Instructional Incomprehension in the System
of Death Sentencing
"T"here are some contexts in which the risk that the jury will not,
or cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored.
—Justice William Brennan, Bruton v. United States (1968)
This chapter and the one that follows focus on some of the forces that more immediately influence the capital jury's crucial choice between life and death. To finally deliberate and render penalty-phase verdicts, jurors are required to perform a number of complex and emotionally charged tasks. To do so, they must bring to bear their diverse ideas about blameworthiness, culpability, and punishment. They also experience a range of natural human emotions in response to the tragic stories that often are told by both the prosecution and defense. In addition, as I have noted throughout this book, jurors must grapple with their own deep-seated inhibitions against violence. How the law purports to manage the complicated matrix of forces that are at work here is critically important to any fair and just resolution of a capital case. In a sense, what transpires at this stage of the process is the culmination of everything that has gone before.
The present chapter examines the primary legal vehicle used to regularize and control these forces in the hopes of making capital jury decision making reliable and fair—penalty-phase jury instructions. Recall that the pivotal portion of the Furman opinion that set the stage for the modern era of death sentencing was very much concerned with the "unbridled discretion" that had been afforded to capital juries in the past. Lacking appropriate guidance under the old system, it was thought, jurors had returned death sentences that were "wanton and freakish" and perhaps unlawfully discriminatory. The new death penalty statutes that were approved in Gregg v. Georgia attempted to strike a difficult balance between limiting the jury's discretion and, si-