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					     THE EMPATHIC DIVIDE IN CAPITAL TRIALS:
    POSSIBILITIES FOR SOCIAL NEUROSCIENTIFIC
                    RESEARCH
                                           Emily Hughes∗

                                  2011 MICH. ST. L. REV. 541

                                       TABLE OF CONTENTS

INTRODUCTION ........................................................................................... 541
I. VIEWING THE EMPATHIC DIVIDE THROUGH A SOCIAL
   NEUROSCIENCE LENS .............................................................................. 546
      A. An Overview of Some Key Foundational Research .................... 547
      B. Harris and Fiske’s Dehumanization Research ............................. 550
      C. Harris and Fiske’s Research Asking Whether a
         Dehumanized Person Likes a Vegetable ...................................... 552
      D. Legal Implications of Harris and Fiske’s Research ..................... 553
      E. Examples of Other Social Scientific Research Revealing
         Biases in Capital Litigation .......................................................... 556
II. VIEWING THE EMPATHIC DIVIDE THROUGH A LEGAL LENS ............... 560
III. POSSIBILITIES FOR FUTURE RESEARCH ............................................... 565
CONCLUSION .............................................................................................. 569

                                           INTRODUCTION

     Several well-publicized capital trials have recently highlighted the role
of mitigation in death penalty cases. In Florida, attorneys for Casey Antho-
ny, the twenty-five-year-old woman accused of killing her two-year-old
daughter, Caylee Marie, frontloaded Anthony’s mitigation defense in the

         ∗ Professor and Bouma Fellow in Law, University of Iowa College of Law. I
would like to sincerely thank Professors Lasana T. Harris and Susan T. Fiske, as well as
Beatrice Capestany and Sarah Chehrehsa, for their insightful research that inspired the ideas
discussed in this Article, as well as for their generous time reviewing an earlier draft of this
Article and providing invaluable comments. I would also like to thank Professors Catherine
M. Grosso and Barbara O’Brien, as well as the editors of the Michigan State Law Review,
for inviting me to contribute to this special issue; my research assistants, Susan Elgin,
Bradon Smith, and Tiffany Spoor, for excellent work; my dean, Gail Agrawal at the Univer-
sity of Iowa College of Law, as well as my former dean, Kent Syverud at Washington Uni-
versity School of Law, for their support of my research; and Rebecca Hollander-Blumoff,
who pointed me in the direction of this Article. Last but certainly not least, my heartfelt
thanks to the late Professor David Baldus for his mentorship and inspiration both before and
after I joined the legal academy, and for encouraging me to participate in this symposium.
There are few true heroes in this world. David Baldus is a hero in all senses of the word.
542                           Michigan State Law Review                      Vol. 2011:541

opening statement at trial. They did this when they told jurors that Casey
Anthony did not notify authorities of her daughter’s death because of psy-
chological coping mechanisms she had developed as a result of sexual
abuse.1 Frontloading the mitigation theory in the opening statement of trial
established a clear theory of defense that previewed what her attorneys
would have argued at her capital sentencing hearing,2 had Anthony’s trial
not abruptly ended when the jury acquitted her of capital murder.3 Similarly,
several months earlier in New York, lawyers for Vincent (Vinny Gorgeous)
Basciano, a high-ranking member of the Bonanno crime family, revealed
that Basciano’s father had abused him as a child.4 His attorneys then showed


         1. Jessica Hopper & Ashleigh Banfield, Casey Anthony Trial: Defense Team
Claims Caylee Anthony Drowned in Family Pool, ABC NEWS, May 24, 2011,
http://abcnews.go.com/US/casey-anthony-trial-defense-claims-caylee-anthony-drowned/
story?id=13674375 (quoting defense attorney Jose Baez’s opening statement that “[o]n June
16, 2008, after Caylee died, Casey did what she’s been doing all her life, hiding her pain,
going into that dark corner and pretending that she does not live in the situation that she’s
living in . . . it all began when Casey was 8 years old and her father came into her room and
began to touch her inappropriately and it escalated”).
         2. The court prevented her attorneys from discussing sexual abuse at the conclu-
sion of the first phase of the trial because no evidence of the abuse was admitted into evi-
dence during that phase. See Holly Hughes, John King Interview on CNN July 4, 2011, tran-
script available at http://transcripts.cnn.com/TRANSCRIPTS/1107/04/jkusa.01.html
(“[L]ead counsel for Casey Anthony, Jose Baez, stood up and he said, we’re going to prove
this and we’re going to prove that. And there is definite evidence this was a drowning and
she’s a sexually abused child . . . . So, what we saw when Judge Perry gave the final instruc-
tions to the lawyers before closing was he went through it. He said, hey, if there is not evi-
dence and there’s not testimony about it entered in, you can’t argue it to the jury. So, Jose
Baez was stuck with [the fact that he] couldn’t argue sexual abuse by the father George,
couldn’t argue sexual abuse by the brother Lee. But what he did do was a good job of work-
ing with what he had left and . . . he hammered home for the jury what he believes proves
reasonable doubt.”).
         3. Lizette Alvarez, Casey Anthony Not Guilty in Slaying of Daughter, N.Y. TIMES,
July 6, 2011, at A1, available at http://www.nytimes.com/2011/07/06/us/06casey.
html?pagewanted=all.
         4. John Marzulli, Mobster Vinny Gorgeous Was Victim of Child Abuse, Lawyers
Reveal in Gangster’s Death Penalty Trial, N.Y. DAILY NEWS, March 21, 2011, available at
http://articles.nydailynews.com/2011-03-21/news/29193084_1_vincent-basciano-death-
penalty-trial-crime-family; see also Mob Boss and Killer ‘Vinny Gorgeous’ Escapes Death
Sentence After Dramatic Last Minute Claim to Be a Family Man, MAIL ONLINE, June 2,
2011,              http://www.dailymail.co.uk/news/article-1393319/Mob-killer-Vincent-Vinny-
Gorgeous-Basciano-uses-family-snaps-mercy-plea-avoid-death-penalty.html. When jurors
later sentenced Basciano to life in prison, a majority of jurors listed on their verdict sheets
that one of the mitigating factors causing them to sentence Basciano to life was the fact that
other mobsters who were also responsible for the victim’s death—some even more culpable
than Basciano—had not received the death penalty. Anahad O’Connor, For Mobster, A Life
Term,      Not       His    First,  Offers    Relief,    N.Y. TIMES,      June     1,     2011,
http://www.nytimes.com/2011/06/02/nyregion/vincent-basciano-sentenced-to-life-not-
death.html.
                            Social Neuroscientific Research                                  543

childhood and family photos of Basciano during his capital sentencing hear-
ing and ultimately obtained a life sentence for Basciano.5
       Mitigating evidence, like the kinds discussed in the Anthony and
Basciano trials, includes extensive information about the life history of the
capital defendant that helps defense counsel explain, without excusing, a
defendant’s actions.6 This explanation is then used to try to persuade jurors
that punishment less than death is appropriate for a particular capital de-
fendant.7 The introduction of mitigating evidence in a capital trial is intend-
ed to help jurors individually assess the appropriateness of the death penalty
as part of the jurors’ “moral inquiry into the culpability of the individual
defendant.”8 The Supreme Court has long recognized this individualized
assessment of the appropriateness of the death penalty as one of the hall-
marks of a constitutional death penalty system.9 More recently, the Court
has clarified that capital defense attorneys have a duty to thoroughly inves-
tigate mitigating evidence in order to make informed strategic decisions
about what evidence to introduce to jurors during the defendant’s capital
trial.10 In addition, legal organizations, such as the American Bar Associa-
tion, have published lengthy ethical guidelines to help understand the depth



         5. Mob Boss and Killer ‘Vinny Gorgeous’ Escapes Death Sentence After Dramatic
Last Minute Claim to Be a Family Man, MAIL ONLINE, June 2, 2011,
http://www.dailymail.co.uk/news/article-1393319/Mob-killer-Vincent-Vinny-Gorgeous-
Basciano-uses-family-snaps-mercy-plea-avoid-death-penalty.html.
         6. See, e.g., Craig Haney, Evolving Standards of Decency: Advancing the Nature
and Logic of Capital Mitigation, 36 HOFSTRA L. REV. 835, 841 (2008) [hereinafter Haney,
Evolving Standards of Decency] (“The exclusion of sympathetic background and potentially
mitigating social history information from local newspaper reporting means that citizens and
potential jurors will have few if any opportunities to get the full story about the real causes of
crime and the factors that have influenced the lives of people who commit it. These con-
sistent omissions also implicitly suggest that background and social history information are
legally and psychologically irrelevant. That is, because it is covered so little by the press,
citizens may come to assume that the circumstances of the defendant’s life have no bearing
on his blameworthiness or the decision about which punishment should be meted out at the
conclusion of his trial.”).
         7. Emily Hughes, Mitigating Death, 18 CORNELL J.L. & PUB. POL’Y 337, 344-45
(2009); see also Haney, Evolving Standards of Decency, supra note 6, at 841-64 (analyzing
the substantive evolution of mitigation and the science of mitigation).
         8. CRAIG HANEY, DEATH BY DESIGN 203 (2005) [hereinafter HANEY, DEATH BY
DESIGN] (quoting California v. Brown, 479 U.S. 538, 545 (1976) (O’Connor, J., concur-
ring)).
         9. HANEY, DEATH BY DESIGN, supra note 8, at 203 (“The recognition of basic hu-
man commonality, an opportunity for capital jurors to connect themselves to the defendant
through familiar experiences, common moral dilemmas, and recognizable human tragedies,
is the starting point for compassionate justice.”).
       10. See Hughes, supra note 7, at 352-57 (discussing Supreme Court cases recogniz-
ing defense counsel’s duty to investigate mitigation evidence).
544                          Michigan State Law Review                      Vol. 2011:541

and breadth of mitigation investigation necessary for defense attorneys to
effectively represent a capital client.11
      At the same time that the importance of investigating and presenting
mitigating evidence in capital trials has become increasingly clear, the abil-
ity of jurors to consider mitigating evidence has remained problematic. Pro-
fessor Craig Haney refers to capital jurors’ difficulty understanding mitigat-
ing evidence as an “empathic divide,” explaining that “a cognitive and emo-
tional distance between [the jurors and the capital defendant] acts as a psy-
chological barrier, making genuine understanding and insight into the role
of social history and context in shaping a capital defendant’s life course
difficult to acquire.”12 Haney and others have documented how the chal-
lenge of overcoming basic attributional bias—the tendency to underestimate
the role of context and to overestimate personal or dispositional factors in
person perception13—is “significant” in capital trials.14 According to Haney,
one of the reasons that attributional bias is prominent in capital trials is
“precisely because the harm for which the defendant is responsible is so
great, and the typical capital defendant is perceived as so dissimilar to the
jurors (by virtue of his behavior if nothing else).”15 While the empathic di-
vide is “significant” for all capital defendants, Haney observes that “in the
case of African American capital defendants, the empathic divide is unfor-
tunately much wider” because “of an even more extreme attribution error
that whites tend to commit when they interpret and judge the behavior of
minority group members.”16
      This Article proposes that social neuroscientific research may help
lawyers better understand the empathic divide that exists between capital
jurors and capital defendants. Craig Haney, Laura Sweeney, and Mona


