101G
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 6, 2012
RESOLUTION
RESOLVED, That the American Bar Association urges federal, state and territorial
courts to adopt jury instructions, which are in language understandable by jurors
untrained in law and legal terms, in the penalty phase of trials in which the death
penalty may be imposed and such instructions should be provided to jurors in written
form.
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REPORT
The American Bar Association has worked to make the application of the death
penalty in capital cases consistent with principles and standards of justice in our
criminal justice system it has adopted. One of these principles is jurors should fully
understand the decisions they are called upon to make.
When proposed jury instructions for the penalty phase in capital cases were
proposed to the Criminal Justice Section for approval and transmission to the House of
Delegates for its consideration, then Section Chair, Bruce Green, appointed a task
force. Its objective was to review, modify if necessary, and report to the Section Council
as to whether model jury instructions would improve the application of the death penalty
and, if they would, whether the proposed instructions or a modification thereof should be
adopted.
The task force was composed of three prosecutors, one defense attorney, and
two law professors. They determined there was a lack of understanding by jurors in
capital cases and that model instructions would improve jurors’ understanding.
Although the Task Force made an effort to draft instructions, a decision was made by
the Section to submit a general resolution concerning instructions and to ask the
leadership of the Association to assemble a team to do the drafting.
Jury instructions should be in a language the jury understands. American Bar
Association policy, as stated in its Principles for Juries and Jury Trials,1 states, “the
court should instruct the jury in plain and understandable language regarding the
applicable law and conduct of deliberations.” No reasonable person would argue
otherwise.
There is no more important issue in American law for a jury to decide than the
question of whether a person found guilty of a capital offense should be executed. It is
reasonable, therefore, to have jury instructions in the penalty phase of a death penalty
case that are particularly clear and understandable considering the death penalty.
Unfortunately, such clarity and understanding are difficult to achieve. As the ABA said
in its October 29, 2007, release on the findings of the ABA Death Penalty Moratorium
Implementation Project, “Jury instructions often are poorly written and poorly conveyed,
making it difficult for jurors to understand their roles and responsibilities. States often
fail to provide instructions in writing, and instructions fail to define important terms, or to
tell jurors that they may impose life sentences even if there are no mitigating factors or
where aggravating factors are proven beyond a reasonable doubt.”
While the ABA does not have a position supporting or opposing the death
penalty, it does have policies and projects regarding the manner of adjudicating the
death penalty. Thus, the Death Penalty Representation Project working to provide
1
Principles for Juries and Jury Trials, American Jury Project, American Bar Association, 2005
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adequate counsel in death penalty cases and the Death Penalty Moratorium
Implementation Project working to rectify problems in the administration of the death
penalty are working on these matters. It has adopted policies related to death penalty
cases regarding defendants with mental illness, appointment and performance of
defense counsel, minimizing the risk that innocent persons may be executed, execution
of minors or those who are mentally retarded, preventing disproportionate effects on
Native Americans, opposing discrimination in capital sentencing on the basis of race of
the defendant or victim, and urging the adoption of a rule providing for appointment of
counsel in post conviction matters. The ABA has no policy, other than the general
policy relating to all jury instructions, urging courts to take particular care in crafting jury
instructions for the penalty phase of death penalty cases and further providing the
courts with language that would assist them in this critical work. Such a policy and
assistance is needed.
The findings of the Capital Jury Project (“CJP”) definitively establish the need for
plain English capital jury instructions. The CJP was begun in 1990 with funding from the
Law and Social Sciences Program of the National Science Foundation. The
researchers conducted in-depth interviews, generally lasting from two to four hours and
following a 92-page interview protocol, of some 1,198 jurors who had actually made the
life or death sentencing decisions in 354 capital trials in fourteen active death-penalty
states.2 The interviews explored capital jurors understanding of their instructions and
how and when they made their sentencing decision. See generally William Bowers &
Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital
Sentencing, 39 Crim. Law. Bulletin 51 (2003); and William Bowers, The Capital Jury
Project: Rationale, Design, and Preview of Early Findings, 70 Indiana Law Journal
1043 (1995).
