Are “Death-Qualified” Juries Problematic?
General Reference (not clearly pro or con)
The Fully Informed Jury Association in an undated article, “What Is a ‘Death-Qualified’ Juror or Jury?,” available at fija.org and accessed on Sep. 20, 2021, stated:
“In capital cases, jurors are specifically screened during jury selection to eliminate from the jury anyone who would under no circumstances either (a) consider a penalty of death or (b) consider a penalty of life without parole (LWOP).
In practice, virtually no prospective jurors overtly refuse to consider the more lenient and less permanent sentence of life imprisonment with no possibility of parole. On the other hand, many people openly oppose the permanent penalty of putting another human being to death…[T]hey have specifically been selected to ensure that all jurors would be willing to impose a death sentence under certain conditions.” Sep. 20, 2021
The Editors of Encyclopaedia Britannica, in a May 31, 2018 entry, “Death-Qualified Jury,” available at britannica.com, stated:
“Death-qualified jury, in law, a trial jury pronounced fit to decide a case involving the death penalty. The fitness of jurors to serve in death-punishable cases depends on their views on capital punishment. For example, jurors absolutely opposed to the death penalty generally are disqualified from service in capital cases. The precise views that disqualify a juror are a highly debated issue. Under the long-standing practice of death qualification, a potential juror who—during the preliminary questioning to ensure against bias—stated any opposition to the death penalty was excused from serving.”May 31, 2018
Elizabeth Bruenig, opinion writer, in a Feb. 18, 2021 article, “The Government Has Not Explained How These 13 People Were Selected to Die,” available at nytimes.com, stated:
“Juries are subject to subtle persuasion as well as informants. The Supreme Court held that people categorically opposed to the death penalty — perhaps as much as 40 percent of the population — can be excluded from juries in capital cases. Research shows that the resulting ‘death qualified’ jurors are more likely to hand down convictions and often come to conclusions about punishment before the sentencing phases of their trials, and that merely going through the process of jury selection for capital cases prejudices them against defendants.”Feb. 18, 2021
Alexander H. Updegrove, Doctoral Research Assistant in the Department of Criminal Justice and Criminology, and Rolando V. del Carmen, JSD, Professor in the College of Criminal Justice, both at Sam Houston State University, in an article rereleased on Dec. 26, 2020, “An Analysis of State Statutes on Capital Juror Disqualification and a Proposal for an Exploratory Statute,” available at jcjl.pubpub.org, stated:
“Despite increasing unease with the death penalty in the United States, many states continue to conduct capital trials purged of jurors categorically opposed to the death penalty. Death-qualified juries are of great concern because they are more likely to convict and sentence a defendant to death. An analysis of capital juror disqualification criteria in state statutes reveals states heavily emphasize disqualifying prospective jurors who oppose the death penalty, but devote scarce attention to addressing procedures for disqualifying prospective jurors with pro-prosecution and pro-death biases. Roughly half of the states where capital punishment remains legal do not have statutes specifically addressing capital jurors’ disqualification criteria; the half that do have statutes with provisions that are woefully inadequate.”Dec. 26, 2020
Katherine E. Berger, JD candidate at the Washington University School of Law in the class of 2020, in a 2019 article abstract, “Death Qualification of Juries As a Violation of the Social Contract,” available at openscholarship.wustl.edu, stated:
“Trial by a jury of one’s peers is a hallmark of the United States judicial system. The protection a jury trial is supposed to ensure, however, is severely compromised by current case law. Death qualification excludes potential jurors whose views on the death penalty “would prevent or substantially impair the performance of his duties as a juror.” This Note argues that the current practice of “death qualifying” juries in capital murder cases violates the social contract. In the past few years, citizen support for the death penalty reached its lowest point since it was temporarily abolished by the Supreme Court in 1972. These citizens deserve to express their views on the death penalty through jury service. Criminal defendants deserve to be sentenced by a jury of their peers, reflecting the community consensus on the ultimate question of life or death. The practice of death qualification delegitimizes the State’s use of capital punishment, and harms both the excluded jurors and the criminal defendant.”2019
Joseph A Vitriol, PhD, Senior Researcher in the Department of Political Science of Stony Brook University, and Margaret Bull Kovera, PhD, Professor of Psychology at John Jay College of Criminal Justice at the City University of New York, in an Oct. 2018 article abstract, “Exposure to Capital Voir Dire May Not Increase Convictions Despite Increasing Pretrial Presumption of Guilt,” available at pubmed.ncbi.nlm.nih.gov, stated:
“During capital voir dire, prospective jurors are questioned about their views on capital punishment to determine their ability and willingness to impose the penalty as required by law. Two experiments replicated and extended Haney’s (1984a) research on the effects of exposure to capital voir dire, which has been cited to support the proposition that jurors who are exposed to a capital voir dire are more prone to convict. In the first study, watching a capital voir dire increased participants’ pretrial estimates of the likelihood of the defendant’s guilt and conviction, replicating earlier findings. However, these pretrial effects did not survive the presentation of trial evidence, which had not been tested previously. Participants exposed to death qualification during capital voir dire were significantly less likely to convict than were those who were not exposed to death qualification. In a second study, exposure to capital voir dire influenced the type and amount of evidence that jurors reported that they would require for conviction, such that exposure to death qualification created an expectation for greater evidence of guilt than did exposure to a standard voir dire. To the extent that exposure to capital voir dire increases jurors’ expectations for evidence of guilt, death qualified jurors may be more likely to acquit if their expectations are not met, despite increased pretrial bias against the defendant.”Oct. 2018
Oyez, in a summary of the May 5, 1986 Lockhart v. McCree US Supreme Court decision, which includes links to the court documents, available at oyez.org, stated:
During a capital trial does the Constitution prohibit the removal of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties at the sentencing phase of the trial?
ConclusionMay 5, 1986
The Court found that excluding people who are unwilling under any circumstances to impose the death penalty during sentencing did not violate a defendant’s Sixth and Fourteenth Amendment rights. Justice Rehnquist argued that the state has a legitimate interest to impanel jurors who “can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.” As long as a jury is selected from a fair cross-section of the community, is impartial, and can properly apply the law to a case’s circumstances, then a defendant’s constitutional right to a fair trial is protected.”
Oyez, in a summary of the June 3, 1968 Witherspoon v. Illinois US Supreme Court decision, which includes links to the court documents, available at oyez.org, stated:
Does a state statue that provides grounds for the dismissal of any juror with ‘conscientious scruples’ against capital punishment violate the Sixth Amendment’s guarantee of an ‘impartial jury’ and the 14th Amendment’s guarantee of due process?
Yes. In an opinion delivered by Justice Potter Stewart, the Court held 6-3 that Witherspoon’s death sentence was unconstitutional. The Court reasoned that a jury composed after the dismissal of all who oppose the death sentence was biased in favor the death sentence; such a jury was not impartial and thus violated the Sixth and Fourteenth Amendments. The Court held that while jurors who say they will not impose the death sentence can be dismissed, jurors who simply oppose the death sentence as a personal belief may not. Justice William Douglas, concurring, argued that it also unconstitutional to dismiss prospective jurors who say they will never impose the death sentence.
Justice Hugo Black, with whom Justices John Harlan and Byron White joined, dissented. Douglas argued that the Constitution allows the dismissal of all jurors who oppose the death penalty personally, because they will be necessarily biased against the death penalty. In a separate dissent, White argued that the Illinois legislature was allowed to exclude ‘those with doubts’ about ‘one of the punishments among which the legislature sought to have them choose.'”June 3, 1968