Jury Trials and Their Ineffective Role within a Retributivist Legal System

Jury Trials and Their Ineffective Role within a Retributivist Legal System

By Sharoia Taylor*

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The United States has established itself as a front-runner in criminal punishment by having one of the highest per capita incarceration rates in the world. One of the more prominent features of the American criminal justice system is that it relies on a theory of punishment known as retributivism. Under this theory, punishment is doled out under the belief that a criminal deserves punishment proportional to their crime.[1] Within this theory, punishment is premised on what wrongdoers deserve, whether or not it leads to beneficial consequences.[2] And yet, these retributivist motivations are often stoked by a sense of moral outrage.[3] The severity of a crime and the evaluation of its proportional punishment rely heavily on the societal norms of the community and the institutions that enforce it.[4]

Unlike other theories of punishment, retributivist theory is a backwards-looking system which seeks justice through punishing deserving offenders—regardless of the offender’s justification—and is seen as an act of public justice.[5] In the United States, retributivist theory operates within two main domains of the legal system: a general domain and a specific domain. The general domain operates on a larger societal level, whereas the specific domain operates in the courtroom on individual members of society.

This Essay will argue that the goals of retributivism are incompatible with punishment administered by juries who suffer from the inherent biases of third-party punishers. This Essay will further contend that retributivism and administering punishment by jury are mutually exclusive due to the inherent biases of third-party punishers. Thus, this Essay will ultimately question whether society values the role and outcome of retributivism within the American legal system, or is society more concerned with retaining the constitutional right of a trial by a jury of one’s peers, even if the jury is not the best-suited entity to administer just deserts.

What role does retributivism play in society? As mentioned earlier, retributivism is manifested in two domains. The general domain of retributivist theory is exercised on a broad and overarching level, such as domestic and federal legislation, political propaganda, and social interaction. These types of retributivist projects focus on day-to-day operations that address the social realities of a given community on a broader scale. Examples of this include legislation to create harsher sentences on drunk drivers, impose stricter gun laws,[6] and promote tough-on-crime campaigns[7] or harsher punishments for certain crimes.[8] This arena of general retributivist theory is an important aspect on how retributivism is identifiable on a broad spectrum, and it exhibits how the American legal system develops laws to ensure its citizens that safety and accountability are being acted upon on a larger scale.

The other domain in which retributivism operates is during jury trials, which represent a form of specific retributivism. Specific retributivism is a direct application of retributivism onto a citizen. The American legal system allows for the expression of retributivist sentiments through the vehicle of third-party punishers.[9] As third-party punishers, individuals doing the policing need not pay the personal costs that are associated with their decisions. What makes this position unique within the legal system is that during a trial, the jury and judge have the greatest degree of subjective discretion on a defendant’s life, which is backed by the full force of State-sponsored retributivism.

Since the development of the Bill of Rights, trial by jury has held a fundamental place in the American legal system.[10] The involvement of a jury within a trial represents one of the main participatory roles citizens have within the American legal system. The jury not only acts as a check and balance within the trial to ensure the government satisfies its burden, but also—in principle—provides a defendant her right to be tried by an assembly of her peers.[11] By assigning these two responsibilities, it is implicit that the jury is best suited to hear the evidence, apply the law, and reach the appropriate ruling and punishment.

An intrinsic problem arises when jurors perform specific retributivism during a jury trial. Scientific evidence has begun to show that the previous presumption of a jury’s ability to exercise fair and proportionate punishments under a retributivist theory may be flawed due to individual juror’s susceptibility to biases caused by biological and social factors.[12] This Essay will examine the many factors that affect individual juror’s legal decision-making process during the punishment phase of a trial. Finally, this Essay will discuss whether the current jury system is best suited to represent retributivist theory within the American legal system, or whether an alternative is needed to ensure just and proportionate punishment.

  1. In the Mind of Third-Party Punishers

Third-party punishers include juries and judges. Juries are best defined as six to twelve strangers from diverse backgrounds and experiences that work together to reach a conclusion for a case. This structure, in theory, establishes the smallest sample size of the impacted community, which can produce the fairest result. However, there are many other factors that each individual judge and juror brings with herself to the process that will impact her decision-making process. These factors include—but are not limited to—the multi-faceted neurological, biological, and social predispositions that all judges and jurors have prior to hearing a case that unconsciously affects their decision-making, and ultimately the degree to which they are willing to punish.[13] Such factors fall outside the elements of the crime and evidence presented within the case and may hinder a just desert for a defendant.