The CJP found that in every state in the study a significant percentage of capital
jurors failed to follow the dictates of the Supreme Court, including (but not limited to):
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Jurors did not understand their sentencing instructions, including the meaning of
mitigation and its legally prescribed role in their sentencing decision;
Jurors decided the defendant’s punishment during the guilt-or-innocence phase;
Jurors did not consider mitigation because they believed death was the only
acceptable punishment and were biased in favor of guilt and the death penalty by
the jury selection process;
Jurors believed the death penalty was mandatory;
Jurors did not see themselves or the jury as a whole as primarily responsible for
the sentencing decision; and
Jurors voted for death because they underestimated the severity of the
sentencing alternative.
2
They included Alabama, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, North
Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia. William J. Bowers & Wanda D.
Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Captial Sentencing, 39 Crim.
Law Bull. 51, 55 (2003).
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Most significant for purposes of this memorandum, the findings of the CJP
demonstrate that capital jurors do not understand their sentencing instructions, including
the meaning of mitigation and its legally prescribed role in their sentencing decision.3
The CJP found that “[t]he very word `mitigation’ is foreign to most jurors -- and indeed a
number of the jurors who were interviewed obviously did not understand the term, at
times actually confusing it with aggravation.” Ursula Bentele & William J. Bowers, How
Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and
Mitigation is No Excuse, 66 Brook. L. Rev. 1011, 1041-42 (2001).4 Moreover, “the
[CJP] interviews reflect a pattern in which mitigating factors play a disturbingly minor
role in jurors' deliberations about whether a defendant should be sentenced to death....
Even when jurors do report a discussion of mitigating factors, their understanding of
what the law defines as mitigation is extremely limited. In the relatively rare instance
when mitigating evidence is mentioned, jurors either seem not to understand what they
are to do with such evidence or they dismiss it out of hand as no excuse for the murder.
The impression conveyed is that unless the evidence in mitigation either proves that the
killing was not deliberate or furnishes an excuse for the killing, such as insanity or
duress -- factors that would invalidate the capital murder conviction -- it does not provide
adequate reason to impose a sentence other than death.” Id. at 1041-42. See also id.
at 1044 (“Even jurors who did seem to understand the term [mitigation] often dismissed
evidence that clearly should be considered mitigating, such as childhood abuse and
mental impairment, as not `excusing’ the defendant's conduct or reducing
responsibility.”).
Almost half (44.6%) of the jurors interviewed failed to understand that they could
consider and give effect to any mitigation evidence they chose. Bowers & Foglia, Still
Singularly Agonizing, supra at 67. More than half (66.5%) did not understand that each
individual juror had to decide whether a mitigating circumstance existed and that there
was no requirement of jury unanimity. Id. at 68. Approximately half (49.2%) failed to
understand that mitigating circumstances did not need to be proven beyond a
reasonable doubt. Id.5
A significant percentage of jurors in every CJP state erroneously believed that
the law requires a death sentence in certain types of cases. Bowers & Foglia, Still
3
The CJP findings regarding capital juror misunderstanding of the meaning and role of mitigation are
consistent with pre-CJP and non-CJP research. See Wayne A. Logan, When Balance and Fairness
Collide: An Argument for Execution Impact Evidence in Capital Trials, 33 U. Mich. J.L. Reform 1, 39 (Fall
1999 and Winter 2000) ("A solid body of research now shows that capital juries frequently misunderstand
or ignore instructions on mitigating evidence"); Peter Meijes Tiersma, Dictionaries and Death: Do Capital
Jurors Understand Mitigation?, 1995 Utah L. Rev. 1, 2 (“[T]here are disturbing indications that jurors do
not adequately understand instructions on mitigation in death penalty cases.”); Craig Haney, Taking
Capital Jurors Seriously, 70 Ind. L.J. 1223, 1229 (1995).
4 See also Haney, Taking Capital Jurors Seriously, supra, at 1229 (reporting that less than 50% of
interview subjects "could provide even a partially correct definition for the term 'mitigation'”).
5 On the other hand, nearly a third (29.9%) failed to understand that aggravating circumstances must be
proven beyond a reasonable doubt. Id.