       11. See AM. BAR ASSOC., GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF
DEFENSE COUNSEL IN DEATH PENALTY CASES § 4.1 cmt. (rev. ed. 2003) [hereinafter ABA
GUIDELINES],          available     at      http://www.abanet.org/legalservices/downloads/
sclaid/indigentdefense/deathpenaltyguidelines2003.pdf; see also Eric M. Freedman, Intro-
duction: Re-Stating the Standard of Practice for Death Penalty Counsel: The Supplementary
Guidelines for the Mitigation Function in Defense Teams in Death Penalty Cases, 36
HOFSTRA L. REV. 663 (2008) (publishing complete supplementary guidelines to accompany
the ABA Guidelines).
       12. HANEY, DEATH BY DESIGN, supra note 8, at 203.
       13. Edward E. Jones, The Rocky Road From Acts to Dispositions, 34 AMERICAN
PSYCHOLOGIST 2, 107 (1979).
       14. See HANEY, DEATH BY DESIGN, supra note 8, at 204. Craig Haney, Laura
Sweeney, and Mona Lynch have conducted several studies exploring the relationship be-
tween the nature of the death-sentencing process, the empathic divide, and race. Their re-
search included a meta-analysis of 14 individual studies, a direct simulation study of the
death-sentencing process, and an experimental study of death-qualified, jury-eligible partici-
pants. Id. at 204-05.
       15. Id. at 203.
       16. Id.
                         Social Neuroscientific Research                            545

Lynch have expertly researched the empathic divide in capital trials—
including the ways race influences how African American capital defend-
ants experience a wider empathic divide than do white capital defendants.17
This Article proposes that researchers examine the degree to which neuro-
imaging research might provide even more information about the depth and
impasse of the empathic divide. Specifically, this Article discusses how the
social neuro-imaging research of Professors Lasana T. Harris and Susan T.
Fiske may help understand how the thinking process that certain jurors un-
dertake when they are considering capital defendants is less humanizing
than the thinking process those same jurors undertake when they think about
other people.18 In other words, to put it crudely and to somewhat overstate
the research in order to clarify the general idea, some capital jurors may not
see capital defendants as human beings. This Article posits that if it is true
that certain jurors cannot see capital defendants as human—that those jurors
engage in less humanizing processes when reacting to capital defendants—
then such jurors would be incapable of making an individualized assessment
of the appropriateness of the death penalty for defendants whom they cannot
see as human and, therefore, they should not be allowed to sit as jurors.19
Furthermore, if jurors are unable to view some capital defendants as human,
then additional studies are needed to explore whether mitigating evidence
introduced at trial on behalf of a capital defendant can enable a juror to see
the defendant as human in order to make an individualized assessment about
the appropriateness of the death penalty for that particular capital defendant.
      This Article proceeds in three parts. Part I briefly outlines two aspects
of social neuroscience research conducted by Professors Lasana T. Harris
and Susan T. Fiske: (1) their findings that even though a certain region of
the brain is necessary for social cognition, that region of the brain activates
less to members of extreme out-groups that elicit disgust—meaning, in very
general terms, that if an individual elicits disgust in another person, the per-
son in whom the individual elicits disgust may not even perceive the indi-
vidual as “human”; and (2) their findings that asking people to consider an
individual preference of a person (such as what kind of vegetable a person
might prefer to eat) can increase activation in a specific region of the brain
of people in whom it had not previously activated. Part II discusses legal
scholarship on empathy and capital jurors in order to explore how consider-
ing this legal research, in tandem with social science, may increase our un-


       17. Id. at 204-05.
       18. See Lasana T. Harris & Susan T. Fiske, Social Neuroscience Evidence for De-
humanised Perception, 20 EUROPEAN REVIEW OF SOCIAL PSYCHOLOGY 192 (2009).
       19. HANEY, DEATH BY DESIGN, supra note 8, at 203 (“The recognition of basic hu-
man commonality, an opportunity for capital jurors to connect themselves to the defendant
through familiar experiences, common moral dilemmas, and recognizable human tragedies,
is the starting point for compassionate justice.”).
546                         Michigan State Law Review                    Vol. 2011:541

derstanding of the empathic divide in capital trials. Part III discusses the
possibilities and limitations of future research that might illuminate a more
complete understanding of the empathic divide between capital defendants
and capital jurors.

  I. VIEWING THE EMPATHIC DIVIDE THROUGH A SOCIAL NEUROSCIENCE
                               LENS

      The term “social neuroscience,” which refers to studying neural foun-
dations of social cognition, is a relatively recent development in the fields of
psychology and cognitive neuroscience.20 An important tool used in some
social neuroscientific research is functional magnetic resonance imaging—
or “fMRI”—equipment.21 The basic principle behind fMRI is that certain
neural activity in the brain is accompanied by increased blood flow to blood
vessels within specific areas of the brain.22 When an event triggers specific
activity in the brain, blood flow increases to the region of the brain where
the activity is occurring, causing a corresponding reduction in
“deoxyhemoglobin.”23 “Deoxyhemoglobin,” which is hemoglobin24 that is
not combined with oxygen, is formed when oxyhemoglobin releases its ox-
ygen to the tissues.25 The reason there is a corresponding reduction in
deoxyhemoglobin when blood flow increases to the brain is because the
“increase in blood flow occurs without an increase of similar magnitude in
oxygen extraction.”26
      This contrast between increased blood flow and a corresponding re-
duction in deoxyhemoglobin is important because deoxyhemoglobin is
“paramagnetic,”27 meaning that it is attracted by a magnet and assumes a
position parallel to that of a magnetic force, without becoming permanently




       20. Alexander Todorov, Lasana T. Harris & Susan T. Fiske, Toward Social Inspired
Neuroscience, 1079 BRAIN RESEARCH 76 (2006).
       21. See The Future Role of Functional MRI in Medical Applications, COLUMBIA
UNIVERSITY       PROGRAM      FOR      IMAGING         AND      COGNITIVE        SCIENCES,
http://www.fmri.org/fmri.htm.
       22. Id.
       23. Id.
       24. Hemoglobin is “[t]he red respiratory protein of red blood cells that transports
oxygen as oxyhemoglobin from the lungs to the tissues, where the oxygen is readily released
and the oxyhemoglobin becomes hemoglobin.” Hemoglobin Medical Definition,
YOURDICTIONARY, http://medical.yourdictionary.com/hemoglobin.
       25. Edson Amaro, Jr. & Gareth J. Barker, Study Design in fMRI: Basic Principles,
60 BRAIN AND COGNITION 220, 221 (2006).
       26. See About functional MRI (General), COLUMBIA UNIVERSITY PROGRAM FOR
IMAGING AND COGNITIVE SCIENCES, http://www.fmri.org/fmri.htm.
       27. Id.
                          Social Neuroscientific Research                             547

magnetized.28 Because it is paramagnetic, deoxyhemoglobin is a kind of
“endogenous contrast enhancing agent.”29 The benefit of having an endoge-
nous contrasting agent is that rather than having to inject a radioactive iso-
tope into a person in order to have a contrast within the brain that can be
measured by fMRI, the body’s natural processes serve as the source of the
signal for fMRI.30
      As fMRI equipment became increasingly accessible in the late 1990s,
social psychologists turned more attention to social neuroscience,31 thereby
bringing “together scientists across [many] different disciplines, each disci-
pline providing unique insights about social cognition.”32 To that end, a few
caveats are in order before providing a brief overview of some aspects of
Harris and Fiske’s research. I have neither the equipment nor the scientific
know-how to conduct the experiments that Harris and Fiske have done. I
bring legal, rather than scientific, insight to the discussion. The goal of this
Article is therefore to discuss some aspects of Harris and Fiske’s neuro-
imaging research, which may enrich a legal understanding of the empathic
divide in death penalty litigation. To be sure, Harris and Fiske’s research
was not designed to test the main idea that this Article suggests—that some
death penalty jurors may not be able to see capital defendants as human
beings. Their research is nonetheless helpful to understand the possibilities
of viewing the empathic divide in capital litigation through a social
neuroscientific lens, and this Article suggests future avenues for research
that may test the hypotheses this Article presents.