One factor that impacts individuals when assessing a case is how they have been taught to understand the world around them. Different forms of learning are known to shape and condition human behavior.[14] Some of the more prominent forms of learning come in the shape of motivational, instrumental, and social learning.[15] Within social learning, an individual is able to learn about events they themselves have never experienced, simply by observing others.[16] A fundamental component of social learning comes from the establishment of behavioral and societal norms.[17] By establishing behavioral and societal norms within the group, there is a common understanding of what acceptable behavior is and what it is not.[18] Through the use of reward and punishment, societal behavior is taught to individuals that later influences their decision-making. For example, in humans, cooperation is a means of survival and has thus evolved social behaviors that reward those who cooperate and punish those who do not.[19]

This aspect of human nature is exemplified in many psychological studies that use public-good games to explore the actions that prompt people to punish others. One game, known as the “Prisoner’s Dilemma,” allows a third-party to observe two “prisoners” who are given the option to reveal incriminating evidence about the other or to remain silent.[20] Third-party punishers are more likely to administer punishment to players who do not cooperate.[21] Similar studies have discovered a general trend that players feel justified in punishing others if a set of established rules are broken.[22] For example, another game allows players to make money by equally contributing to a pot that is invested and then divided amongst all of the players. Although not every player is required to contribute to the pot, they can still profit off of the investment of others. If given the option to pay a fee in order to punish this “free-rider,” players will do so because this short-term cost will ultimately lead to the long-term gain of future cooperation.[23] This form of behavioral learning can be seen in every microcosm of society, all the way up to the American criminal justice system. If society determines that someone has broken the law, then people feel justified in punishing that individual.[24]

Once a defendant is found guilty, can people objectively determine just deserts? Unfortunately, no. People inadvertently impose personal biases during cognitive reasoning.[25] For example, recent studies of the brain show it makes associations which may not actually exist.[26] These associations often attach beliefs, intentions, personality traits, and moral blameworthiness to things that do not have those associations connected to them, such as inanimate objects.[27] For example, one study explored human bias by projecting shapes onto a screen with coordinated movements.[28] In scenarios where a larger square would “chase” a small triangle around the screen, people would describe the square as a “bully” or sympathize more with the triangle.[29]

A region of the brain known as the amygdala is important for social cognition and incorporates moral value in order to help rationalize these observations. When this region is damaged, such as in individuals with autism, people describe only shapes moving around the screen and do not make moral associations.[30] Within this section of the brain, associations are made assigning moral blameworthiness or praise, referred to as “folk psychology.”[31] When an individual assesses others using their intuitive, folk psychology, they cannot avoid attributing moral blame or praise.[32] Thus, folk psychology is the gateway to moral evaluation, and is hard-wired in the neurological center for reasoning.[33] When looking at this phenomenon in the context of a judge and jury, if an individual’s brain is hard-wired to make moral evaluations and assign moral blameworthiness to a given situation, then that individual’s particular biases—whether against a certain race, religion, socioeconomic class, etc.—may inevitably impact the varying application of punishment.

Another factor that impacts the punishment phase of a jury trial relates to how the third-party punisher perceives the nature of the crime. Certain types of images and graphic details presented at trial have been shown to affect the way in which juries assess and apply punishment.[34] In an attempt to understand what happens in the brain when these types of images are shown, one study found that individuals are influenced by the severity and level of disgust of a crime.[35] A defendant’s penalty will change depending on the way in which the information is projected to the third-party punisher. If the crime is disgusting, the punisher will retain their logical reasoning when assessing the penalty and culpability of a defendant.[36] This effect translates to the third-party punisher, applying a punishment close to the current legal standard when the crime elicits strong disgust responses.[37] However, if the crime is perceived or projected to be less disgusting, the punisher will be influenced more by emotional social factors and personality descriptions than by logical reasoning, and perhaps be more lenient.[38]

In trial proceedings, the prosecution and the defense will often present two drastically different vignettes of how the crime in question occurred. Taking this all into account, it appears jurors can be susceptible to the language and sensory images that a lawyer uses to describe the scene of the crime, the individuals involved, and the impact of their actions, which is not always supported by direct evidence.[39] When this occurs, the jury’s decision can be influenced in such a way that blatant differences in punishment can arise, and there can be no guarantee that the defendant’s punishment is based on what they justly deserve versus how they were manipulated by the attorneys. This allows for inconsistent levels of punishment, which depend on the case and the allowances of the court, rather than the defendant’s culpability.

