Thursday, September 22, 2011

A question for conservatives

Imagine that you or someone you love have been charged with a serious crime. You (or they) didn't do it, but don't have a bulletproof alabi or other means of proving that.

Now imagine that for some reason, you and your defence lawyer are able to significantly control the number of conservatives on your jury.  Perhaps you have some ability to have the trial held in a very conservative county, or a relatively moderate county.

Which would you choose?  All else being equal about the jurors, and your lawyer is still going to ask the typical kinds of questions to filter out jurors that might have it out for you, but would you rather a jury that was mostly conservatives or one where they are only a minority on the jury?

I ask because in the wake of Troy Davis' execution, I remembered this research on the so-called 'death qualification' whereby potential jurors who admit to have moral objections to capital punishment are routinely excluded from juries on capital cases.  If you read the article, you'll find it isn't just hard core death penalty opponents like myself, but just about anyone who expresses any doubt or hesitation about the prospect of someone being put to death on their verdict.  It turns out that "death qualified" juries are significantly biased against defendants as a general rule, and significantly more likely to convict them:
The product is more than a dozen reported investigations which, in the overwhelming consensus of commentators, have confirmed three empirical hypotheses: (1) jurors excluded because of their inability to impose the death penalty are more attitudinally disposed to favor the accused than are non-excluded jurors; (2) excluded jurors are more likely to be black or female than non-excluded jurors; and (3) excluded jurors are more likely to actually acquit the accused than non-excluded jurors."
While naturally there are some liberals who support capital punishment, and some conservatives who oppose it, research is pretty clear that there's a significant difference in attitude that is strongly correlated with ideology:

That's from the US General Social Survey, using only 2008 data (though the longitudinal data looks similiar).  That graph doesn't show though that even liberals who might say they "favor" the death penalty for murder would more often have a series of caveats and hesitations; "only in the most serious cases", "only where guilt is absolutely certain", and so on.  Conservatives, in my experience tend not to have such hesitations.  Here's another disturbing study on "death qualified" jurors, and the propensity for many of them to fail at their job as jurors in that they refuse to consider mitigating factors that might lead to a lesser sentence than death, they simply equate the crime (murder) with the death penalty, no matter that the law may require them to take mitigating factors (say like being a minor, being mentally challenged or a difficult childhood):
The data presented here suggest that previous capital jurors, people who by definition were death qualified and sat through an entire trial to reach the difficult sentencing decision, still are often not able to perform rhe duties required of a juror in accordance with their instructions and their oath.
The result is that a more nuanced question about this would probably find a much greater disparity in the views of liberals and conservatives on capital punishment.  Even as it is, there's every reason that the "death qualification" serves to favour conservatives serving on juries.  I'll say unapologetically I would not want to be tried by a jury of conservatives, and would have no qualms about being tried by jury of liberals (even assuming the jury will know nothing about my political beliefs either way).

And if the trial was against someone who was accused of hurting or killing a loved one of mine, I'll say the same thing.  I would prefer the jury not be conservatives and would be comfortable with liberals (or moderates).

If you're conservative, can you say the same?  You've seen how your peers think about criminal justice.  Many conservatives really believe that if the police say you did something, that's enough.  The bias of our judicial system is supposed to be that a person is presumed innocent until the state proves its case beyond a reasonable doubt, but is there anyone really willing to claim that is the mentality most conservatives apply to criminal justice?  Maybe some of this is unfair on my part, after all, what someone spouts off in the comments section of a news article is not necessarily a good indicator of how they would approach the case if they were actually on the jury, with someone's fate in their hands.  I certainly hope conservatives who serve on juries tend to take it seriously and correctly view the state's case with skepticism until persuaded it is correct beyond a reasonable doubt.  But the anecdotal and statistical evidence suggests they too often do not.

And while it might be appealing to think a conservative biased jury hearing the trial of somone accused of harming you or a loved one will "get the bastard" by returning a conviction, I want the right person to be convicted of that crime, not just whomever the police happened to bring in for it because they want to pad their arrest stats or a conviction looks good on the department's record.  After all, if the wrong person is convicted, then the guilty party goes free to hurt others.   I'm not worried some soft-on-crime jury of liberals will acquit, if they do, then either the state didn't catch the right person, or they just didn't do their job in building a case.  

It's an important question, and a real one, since "death qualification" really serves as an ideological filter on juries.  Would you really want to be judged by a jury of your peers? 


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  2. nice conundrum you have there daniel

    I don't think conservatives will have any problem with it since they have no principals...

  3. This is really interesting, Daniel. It suggests that there is a lot of work to be done on liberals on this issue. We're never going to win on this issue if the best we can do is split by half in the two most liberal categories.