A. An Overview of Some Key Foundational Research

      Harris and Fiske’s research is built on a vast foundation of prior re-
search, which this section discusses in broad brushstrokes, highlighting as-
pects relevant to its application in capital litigation. To begin, Harris and
Fiske note that laypeople typically characterize prejudice as being a “gen-
eral animosity toward another person or social group.”33 Harris and Fiske

       28. Paramagnetic, THE FREE DICTIONARY, http://www.thefreedictionary.com/
paramagnetic.
       29. See The Future Role of functional MRI in Medical Applications, supra note 21.
       30. Id.
       31. Todorov et al., supra note 20, at 77 (2006) (describing how “[a] quick search on
PsycINFO, the major search database for psychologists, reveals more than 100 publications
referring to social neuroscience [as of 2006]” and “[a]ll but seven of them were published
after 2000,” and also describing how “social neuroscience is represented at every major
social psychology conference and” how “several active research groups come from main-
stream social psychology”).
       32. Id.
       33. Lasana T. Harris & Susan T. Fiske, Dehumanizing the Lowest of the Low: Neu-
roimaging Responses to Extreme Out-Groups, 17 PSYCHOLOGICAL SCIENCE 847 (2006)
[hereinafter Harris & Fiske, Dehumanizing].
548                       Michigan State Law Review                 Vol. 2011:541

help to unpack this generalized notion of prejudice by showing that “[n]ot
all prejudices are equal” and that there are “differentiated prejudices.”34 One
of their main findings in this regard is “that extreme forms of prejudice may
deny their targets even full humanity.”35 Indeed, it was this finding that first
intrigued me to learn more about Harris and Fiske’s work and its possible
relevance to capital sentencing, and it is the principle finding on which this
Article trains its focus.
      Pivotal to the concept of differentiated prejudices is the “Stereotype
Content Model,” or SCM, that Fiske et al. developed in 2002.36 The Stereo-
type Content Model posits that people evaluate societal groups as intending
to either help or harm other people and as being capable or incapable of
helping or harming.37 The concept of whether a societal group intends to
help or harm other people is discussed as “warmth” (if a person intends to
help someone, the person has high warmth; if a person intends to hurt
someone, that person has low warmth).38 Similarly, the concept of whether a
societal group is capable or incapable of helping or harming is discussed as
“competence” (if a person is capable of helping or harming, that person is
highly competent; if a person is incapable of helping or harming, that person
has low competence).39
      To further explain the interrelation of warmth and competence, the
visual depiction of the Stereotype Content Model that Fiske and Harris have
developed is a box with four different quadrants.40 Competence extends
horizontally across the top of the box, from low to high, while warmth ex-
tends vertically down the left side of the box, from high to low.41 Four dis-
tinct emotions (pity, pride, envy, and disgust) are then associated with each
of the four different quadrants—pity is associated with low compe-
tence/high warmth; pride with high competence/high warmth; envy with
high competence/low warmth; and disgust with low competence/low
warmth.42




      34. Id.
      35. Id.
      36. See Susan T. Fiske, A.J. Cuddy, P. Glick & J. Xu, A Model of (Often Mixed)
Stereotype Content: Competence and Warmth Respectively Follow from Perceived Status
and Competition, 82 J. PERSONALITY & SOC. PSYCHOL. 878 (2002).
      37. Id.
      38. Id.
      39. Id.
      40. Id. at 881.
      41. Id.
      42. Id.
                         Social Neuroscientific Research                  549


 Pity:43                                      Pride:
 Elderly people                               Middle-class Americans
 Disabled people                              American Olympic athletes


 Disgust:                                     Envy:
 Homeless people                              Rich people
 Drug addicts                                 Business professionals


      The Stereotype Content Model depicts differentiated prejudice by
showing that not all groups provoke equivalent animosity.44 The competent
and warm stereotyped group elicits pride, while the three remaining quad-
rants elicit varying degrees of prejudice.45 The competent but not warm ste-
reotyped group elicits envy—an emotion which “admits respect but harbors
dislike.”46 Conversely, the warm but not competent group elicits pity—an
emotion that “admits benign reactions but also disrespect.”47 Meanwhile, the
group in the remaining fourth quadrant, the neither warm nor competent
group, is “the most extreme out-group[], the low-low.”48 According to Har-
ris and Fiske, this low-low out-group elicits “the worst kind of prejudice—
disgust and contempt” or “simultaneous dislike and disrespect.”49
      Based on this prior research using the Stereotype Content Model, Har-
ris and Fiske explain that disgust is the only one of the four emotions that
“can target either humans or nonhumans, making people functionally equiv-
alent to objects.”50 While social psychology theorists have discussed the
idea of out-groups being perceived as less than people,51 and while the Ste-
reotype Content Model suggests that social groups falling into the low-low
quadrant may be perceived as less than human, “definitive evidence that
these lowest out-groups are categorized as less than human remains elu-
sive.”52 One of the reasons for the lack of definitive evidence is because
much of the data is confined to self-reports of people’s own emotions, and
these self-reports can be biased by what people think they are supposed to

     43.   Harris & Fiske, Dehumanizing, supra note 33, at 848 tbl. 1.
     44.   Id. at 847.
     45.   Id.
     46.   Id. at 847-48.
     47.   Id. at 848.
     48.   Id.
     49.   Id.
     50.   Id.
     51.   Id.
     52.   Id.
550                          Michigan State Law Review                    Vol. 2011:541

say or feel.53 Such a limitation is particularly interesting when viewed vis-à-
vis jury questioning in capital cases, where jurors are asked to self-report
their own emotions and may be similarly vulnerable to social desirability
biases.
      With this brief background of foundational research in mind, the next
section discusses how Harris and Fiske’s dehumanization research builds on
this prior research.

B. Harris and Fiske’s Dehumanization Research

       In light of the lack of definitive evidence confirming the hypothesis
that the low-low societal group may be perceived as less than human, Harris
and Fiske used social neuroscience to study people’s responses to the low-
low quadrant. Their research relied on prior research showing that a part of
the brain roughly found in the very front and center of one’s forehead, the
medial prefrontal cortex (mPFC), activates when people “engage in distinct-
ly social cognition.”54 Examples of “social cognition” tasks that have been
shown to activate the mPFC include “social cognition tasks in which partic-
ipants form an impression of a person, rather than an object”;55 “theory-of-
mind tasks”;56 and a variety of other tasks in which “participants were re-
quired to make social judgments about people.”57
       Not only does the mPFC activate when a person “engage[s] in dis-
tinctly social cognition,” but even more importantly for Harris and Fiske’s
study, the mPFC is “differentially activated” in social, as opposed to nonso-
cial, cognition. 58 To put this in more concrete, generalized terms, the mPFC
“activates whenever people are thinking about a person.”59 If somebody is
thinking about someone (or him or herself) as a person, then that activity
increases blood flow in the blood vessels located in a specific location of the
brain—the mPFC—and that, in turn, causes a corresponding reduction in
deoxyhemoglobin, which serves as the endogenous contrasting agent meas-
ured by fMRI equipment. Even more simply, if somebody is hooked up to

      53. Id.
      54. Id. at 848 n.3 (citing D.M. Amodio & C.D. Frith, Meeting of Minds: The Medial
Frontal Cortex and Social Cognition, 7 NATURE REVIEWS NEUROSCIENCE 268, 268-77
(2006); K.N. Ochsner, The ME in MEdial Prefrontal Cortex, Paper presented at the Social-
Cognitive-Affective Neurscience Conference, Princeton, N.J. (May 2005); and ten to fifteen
other studies that space precluded Harris and Fiske from listing but that are available from
the authors upon request).
      55. Id.
      56. Id.
      57. Id. at 848.
      58. Id. (citing, inter alia, C.N. Macrae, T.F. Heatherton & W.M. Kelley, A Self Less
than Ordinary: The Medial Prefrontal Cortex and You, THE COGNITIVE NEUROSCIENCES
1067, 1067-75 (2004)).
      59. Id. at 849.
                           Social Neuroscientific Research                               551

fMRI equipment and thinks about a person as a person, then the fMRI ma-
chine will register activity in a corresponding part of that person’s brain (the
mPFC).
      With this prior research in mind, Harris and Fiske designed a study to
test what would happen when people thought about individuals in the low-
low quadrant—the quadrant eliciting disgust and contempt. They hypothe-
sized that the extreme out-group (the low-low) may not significantly acti-
vate the mPFC of the people who do not view them as human beings, and
that “[t]heir mPFC activation might even be equivalent to that for objects in
the same SCM quadrant.”60 In other words, they sought to test whether peo-
ple in the extreme out-group—those eliciting both disgust and contempt—
would be viewed as human beings, or whether they would be viewed as the
equivalent of objects.
      Using sophisticated fMRI equipment at Princeton’s Center for the
Study of Brain, Mind, and Behavior, Harris and Fiske conducted two stud-
ies with undergraduates at Princeton University.61 They had previously pre-
tested photographs by asking 254 undergraduates to use a five-point scale to
rate which photographs made them feel pride, envy, pity, and disgust, and
the degree to which a photo made them feel that emotion.62 In the two stud-
ies they then conducted in their lab (Study 1 and Study 2), they showed par-
ticipants photographs that they had determined depicted one of the four
quadrants in the Stereotype Content Model.63 As they showed participants
each photo, they used fMRI equipment to monitor the activity in the partici-
pants’ brains while viewing the photos.64
      As hypothesized, “when participants viewed photos of the low-low
social groups,” Harris and Fiske observed a “relative lack of mPFC activa-
tion.”65 In contrast, when participants viewed photos corresponding to one
of the other three quadrants in the Stereotype Content Model, Harris and
Fiske observed mPFC activation.66 In discussing these results, Harris and
Fiske conclude that their “results empirically support the idea of dehumani-
zation” and that such observations “are consistent with verbal reports”—


       60. Id.
       61. For a complete description of their methodology, see Harris & Fiske, Dehuman-
izing, supra note 33, at 849-51.
       62. See Harris & Fiske, Dehumanizing, supra note 33, at 849-51. In addition to
rating the corresponding emotion, Harris and Fiske also asked the undergraduates to rate the
photos “on a number of other characteristics (visual complexity, arousal, aesthetic appeal,
quality of picture, and intensity of expression), so [they] could determine whether the pic-
tures from each quadrant differed from the pictures in the other quadrants in these character-
istics.” Id. at 849.
       63. Id.
       64. Id. at 849-51.
       65. Id. at 852.
       66. Id. at 850-52.
552                           Michigan State Law Review                      Vol. 2011:541

although the “data go[es] beyond verbal reports, which may be subject to
self-presentational concerns.”67
      After analyzing the results of the dehumanization described above,
Harris and Fiske hypothesized that asking participants to infer specific pref-
erences for group members who otherwise elicited disgust may change the
way that the participants thought about those group members.68 The next
section explores their research investigating this hypothesis.

