Low Crime Rates Soften Support for Death Penalty, Ellsworth Says

February 9, 2004
Ellsworth found a judge who allowed her to study the behavior of real jurors in trials where there was a white victim and a black defendant.

Popular support for the death penalty is waning as the murder rate drops, according to research by University of Michigan law and psychology professor Phoebe Ellsworth, who delivered the Law and Cognitive Psychology Lecture Feb. 5 in Gilmer Hall. Ellsworth, who is researching how passionately held attitudes are changed, profiled her recent work on death-penalty support and the effect of race in jury decision-making.

Vehemently held attitudes are difficult to alter, but can change when certain factors are present, Ellsworth said.

Public support for the death penalty "went down very precipitously" between 1950 and 1967 (from 65 percent approving to 45 percent), Ellsworth said, then reversed direction from 1967 to 1980 (when support rose to 75 percent) and since 1995 has been declining again (now down to 65-percent approval).

The initial decline was common to all western democracies, she said. "The view was that the standard of decency was evolving."

Meanwhile, homicide rates began to climb steeply from 1960 into the 1970s. Stranger crime increased alarmingly too. "The death penalty was seen as necessary to staunch the huge outflow of crime," Ellsworth explained.

Since 1995, violent crime rates have been falling. "Crime started going down in 1990," she said, "but it wasn't until 1996 that people would agree that crime was going down."

There are four enabling background conditions for changing strongly held attitudes, Ellsworth said. First, and most obvious, is an end to the stimulus. Crime rates must fall before fear of crime can lessen.

Second, the attitude must have gone unchallenged for some time. Death penalty attitudes confronted no new developments for roughly 15 years, she pointed out. "Attitudes that people are not used to defending turn out to be vulnerable." Then DNA evidence reversed some convictions and death-penalty support had to face the wrongful convictions. The "old story" that focused on the suffering of the victim was replaced by a new story about incompetent defense lawyers, careless forensic labs, perjured testimony, and new lawyer and journalist heroes, Ellsworth said.

The third condition is that opinion leaders offer cover for the attitude change by acknowledging other socially acceptable options, in this case the moratorium on the death penalty.

And, finally, options must be present. Once opinion leaders began saying "mend it, don't end it," instituting a moratorium on executions offered a way out. "People don't want to have to capitulate on a passionately held attitudes. You can accept delay as an option." Since 2000, executions have dropped from 100 to 40 in 2003.

Still, the public does support the death penalty strongly in certain crimes. Law professor John Monahan noted during questions after Ellsworth's talk that more people supported the execution of Oklahoma City bomber Timothy McVey than agree with capital punishment philosophically.

Sketching her latest research on the influence of race on juries, Ellsworth reported that white jurors will consciously guard against expressing prejudice when they know race is a salient element in a case. She said the "old story" about racial prejudice on juries was that "whites refused to punish whites who committed crimes against blacks." Since the 1990s, the "new story" is that "blacks won't convict blacks or that a single black juror will hang a jury."

Investigating research literature on these beliefs, she found what she called "mush" and proceeded to set up her own experiments. Her first two attempts used college students as subjects and eventually she rejected those results because the data indicated methodological errors. "College students are worried about not looking prejudiced," she explained. "People are taught to espouse an egalitarian system. We realized we used the wrong kind of cases, ones that announced that they were about race." Those results did show that you can cause "whites to guard against displaying prejudice when they know that race is salient in the case," she said. "Blacks do not think that race is an issue in the criminal justice system, they knowit is."

Finally Ellsworth found a judge who would allow her to study the behavior of real jurors in trials where there was a white victim and a black defendant and the jurors' deliberations were on videotape. From that study she concluded that "racially mixed juries deliberate longer and discuss race openly. More facts are brought out by mixed juries." The greatest likelihood of conviction is when all jurors are white, she said. The bias occurs not when race is made salient. Rather, it occurs when racial differences are present but not emphasized.

"This is the exact opposite of what you read in the law review articles about how you have to be most concerned about cases which race is clearly salient," she said. "In fact you have to be most concerned where it is not. Whites will control their prejudice if they know it is on view. Prosecutors know about this and this is why they want to go for all white juries."

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