When the law puts a thumb on the scale of justice

A federal jury in Boston has ruled for execution for the Boston marathon bomber, Dzhokhar Tsarnaev. Apparently Bostonians are surprised and a little shocked according to the New York Times.

To many, the death sentence almost feels like a blot on the city’s collective consciousness. To the amazement of people elsewhere, Bostonians overwhelmingly opposed condemning the bomber, Dzhokhar Tsarnaev, to death. The most recent poll, conducted last month for The Boston Globe, found that just 15 percent of city residents wanted him executed. Statewide, 19 percent did. By contrast, 60 percent of Americans wanted Mr. Tsarnaev to get the death penalty, according to a CBS News poll last month.

... At the site of the bombing, Jessica Brown, an editor for a technology company, stared at the finish line while a companion from out of state took a photograph. The sentence had taken her, too, by surprise.

“I really thought they were going to do life in prison,” said Ms. Brown, who expressed some philosophical doubt about the death penalty.

“It raises the question of, should we react to murder with murder?” she said.

... The jury was “death qualified” -- each juror had to be open to the death penalty; anyone who opposed it could not serve.

It's worth saying that again: so long as the law makes the option of a death sentence possible, the law requires all jurors to swear they could impose such a sentence, if they find a defendant guilty of an offense for which the law makes death the penalty.

Obviously, this legal requirement has pronounced effects on trials. Here are some findings from Brooke Butler who has studied opinions and attitudes that are more commonly found among "death qualified" jurors.

The death qualification process is extremely unusual. Jurors in non-capital cases are prohibited from hearing about post-conviction penalties, as exposure to this information has been deemed to be prejudicial. However, in capital voir dire [jury questioning], the focus of jury selection is drawn away from the presumption of innocence and onto post-conviction events [what penalty the defendant might be given]....

Death-qualified jurors are very different from their excludable counterparts. ...death-qualified jurors are more likely to be male, Caucasian, moderately well-educated, politically conservative, Catholic or Protestant, and middle-class ...

Death-qualified jurors are also more likely to espouse legal authoritarian beliefs. Legal authoritarians are more likely to feel that the rights of the government outweigh the rights of the individual with respect to legal issues and are more likely to be conviction- and death-prone than their civil-libertarian counterparts .... Legal authoritarians are also more receptive to aggravating circumstances and less receptive to mitigating circumstances...

Death qualified jurors are attitudinally distinguishable from ... jurors ineligible for capital jury service. Death-qualified jurors are more likely to be racist, sexist, and homophobic ...

Death-qualified jurors are also more susceptible to the pretrial publicity that surrounds capital cases .... They are more affected by the victim impact statements that occur during the sentencing phase of capital trials ...

Most importantly, death qualified jurors are behaviorally different from their excludable counterparts: Death-qualified jurors are more likely to find capital defendants guilty and sentence them to death. This pro-conviction, pro-death bias has been found in death-qualified jurors' evaluations of both adult and juvenile defendants ... .

Tsarnaev is no angel, but can we really say that, in Boston, he was judged by a jury of his peers?