Judicial instructions provide the law which jurors are to follow when making their decisions. These decisions range from decisions about negligence and compensation in civil trials to guilt or innocence decisions in criminal trials and ultimately life and death decisions in capital trials. The purpose of judicial instructions in all trials is to guide jurors in their decisions.
One area of the law in which judicial instructions are most important is in capital sentencing where jurors are asked to decide between a life or death sentence for a person convicted o f a capital crime. The Supreme Court has acknowledged the importance of such a decision, and in an attempt to reduce arbitrary and capricious sentencing, held that states must provide jurors with “guided discretion”.

However guided discretion is ambiguous and has been translated into varied procedures across different states. Although these varied procedures have been constitutionally upheld, there is reason to suspect that they may be inadequate. That is, they may indeed lead to arbitrary and/or biased sentencing. Thus the purpose of this research is to empirically assess bias in capital sentencing instructions. Instructions differ in the extent to which they
a) provide a death as a default sentence,
b) focus on future dangerousness, and
c) emphasize mitigation. If one set of instructions consistently yields a greater number of death sentences while another consistently results in life sentences, given the same case material, then the adequacy of guided discretion is seriously questioned.
It is constitutionally acceptable for states to differ in their procedures and outcomes. However, at what point do different procedures yielding consistently different outcomes become effectively biased and unconstitutional? Although states have made an effort to guide jurors in their decisions, social science research has continually shown that arbitrary and biased sentencing still exists. There are six independent lines of research that provide “factual evidence” suggesting that the death penalty is applied in a biased and/or arbitrary manner.
The first line of research provides evidence of consistent racial bias. The remaining five show that sentencing may be arbitrary. The second line of research has shown that prisoners with commuted sentences are no more dangerous than prisoners with death sentences. Third, there are more reversals in capital cases than in other types of cases. Fourth, there is some evidence that innocent people have been sentenced to death. Fifth, there is little consistency between judges’ and juries’ decisions for death. Finally, citizens and jurors who have served on capital cases actually report that the death sentence is arbitrary .


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