The process of death qualifying a jury requires further inquiry than empanelling a non-death qualified jury. The prospective jurors are questioned at voir dire regarding their specific opinion and outlook on capital punishment. Those who state they could not, because of their abhorrence to the death penalty, return a verdict of guilty or those who would not even consider the sentence of death upon a finding of guilt, are excused for cause.50
Death qualification prohibits empanelling jurors whose opposition to capital punishment is so strong that it affects either their ability to render a judgment of guilty or to impose a sentence of death.51 During this process it is impossible to avoid questions such as, “Will you be able to vote for the death penalty?” If the prospective juror answers in the negative, they will be excused. But, it is the question itself that creates the problem; it implies to the prospective jurors that the defendant is guilty.52 This process creates the implication that the defendant is guilty and death is the appropriate sentence.53 This is where the bias begins to take shape.
Studies show that jurors who are subjected to the questions asked during the death qualification process are more likely to believe that the defendant is guilty and that the judge, prosecutor and defense attorney all believe the defendant is guilty as well.54
Because of this bias, juries are also more likely to convict and sentence innocent defendants to death. Since 1973, capital juries in the United States have sentenced 140 people to death for crimes that they did not commit.55
The Fourteenth Amendment requires that juries be composed of an impartial and fair cross-section of the community.56 This theory creates the idea that a defendant will be judged by his peers, not by only a small and select group.
“There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution, representative of all qualified classes of people.”57
This idea of impartiality means that a jury must be representative of the community. “The idea that a jury should be ‘impartially drawn from a cross-section of the community’ certainly should not mean a selection of only those with a predisposition to impose the severest sentence or with a predisposition to impose the least one that is possible.”58
Those jurors who are excluded during the death qualification process are generally more concerned with the constitutional rights of the defendant and more likely to question the presumptions of the prosecution.59 Would mixed juries be a better solution?
“No doubt because diversity promotes controversy, which in turn leads to a closer scrutiny of the evidence, one study found that “the members of mixed juries [composed of Witherspoon-excludables as well as death-qualified jurors] remember the evidence better than the members of death-qualified juries.” This study found that not only is the recall of evidence by a death-qualified jury likely to be below the standard of ordinary juries, but its testing of that evidence will be less rigorous.”60
Death qualification creates a smaller jury pool.61 Creating a smaller pool using death qualification as a guise to excuse potential jurors because of race is unconstitutional.62 A 1971 Harris poll found that the process of death qualification would produce a jury composed primarily of educated, white men.63 A study conducted in 1980, shows that Witherspoon excludables were composed of 20.7 percent white and 55.2 percent black.64 “Because opposition to capital punishment is significantly more prevalent among blacks than among whites, the evidence suggests that death qualification will disproportionately affect the representation of blacks on capital juries.”65
The Court realized that the exclusion of a certain class of juror, namely blacks, was something to be avoided, as early back as 1880.66 The Court held that the exclusion of blacks violated the rights of the excluded jurors67 and that the exclusion of blacks “denies the class of potential jurors the ‘privilege of participating equally … in the administration of justice,’ and it stigmatizes the whole class, even those who do not wish to participate, by declaring them unfit for jury service and thereby putting ‘a brand upon them, affixed by law, an assertion of their inferiority.'”68
In addition, death qualified members of the study were more likely to determine that the defendant was guilty (48.3 percent) than those who were non-death qualified (37.4 percent).69 “Moreover, excluding potential jurors on the basis of their opposition to the death penalty would result in excluding 54.2 percent who thought the defendant was probably not guilty compared to 22.8 percent who thought the defendant was probably guilty.”70 Forty-two percent of the death qualified members of the study thought that, if convicted, the defendant should receive the death penalty.71 Only 8.9 percent of the Witherspoon excludables thought that, if convicted, the defendant should receive the death penalty.72
These numbers are startling and the disparity between death qualified and non-death qualified members of society is almost scary. “Exclusion of potential jurors based on the Witherspoon standard would result in excluding only 7.4 percent who favored the death penalty in those cases and 50.5 percent of those who favored life imprisonment.”73 This study shows that there is an obvious source of bias on death qualified juries.74 A jury such as this is “uncommonly willing to condemn a man to die.”75
The fact that jurors whose beliefs regarding capital punishment keep them from serving on a capital jury works to the defendant’s detriment to such a degree is something of which every single person in this country should be aware. The evidence shows that juries are sentencing people to death because of their belief in retribution or vengeance. Thus, if the man committed the crime, he must die. Leaving aside the argument of whether there should even be a death penalty, the fact that death qualified jurors are so willing to hand out death sentences should be bothersome to all.
50 448 U.S. at 45.
51 Steven C. Serio, A Process Right Due? Examining Whether a Capital Defendant has a Due Process Right to a Jury Selection Expert, 53 Am. U.L. Rev. 1143, 1158.
52 Rozelle, 54 Baylor L. Rev. at 699.
53 Id. at 695.
54 Craig Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121 (1984).
55 Death Penalty Information Center: Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innocence-and-death-penalty (“Since 1973, 140 people in 26 states have been released from death row with evidence of their innocence.”) (last accessed, September 29, 2012).
56 Taylor v. Louisiana, 419 U.S. 522, 530 (1975).
57 Fay v. New York, 332 U.S. 261, 299-300 (1947).
58 319 U.S. at 524-525 (citation omitted).
59 476 U.S. at 199-200 (Marshall, J., dissenting).
60 Id. at 200 (citations omitted).
61 Rozelle, 54 Baylor L. Rev. at 690. (Rozelle argues that the process of death qualifying a jury creates a smaller jury pool by eliminating family and friends of the defendant, which is good.)
62 Batson v. Kentucky, 476 U.S. 79, 97 (1986). (The Court held that a defendant may challenge a prosecutions “for cause” removal of a potential juror arguing race was the actual reason for removal. The burden is on the defendant to prove the removal was racial and the prosecution must prove a race-neutral reason for the removal. These are known at “Batson Challenges.”)
63 Welsh S. White, The Constitutional Invalidity of Convictions Imposed by Death-Qualified Juries, 58 Cornell L. Rev. 1176, 1186 (1973). (The study showed an under representation of minorities (primarily black), those who did not have at least a high school education and Jews.)
64 Joseph E. Jacoby & Raymond Paternoster, Sentencing Disparity and Jury Packing: Further Challenges to the Death Penalty, 73 J. Crim. L. & Criminology 379, 386 (1982). (In addition, 27 percent of those surveyed fell under the Witherspoon excludable category.)
65 476 U.S. at 201. (Marshall, J., dissenting).
66 Strauder v. West Virginia, 100 U.S. 303 (1880).
67 Id. at 308-309.
68 Peters v. Kiff, 407 U.S. 493, 498-499 (1972) (citing Strauder, 100 U.S. at 308-309).
69 Jacoby & Paternoster, 73 J. Crim. L. & Criminology at 386.
71 Id. at 387.
75 391 U.S. at 521.