C. Harris and Fiske’s Research Asking Whether a Dehumanized Person
   Likes a Vegetable

       Building on their prior research, Harris and Fiske designed an experi-
ment in which they asked eighteen Princeton University undergraduates “to
infer a vegetable preference (vegetable condition) or to make a categorical
judgment of middle aged or not (age condition).”69 While the participants
were asked to infer one of these two conditions, they were shown a series of
“[s]ixty-four color photographs of both dehumanized and humanized social
group members,” half of which had “been pretested to fall into the low-low
cell of the SCM (homeless people and drug addicts),” while the other half
fell into one of the other three quadrants of the Stereotype Content Model.70
As the participants were shown each photo and asked to determine whether
the subject of the photo was “[o]ver 35? or [l]ikes [v]eggie?” participants
were connected to an fMRI scanning device.71 Their “results essentially
replicated the previous finding of reduced mPFC to actors that elicit dis-
gust,”72 but in addition to replicating that finding, they observed that manip-
ulation of the “social goal of the perceiver can spark mPFC activity to the
social group members who elicit disgust.”73 In other words, participants
were asked to consider whether a group member whom that participant does
not perceive as human—a group member who elicits disgust and is in the

       67. Id. at 852.
       68. Lasana T. Harris & Susan T. Fiske, Social Groups that Elicit Disgust are Differ-
entially Processed in mPFC, 2 SOCIAL COGNITIVE AND AFFECTIVE NEUROSCIENCE 45, 45-51
(2007) [hereinafter Harris & Fiske, Social Groups that Elicit Disgust]; see also Susan T.
Fiske & Steven L. Neuberg, A Continuum Model of Impression Formation, from Category-
based to Individuating Processes: Influence of Information and Motivation on Attention and
Interpretation, 23 ADVANCES IN EXPERIMENTAL PSYCHOLOGY 1 (1990) (detailing research in
the area of individuating processes that preceded Harris’s and Fiske’s later work in this area).
       69. Harris & Fiske, Social Groups that Elicit Disgust, supra note 68, at 47.
       70. Id. (describing complete methodology and procedure).
       71. Id. at 47 & n.6 (describing complete methodology and procedure, including the
process of showing the photos in a series of eight runs of sixteen photos).
       72. Id. at 50.
       73. Id. Harris and Fiske also discussed other findings consistent with their research,
although the finding discussed in the text above was, in their opinion, “[t]he more interesting
result.” Id.
                           Social Neuroscientific Research                              553

“low-low” quadrant of the Stereotype Content Model—likes a certain vege-
table.74 The experiment showed that the act of trying to decide whether that
group member might like a certain vegetable sparked activity in the
mPFC.75 In contrast, asking a participant to consider “categorical” infor-
mation, such as a person’s age, did not spark activity in the mPFC to the
same degree.76
      In discussing the concerns their research raises that should be ad-
dressed in future research, Harris and Fiske caution that “a more precise
understanding of the functional role of the different anatomical areas of
mPFC” is needed.77 They also suggest that future research should more pre-
cisely identify “the exact dimensions along which social group members
low on both warmth and competence are perceived as different.”78 In this
respect, they note that while their research results “provide additional sup-
port for the critical role of social goals in changing perceptions of social
groups for which people feel extreme prejudice,” further research is still
needed.79 Last, they note “that social condition always depends on con-
text.”80
      Following this cautionary note to remain mindful of the context in
which social condition is presented and analyzed, the next section recogniz-
es that Harris and Fiske’s research was not designed to test capital juror
bias, so the legal implications discussed below are necessarily preliminary
and must be explored more deeply through future research.

D. Legal Implications of Harris and Fiske’s Research

       When I first learned of Harris and Fiske’s research, I was struck by
several aspects of their study. The first was that their study empirically doc-
uments differentiated prejudice in a way that remains largely elusive to law-
yers and other laypeople trying to discuss and identify prejudice. In court-
rooms across the country, when attorneys are questioning prospective capi-
tal jurors to determine whether they are able to sit as a juror in a case where
the death penalty is sought, one of the main difficulties is trying to deter-
mine whether a juror is biased in a way that would prevent that juror from
fairly evaluating the evidence they are presented.81 Harris and Fiske’s re-

      74. Id. at 47.
      75. Id. at 50.
      76. Id.
      77. Id.
      78. Id.
      79. Id.
      80. Id.
      81. See, e.g., Andrea Lyon, Naming the Dragon: Litigating Race Issues During a
Death Penalty Trial, 53 DEPAUL L. REV. 1647, 1653-54 (2004) (observing that “[b]ecause of
the range of discretion entrusted to a jury in capital sentencing hearings, there is a unique
554                           Michigan State Law Review                       Vol. 2011:541

search stood out to me because it scientifically shows that some people do,
in fact, harbor such prejudice that they are, roughly speaking, unable to see
a person as even being human.
      One implication of Harris and Fiske’s research for the capital court-
room is that if a juror cannot see the capital defendant as even being human,
such bias would prohibit the juror from fairly evaluating the evidence pre-
sented during the trial. It would also deny the capital defendant due process
of law because it would deny the capital defendant the ability to receive an
individualized assessment about the appropriateness of the death penalty
from that particular juror. If the juror cannot see the defendant as human,
then the juror cannot make a particularized assessment about that person’s
life because the juror does not even view the defendant as a person.
      The second aspect of their research that stood out to me was the par-
ticular group of people who are grouped in the “low-low” category. The
groups of people who elicit such disgust that they are not even viewed as
human are people who were depicted in photographs as being homeless or
drug addicts. Again, in prior research, Fiske had determined that such pho-
tos correlated with strong feelings of low competence and low warmth, and
that the “low-low” quadrant in which such photos fell elicited strong feel-
ings of disgust from participants asked to view the photographs of such
people. What struck me about the fact that the “low-low” group included
people who were homeless and/or drug addicts was that these traits often
correlate with capital defendants.82
      Even when a capital defendant might possess characteristics that fit in-
to a quadrant other than “disgust,” it is interesting to consider how the fact
that the capital defendant is charged with killing somebody—and the al-


opportunity for racial prejudice to operate but remain undetected,” that “[m]ore subtle, less
consciously held racial attitudes could also influence a juror’s decision,” and that “[t]he issue
of racial discrimination in the selection of juries and the venire from which they are chosen
has been difficult for the courts to grapple with”).
       82. See, e.g., Craig Haney, Condemning the Other in Death Penalty Trials: Bio-
graphical Racism, Structural Mitigation, and the Empathic Divide, 53 DEPAUL L. REV. 1557,
1573-74 n.61, n.63 (2004) [hereinafter Haney, Condemning the Other] (discussing and col-
lecting autobiographic and ethnographic accounts of the lives of African-American capital
defendants). Indeed, few of the traits of people grouped in the other three quadrants correlate
with any traits generally belonging to capital defendants. See Fiske, Cuddy, Glick & Xu,
supra note 36. The groups of people located in the low competence/high warmth “pity”
quadrant are elderly people or disabled people, and few capital defendants are elderly or
disabled in the way this quadrant depicts disabled people. Id. Similarly, the “envy” high
competence/low warmth quadrant associated with rich people or business professionals does
not describe the vast majority of capital defendants, although people with those traits do
occasionally face capital murder charges. Id. And in the fourth quadrant, the middle-class
Americans or the American Olympic athletes who correlate with the high competence/high
warmth “pride” category does not describe characteristics of many capital defendants either.
Id.
                          Social Neuroscientific Research                             555

leged circumstances of that killing—might alter the emotion that would
otherwise be associated with that person. For example, consider Casey An-
thony again. The media portrayed Anthony as middle-class,83 a trait that
may have elicited feelings of high competence/high warmth and “pride” if
research participants were asked what emotion they felt when observing a
photo of Anthony. Now consider the fact that Anthony was charged with
killing her two-year-old daughter, not telling the authorities her daughter
was dead, then engaging in wild parties and “hot body” contests—captured
in dozens of photos for all the world to see—for the first thirty days after
her daughter’s death.84 It is difficult to imagine Anthony continuing to elicit
feelings of pride and high competence/high warmth after a juror learns such
information through either the media (pre-trial) or the prosecution (during
trial).85 Indeed, in closing arguments at Anthony’s trial, her own attorney
referenced the prosecution’s portrayal of her “as a lying slut,”86 and the ju-
rors disclosed to the media that they felt “sick to their stomach” after reach-
ing their verdict.87 Moreover, the concern for Anthony’s safety following
her release from jail provides further evidence of her placement in the “low-
low” quadrant.88
       Similarly, consider the other capital defendant the introduction to this
Article discussed: Vincent (Vinny Gorgeous) Basciano. His high-ranking
membership in the Bonanno crime family might bring with it “rich” conno-

       83. For example, the trial testimony that the media conveyed regarding the family
swimming pool and access to that pool assumed a middle-class, if not an upper middle-class,
household wherein a household swimming pool was a regular occurrence, albeit that in Flor-
ida many middle-class homes have swimming pools. See, e.g., Steve Helling, Cindy Antho-
ny: Caylee Could Climb into Pool by Herself, PEOPLE MAGAZINE, June 24, 2011,
http://www.people.com/people/article/0,,20505231,00.html.
       84. Ashleigh Banfield & Jessica Hopper, Casey Anthony Trial: Former Boyfriend
Describes Casey Anthony Romance, ABC NEWS, May 25, 2011, http://abcnews.go.com/
US/casey-anthony-trial-tony-lazzaro-describes-romance-caylee/story?id=13682814 (summa-
rizing prosecution witness testimony at Anthony’s trial that “Casey Anthony moved in with
her boyfriend and his roommates in the month that her daughter Caylee vanished, partying
with them, even competing in a hot body contest, while telling them Caylee was at Disney
World and a beach with her babysitter”).
       85. Id. (summarizing prosecution witness testimony).
       86. See, e.g., Casey Anthony Trial: Attorney Calls Her A Slut, WTSP.com, July 4,
2011, http://www.wtsp.com/news/article/199650/250/Caseys-attorney-calls-her-a-slut.
       87. Jennifer Ford, who was Juror Number 3 in the Anthony trial, told ABC News
that the jurors were “sick to their stomachs” after reaching a verdict. See Anthony Juror:
‘Sick to Our Stomach’ over Verdict, MSNBC NEWS, July 6, 2011,
http://www.msnbc.msn.com/id/43651613/ns/us_news-crime_and_courts/t/anthony-juror-
sick-our-stomach-over-verdict.
       88. See Local Attorney Gives Assessment of the Casey Anthony Verdict, WBEZ91.5,
July 6, 2011, http://www.wbez.org/episode-segments/2011-07-06/local-attorney-gives-
assessment-casey-anthony-verdict-88777 (interviewing Andrea Lyon, former attorney for
Casey Anthony, who expressed her concern for Anthony’s safety once she was released from
jail).
556                         Michigan State Law Review                   Vol. 2011:541