Furthermore, how a third-party punisher assesses the victim and defendant can impact the punishment phase of a jury trial. Recent studies have shown that levels of attractiveness or social wealth can influence the degree of punishment that a defendant receives.[40] This is best understood under the social capital theory. This theory explains that, when people are asked to punish, they are more idiosyncratic than morally focused. This results in harsher punishment to those who are labeled as a threat to the welfare of those whom society has identified as more socially or personally valuable.[41] Consequently, the value of a life becomes far more nuanced in an execution of justice that is not often applied equally to everyone.[42] If the individual in question (either the defendant or victim) is perceived to be more sexually attractive or wealthy to the third-party punisher, the result of the punishment will be starkly different.[43] Although this assessment is being made, it is unlikely that the punisher is conscious of the role these values play within their ultimate decision to punish.[44] The impact of these factors during a jury trial is significant. As a third-party punisher’s decision is influenced by his or her own unconscious value system, there can be no guarantee that the distribution of punishment will be fair and unbiased. If this bias cannot be kept out of the decision-making process, then, within a retributivist system, proportional just desert cannot be assured. This results in the over-punishment of some and an undermining of retributivist theory altogether.

Like other social behaviors, retributivist ideals can be taught and biases can be shared in a group, which greatly influences the degree to which people are willing to punish. Social training and group biases allow individuals to think that certain actions should be more harshly punished than others. For third-party punishers, such as jurors, the forms of learning that occur throughout their life help establish a lens through which they can perceive the world and other individuals. Given that people are not homogenous and do not all have the same social and behavioral norms, it becomes complicated when these individuals engage in third-party punishment and are asked to assess the desert of punishment. For instance, some beliefs can carry discriminatory biases that may inform an individual’s decision in ways that may not be appropriate when assessing an individual’s appropriate punishment.[45] Other beliefs can stem from religious indoctrination and carry a moral blameworthiness or valued praise. Since much of an individual’s learned behavior comes from group learning—which has been further ingrained through reward and punishment—there is a strong possibility that these individuals will not be able to disassociate themselves from a perception of a person, belief, or idea, when asked to be objective and fair. All these factors undermine the goal of fairness within the justice system.

The examples mentioned above are just a few ways that judges and jurors bring biases into the punishment phase. They may consciously or unconsciously not know that these biases play a role in their assessment of a defendant’s penalty. When these biases are taken in conjunction with an individual’s ability to be fully retributivist with the backing of the State, there can be no doubt that those defendants who fall in the most marginalized categories of biases will more than likely be subjected to the harshest forms of punishment. These facts alone undermine the retributivist nature of the American legal system. These facts also have dangerous implications when life sentences and capital punishment are options within a punishment proceeding. Therefore, the question that must be answered is whether the legal system should remain invested in the retributivist theory of punishing defendants in proportion to their crimes, or retaining the jury system that is filled with biasness.

  1. Now What: My Rights or Theirs?

When taking the scientific evidence of jury bias into account, it becomes clear that many factors may skew a juror’s reasoning when determining a proper punishment for a defendant. There is no certainty that one’s punishment is either justly deserved or proportional to the crime. If these fundamental aspects of retributivism cannot be established, then the role of jurors within the system cannot be relied upon as an instrument of retributivist punishment.

Although jury trials may not fulfill the purpose of retributivism, their role in American history and the American legal system remains the same. As discussed earlier, jury trials represent every citizen’s constitutional right as afforded to them in the Bill of Rights. Presuming the scientific evidence is correct and an individual’s ability to assign punishment is filled with biases, this reality presents a challenge to the American legal system. On the one hand, if the American legal system is invested in a retributivist system, then jury trials should be removed from them as an assessor of a defendant’s punishment. On the other hand, if preserving a citizen’s constitutional right to a jury trial is important and an essential element of the American legal system, then, despite the possibilities of bias and disproportional punishment of defendants, the jury system needs to remain in place. Both options require a sacrifice of a fundamental principle within the American legal system, and cannot co-exist within the same system. However, whichever system is chosen offers new and unique challenges for the American legal system.