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Singularly Agonizing, supra, at 72-73. Overall, 43.9% believed that the law requires a
death sentence if the defendant’s conduct was “heinous, vile or depraved.” Id. Some
36.9% believed that the law requires a death sentence if the defendant would be
dangerous in the future. Id. Even jurors in states without heinousness or future
dangerousness aggravators reported that they thought a death sentence was required if
they believed that the murder was “heinous, vile, or depraved” or that the defendant
would be “dangerous in the future.” Id. Furthermore, some 80% of jurors believed one
or both of these circumstances existed in their cases. Id. at 72. This misunderstanding
of the law made jurors more likely to impose a sentence of death. Id. at 74.
Further, about half (49.2%) of the jurors in the CJP study reported that they had
decided the defendant’s punishment before the commencement of the penalty phase
(30.3% decided early for death, and 18.9% decided early for life). Id. at 56. Some
70.4% of those prematurely deciding to impose a death sentence were “absolutely
convinced” of their position, and an additional 27% indicated they were “pretty sure.” Id.
at 57. Most early pro-death jurors (59%) never wavered. Id. Moreover, jurors
prematurely deciding on death were most likely to think death was mandatory under the
law, to express stronger support for the death penalty, to believe the defendant guilty,
and to engage in inappropriate discussions of penalties during guilt deliberations.
Wanda D. Foglia, They Know Not What They Do: Unguided and Misguided Discretion in
Pennsylvania Capital Cases, 20 Justice Quarterly 187, 192 (2003).
The CJP also found that the vast majority of jurors did not think either they or the
jury as a whole were primarily responsible for the defendant’s sentence. Bowers &
Foglia, Still Singularly Agonizing, supra, at 74. Just 8.9% believed the jury as a whole
was primarily responsible and only 5.6% believed individual jurors were primarily
responsible. Id. at 74. Some 32.9% believed the law was primarily responsible and
49.3% believed the defendant was primarily responsible. Id. Cf. Caldwell v.
Mississippi, 472 U.S. 320, 336 (1985) (unconstitutional to mislead jury in a way that
diminished the jury's sense of responsibility for sentencing decision).
In addition, the CJP found that most capital jurors significantly underestimate the
amount of time a defendant will serve in prison if spared the death penalty. Bowers &
Foglia, Still Singularly Agonizing, supra, at 80; Foglia, They Know Not What They Do,
supra, at 190. The median estimate was fifteen years in prison, and in no state did the
median estimate exceed twenty-two years. Bowers & Foglia, Still Singularly Agonizing,
supra, at 81-82. Furthermore, the earlier that jurors erroneously believed the defendant
would be released, the more likely they were to vote for death. Id. at 82.
The result of these fundamental misunderstandings among capital jurors has
been an unconstitutional placement of a “thumb [on] death's side of the scale.”6 See
generally Bowers & Foglia, Still Singularly Agonizing, supra, at 84-86.
6
Stringer v. Black, 503 U.S. 222, 232 (1992).
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Model jury instructions prepared in “plain English” and addressing in detail such
matters as the weighing of process, aggravating and mitigating factors, burden of proof,
unanimity, discretion, etc. will improve the administration of the death penalty.
Research has demonstrated that instructions designed to be more clearly understood
by jurors help remedy their lack of understanding. Regardless of whether people
support or oppose the death penalty, they would agree jurors should understand the
nature of the decisions they must make. Providing a written copy of the instructions to
the jury will assure that the jury does not have to rely upon memory as to the
substantive and procedural issues they confront during deliberations. It also will provide
an opportunity for the jury to carefully consider the instructions as a group and raise any
questions it may have with the trial judge.
Respectfully submitted,
Janet Levine
Chair, Criminal Justice Section
February 2012
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101G
GENERAL INFORMATION FORM
Submitting Entity:
Criminal Justice Section
Submitted By:
Janet Levine, Chair
Criminal Justice Section
1.
Summary of Resolution(s).
The resolution urges courts in capital cases to adopt jury instructions which are in
language understandable by jurors untrained in law and legal terms.
2.
Approval by Submitting Entity.
The resolution was approved by the Criminal Justice Section at its October 29,
2011 Fall meeting.
3.
Has this or a similar resolution been submitted to the House or Board previously?