tations, which typically elicit feelings of envy associated with high compe-
tence and low warmth. But even if Basciano is not perceived as rich, the
fact that he owned a well-known beauty salon could place him in the “busi-
ness professionals” category, which is also associated with high compe-
tence/low warmth and envy. Despite seeming to place squarely in the envy
quadrant, the fact that Basciano participated in numerous killings compli-
cates the degree to which he might remain in the envy quadrant when jurors
are told such information about him, or whether information about the kill-
ings in which he was alleged to have participated would thrust him into the
“low-low” disgust quadrant.
      Theorizing the Stereotype Content Model categories89 of well publi-
cized capital defendants, such as Anthony and Basciano, illustrates the pos-
sible difficulty that capital defendants face by the nature of their charges
alone, even if the defendants themselves, absent their capital charges, would
place in a category other than “low-low.” When one considers the fact that
capital defendants are not generally rich or middle-class business people,
but are, instead, more often low-income or homeless drug addicts, one un-
derstands the uphill battle that such capital defendants face. They quite pos-
sibly begin their trial in the “low-low” disgust quadrant, and may then sink
even lower into that quadrant by virtue of their pending capital charges. As
Harris and Fiske cautioned, “social condition always depends on context.”90
      Other social science research has documented similar uphill battles in
capital defense litigation. The next section highlights aspects of other social
scientific research to show the range of biases in capital litigation that such
research has already revealed, and how social neuroscientific research may
deepen our understanding of the existing social science research.

E. Examples of Other Social Scientific Research Revealing Biases in Capi-
   tal Litigation

      While Harris and Fiske’s social neuroscientific research may hold
great promise for helping attorneys and judges better understand the biases
that some capital jurors harbor, Harris and Fiske’s research was not de-
signed to explore the biases of capital jurors. This section, therefore, briefly
reviews some specific social scientific research that was designed to exam-
ine biases and limitations of capital jurors.91 While this discussion does not

      89. See Susan T. Fiske, A.J. Cuddy, P. Glick & J. Xu, A Model of (Often Mixed)
Stereotype Content: Competence and Warmth Respectively Follow From Perceived Status
and Competition, 82 J. PERSONALITY & SOC. PSYCHOL. 878 (2002).
      90. Harris & Fiske, Social Groups that Elicit Disgust, supra note 68, at 50.
      91. For a comprehensive review of social science research relevant to evolving
standards of death penalty law, see Phoebe C. Ellsworth & Samuel R. Gross, Social Science
and the Evolving Standards of Death Penalty Law, in BEYOND COMMON SENSE:
PSYCHOLOGICAL SCIENCE IN THE COURTROOM 238 (Borgida & Fiske eds., 2008) (discussing
                           Social Neuroscientific Research                                557

exhaustively outline the vast array of social science research conducted in
this area, outlining some different approaches to research in this area shows
the varied and textured road that prior social science research has begun to
pave.
      Professor Craig Haney has collaborated with numerous researchers to
produce a rich and expansive portfolio of social science research exploring
the “empathic divide” that he identified and named.92 Much of this research
is discussed in great detail in his book Death by Design, which draws
“heavily on that research and writing, updating and in some instances ex-
panding the scope of some of those earlier analyses.”93 Although Death by
Design brings together and, in some cases, expands the scope of his earlier
research, it also makes “a series of interconnections between various indi-
vidual pieces of research and relate[s] them to the larger system of death
sentencing of which they are a part.”94 While the range of research and his
analysis of that research are too expansive to document here, his book is a
tremendous resource for social scientists and legal scholars alike. In the
chapter entitled “Race, Mitigation, and the Empathic Divide,” for example,
Haney explains the research he has conducted in this area, analyzes it, and
then concludes that “[i]nstead of correcting the problematic effects of the
biases introduced into this process at earlier stages, our system of death sen-
tencing either ignores or proactively compounds them at subsequent stages.
In the end, less reliable and less fair outcomes are the predictable result.”95
      Another approach to understanding the biases that exist in capital ju-
ries is that undertaken by Professor Phoebe Ellsworth, who has published
widely on the subjects of person perception and emotion, public opinion,
and the death penalty. An early example of Ellsworth’s research is an exper-
imental study she conducted in which subjects were asked to render verdicts
in real or simulated cases.96 “Half of the juries were composed exclusively

social science research relevant to public acceptance of capital punishment, deterrence, and
arbitrariness and discrimination, the latter of which includes discussion of jury instructions,
predicting dangerousness, racial discrimination, and death qualification).
       92. Much of Haney’s work is discussed throughout this article and cited in footnotes
throughout the article. See, e.g., Haney, Evolving Standards of Decency, supra note 6;
HANEY, DEATH BY DESIGN, supra note 8; Haney, Condemning the Other, supra note 82;
(collecting and discussing numerous prior research studies he has conducted by himself and
in conjunction with other researchers).
       93. HANEY, DEATH BY DESIGN, supra note 8, at x.
       94. Id.
       95. Id. at 209.
       96. Claudia L. Cowan, William C. Thompson & Phoebe C. Ellsworth, The Effects of
Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation,
8 LAW AND HUMAN BEHAVIOR 53 (1984). In this article, the authors review the then-existing
literature on death qualification and conviction-proneness. Id. at 55-59. They also observe
that another research approach “is to demonstrate that attitudes toward the death penalty are
correlated with attitudes more closely related to the jurors’ perceptions of the guilt or inno-
558                           Michigan State Law Review                       Vol. 2011:541

of death-qualified jurors,” while “[t]he remaining [jurors] comprised a ma-
jority of death-qualified jurors, but also included two to four jurors who
would be excluded under current law because of their views on capital pun-
ishment.”97 The results of this study included the finding that death-qualified
juries are more likely to convict.98 This result added to existing social sci-
ence research that had produced the same finding, and it developed that
body of research in several ways: the videotaped trial was “more involving”
than the materials used in nearly every other experiment;99 the study “de-
termined that the differences persisted after an hour’s deliberation”;100 the
excludable jurors were carefully delineated;101 and the study “determined
that the differences between the two groups were in fact due to their exclud-
able vs. qualified status, and not to any differences in background variables
or other biases in the sample.”102 Indeed, two years after this study was pub-
lished, the Supreme Court reviewed this research along with fourteen other
empirical studies in order to examine the allegation of death-qualified jury
bias in Lockhart v. McCree.103 The study authored by Cowan, Thompson,
and Ellsworth was the only study that the Court did not discard,104 but the
Court was nonetheless unwilling to base its constitutional decision on a
“lone study.”105
      A final, although not exhaustive, example of the various kinds of so-
cial science research specifically designed to explore jury bias in capital
sentencing is the work of Professor Jennifer L. Eberhardt, whose research
focuses on stereotyping, prejudice, and stigma, with a special focus on the
link between racial stereotyping and racial classification.106 In a recent co-


cence of the capital defendants,” an approach which Fitzgerald and Ellsworth review in
another article in the same issue. Id. at 55.
       97. Id. at 61; see also Witherspoon v. Illinois, 391 U.S. 510 (1968) (the case from
which the term “Witherspoon-excludables” derives).
       98. Cowan et al., supra note 96, at 74 (also including a discussion of other effects
related to the loss of diversity on the jury).
       99. Id. (noting “the probable exception to Zeisel’s real trials”).
      100. Id. at 74-75.
      101. Id. (explaining that the “definition of the Witherspoon excludable group was
more careful than any previous classifications, in that [they] restricted [their] sample to those
jurors who would be eligible to serve but for their attitudes toward the death penalty”).
      102. Id.
      103. 476 U.S. 162 (1986); see also Ellsworth & Gross, supra note 91, at 253 (discuss-
ing Lockhart and the Court’s discussion of the empirical evidence).
      104. Lockhart, 476 U.S. at 173; see also Ellsworth & Gross, supra note 91, at 253
(discussing Court’s reasoning in Lockhart).
      105. Lockhart, 476 U.S. at 173; see also Ellsworth & Gross, supra note 91, at 253
(discussing Lockhart and the Court’s discussion of the empirical evidence and noting the
discussion in Justice Marshall’s dissent about convergent validity).
      106. See, e.g., Jennifer L. Eberhart, Paul G. Davies, Valerie J. Purdie-Vaughns &
Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants
                         Social Neuroscientific Research                           559

authored study, Eberhardt et al. used the data set that Baldus and his col-
leagues compiled for a study published in 1998,107 which Eberhardt de-
scribes as “one of the most comprehensive studies to date” of the role that
race factors into capital punishment decisions through the race of the victim
and, to a lesser extent, through the race of the defendant.108 Eberhardt et al.
used the Baldus data set “to investigate whether the probability of receiving
the death penalty is significantly influenced by the degree to which the de-
fendant is perceived to have a stereotypically Black appearance (e.g., broad
nose, thick lips, dark skin).”109 They did this by conducting their research in
two phases, both drawing from the more than 600 death-eligible cases from
Philadelphia that were part of the Baldus data set.110 In the first phase, they
examined black defendants who had been convicted of murdering white
victims by obtaining the photographs of all forty-four such defendants in the
data set; in the second phase, they examined black defendants who had been
convicted of killing black victims by randomly selecting 118 of the 308
such cases in the data set.111 Their “results confirmed that, above and be-
yond the effects of the covariates, defendants whose appearance was per-
ceived as more stereotypically Black were more likely to receive a death
sentence than defendants whose appearance was perceived as less stereo-
typically Black.”112 Conversely, they “found that the perceived
stereotypicality of Black defendants convicted of murdering Black victims
did not predict death sentencing.”113 In discussing these results, Eberhardt et
al. observe that these “findings augment and complicate the current body of
evidence regarding the role of race in capital sentencing.”114
      Indeed, the research discussed above is but a small sample of a rich
body of social science evidence augmenting and complicating the intersec-
tion of bias and capital juror decision making. In order to discuss the possi-
ble implications drawn from the confluence of such research and the emerg-
ing field of social neuroscientific research, Section II shifts the focus from a
social science lens to a legal lens in order to understand the empathic divide
within its legal construct.