III. The Lessor of Two Evils

If America chooses to get rid of juries, the question becomes what or whom would fill the void to administer punishment? One option could be the use of administrative minimums and maximums. Under an administrative system, there is limited judicial discretion. If a defendant is convicted, then he or she would be sentenced based on a predetermined penalty, despite the circumstances of the crime, victim, or the defendant.[46] With this form of a system, individual bias would be eliminated because every individual that is found guilty of a particular crime would receive the same penalty.

On its face, this form of administrative punishment would be effective, consistent, and would result in the form of punishment retributivism was designed to administer. However, there are a number of problems that arise from this system. First and foremost, there is the question of who would decide what the appropriate penalty should be for a given crime. Regardless of who decides punishment, his or her ability to be qualified and remain unbiased to make those decisions will always be called into question. Another factor is in regards to the blanket application of a penalty to every defendant. In society, it’s undisputed that no two crimes are exactly alike. Therefore, one could imagine a situation where blanket application of the law and punishment may result in an unfair result that may over-punish some and under-punish others. This lack of subjectivity within a criminal case is alarming, especially within the penalty phase of a trial. With this in mind, a blanket-administrative punishment approach would likely undermine the just desert of a defendant’s penalty, which would also not satisfy a retributivist punishment.

An alternative would be the professionalization of the jury that would retain the jury format, but would seat legal professionals of the law within the jury box. On the surface, this approach is appealing because it would retain the subjectivity of the jurors and employ legal professionals who are equipped to take only the law and the evidence into account. However, as mentioned previously, biases are both conscious and unconscious, and there is no safeguard to ensure that these biases will not enter the decision-making process.

The fact remains that every defendant has a constitutional right to have a jury trial of her peers. At its core, this is meant to ensure that every defendant has a chance at a fair trial and is protected from government overreach. Unfortunately, if the alternative to jury trials appears bleak, the allowance of jury trials provides no better alternative. Allowing a jury to carry out retributivist ideals and decide on just deserts will result in the continued disproportional punishing of individuals from certain racial, ethnic, and socioeconomic backgrounds.

According to a 2013 report from the United Nations Human Rights Committee, African-American men are six times more likely to be incarcerated than white males.[47] Besides the racial implications, the report highlights distinct differences in the administration of the punishment to the poor versus the wealthy.[48] This study and additional research shows that implicit biases are triggered when individuals are forced to make fast decisions with imperfect information. Regardless of their accuracy, individuals will add missing information.[49] Research shows that in those situations the vast majority of Americans of all races implicitly associate African-Americans with adjectives such as “dangerous,” “aggressive,” “violent,” and “criminal.”[50] These conceptions are further evidenced when assessing punishment for ethnic minorities. Empirical evidence shows that a jury member’s conception of an appropriate punishment for a defendant is polarized along racial lines.[51] In cases where the defendant is African-American and the victim is white, the white jurors strongly favored a death sentence, and African-American jurors favored life in prison.[52] In an analysis of surveys conducted over the last thirty years of state and federal sentencing outcomes, Professor Cassia Spohn concluded:

Black and Hispanic offenders—and particularly those who are young, male, or unemployed—are more likely than their white counterparts to be sentenced to prison; they also may receive longer sentences than similarly situated white offenders. Other categories of racial minorities—those convicted of drug offenses, those who victimize whites, those who accumulate more serious prior criminal records, or those who refuse to plead guilty or are unable to secure pretrial release—also may be singled out for more punitive treatment.[53]

Although these biases may not occur in every case, scientific evidence supports the proposition that the current jury system has been penetrated by biases, which have adversely affected the defendants in these trials. The choice between maintaining a retributivist system or retaining a constitutional right to a jury results in a choice between the lessor of two evils. Regardless of what is chosen, a sacrifice will need to be made. Neither choice truly protects the defendant from the system, or those who are charged to protect them from the abuse of that system.


A criminal justice system that utilizes a jury system to enact a retributivist theory of punishment will not apply the appropriate just desert to criminals. This is due to the impact of neurological factors and biases that occur in the mind of jurors at the penalty phase. This reality has resulted in the under-punishment of defendants in some cases and the over-punishment in others. These results fundamentally undermine the purpose of the retributivist theory altogether. When deciding the remedy to the effects of disproportionate punishment, the only option a retributivist system offers includes losing one’s Sixth Amendment right to a trial by jury.

