"Death-Qualification" Leads to Biased Juries.

IT IS NO SECRET that America, alone among developed nations, continues to rely on capital punishment as a penalty for crime. While polls show that Americans support the death penalty in theory, few of them are aware of the unique procedures employed in capital cases. If known, they would in all likelihood cause public support for the death penalty to evaporate. Even the most ardent death penalty supporters want to be sure that nobody is executed without having first received a fair trial, before a fairly selected jury, with competent counsel, and with all legal procedures and formalities scrupulously respected. Yet, the actual death penalty that exists in the U.S. has resisted public scrutiny and, in practice, makes a mockery of these aspirations.

There are currently more than 3,000 people on death row in this country. The vast majority of them are guilty, but some are innocent--and one can only hope that their innocence will be proven while there is still time. Meanwhile, not a single death row inmate has received a trial before a jury fairly representative of the community in which he or she was tried. In every case, the juries who convicted those prisoners were chosen through special selection procedures, unique to capital cases, that effectively stacked the juries against the accused.

These unique jury selection procedures are known as "death-qualification." In a death-qualified jury, any potential jurors whose verdict may be affected by their misgivings about the death penalty are removed from the panel. The only individuals allowed to serve in capital cases are those who state that they would not be affected by the specter of the executioner.

Death-qualification began as early as 1820, when Supreme Court Justice Joseph Story began eliminating Quakers from capital juries because their religion would not permit them to impose death as a penalty for crime. Since then, courts have attempted to refine and regulate how much opposition to the death penalty is required to disqualify a citizen from jury duty in a capital case. As we will see, not much is needed.

The procedures followed to death-qualify juries vary from state to state, but, in general, the judge, prosecuting attorney, and defense attorney question all potential jurors individually about their views concerning the death penalty. If potential jurors are not comfortable sending someone to die, and if their discomfort might affect their verdict, they can be legally disqualified from capital jury duty. Far more people are disqualified, in a typical case, than are selected to serve. (On the other side, those who would automatically sentence defendants to die if they find them guilty of murder are also disqualified from capital jury people, however, are rare indeed.)

After it is determined which potential jurors are disqualified from serving, both sides get to strike a number of the remaining jurors for no reason. In Texas, the most active death penalty state, both sides get to eliminate an additional 15 potential jurors through these "peremptory" strikes. Thus, 12 jurors are left remaining from a pool of 42 death-qualified individuals. The resultant jury is hardly representative of the community.

Largely due to the time it takes to complete death-qualification, jury selection in capital cases often takes weeks, if not months, as "conscientious objectors" are winnowed out by prosecutors. Women and minorities are removed from the panels at a much higher rate than white males are. (That may explain why capital juries are approximately 40% more likely to sentence a killer to die if the victim is white than if the victim is a member of a minority.) Numerous academic studies show that those who survive the death-qualification process are not only biased towards sentencing convicted defendants to death (as opposed to life in prison), but biased towards convicting the accused as well. People who have no qualms about imposing the death penalty tend to favor the prosecution--whether the crime is shoplifting, drunk driving, or murder.

Death-qualification in its current state has developed over the last three decades. In Witherspoon v. Illinois (1968), the Supreme Court ruled that states could not disqualify potential jurors merely because they "might hesitate to return a verdict inflicting [death]." While the Court saw no problem with disqualifying jurors who would simply refuse to impose or consider the death penalty, or whose determinations of guilt or innocence would be a result of the punishment involved, they found that removing every potential juror with reservations about capital punishment denied the defendant the right to have his or her punishment decided by the "conscience of the community." The Court held that the "most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." (Emphasis added.)

In 1980, though, the Court reversed Witherspoon and gave prosecutors increased powers to eliminate potential jurors with conscientious scruples about capital punishment. In Adams v. Texas, the Court held "jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected" by trying a capital case were not "so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death-penalty scheme." A juror was not disqualified "based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (Emphasis added.) The language concerning "substantial impairment" was an expansion of Witherspoon, which the Court developed further in Wainwright v. Witt (1980).

The Witt Court significantly broadened the Adams "substantial impairment" rule. Following Witt, any potential jurors are disqualified if they would conscientiously hesitate to sentence a convicted individual to die. The Witt Court described the holding in Witherspoon as "limited" although it had been the leading capital jury selection case for 17 years.