Predicts Capital-Sentencing Outcomes, 17 PSYCHOL. SCI. 383, 383-86 (2006) [hereinafter
Eberhardt et al., Looking Deathworthy].
    107. David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner &
Barbara Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An
Empirical and Legal Overview with Recent Findings from Philadelphia, 83 CORNELL L. REV.
1638 (1998).
    108. Eberhardt et al., Looking Deathworthy, supra note 106, at 383.
    109. Id.
    110. Id. at 383-84.
    111. Id.
    112. Id. at 384 (discussing results).
    113. Id. at 384-85 (discussing results).
    114. Id. at 385 (discussing results).
560                           Michigan State Law Review                      Vol. 2011:541

         II. VIEWING THE EMPATHIC DIVIDE THROUGH A LEGAL LENS

       This section highlights legal scholarship regarding the intersection of
empathy and capital jurors. This brief and necessarily incomplete overview
provides a context in which to begin to consider what social neuroscience
might add to the current legal discussion regarding the empathic divide be-
tween capital jurors and capital defendants.
       Within legal scholarship, the discussion of empathy and capital jurors
takes many forms. One approach analyzes interviews conducted with jurors
who presided over actual capital cases, such as Professor Scott Sundby’s
research studying the responses of California jurors interviewed as part of
the Capital Jury Project.115 Sundby’s article approaches the question of juror
empathy by examining whether jurors “make distinctions between ‘worthy’
and ‘unworthy’ victims in deciding whether to impose a death sentence.”116
He finds that “at least to the extent that the evidence pertains to the victim’s
actions leading up to the crime,”117 if a capital defendant appears to random-
ly choose a victim, jurors appear to be more tilted toward death.118 Con-
versely, if a jury believes a victim “engaged in high-risk or antisocial behav-
ior leading up to the crime,”119 the victim invokes less of an empathic re-
sponse from the jury, and this, “in turn, appears to make the jury less in-
clined to impose a death sentence.”120 While focusing on the jury’s empathy
toward the victims in capital crimes, Sundby emphasizes that “a highly
complex interaction of factors”121 likely influence capital jurors’ decisions.
However, he does not suggest that “jury empathy with the victim can fully
explain the outcome of any one case or even any one juror’s decision.”122
       Rather than analyzing the jurors’ attitudes toward the defendant in this
article, Sundby approaches that task through a full-length book that focuses
on a single capital murder case and the jurors who decided the defendant’s
fate.123 Through his sustained book analysis based on trial transcripts, jurors’
interviews, and media reports, Sundby unweaves some of the complex in-

     115. Scott E. Sundby, The Capital Jury and Empathy: The Problem of Worthy and
Unworthy Victims, 88 CORNELL L. REV. 343, 345 n.6 (2003) (explaining the database on
which Sundby based his analysis). For a complete explanation of the methodology of the
Capital Jury Project and for an overview of its significant findings, see the Capital Jury Pro-
ject website, located at the School of Criminal Justice at the University of Albany, State
University of New York, http://www.albany.edu/scj/13192.php (last visited Nov. 1, 2011).
     116. Sundby, supra note 115, at 345.
     117. Id. at 375.
     118. Id.
     119. Id.
     120. Id.
     121. Id. at 374.
     122. Id.
     123. SCOTT E. SUNDBY, A LIFE AND DEATH DECISION: A JURY WEIGHS THE DEATH
PENALTY (2005).
                           Social Neuroscientific Research                                 561

teraction of factors that influenced this particular jury—including, but not
limited to, the role that empathy toward the defendant played in their deci-
sion-making process.
       Another prolific legal scholar writing about empathy and capital jurors
is Professor Susan Bandes, whose work includes an analysis of jurors’ em-
pathy toward victims.124 Through careful engagement with Supreme Court
jurisprudence and legal scholarship on the law of emotions, Bandes con-
cludes that the Court’s death penalty jurisprudence “dehumanizes the de-
fendant in order to more easily cast him out of the human community.”125
She urges the legal community to understand the value-laden role that story-
telling and empathy serve in capital trials, especially as they impact the ju-
ry’s decision of “whether every human being is entitled to some dignity.”126
       Another legal scholar also drawing on the database of jury interviews
collected by the Capital Jury Project as a basis for his scholarship is Profes-
sor Stephen P. Garvey.127 In contrast to Sundby’s analysis of California ju-
rors,128 Garvey focuses on South Carolina and takes a different approach to
the question of jury empathy and capital sentencing.129 Garvey analyzes
what he calls the “emotional economy of capital sentencing” to explore
whether juror empathy toward capital defendants means that a juror is more
likely to sentence that defendant to life imprisonment rather than to death.130
He concludes that “[j]urors respond to the defendant with a wide range of
emotions, but the dominant response is pity or sympathy, no matter what

     124. See, e.g., Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63
U. CHI. L. REV. 361 (1996).
     125. Id. at 412.
     126. Id. Indeed, Bandes has written extensively on the law of emotions, including an
anthology of essays she edited in a book entitled, THE PASSIONS OF LAW (Susan A. Bandes
ed., 1999); see also Laura E. Little, Negotiating the Tangle of Law and Emotion, 86
CORNELL L. REV. 974 (2001) (reviewing Bandes’ book and analyzing both its contributions
and shortcomings); Susan A. Bandes, Repellent Crimes and Rational Deliberation: Emotion
and the Death Penalty, 33 VT. L. REV. 489, 511-18 (2009) (including a subsection focusing
on “[t]he [e]motional [l]andscape of the [c]apital [s]ystem,” in which Bandes discusses the
empathic divide in capital trials and concludes that “[t]here is substantial research to be done
on the emotional dynamics of judging, prosecuting, and defending capital crime”).
     127. See Stephen P. Garvey, The Emotional Economy of Capital Sentencing, 75
N.Y.U. L. REV. 26 (2000).
     128. See Sundby, supra note 115.
     129. Garvey, supra note 127, at 28 (explaining that the CJP’s South Carolina segment
has “yielded the most extensive set of data of all of the states participating in the CJP”).
     130. Id. at 26-27.
     The theory is simple. When a juror empathizes with a capital defendant, she is less
     likely to condemn him to death and more likely to sentence him to life imprison-
     ment. But the capital sentencing process systematically distances jurors from de-
     fendants, making empathy difficult, if not impossible. The result is a dispropor-
     tionate number of death sentences. That’s the theory. . . . But is it true? . . . I at-
     tempt here to answer these questions.
Id.
562                            Michigan State Law Review                       Vol. 2011:541

sentence the jury finally imposes.”131 Garvey, therefore, observes that “[t]he
prevailing academic wisdom is thus mistaken inasmuch as it depicts capital
jurors as devoid of any fellow-feeling toward the defendant.”132 While such
a conclusion may seem to directly contradict this Article’s hypothesis that
social neuroscience has the potential to shed additional light on the degree
to which dehumanization factors into capital jurors’ assessments of the de-
fendant, Garvey qualifies his conclusion by stating that “[e]mpathy is in-
deed a comparatively scarce commodity in the emotional economy of capi-
tal sentencing.”133 Garvey then observes that “[c]apital jurors also experi-
ence less generous emotions, not least of which are anger, disgust, and
fear.”134 To this end, Garvey ultimately concludes that “perhaps the greatest
challenge to empathy comes not from any defect in the existing structure of
capital sentencing—although many such defects exist—but from these
darker emotions, which arise [] in reaction to the defendant’s crime and the
defendant himself.”135
       Amidst the legal scholarship discussing empathy and capital jurors,
Professor O. Carter Snead analyzes the intersection of cognitive neurosci-
ence and criminal law.136 While Snead’s work examines “the deep connec-
tions between memory and the foundational distributive principles of pun-
ishment” and, thus, does not speak directly to the role of empathy in capital
trials within his analysis of retributive justice, Snead touches briefly on the
role of empathy in capital sentencing.137 Snead’s observations include the
analysis that:
      Fairly appraising the mitigating and aggravating factors relevant to a defendant’s
      culpability involves not merely cold, rational analysis of the jurors. It is a calculus
      that includes emotional faculties as well—ranging from the capacity for righteous
      indignation, on the one hand, to the ability to empathize, on the other.138

      Snead then continues by stating that “a well-ordered sense of empathy
is necessary to fairly appraise mitigating evidence.”139 While Snead does not


    131. Id. at 67.
    132. Id.
    133. Id.
    134. Id.
    135. Id.
    136. O. Carter Snead, Memory and Punishment, 64 VAND. L. REV. 1195, 1196
(2011).
    137. Id. at 1246-51, 1264.
    138. Id. at 1250.
    139. Id. Snead further states that
    [t]he juror in this instance is called upon to discern whether taking into account the
    “diverse frailities of humankind” manifest in this particular defendant, a propor-
    tionate response is a sentence less than death. This process invariably requires the
    exercise of moral sentiment and placing oneself in the position of the other to be
    judged. . . . Conversely, the feeling and expression of remorse by the defendant—
                           Social Neuroscientific Research                                  563

answer how or even whether this “well-ordered sense of empathy” is possi-
ble, because his main focus is to examine the connection between memory
and punishment, he concludes his overall argument by summarizing that
“new neurobiological techniques for the modification of memory pose, in
principle, serious challenges for the just and effective distribution of pun-
ishment under all of the dominant theoretical approaches.”140
      While Snead’s brief discussion of empathy and capital jurors is situat-
ed within his larger overview of developments in neuroscience prompting
scholarly debate in criminal law, Professor Henry T. Greely discusses key
areas that are emerging within the field of law and neuroscience.141 Greely
observes that neuroscientific research focusing on correlations between
brain activation and bias may hold interesting promise for new ways of un-
derstanding juror bias.142 He notes that the Sixth Amendment’s guarantee of
an “impartial jury” is, at this point, only guaranteed through the removal of
prospective jurors who express bias or who have an open history of bias,
even though “we all suspect that sometimes people are biased and will not
admit it.”143 Greely asks what would happen if “we could look into some-
body’s brain and decide whether they [sic] were biased against a particular
defendant?”144 He then provocatively imagines a:
     “[N]euro-voir dire,” where potential jurors are put in a scanner and shown images
     relevant to a possible bias in the case—a bias against African-Americans, against
     men, against Catholics, against the police, or whatever other category might be rel-
     evant to the particular case. Their brains’ reactions could then be examined for
     signs of bias.145