With such bleak prospects, the American legal system may need to seek alternative options to the current theory of punishment. The ideal alternative would need to achieve an appropriate balance between what is fair and what is just. Although fairness and justice have brought subjectivity to courts and have caused the challenges that the current system faces today, they are necessary pillars of society and must be better defined. True fairness and justice can never be defined and executed at the expense of the most marginalized and vulnerable. The American legal system must be able to stand the test of time, and the only way that can be done is through ensuring that the most powerful implementer of punishment and justice is not corrupted by naïve citizens’ biases and archaic prejudices. Whether through rebuilding the system with safeguards, or developing a new system altogether, some changes must happen for the sake of all those involved.



          *      Sharoia Taylor received her B.A. in Ethnic Studies from the University of Colorado at Boulder and her M.A. in Ethnic Studies with an emphasis in Urban Education from San Francisco State University. A special thank you to my husband Elias Cornejo for being my sound board throughout this process, my Grandmother Doris for her continued support, and the USF Law Review for the opportunity to share my work with a larger audience

         [1].     Thom Brooks, Punishment 15 (2013).

         [2].     Fiery Cushman, Punishment in Humans: From Intuitions to Institutions, 10 Phil. Compass 117, 118 (2015).

         [3].     Id.

         [4].     Id. at 121.

         [5].     Brooks, supra note 1, at 17.

         [6].     Assemb. B. 757, ch. 450, 1989–1990 Leg., Reg. Sess. (Cal. 1989); Assemb. B. 1964, ch. 147, 2013–2014 Leg., Reg. Sess. (Cal. 2014).

         [7].     Max Ehrenfreund, California Is About to Learn That Tough on Crime Is Tough to Undo, Wash. Post (Nov. 6, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/06/

         [8].     Assemb. B. 757, ch. 450; Assemb. B. 1964, ch. 147.

         [9].     Cushman, supra note 2, at 128.

       [10].     U.S. Const. amend. VI.

       [11].     Id.

       [12].     Beatrice H. Capetany & Lasana T. Harris, Disgust and Biological Descriptions Bias Logical Reasoning During Legal Decision-Making, 9 Soc. Neuroscience 265, 266 (2014).

       [13].     Id.

       [14].     Ben Seymour, Tania Singer & Ray Dolan, The Neurology of Punishment, 8 Nature 300, 300 (2007).

       [15].     Id. at 301–05.

       [16].     Id. at 304.

       [17].     Id.

       [18].     Id.

       [19].     Id. at 306.

       [20].     Id. at 306–08.

       [21].     Id. at 307.

       [22].     Id.

       [23].     Id. at 306.

       [24].     Id.

       [25].     Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 Phil. Transactions Royal Soc’y B 1775, 1782 (2004).

       [26].     Id. at 1781.

       [27].     Id. at 1782.

       [28].     Id.

       [29].     Id.

       [30].     Id. at 1782.

       [31].     Id.

       [32].     Id.

       [33].     Id.

       [34].     Capetany & Harris, supra note 12, at 266.

       [35].     Id.

       [36].     Id. at 274.

       [37].     Id.

       [38].     Id.

       [39].     Id. at 275.

       [40].     Eyal Aharoni & Alan J. Fridlund, Moralistic Punishment as a Crude Social Insurance Plan, in The Future of Punishment 218 (Thomas A. Nadelhoffer ed., 2013).

       [41].     Id. at 217.

       [42].     Id.

       [43].     Id. at 221.

       [44].     Id.

       [45].     Id. at 219.

       [46].     Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 Colum. L. Rev. 1232 (1995).

       [47].     The Sentencing Project, Report of the Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System 1 (Aug. 2013), available at http://sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20Justice%20Shadow%20Report.pdf.

       [48].     Id. at 7.

       [49].     Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders, 28 Law & Hum. Behav. 483, 485 (2004).

       [50].     Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876, 876 (2004).

       [51].     William Bowers et al., Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 171, 191 n.99 (2001).

       [52].     Id. at 200.

       [53].     Cassia Spohn, Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process, 3 Crim. Justice 2000 427, 428 (2000), available at https://www.ncjrs.gov

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