In Witt, the Court held that jurors must not be substantially impaired by the specter of death in deciding on their verdict. While jurors may weigh capital cases with exceptional caution and gravity, they must not be in any way influenced (or "impaired") in their decisionmaking by the punishment involved. The difficulty lies in the fact that many people who support capital punishment in theory, or in extreme cases, are likely to hesitate to sentence one of their fellow citizens to die in a run-of-the-mill murder case.

Such hesitation may be enough to disqualify someone from capital jury service. Any citizen with qualms about inflicting the death penalty can be disqualified, because this hesitation indicates that person is "substantially impaired" in the "performance of his duties." It is easy to see that more Americans will be filtered out through this process than will be allowed to serve. Accordingly, the historical understanding of the jury as the "conscience of the community" has become a hollow promise in capital cases.

While most Americans reportedly favor capital punishment, many do not. More importantly, though, many people in the middle of the road do not believe the death penalty should be used as frequently as it is today. Even most conscientious death penalty supporters believe the ultimate penalty should only be approached with fear, trepidation, and solemnity. With all such people eliminated from capital jury duty, those who remain to serve are scarcely more representative of the community at large than the inmates on death row themselves.

A great deal of research had shown that death-qualified juries behave markedly different than other juries. Although the Supreme Court in Witherspoon stated, "It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal `organized to convict,'" many studies have shown that death-qualified juries are less than impartial and may, in fact, be "organized to convict." Law professors Michael Finch and Mark Ferraro, after surveying the available research on death-qualified juries, concluded that, "since Witherspoon, death-qualification has been one of the most studied subjects in the area of sociological jurisprudence. The product is more than a dozen reported investigations which, in the overwhelming consensus of commentators, have confirmed three empirical hypotheses: (1) jurors excluded because of their inability to impose the death penalty are more attitudinally disposed to favor the accused than are non-excluded jurors; (2) excluded jurors are more likely to be black or female than non-excluded jurors; and (3) excluded jurors are more likely to actually acquit the accused than non-excluded jurors."

In spite of evidence that death-qualified juries are biased, in Lockhart v. McCree (1986), the Court announced that even if it results in juries that are more conviction-prone and less representative, the Constitution does not forbid death-qualification. According to the Court, the interest of the state in carrying out its death penalty outweighs the right of the accused to a jury fairly representative of the community. The Court believed death-qualified juries comply with its "fair cross-section" interpretation of the Constitution, because Witherspoon-excludables do not form a "distinctive group" the exclusion of which would deny the accused a fairly selected jury. The Court only recognized gender, ethnic, or racial groups as constitutionally "distinctive." It held that "`Witherspoon-excludables,' or for that matter any group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement."

The Court was not concerned that this contradicts their previous cases, such as Ballard v. United States (1946), in which the Court explained that "it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class.... Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may make the jury less representative of the community than would be true if an economic or racial group was excluded."

A "distinct quality" is also lost when vast numbers of Americans--all those with religious or conscientious scruples about capital punishment--are excluded from jury duty. A jury stricken of those who have qualms about the death penalty is less representative of the community than if those excluded were seated. Conscientious objectors can be expected to act, as a class, differently from those empaneled. The fact that they do not form a distinct class for other purposes (e.g., voting rights or employment discrimination) is irrelevant as to whether they form a distinct class in this context. Whether their exclusion would prevent a fair trial in a noncapital case is immaterial, yet this is the standard the Court is using. The "distinct quality" lost is the possibility for mercy. Depriving defendants of that possibility deprives them of a jury fairly representative of the community on the issue where the conscience of that community is most urgently involved--a matter, literally, of life and death.

The McCree Court rejected claims that death-qualification produces biased juries. Instead of addressing the improper exclusion of potential jurors, the Court looked to the variety of people who actually sit on capital juries, commenting: "If it were true that the Constitution required a certain mix of individual viewpoints on the jury, then trial judges would be required to undertake the Sisyphean task of `balancing' juries, making sure that each contains the proper number of Democrats and Republicans, young persons and old persons, white-collar executives and blue-collar laborers, and so on." The Court contended it made no sense to say "a given jury is unconstitutionally partial when it results from a State-ordained process, yet impartial when exactly the same jury results from mere chance."

