Scientific American’s “Literally Psyched” blog had a post recently on “The Great American Novel and the search for group cohesion.” I don’t quite agree with the thesis — that the concept of the ‘Great American Novel’ was a means by which America unconsciously mended the wounds of the Civil War — but the post does have a number of important reminders about human psychology. The Milgram Experiment and the Stanford Prison Experiment proved long ago how the actions of ordinary people can be contorted and distorted into doing terrible things by mere circumstance.


That much is well known; what’s intriguing now is how easily people assign themselves into groups and adopt an “us” versus “them” mentality. As recounted at Scientific American:

Take something known as the minimal group paradigm, a concept that basically says exactly what it is: a way of creating groups, and cohesive groups at that, by using something as minimal as possible to tie them together.

One of the most famous approaches is known as the Dot Estimation Task. The setup is simple. You show a bunch of people some dots, be it on a computer screen or a piece of paper, and ask them to estimate how many dots they’re seeing. You then tell them—completely arbitrarily—that they have either under- or over-estimated the actual number. And then comes the kicker: you tell them that under- and over-estimation is a trait, and that they belong to a group of other understimators or overestimators, respectively. That’s it. That’s the whole thing.

What’s funny is how easily people will start bonding with others they believe share similar characteristics. The people chosen by the researchers to be arbitrarily told that they were “underestimators” or “overestimators” started behaving as if the division were real and meaningful, even though the “division” not only involves a meaningless trait, but is in fact wholly invented by the researchers, who make up the results at random.


What’s truly scary is how you can then take those same arbitrary groups and then make them not only more favorable to their (made up) peers, but also imbue them with a sense of superiority by simply telling one of the groups (again, at random) that they’re better at estimating than the other group. Do that, and the divisions become even more stark:

A 2006 experiment told participants that overestimators were actually more accurate than underestimators on the task—and that this accuracy seemed to relate to other tasks as well. Participants then rated both their own and the other estimator group on 24 unrelated traits and finally, completed measures of social esteem and social identity.

Not only did people evaluate their newly acquired in-group more favorably than their newly-minted competitors, but those who thought themselves to be of higher status (the overestimators) exhibited a larger bias than their underestimating counterparts. What’s more, the more positively the in-group was evaluated, the higher was the social esteem of its individual members—and the higher their subsequent social identity.

That is to say, if you create an arbitrary group, and tell them that trait makes them superior, their own group dynamics will further reinforce the superiority of that trait.


Yesterday, the United States Supreme Court was asked, in a tangential way, about that problem. Since Witherspoon v. Illinois, 391 U.S. 510 (1968), prosecutors in capital murder cases have been entitled to a “death-qualified jury.” In Wainwright v. Witt, 469 U.S. 412, 421 (1985), the Supreme Court essentially moved it from “death-qualified” to “death-guaranteed,” holding that a juror may be excluded if his views on capital punishment could “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” Witt, 469 U.S. at 424.


It’s a meaningless standard, one that leaves a lot up to the trial judge: even if a juror says they’ll uphold the law, the prosecution can move to excuse the jury, and the judge can order their exclusion, if they show “hesitation” towards applying the death penalty. See, e.g., State v. McFadden (Missouri Supreme Court 2012)(“[S]he initially hesitated in her answer whether she could consider the death penalty. A venireperson’s hesitation and body language during questioning [is] a legitimate basis for using a peremptory strike.”).


As Gideon at A Public Defender noted (while pointing out the pending Supreme Court petition), this “death qualification” creates all sorts of problems. As he quotes, research has shown:

Death-qualified jurors are also more likely to be more receptive to aggravating circumstances and less receptive to mitigating circumstances. They are more likely to be racist, sexist, and homophobic and skeptical of defenses involving mental illness (including the insanity defense). They are also more susceptible to the pretrial publicity that surrounds capital cases. They are more affected by the victim impact statements that occur during the sentencing phase of capital trials.

We never get to study how juries actually work on the inside, never get to subject them to a battery of tests, and certainly never get to run controlled studies of juries. But if we can get people to start shocking innocent strangers by a mere command (Milgram), abusing one another by simply labeling one a “guard” and the other a “prisoner” (Stanford), and bonding as a group that exaggerates its own abilities by arbitrarily telling them they’re good at a child’s counting game (Dot Estimation Task), it’s not hard to see what happens when we tell people they’re specifically qualified because they won’t hesitate to use the death penalty.


The Supreme Court was asked to consider this issue again yesterday by lawyers for Terrance Carter, who was sentenced to death by a jury in Louisiana. As Gideon discusses, the petitioner made a novel argument: the idea of a “qualified” jury was anathema to the Framers of the Constitution. As explained by Carter’s petition for certiorari, the Framers of the Constitution, the ones who passed the Sixth Amendment with its guarantee to an “impartial jury,” thought jurors could only be struck where they had a bias towards a particular party. John Adams and Alexander Hamilton both wrote repeatedly about its virtues. When the Supreme Court itself heard a jury trial, Chief Justice John Jay charged the jury:

“on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

Georgia v. Brailsford, 3 U.S. 1, 4 (1794). Judges were “presumed” the best judges of the law, but “still both objects [fact and law] are lawfully, within [the jury’s] power of decision.”


It was exactly the sort of argument that should appeal to self-proclaimed “original intent” aficionados like Justice Scalia.


Yet, yesterday the Supreme Court denied Carter’s petition, without an opinion, without any dissents. So much for “original intent.” But like most death penalty issues, a denial without an opinion by the Supreme Court is a commonplace occurrence, and it will go unnoticed except by some criminal defense lawyers.


What has received a lot of notice this week, though, is an opinion from the 9th Circuit blasting assistant federal public defender Timothy Gabrielsen for “a request lacking even colorable merit,” a motion that went “beyond the limits of appropriate representation.”


And what, pray tell, did Gabrielsen do to deserve that rebuke? He had the temerity to do exactly what the Supreme Court said prosecutors and judges can do every single day: question if someone could be fair in applying the death penalty.


Gabrielsen’s sin, however, was to question a judge if they could be fair in applying the death penalty. In his motion for recusal, he pointed out that one of the judges hearing his client’s appeal had lost her father in a crime that bore more than a passing resemblance to the crime at hand: a carjacking near their home at gunpoint, after which the victim was driven to a secluded location and killed.


A motion for a judge to recuse herself is considered by many to be a tactical mistake (as Scott Greenfield says it was here), but it isn’t an insult to the judge because it’s not an implied accusation of wrongdoing.  Rather, it’s a simple request for the judge to pause long enough to consider their feelings and confirm that they can be impartial. Is is so wrong to ask a judge less than we ask potential jurors in capital cases? As Jeff Gamso discussed at length when a trial judge recused himself from a death penalty case, if a judge has conflicted thoughts about the application of the death penalty in America — as any sensible person would — their role becomes less than clear, a conflict of morality versus duty. Justice Scalia himself has said that this conflict, if it were to arise, would compel him to resign.


The judge herself didn’t respond with an opinion, she simply denied the request. It was her colleagues on the three judge panel who, sensing a threat to their group cohesion, lashed out at the perceived insult to their infallibility: How dare you, say Judges Berzon and Tallman, question our colleague’s ability to apply the law fairly? She, like us, is above reproach — don’t you know that, under our Constitution, reproach is reserved for potential jurors who “hesitate” when holding the life of another in their hands?


For all the supposed wisdom of crowds, a jury of 12 and a panel of 3 judges can just as easily adopt a herd mentality that simply multiplies their faults.