Reaction to Nichols' Verdict Reflects Common Misunderstanding of the Law

(This op-ed was originally published in the Atlanta-Journal Constitution on January 2, 2009.)

Brian Nichols' life sentence without parole has provoked angry reactions from many people. They argue that, given the heinousness of his crimes, if anyone deserves the death penalty Nichols does.

But this argument reflects a fundamental misunderstanding of death penalty law. For over 30 years, the United States Supreme Court has consistently held that the decision to sentence a human being to death must be based not only on an assessment of the crime but also an assessment of the defendant's life history.A jury acts illegally if it sentences a defendant to death based solely on its assessment of the heinousness of his or her crime.

Three jurors in the Nichols case apparently understood this central tenet of death penalty law. Unfortunately, many jurors serving in capital cases do not. In fact, numerous empirical studies — including an exhaustive study by the Capital Jury Project which conducted almost 1,200 juror interviews from 353 capital trials in 14 states, including Georgia — have demonstrated that jurors often act contrary to the law when deciding that the defendant must die.

One of the biggest problems is that many jurors decide to impose a death sentence after hearing the facts of the crime but before the defendant has had an opportunity to present evidence of his life story, or what the law refers to as "mitigation" or "mitigating circumstances." The U.S. Constitution requires that jurors fully consider capital defendants' mitigation before deciding their punishment.

The studies also demonstrate that many jurors miscomprehend the definition of mitigation. "Mitigation" is a legal term.It refers to facts about the defendant's character, background or history, or the nature or circumstances of the offense which, in fairness and mercy, legally constitute a basis for a sentence of life imprisonment without the possibility of release.

It does not mean a legal defense or legal excuse for the crime such as duress or insanity at the time of the offense.Nor does it mean a lack of specific intent to kill or incompetency to stand trial.

However, many jurors do not consider a mitigating circumstance an adequate reason to impose a life sentence as opposed to a death sentence unless it either proves that the killing was not deliberate or furnishes a legal excuse for the killing such as insanity or duress.

Other serious problems revealed by the studies include:

• Many jurors misunderstand the legal standards governing their consideration of mitigating circumstances. They believe that mitigating circumstances must be proven beyond a reasonable doubt and that the jury must be unanimous in finding a mitigating factor.However, the law does not require that mitigating circumstances be proven beyond a reasonable doubt or that the jury be unanimous in finding them.
• Many jurors believe that the true sentencing responsibility rests elsewhere, including in the appellate courts.In fact, the law considers a jury's sentencing decision final, and trial judges, appellate courts and elected officials will almost never overrule it.
• Many jurors are under the misimpression that a capital defendant will be released from prison if given a life sentence, and they vote for the death penalty because the trial judge fails to correct that misimpression. The reality is that a sentence of life imprisonment without parole means that the defendant will die in prison of old age.

It is this pervasive misunderstanding of capital law, not the Brian Nichols verdict, that is the travesty of justice.This fundamental misunderstanding is one more reason that we should follow the lead of other advanced Western democracies and repeal our capital punishment statutes.