This is the first of a multi part series discussing capital punishment in this country, the history, the arguments for and against and an in depth look at the process of death qualifying a jury and how that process creates a biased jury. I will use facts, statistics and scientific studies to help make my argument. Finally, there will be recommendations on how to improve the system. If nothing else, I hope it makes you think.

“When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disemboweled while still alive, and then quartered, we did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our own self-respect.”1

Everyone has an opinion on capital punishment. Opinions range from those who would vote to abolish capital punishment to those who would not only increase its use but also make it more expeditious. The focus of this series of posts is primarily on the use of the death qualified jury. These posts will argue, with the help of scientific studies, that the process of death qualification creates a jury that is not only predisposed to the defendant’s guilt but also more likely to sentence the defendant to death.

The process of death qualifying a jury begins with excluding jurors. During the voir dire process, jurors will be excused by way of one of two challenges; for cause or peremptorily. For cause challenges, which are unlimited in number, may be used to exclude a juror when a specific reason, such as bias or prejudice, exists on the part of the juror.2 Peremptory challenges, which are limited in number, are used to excuse a juror without having to give a reason.3

People with certain beliefs may be excluded using a for cause challenge. A juror whose beliefs about capital punishment “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” may be excused for cause.4 This allows the for cause removal of jurors whose beliefs are so strong that they could either never vote for the death penalty or, conversely, if the defendant is found guilty, never vote for any sentence other than death.5

These steps are taken to avoid jury nullification. Jury nullification occurs when a juror completely disregards the evidence or the law and simply applies his or her beliefs on capital punishment.6 Jury nullification often occurs when a juror who is opposed to capital punishment votes not guilty during the guilt phase of the trial, even though the weight of the evidence shows otherwise.7

1 268 Parl. Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor Gardiner).

2 Black’s Law Dictionary 245 (8th ed. 2004).

3 Id.

4 Adams v. Texas, 448 U.S. 38, 45 (1980).

5 See Morgan v. Illinois, 504 U.S. 719 (1992) (The majority opinion discusses the “life qualification” or “reverse-Witherspoon” question, holding that voir dire must include these types of questions so as to remove those jurors that, upon a finding of guilt, would only sentence the defendant to death.)

6 Black’s Law Dictionary 875 (8th ed. 2004).

7 Susan D. Rozelle, The Utility of Witt: Understanding the Language of Death Qualification, 54 Baylor L. Rev. 677, 679 (2002).

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Bryan Driscoll

Bryan is the founder of 2 Rights Make a Left. While obtaining his J.D., Bryan researched and wrote extensively on Capital Punishment, an issue that remains close to his heart to this day. He has spent the majority of his adult life involved in politics in some form or another. Bryan spends most of his time reading, writing and discussing all things politics. Bryan loves to travel and, if he had his way, would constantly be jetting off to another destination. The rest of his time is spent following his beloved Bears, Bulls and Cubbies.

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