Prosecutorial and Jury Decision-Making in Post-Furman Texas Capital Cases


Prosecutors’ decisions to charge homicide offenders with capital murder should be based on legally relevant considerations. Juries’ decisions to sentence defendants in capital murder trials to death should also be based on legal criteria. However, empirical studies have consistently shown that both decisions are often based on factors that are not legally relevant. These extra-legal factors include offender and victim characteristics such as race, age, and sex. The purpose of this study is to determine the influence of both legally relevant and extra-legal factors on prosecutorial and jury decisions in Texas capital cases from 1974 to 1988.

The Article begins with a discussion of the judicial abolition of capital punishment and its reimplementation by state legislatures during the 1970s. The statutes which have emerged during the post-Furman v. Georgia period of capital punishment reimplementation are discussed with special emphasison the Texas statute enacted in 1973. Scholarly evidence of prior discrimination in capital punishment is then summarized. Next, the Methods and Analysis sections set forth the procedures used in this study to determine the effects of various legal and extra-legal factors on prosecutorial and jury decision-making.

Findings from this study indicate that the following legal factors increased the likelihood that a prosecutor would prosecute a homicide arrestee for capital murder: 1) the presence of multiple homicide victims; 2) homicides involving rape; and 3) homicides of strangers. The extra-legal factor of the victim’s race was also found to influence the decision to prosecute capital murderers with the result that homicide cases involving white victims were more likely to result in conviction. In addition, juries sentenced convicted capital murderers to death more often when the murderer had prior criminal convictions and had killed multiple victims. In less serious cases, the race of victims and offenders was found neither to exert any influence upon sentencing nor to increase in influence upon conviction and sentencing.

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