“The division is not between rich and poor, highbrow and lowbrow, Christians and atheists: it is between those who have charity and those who have not. . . . The test of one’s humanity is whether one is able to accept this fact — not as lip service, but with the shuddering recognition of a kinship: here but for the grace of God, drop I.”76
It is possible death qualified jurors, as a whole, are conviction prone but it is also possible that non-death qualified jurors, as a whole, are acquittal prone.77 There is no way to tell, precisely, which is more accurate as there is no way to precisely determine how often a defendant should be convicted.78 “This point is reminiscent of the quip that the disproportionate number of death sentences in Texas might mean that Texas enjoys a better police homicide division that other states.”79 Nevertheless, “[b]ecause there is no objective way of deciding which convictions are correct and which are not, the only definition remaining sounds depressingly circular: a conviction-prone jury is more prone to convict than it should be.”80 This is precisely the point; death qualification creates a conviction prone jury. A conviction prone jury is not representative of the community.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”81 This Sixth Amendment right to an impartial jury has been interpreted by the Court to mean a fair cross-section of the community.82 “Both in the course of exercising its supervisory powers over trials in federal courts and in the constitutional context, the Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.”83
The Court has even held that the process of death qualification “is carefully designed to serve the State’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.”84 Here, the Court is saying that the states interest in seating a jury trumps the defendant’s right to impanel a jury that fits the standard of being a fair cross-section of the community.
In his case, McCree argued, without success, that it was not any individual juror who failed to reach the impartiality standard.85 Rather, it was the system that failed him.86 “[E]ven though a nonbiased selection procedure might have left him with a jury composed of the very same individuals that actually sat on his panel, the process by which those twelve individuals were chosen violated the Constitution.”87 McCree was arguing it was the simple fact that those jurors were placed on his jury rather than being randomly selected or selected by some other, less restrictive, means.
Yet, in Witherspoon, the Court overturned the defendant’s conviction when the prospective jurors who voiced general opposition to the death penalty were excused.88 The Court held “that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.”89 The Court held Witherspoon was denied a fair sentencing “not because any member of his jury lacked the requisite constitutional impartiality,”90 but because the process with which his jury was selected “stacked the deck” against him.91
The Court, in McCree, stated that the fair cross-section requirement applied only to the jury pool and did not apply to petit juries.92 Only the entire venire is subject to the fair cross-section requirement holding that the venire, from which the petit jury is pulled, must represent a fair cross-section of the community.93 The Court stated that this was a “practical impossibility.”94 But, this was not what McCree was arguing. McCree argued it was the policy, the process and the entire venire that was not impartial and disallowed a petit jury to be comprised of a fair cross-section of the community.95
“The essence of a ‘fair-cross-section’ claim is the systematic exclusion of ‘a “distinctive” group in the community.’”96 The Court held that those who would not vote for a punishment of death are not a distinctive group and, thus, are still excludable.97 The Court further holds that a group that is defined only by its attitude, an attitude that interferes with its ability to carry out duties, does not make it distinctive.98 “We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. ‘Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. . . . [The] broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.’”99
The Court still did not take up the issue of defining what a distinctive group actually is. The Court does, however, say that discrimination against certain groups, such as women and minorities, is based on “reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case.”100 So, because someone would be unable to vote for the death penalty and is, therefore, not a member of a distinctive group, discrimination of them is acceptable.
The Court in Taylor continues on this point, citing the Federal Jury Selection and Service Act of 1968: “It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.”101
The Court continues by stating the jury being chosen from a “fair cross-section of the community is fundamental to the American system of justice.”102 Yet, the petit jury that results from the venire is anything but a complete and fair cross-section representation of the community.
A jury representative of a very conservative, pro-death penalty community, may be entirely composed of proponents of the death penalty. Conversely, however, a liberal, anti-death penalty community, will never produce a jury composed of a fair cross-section of the community. Justice Douglas discussed this very issue in his concurrence in Witherspoon: “In such instance, why should not an accused have the benefit of that controlling principle of mercy in the community? Why should his fate be entrusted exclusively to a jury that was either enthusiastic about capital punishment or so undecided that it could exercise a discretion to impose it or not, depending on how it felt about the particular case? I see no constitutional basis for excluding those who are so opposed to capital punishment that they would never inflict it on a defendant. Exclusion of them means the selection of jurors who are either protagonists of the death penalty or neutral concerning it. That results in a systematic exclusion of qualified groups, and the deprivation to the accused of a cross-section of the community for decision on both his guilt and his punishment.”103
Regardless of how a juror is excused, the fact still remains, at least in theory, no individual will ever sit on a capital jury while being honest about his or her conviction against capital punishment. But, if there are people in the community who do not agree with capital punishment, does it not violate the fair cross-section requirement to exclude them from the jury?
76 Arthur Koestler, Reflections on Hanging, 166-167 (1956).
77 Joan B. Foley, Death Qualification: Are Capital Defendants Entitled to Acquittal-Prone Juries? An Argument in Support of the Status Quo, 30 St. Louis U. L.J. 193, 214 (1985).
79 Rozelle, 54 Baylor L. Rev. at 692-693 (footnote omitted).
80 Id. at 693.
81 U.S. Const., amend. VI.
82 419 U.S. at 526-527.
84 476 U.S. at 175-176.
85 Id. at 178.
87 Id. at 193-194 (Marshall, J., dissenting).
88 319 U.S. at 521.
90 476 U.S. at 194 (Marshall, J., dissenting).
91 391 U.S. at 523.
92 476 U.S. at 173.
94 Id. at 174.
95 Id. at 178.
96 Id. at 174 (quoting Duren v. Missouri, 439 U.S. 357, 363-364 (1979)).
99 Taylor v. Louisiana, 419 U.S. 522, 530-531 (1975) (citations omitted).
100 476 U.S. at 175.
101 419 U.S. at 529 (citing Federal Jury Selection and Service Act, 28 U.S.C. § 1861 (1968)).
102 Id. at 529-530.
103 391 U.S. at 528 (Douglas, J., concurring).