Moral Disengagement in the
Capital Trial Process
"W"hat we want to cultivate is appropriate compassion based on
reasonable judgments.… "W"e need to ask ourselves what the
particular obstacles to appropriate compassion are in our society.
—Martha Nussbaum, Upheavals of Thought: The Intelligence of
In this chapter I examine some of the ways that the capital trial process itself helps to facilitate the death-sentencing process. Prospective jurors come to the courthouse already having been elaborately prepared to perform the lethal task that the state may ask them to undertake. Exposure to media misinformation, often frighteningly graphic images of stylized violence, and the narrow interpretive frames I discussed in chapters 2 and 3 have shaped many jurors' expectations long before any evidence has been presented. And, as the last two chapters have made clear, death qualification ensures that capital jurors have been carefully selected on the basis of a stated willingness to impose the death penalty in whatever case they believe it is appropriate.
Soon, however, they will be asked to contemplate doing something few if any civilians in our society are ever called on to do. Capital jury service involves more than merely supporting pro-death-penalty policies in the abstract, or voting for political candidates who give voice to the public's anger over violent crime or the desire for retribution in the case of an especially egregious case. Eventually, in the course of a capital trial, citizen-jurors may be asked to go beyond merely making a theoretical commitment to impose the death penalty in some hypothetical situation. Death penalty trials represent a rare moment in criminal jurisprudence in which jurors—not judges—bear the burden of making a sentencing decision that encompasses the stark and profound choice between life and death.
Thus, unlike most citizens, voters, and politicians for whom the death penalty remains a mere abstraction, capital jurors have more daunting psychological barriers to confront and, for some, to cross. Under ordinary cir-