While the ABA has no position on the death penalty, per se, it opposes the death
penalty for juveniles (1983 Annual Meeting) and for mentally retarded persons
(2006 Annual Meeting) and supports in principle legislation to prevent or minimize
any disproportionate effects of death penalty legislation on Native Americans (1991
Annual Meeting). It has adopted a number of policies recognizing the importance of
special safeguards prior to imposing this most severe sanction. At the 1991 Annual
Meeting, the HOD approved Resolution #107, calling for jurisdictions to maintain a
moratorium on use of the death penalty until they implement policies and
procedures consistent with previously-adopted ABA policies and procedures.
These included a set of “Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases,” adopted at the 1989 Midyear Meeting and
updated at the 2003 Midyear Meeting. Guideline 10.10.2 of the 2003 Guidelines
addresses “Voir Dire and Jury Selection,” with Subsection (K) reading: “Trial
counsel should request jury instructions and verdict forms that ensure that jurors
will be able to consider and give effect to all relevant mitigating evidence. Trial
counsel should object to instructions or verdict forms that are constitutionally
flawed, or are inaccurate or confusing and should offer alternative instructions. . .”
At the 2005 Annual Meeting, the HOD approved a comprehensive set of “ABA
Principles for Juries and Jury Trials.” Principle 14 calls on the court to “instruct the
jury in plain and understandable language regarding the applicable law and the
conduct of deliberations.”
4.
What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
See #3, above.
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5.
What urgency exists which requires action at this meeting of the House?
The death penalty continues to be imposed with jury instructions which are not well
understood by juries.
6.
Status of Legislation. (If applicable)
Not applicable
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
The policy will be distributed to various stakeholders, including but not limited to the
chief judge of the highest court in jurisdictions where the death penalty may be
imposed, in order to facilitate adoption jury instructions, which are in language
understandable by jurors untrained in law and legal terms. The policy will also be
featured on the Criminal Justice Section website and in Section publications and
possible use in Section CLE.
8.
Cost to the Association. (Both direct and indirect costs)
No cost is anticipated.
9.
Disclosure of Interest. (If applicable)
None known.
10. Referrals.
At the same time this policy resolution is submitted to the ABA Policy Office for
inclusion in the 2012 Midyear Agenda Book for the House of Delegates, it is being
circulated to the chairs and staff directors of the following ABA entities:
Standing Committees
Governmental Affairs
Gun Violence
Legal Aid and Indigent Defendants
Substance Abuse
Special Committees and Commissions
Center for Human Rights
Coalition on Racial and Ethnic Justice
Commission on the American Jury
Commission on Sexual and Domestic Violence
Commission on Disability Rights
Death Penalty Representation Project
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Death Penalty Moratorium Implementation Project
Sections, Divisions
General Practice, Solo and Small Firm Division
Government and Public Sector Lawyers Division
Individual Rights and Responsibilities
Judicial Division
Litigation
National Conference of Federal Trial Judges
National Conference of State Trial Judges
State and Local Government Law
11. Contact Name and Address Information. (Prior to the meeting. Please include
name, address, telephone number and e-mail address)
Robert M.A. Johnson
14820 Bowers Drive NW
Ramsey MN 55303
PH: 763/422-9310
Rmaj43@gmail.com
12. Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail
address.)
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street NW
Washington DC 20052-0026
PH: 202/994-7089; 202 /489-7464 (cell)
E-mail: ssaltz@law.gwu.edu
William N. Shepherd, Section Delegate
Holland & Knight LLP
Ste 1000
222 Lakeview Ave
West Palm Beach, FL 33401-6148
PH: 561/650-8338; 561/723-9669 (cell)
E-mail: william.shepherd@hklaw.com
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EXECUTIVE SUMMARY
1.
Summary of the Resolution:
The resolution urges courts in capital cases to adopt jury instructions which are in
language understandable by jurors untrained in law and legal terms.
2.
Summary of the Issue that the Resolution Addresses:
The urgency revolves around the fact that considerable numbers of jurisdictions
where the death penalty may be imposed have jury instructions that are poorly
written and confusing, making it difficult for jurors to understand their roles and
responsibilities. It is essential that the instructions jurors are obliged to follow in
considering the imposition of the death penalty are as clear and understandable
as possible.
3.
Please Explain How the Proposed Policy Position will address the issue:
The proposed policy will provide quite specific and comprehensive language for
courts to consider in instructing jurors who will be considering imposition of the
death penalty.
4.
Summary of Minority Views:
None known.
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