It is impossible to overstate how disingenuous this argument is. The defense in Lockhart v. McCree was not demanding any particular mix of jurors. They were arguing that McCree should have been tried by a jury selected from a fair cross-section of the community, as guaranteed by the Supreme Court's interpretation of the Constitution. They argued that the Constitution forbids jury selection procedures that allow only the most conviction-prone to sit as jurors, regardless of race.

The Court never addressed the obvious fact that any combination could occur by chance. A randomly selected jury could include just members of a certain religion or race, only men, women, Democrats, pharmacists, or KKK members. Would such a jury be constitutional if it resulted from a state-ordained process, merely because "exactly the same jury [could result] from mere chance"? It certainly would not, since the distinction is meaningless. Either the jury is selected according to fair and neutral procedures, or it is not. A jury selected through a process that predisposes it in predictable and demonstrable ways is not fairly selected, regardless of whether a biased jury could also have been selected through other means. The Supreme Court's decision merely addressed whether the jury seated could constitutionally be empowered to decide the case. It ignored arguments that the jury was selected through unconstitutional procedures.

Selection and racial bias

A detailed statistical study of capital cases in Georgia showed that, if every other fact in a case is identical, a killer who murders a white victim is more than four times as likely to be sentenced to die than one who murders a black person. Prosecutors are three times as likely to seek the death penalty when the victim is white, and juries are 40% more likely to sentence the killer of a white to die. This racial bias on the part of capital juries may be largely attributable to the unique jury selection procedures employed in capital cases.

Every study to investigate death-qualification has shown that minorities and women are removed from death-qualified juries at a much higher rate than white males are. As a result, capital juries tend to be whiter and more dominated by males than are juries in other cases. Undeniably, capital juries show some racial disparities in their sentencing decisions. If juries in capital cases were not subject to death-qualification procedures, there is little reason to believe these racial disparities would survive. The remedy to racial discrepancies in capital sentencing is not to micromanage jury decisionmaking, but to eliminate the ability of prosecutors to disqualify anyone with qualms about capital punishment from the jury pool.

Jeffrey Abramson of Brandeis University has argued that diverse jury panels "enrich" jury deliberations on questions of fact. However, jury death sentencing involves much more than simply deciding questions of fact. It involves making the most profound normative decision human beings can possibly make: whether one of their fellow human creatures deserves to live or die. The need for diverse jury panels and "enriched" jury deliberations is at its greatest when the jury is making a decision on the basis of conscience. The conscience of the community should be the conscience of the entire community, not just of that minority of the community willing to impose the death penalty without questioning its basic validity in the case before them. The arguments that prevail in the jury room should be those capable of forging a broad consensus of agreement, even among those with reasonable qualms, that this is a case in which death is justified. Less than that, and we have given a minority segment of our society a license to kill.

The jury--historically referred to as the "conscience of the community"--has been tamed, at least in capital cases. Only those who support capital punishment are permitted to serve. Do you have doubts that the death penalty is just? Do you think the death penalty may be overused? The government and the states do not want your opinion to be heard in the jury room. After all, one conscientious opinion could make the difference between life and death. In capital litigation, some prosecutors view life imprisonment as a professional "setback."

To prevent jury nullification of the death penalty, courts have deprived capital defendants of an impartial jury selected from a fair cross-section of the community and from a determination of guilt and punishment in accordance with the conscience of the community. As attorney Chaya Weinberg-Brodt noted in the New York University Law Review: "In their desire to eradicate irrational acquittals and nullifications, courts have undermined the basic procedural guarantees granted to a criminal defendant. These guarantees are necessary to preserve a core value of our criminal justice system: a criminal conviction should result only upon evidence of a statutory violation and a determination by the community, speaking through a representative jury, that the defendant's conduct is blameworthy."

It is impossible to preserve the core values of the criminal justice system while trying to concentrate jury selection procedures on the prevention of jury nullification of the death penalty, at the expense of a fairly selected jury. It is time for America to quit death-qualifying juries in capital cases. If there is insufficient social consensus for the normal use of peremptory challenges to remove conscientious objectors from the jury panel, then perhaps the community does not favor capital punishment as strongly as the pollsters have presumed. If there is one issue on which supporters and opponents of the death penalty ought to be able to agree, it is that no persons should be executed after a trial before a biased jury that was stacked against them.

Clay S. Conrad, a partner with the law firm of Lamson & Looney, Houston, Tex., is the author of Jury Nullification: The Evolution of a Doctrine.