While Greely discusses this thought experiment only briefly, as part of a
survey of different emerging areas within neuroscience and the law, he con-
cludes his quick overview of this particular area by observing that while
neuroimaging is not yet able to “read minds reliably” in the area of bias,


      part and parcel of an authentic and effective mitigation claim—requires moral sen-
      sitivity and empathy for the victim.
Id. at 1250-51.
      140. Id. at 1250, 1264.
      141. Most recently, Greely provided an overview of the field of law and neuroscience
in a keynote address given at the University of Akron School of Law’s Neuroscience, Law &
Government Symposium, which was transcribed and published as Law and the Revolution in
Neuroscience: An Early Look at the Field, 42 AKRON L. REV. 687 (2009). In addition to this
article, Greely has published two other articles overviewing emerging issues in law and
neuroscience, although Greely noted that he preferred “the organization [of the keynote
address] to that of the earlier discussions.” Id. at 687 n.1 (mentioning two other articles that
Greely authored).
      142. Id. at 697-98.
      143. Id. at 697.
      144. Id.
      145. Id.
564                            Michigan State Law Review                      Vol. 2011:541

“[t]hat may soon change,” and that society and the legal system will have to
decide whether, when, and how to use this kind of “mind reading.”146
       Professors Kathryn Abrams and Hila Keren have provided an even
more recent survey of the scholarship of law and neuroscience, summariz-
ing that the “main discussions circle the themes of criminal responsibility of
mentally ill, brain-damaged, or psychopathic adults and juveniles, the chal-
lenge posed by neuroscience research to the notion of free will, and the role
of lie detection and other neuroscience technologies in the courtroom.”147
While noting that law and neuroscience scholars such as Hank Greely have
“begun the arduous task of mapping the possible intersections of law and
knowledge that arise from brain research,”148 Abrams and Keren underscore
that neuroscience is a “burgeoning field”149 and that “law and neuroscience
is still at the early stages of being defined by its own participants.”150
       Because the purpose of summarizing the legal scholarship above is to
overview some of the areas in which the legal discussions of empathy and
capital jurors are currently situated, one last approach warrants review be-
fore turning to the last section’s focus on possibilities for future research.
That final approach is introduced by Alycee Lane, who argues that the:
      [D]iscourse on mitigation—the plethora of scholarly journal articles, capital de-
      fense manuals, and other texts that address capital defense mitigation—presents as
      if unproblematic with regard to racism and racial subordination, a narrative in
      which the black defendant’s family figures as a significant, if not central, explana-
      tion for the defendant’s behavior and circumstances.151

Lane’s article analyzes the discourse of court opinions and the research of a
variety of scholars in order to make a variety of conclusions, including her
observation that even though she critiques the use of “racial stereotypes of
black families and mitigating narratives of family dysfunction, this critical
fact remains: black capital defendants by and large have suffered abuse,
neglect, and deprivation at the hands of their parents and other family mem-
bers.”152 Lane acknowledges that “[t]elling their story, and understanding
how their crime connects with that story, is an absolutely critical undertak-
ing, if for no other reason than to give voice to the suffering defendants
have endured.”153 At the same time, Lane remains concerned that “[t]he like-
lihood that white jurors do indeed trade on stereotypes of black families is

    146. Id. at 699.
    147. Kathryn Abrams & Hila Keren, Who’s Afraid of Law and the Emotions?, 94
MINN. L. REV. 1997, 2021-22 (2010).
    148. Id. at 2023 (collecting articles).
    149. Id. at 2021.
    150. Id. at 2024.
    151. Alycee Lane, “Hang Them If They Have to Be Hung”: Mitigation Discourse,
Black Families, and Racial Stereotypes, 12 NEW CRIM. L. REV. 171, 172 (2009).
    152. Id. at 202 (emphasis omitted).
    153. Id.
                           Social Neuroscientific Research                               565

yet another example of how impossible it is to control juror discretion and
ensure that a black defendant is fairly tried and convicted.”154 She concludes
by observing that “[s]tereotypes about black families negate individualized
consideration” and that this, in turn, may prohibit jurors from possessing the
empathy that is required in order to “fairly judge a black capital defendant’s
life.”155
       The legal scholars whose work is featured above represent a mere tip
of the iceberg. While not an exhaustive survey of existing legal scholarship
at the intersection of empathy and capital juror decision-making, their work
represents some of the distinct and varied approaches with which legal
scholars have approached this area of research. The final section of this Ar-
ticle now turns to an analysis of future areas of research, building on the
foundational work of legal and social science scholars and suggesting pos-
sibilities for future research within the area of social neuroscience.

                    III. POSSIBILITIES FOR FUTURE RESEARCH

       This Article has explored ways in which Harris and Fiske’s social
neuroscientific de-humanization research may help lawyers better under-
stand the empathic divide that exists between capital jurors and capital de-
fendants. While Harris and Fiske’s research was not designed to explore the
biases of capital jurors, this Article has also highlighted a range of social
science research that has revealed an array of biases and misunderstandings
that are present in capital litigation. Analyzing both the social
neuroscientific and other social scientific research in light of the legal litera-
ture on empathy, jury selection, and jury instructions in capital trials has
suggested that the confluence of social scientific research and legal research
has much to say about the inherent limitations and prejudices within capital
litigation.
       One possibility for future research is to design a social neuroscientific
experiment that tests the public’s perception of different crimes and where
participants locate each crime within the Stereotype Content Model.156
While such a study is easy to conceptualize as a basic idea, the specific way
in which participants would be asked about different crimes is more difficult
than it first appears. One way to design such a study would be to ask partic-

     154. Id. at 204.
     155. Id.
     156. Cf. Fiske et al., supra note 36, at 884 (describing the use of surveys to plot atti-
tudes within a SCM space). In fact, Sarah Chehrehsa, an undergraduate researcher working
with Susan T. Fiske and Lasana Harris, has already undertaken research locating crimes in
the SCM space as part of a junior paper at Princeton University in the spring of 2011. She is
currently pursuing this topic for her senior thesis, including the links of crime to distinct
outgroups. Professor Susan Fiske presented some very preliminary findings from
Chehrehsa’s research at Washington University School of Law on March 25, 2011.
566                     Michigan State Law Review              Vol. 2011:541

ipants about crimes by simply using the names of the crimes themselves,
absent a human face with which to associate the crime. The most basic
study in this regard would survey participants’ reactions to general catego-
ries of crimes without disaggregating levels or degrees of severity within the
basic crime categories: rape, murder, assault, child abuse, robbery, and drug
crimes could be some generic crime categories that could be used for this
purpose.
      In reviewing the results of such a study, however, it would be interest-
ing to know what kind of murder or what kind of rape the participant had in
mind when placing that particular crime in a certain quadrant on the Stereo-
type Content Model. For example, when the participant read the word
“rape,” did the participant conceptualize only forcible, nonconsensual sex,
or was the participant thinking about statutory rape (such as a 16-year-old
prosecuted with having consensual sex with his 14-year-old girlfriend)?
Such information could be gathered by asking the participant to write or
verbally explain the participant’s own definition of the crime after each
word or after the entire experiment is completed.
      Another way to test what kind of rape or what kind of murder the par-
ticipant had in mind when the participant heard or saw the word “rape” or
“murder”—and whether the participant processes various kinds of rape or
various kinds of murder the same or differently—would be to provide an
array of crimes and different severities of crimes within each criminal cate-
gory. For example, instead of simply testing “rape,” the study might test
forcible and nonconsensual intercourse, statutory rape, and sexual assault.
Instead of “murder,” the study might test various degrees of murder charges,
including capital murder, first-degree murder, second-degree murder, volun-
tary manslaughter, and involuntary manslaughter. Similarly, rather than
testing “assault,” the study might ask participants about assault with a dead-
ly weapon, assault causing injury, domestic assault, and basic assault. In-
stead of “child abuse,” the study might ask about child molestation, child
rape, and child endangerment. Questions probing participants’ assessment
of robbery might also include questions about theft, burglary, and embez-
zlement, and questions about drug offenses might specify drug possession,
drug manufacturing, or drug distribution.
      In composing this list of more specific charges within each category of
crimes, however, the difficulty of ensuring that participants understand each
specific crime becomes evident. Would most participants understand the
difference between “voluntary” and “involuntary” manslaughter without a
definition of each crime? And what is the difference between “child abuse”
and “child molestation”—in what ways do those crimes overlap and in what
ways are they distinct? To address this potential confusion, the study could
provide the names of the offenses along with statutory definitions of the
offenses (or even better, paraphrased statutory definitions of those offenses
in layperson terms). While statutory definitions of offenses vary across dif-
                       Social Neuroscientific Research                      567

