravation and mitigation in capital cases: What do jurors think? Columbia Law Review, 98, 1538-1576.

Gilligan, C. (1982). In a different voice: Psychological theory and women’s development. Cambridge, MA: Harvard University Press.

Gramsci, A. (1971). Selections from the prison notebooks of Antonio Gramsci. (Q. Hoare & G.N. Smith, Eds. & Trans.). London, England: Lawrence and Wishart. Gregg v. Georgia, 428 U.S. 153 (1976).

Haney, C. (1982). Criminal justice and the nineteenth-century paradigm: The triumph of psychological individualism in the “Formative Era.” Law and Human Behavior, 6, 191-235.

Haney, C. (1984). On the selection of capital juries: The biasing effects of the death-qualification process. Law and Human Behavior, 8, 121-132.

Haney, C. (1995). The social context of capital murder: Social histories and the logic of mitigation. Santa Clara Law Review, 35, 547-609.

Haney, C. (1997). Commonsense justice and capital punishment: Problematizing the ‘will of the people.’ Psychology, Public Policy, and Law, 3, 303-337.

Haney, C. (2003). Mitigation and the study of lives: On the roots of violent criminality and the nature of capital justice. In J.R. Acker, R.M. Bohm, & C.S. Lanier (Eds.) America’s experiment with capital punishment: Reflection on the past, present, and future of the ultimate penal sanction (2nd ed.) (pp. 469-500). Durham, NC: Carolina Academic Press.

Haney, C. (2004). Condemning the other in death penalty trials: Biographical racism, structural mitigation, and the empathetic divide. DePaul Law Review, 53, 1557-1589.

Haney, C. (2005). Death by design: Capital punishment as a social psychological system. New York, NY: Oxford University Press.

Haney, C., Sontag, L., & Costanzo, S. (1994). Deciding to take a life: Capital juries, sentencing instructions, and the jurisprudence of death. Journal of Social Issues, 50, 149-176.

Hoffman, J.L. (1997). How American juries decide death penalty cases: The Capital Jury Project. In H.A. Bedau (Ed.) The Death Penalty in America: Current Controversies (pp. 333-343). New York, NY: Oxford University Press.

Holdman, S. & Seeds, C. (2008). Imagining mitigation: Cultural competency in capital mitigation. Hofstra Law Review, 36, 883-922.

Hurst, J.W. (1956). Law and the conditions of freedom in the nineteenth century United States. Madison, WI: University of Wisconsin Press.

Johnson, S.L., Blume, J.H., Eisenberg, T., Hans, V.P., & Wells, M.T. (2012). The Delaware death penalty: An empirical study. Iowa Law Review, 97, 1925-1964.

Kleinstuber, R. (In press). “Only a recommendation”: How Delaware capital sentencing law subverts meaningful deliberations and jurors’ feelings of responsibility. Widener Law Review, 19 (2).

Lenza, M., Keys, D., & Guess, T. (2005). The prevailing injustices in the application of the Missouri death penalty (1978 to 1996). Social Justice, 32, 151-166.

Lockett v. Ohio, 438 U.S. 586 (1978).

Lyon, A.F. (2004). Naming the dragon: Litigating race issues during a death penalty trial. DePaul Law Review, 53, 1647-1661.

Morgan v. Illinois, 504 U.S. 719 (1992).

Penry v. Lynaugh, 492 U.S. 302 (1989).

Pierce, G.L. & Radelet, M.L. (2005). The impact of legally inappropriate factors on death sentencing for California homicides, 1990-1999. Santa Clara Law Review, 46, 1-47.

Pratt, T.C., Cullen, F.T., Blevins, K.R., Daigle, L.E., & Madensen, T.D. (2006). The empirical status of deterrence theory: A meta-analysis. In F.T. Cullen, J.P. Wright, and K.R. Blevins (Eds.) Taking stock: The status of criminological theory (pp. 367-395). New Brunswick, NJ: Transaction.

Rompilla v. Beard, 545 U.S. 374 (2005).

Roper v. Simmons, 543 U.S. 551 (2005).

Sandys, M. & McClelland, S. (2003). Stacking the deck for guilt and death: The failure of death qualification to ensure impartiality. In J.R. Acker, R.M. Bohm, and C.S. Lanier (Eds.) America’s experiment with capital punishment: Reflection on the past, present, and future of  the ultimate penal sanction (2nd ed.) (pp. 385-412). Durham, NC: Carolina Academic Press.

Sarat, A. (1995). Violence, representation, and responsibility in capital trials: The view from the jury. Indiana Law Journal, 70, 1103-1160.

Sasson, T. (1995). Crime talk: How citizens construct a social problem. New York, NY: Aldine de Gruyter.

Scheingold, S.A. (1984). The politics of law and order: Street crime and public policy. New York, NY: Longman.

Scheingold, S.A. (1991). The politics of street crime: Criminal process and cultural obsession. Philadelphia, PA: Temple University Press.

Sundby, S.E. (1997). The jury as critic: An empirical look at how capital juries perceive expert and lay testimony. Virginia Law Review, 83, 1109-1188.

Tiersma, P.M. (1995). Dictionaries and death: Do capital jurors understand mitigation? Utah Law Review, 1995, 1-49.

Wiggins v. Smith, 539 U.S. 510 (2003).

Williams v. Taylor, 529 U.S. 362 (2000).

Williams, M.R. & Holcomb, J.E. (2001). Racial disparity and death sentences in Ohio. Journal of Criminal Justice, 29, 207-218.

Woodson v. North Carolina, 428 U.S. 280 (1976).

Young, R.L. (2004). Guilty until proven innocent: Conviction orientation, racial attitudes, and support for capital punishment. Deviant Behavior, 25, 151-167.


Ross Kleinstuber is an assistant professor of Sociology and of Justice Administration & Criminology at the University of Pittsburgh at Johnstown. His research interests include law & society; capital sentencing; inequality; international law, genocide, & human rights abuses; and criminological theory. His recent works include examinations of judge and jury decision-making in Delaware capital cases and reviewing criminological theories of genocide.


The author would like to thank William J. Bowers for offering his feedback on this manuscript and Benjamin D. Fleury-Steiner, Eric Rise, Aaron Fichtelberg, Sandra Jones, Thomas Brewer, and Christopher Kelly for their assistance during data collection, transcription, coding, and analysis. The staffs of the Kent County and new Castle County Prothonotaries’ offices were also indispensable as they provided access to the jury lists and to two trial transcripts. Lastly, Keisha Hudson, Michael Modica, and Jennifer Kate Aaronson deserve gratitude for graciously providing copies of the remaining six trial transcripts at no cost. Funding for this project was provided, in part, by NSF Grant #SES-0520487, a dissertation fellowship awarded by the Department of Sociology and Criminal Justice at the University of Delaware, and a dissertation grant from the Proteus Action League.

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