ferent jurisdictions, the definitions could be kept as generic as possible in
order to approximate as many different jurisdictions as possible.
       In lieu of statutory definitions or even paraphrases of statutory defini-
tions, another way to test participants’ reactions to different kinds of crimes
is to provide a brief narrative description of the crime without actually nam-
ing the crime. For example, while the first study might test participants’
reactions to the phrase “drug manufacturing,” another study might have
participants read a short description that said, “John makes crack cocaine in
his kitchen by heating powder cocaine with baking soda until it becomes
crack cocaine. Both powder cocaine and crack cocaine are illegal drugs.”
Such a description accurately describes the crime of “drug manufacturing”
without the encumbrances of statutory language. At the same time, describ-
ing the crime of drug manufacturing in this narrative fashion underscores
yet another difficulty inherent in the design of such research. Even if the
reality does not coincide with the stereotype, “crack cocaine” is often asso-
ciated with African-American users and “powder cocaine” is often associat-
ed with white users. As a result, a narrative question regarding “crack co-
caine” might implicitly introduce a race-of-the-defendant component into
the question without intending to do so. Of course, the narrative could spec-
ify the race of the defendant (or even ask the same question at different
times during the same experiment or through different experiments by
changing the race of the defendant while keeping the other parts of the nar-
rative consistent), but the fact remains that in designing an experiment that
tests the perceptions of different crimes and which crimes elicit “disgust” in
the Stereotype Content Model, the experiment design must be mindful of
the ways in which it implicitly or explicitly introduces race.
       In short, the initial research design could test such aspects as partici-
pants’ reactions to different kinds of crimes involving the names of crimes
alone, the statutory definitions of criminal offenses, narrative explanations
of criminal offenses, or some combination of these methods. Regardless of
the initial study design, an important follow-up study would then examine
various combinations of crimes in order to examine more specifically how
this initial study factors into death penalty litigation. This follow-up exper-
iment would examine participants’ reactions to defendants who are charged
with capital crimes and who have also—at some point in their lives (not
necessarily concurrently with the capital crime for which they are
charged)—participated in other crimes. Examining the effect of the combi-
nation of capital crimes with other crimes (such as those detailed above)
would loosely equate with evidence proffered by the prosecution in the sen-
tencing phase of the capital trial, which the prosecution would offer in sup-
port of asking the jury to impose the death penalty. If social neuroscientific
research revealed that the combination of being charged with a capital crime
and specific other crimes elicited “disgust” from participants such that the
participants could not see the defendant as human, such a finding would be
568                           Michigan State Law Review         Vol. 2011:541

significant evidence that a capital defendant cannot receive due process of
law in such a circumstance.
      Two other variations of this follow-up study would be to examine (1)
where the combination of being charged with a capital offense and having
other crimes committed against the defendant (i.e., crimes in which the de-
fendant was a victim, not a perpetrator) places the capital defendant within
the Stereotype Content Model quadrants; and (2) where the combination of
being charged with a capital offense, committing other crimes, and also
having other crimes committed against the defendant places the capital de-
fendant within the Stereotype Content Model quadrants. As discussed
above, social science research and legal scholarship have already explored
how evidence offered by the defendant in mitigation is not always under-
stood by jurors as mitigating evidence; rather, it is often viewed as aggravat-
ing evidence, or reasons to sentence the defendant to death, even though
defense counsel introduced the evidence because defense counsel thought it
would mitigate against capital punishment rather than invite it.157
      Using social neuroscientific research to examine how participants
view such combinations of crimes would provide important insight in the
effectiveness of the current system of aggravating and mitigating evidence.
Social neuroscientific evidence has the potential to go beyond current legal
and social scientific scholarship by showing not only that jurors do not con-
sider specific evidence in support of mitigation, but that certain combina-
tions of crimes result in stripping the defendant of being perceived as a per-
son. If the hypothesis is true that certain combinations of offenses (whether
those offenses are perpetrated by the defendant or whether the defendant has
been victimized, in addition to being charged with capital murder) result in
stripping the defendant’s humanity from the defendant, then such research
may in turn suggest that capital defendants cannot receive due process be-
cause it is not possible to evaluate factors offered in support of whether a
capital defendant should live or die when the juror, who is evaluating such
factors, does not even view the defendant as a person.
      While dozens of follow-up studies and variations of the above-
suggested studies are possible, at least one other suggestion for future re-
search warrants exposition here. That future research would examine
whether mitigating evidence can serve a similar function as the vegetables
served in Harris and Fiske’s research. If initial findings applying Harris and
Fiske’s social neuroscientific research to the capital context disclose similar
de-humanization effects as Harris and Fiske have found in the non-capital
context, then an interesting follow-up would be to ask participants to con-
sider specific kinds of mitigating evidence vis-à-vis the dehumanized person
and see what effect, if any, that specific mitigating evidence has. One might

      157.   See supra Part II.
                        Social Neuroscientific Research                       569

hypothesize that if asking a participant whether a person “likes carrots”
helps to humanize the person, then asking a participant to consider more
deeply personal information about that person would also humanize the
person. At the same time, however, given what social science researchers
have already discovered about the extent to which evidence offered in miti-
gation is not necessarily viewed as mitigating evidence—as well as the fact
that jurors do not understand the basic idea of mitigating evidence—it is not
certain that mitigating evidence will serve the same function as “veggies” to
help humanize an otherwise de-humanized capital defendant.
      Using social neuroscientific research to probe what effect, if any, mit-
igating evidence has to counteract the “disgust” and dehumanization that
participants may otherwise feel toward the capital defendant would be use-
ful information with which to understand whether the current system of
capital litigation operating throughout much of the United States is actually
helping jurors to individually assess the appropriateness of the death penalty
as part of the jurors’ “moral inquiry into the culpability of the defendant.”158
If the results of such research find the mitigating evidence does serve a hu-
manization function—even when a defendant initially does not even register
as “human” within Harris and Fiske’s framework—then such research
would highlight the critical function that capital mitigation specialists serve
in helping capital defense attorneys thoroughly investigate the social histo-
ries and lives of their clients in order to render the most complete and effec-
tive mitigating defense possible. Conversely, if the results of such research
show that mitigating evidence cannot counteract the dehumanization effects
that result when learning that the defendant is charged with a capital crime
(or combination of crimes), then such research would be important evidence
indicating that the current system of capital punishment in the United
States—which relies critically on the weighing of mitigating and aggravat-
ing factors—fails to help jurors individually assess the appropriateness of
the death penalty for individual capital defendants.

                               IV. CONCLUSION

      Juxtaposing Harris and Fiske’s social neuroscientific research against
the current legal and social scientific discussion of biases in death penalty
systems—especially regarding jurors—highlights the possibility of signifi-
cant shortcomings in the way capital punishment operates within the United
States. The Supreme Court places great weight on the individualized as-
sessment of the appropriateness of the death penalty as one of the hallmarks



    158. HANEY, DEATH BY DESIGN, supra note 8, at 201 (quoting California v. Brown,
479 U.S. 538, 545 (1976) (O’Connor, J., concurring)).
570                         Michigan State Law Review                    Vol. 2011:541

of a constitutional capital system.159 Inherent in this system is the jury’s duty
to consider aggravating and mitigating evidence that is particular to the cap-
ital defendant as part of the jury’s individualized assessment of that capital
defendant. Despite the Court’s assumption that jurors can and will perform
their duty without bias, both legal and social scientific research have docu-
mented various biases that hinder capital jurors in making such an important
individualized assessment about the capital defendant whose life is in their
hands.
      Because Harris and Fiske’s research was not designed to explore the
potential biases of capital jurors, this Article has discussed ways future re-
search has the potential to shed more light on the limitations that capital
jurors bring to the critical task before them. The hypothesis that some capi-
tal jurors may not even see the defendant as human calls into serious ques-
tion the jurors’ ability to make an individualized assessment of the person-
hood of the capital defendant before them. Future research is needed to ex-
plore the possibilities and limitations of applying Harris and Fiske’s re-
search to capital trials. While Harris and Fiske’s research holds great prom-
ise for disclosing deep biases that exist within capital punishment, such re-
search is only one step in the road to improving the way capital punishment
operates or to dismantling capital punishment because its deficiencies are
beyond repair.
      Insofar as such research may shed light on possibilities for improving
the way capital punishment operates, to the extent that future research dis-
closes a correlation between the importance of mitigation evidence and ju-
rors’ abilities to see the capital defendant as human, such research would
underscore the critical role that mitigation serves in capital sentencing. In
the same way, such research would also highlight the important role capital
mitigation specialists serve in helping capital defense teams thoroughly in-
vestigate and develop the evidence and themes of mitigation. It would also
help attorneys and judges understand the critical role that individual voir
dire and jury questionnaires serve in probing whether jurors can truly con-
sider mitigating evidence in relation to the individual capital defendant be-
fore them, as well as the important role that closing arguments and jury in-
structions serve in helping jurors understand what mitigating evidence is
and how they may use it in their deliberations. Because social science re-
searchers have extensively documented the extreme difficulty capital jurors
have understanding jury instructions and what constitutes aggravating and



      159. Id. at 203 (“The recognition of basic human commonality, an opportunity for
capital jurors to connect themselves to the defendant through familiar experiences, common
moral dilemmas, and recognizable human tragedies, is the starting point for compassionate
justice.”).
                           Social Neuroscientific Research                                571

mitigating evidence,160 future social neuroscientific research designed to test
hypotheses within capital litigation may provide helpful insight in this area,
or it may provide further evidence of severe structural defects within death
penalty systems.
      While this Article has outlined ideas for how such research may be
particularly designed to test hypotheses related to capital jurors, one signifi-
cant limitation nonetheless remains: unless future research matches the ex-
act evidence introduced in a trial, no research can test the exact combination
of factors operating within a specific capital trial for a specific capital de-
fendant. Aggravating and mitigating evidence is tailored to each capital
defendant, and no two defendants have exactly the same life path or life
experiences. Legislative enactments such as the focus of this symposium
issue—North Carolina’s Racial Justice Act—would enable this research to
better inform the courtroom. Because North Carolina’s Racial Justice Act is
specifically tailored toward prohibiting the seeking or imposing of the death
penalty on the basis of race, the enactment paves the way for legislators to
move beyond racial blindsight by prohibiting the imposition of the death
penalty on the basis of an inability to see the defendant as human.161




      160. See, e.g., Ellsworth & Gross, supra note 91, at 246-48 (discussing and collecting
research which found that instructions given in the penalty phase of a capital trial are espe-
cially difficult for jurors to understand and juror confusion regarding the weighing and un-
derstanding of mitigating and aggravating factors).
      161. This Article has focused on the possibility that jurors are unable to see some
capital defendants as human beings, but future research testing this hypothesis could also
reveal that judges, legislators, prosecuting attorneys and/or defense attorneys may harbor
similar bias. Social neuroscientific research in the capital arena must therefore be undertaken
with eyes open not only to the biases of others but to our own biases in order to truly under-
stand the implications of the research and the possibilities for remedying the bias it may
disclose.

				
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