WE, THE JURY : But not in capital cases.

The justification for the death penalty in this country is that it reflects the will of the people. But does it? Under our republican system, Americans make their will known in two ways--as voters in the executive and legislative branches and as jurors in the judiciary. But how accurately?

The legislatures of thirty-eight states have passed death-penalty laws--and 613 inmates have been executed--since the Supreme Court reinstated capital punishment in 1976. Another 85 inmates on death row have been found not guilty--well after their trials--and released. Had they been executed, the innocent would have constituted nearly 9 percent of the total.

There is little doubt that public horror about these near-executions, combined with the national decline in violent crime, has dimmed American enthusiasm for capital punishment. Support for the death penalty in murder cases, for example, fell to 64 percent this January, down from 77 percent in July 1996, according to an ABC News poll of more than one thousand adults.

In theory a decline in public support will eventually be reflected in elections and in juries. And while elected legislators and executives may lag behind public opinion, jurors should not, since they embody the ultimate direct participation by the public in government.

The nation's Founders envisioned precisely this representative role for the jury, which they saw as the chief means of ensuring that the morals and standards of the community would be heeded in both criminal and civil trials. So important was the right to a jury trial that it was guaranteed three times in the Bill of Rights--the only right so honored. Yet a century-and-a-half of encroachments on the jury's prerogatives by both the legislative branch and the judiciary itself has constrained the ability of the jury--particularly the capital jury--to reflect the morals of the community.

Take the experience of the State of Illinois, which is playing a starring role in the death-penalty drama because it had convicted thirteen of those now-exonerated inmates. Citing two decades of tainted evidence, prosecutorial and police corruption, and grossly inept defense--all of which undermine jury trials--the chagrined Republican governor of Illinois declared a moratorium on executions in January. But in April the Illinois Supreme Court trumped him, ruling that two executions could go forward.

This isn't Illinois's first starring death-penalty role. An Illinois case (Witherspoon) that made it to the Supreme Court in 1968 had raised the immensely serious question of whether citizens opposed to capital punishment could be excluded from a jury.

William Witherspoon killed a Chicago policeman while fleeing arrest in September 1959. He was tried by a jury, convicted of murder, and sentenced to death.

His jury had been selected under an Illinois law that permitted the exclusion of any juror who admitted having "conscientious scruples against capital punishment." Witherspoon contended that such exclusion was too broad, and that the dismissal of "scrupled jurors," as they are often called, left a jury biased in favor of the prosecution. Further, he argued, such a jury no longer represented a fair section of the community as required by a long line of cases prohibiting the exclusion of any significant, definable group.

Writing for the Supreme Court, Justice Potter Stewart said that jurors could not be excluded simply because they had reservations about capital punishment unless they said they would automatically vote against the death penalty, no matter what the evidence. While hard-core opponents of the death penalty could be culled, jurors with mere scruples had to be allowed to serve. Litigator Evan Davis summarized the decision's significance a year later by noting that Witherspoon "effectively enlarged the jury's role in blocking the death penalty."

Yet the case also became the source of the term "Witherspoon excludables," meaning those persons who could indeed be dropped from a jury because of their adamant opposition to capital punishment. In some jurisdictions, such as liberal Northern cities, Witherspoon excludables could constitute a large cross section of the community. As Kevin Doyle, the State of New York's capital defender, says, "You think you have, say, a New York City jury. It may look like a New York City jury, but it's not because disproportionate numbers of African Americans, women, Jews, and Catholics have been excluded."

Nor is the story finished with Witherspoon. After the Supreme Court struck down the then-existing state death-penalty statutes in 1972, many states passed new laws with two-part capital proceedings--the first to establish guilt or innocence, the second to determine sentencing. This system could insulate the underlying conviction of guilt from challenges based on a death sentence. The practical problems were many, not the least being--from a defendant's point of view--that juries from which death-penalty opponents were excluded tended to be friendlier to the prosecution. Such juries were what defense attorneys call "conviction-prone."

In 1986, Arkansas inmate Ardia McCree, sentenced to life without parole for robbery-murder, challenged his conviction, arguing that jurors opposed to the death penalty had been improperly excluded, unfairly increasing his likelihood of being found guilty. A federal district court agreed, citing sociological studies showing that death-qualified juries were more likely to convict.

When Lockhart v. McCree reached the Supreme Court, Justice William Rehnquist essentially asked So what? He didn't believe the sociological data, but even if he had, he said, the Constitution did not bar "death qualification" in capital cases. Excluding "those who cannot and will not conscientiously obey the law" did not bias a jury.

This is how things stood until 1992, when another Illinois case--Morgan--came before the Supreme Court. In Morgan, the defense contended that the trial court had erred in refusing to inquire whether potential jurors would automatically impose the death penalty upon conviction. The Illinois Supreme Court had agreed with the trial court, ruling that it was not required to include in the jury-selection process a "life qualifying" or "reverse-Witherspoon" question upon request. The U.S. Supreme Court disagreed, saying that jurors had to be willing to consider "mitigating" evidence that might result in a lesser sentence than death. A juror who would automatically send a defendant to the chair could be excluded.

Morgan was a comfort to many death-penalty advocates, who could now argue that both extremes were eliminated--those who would always impose the death penalty as well as those who would never impose the death penalty. The playing field was leveled.

But was it? Statistical studies have shown that the vast majority of excused jurors are those who oppose the death penalty. A study reported in the Howard University Law Journal concluded that of all the jurors surveyed in forty-one capital cases, 14.4 percent were excused for death-penalty opposition while only 0.5 percent were excluded because they always favored execution.

The result is that capital defendants are routinely tried in front of death-qualified juries selected for their willingness to impose the death penalty. Virtually no one--prosecutor or defense lawyer--contends otherwise. Is this compatible with American democratic principles?

The legal point of voir dire--the selection process that produces the jury of twelve citizens--is to ensure a fair trial by eliminating those who cannot be fair. In practice, a shrewd voir dire lawyer can go far toward determining the outcome of the case.

Death-qualification hands the prosecutor the ability to select a hanging jury, to use Justice Stewart's phrase.

Death-qualification is also a serious interference with the jury's role as a reflection of the community. Many studies have shown that death-qualified jurors are distinct from the larger community on substantive grounds, tending to be more distrustful of defense attorneys, more likely to be suspicious of a defendant's failure to testify, and more prone to convict.

Even when "scrupled jurors" have made it through voir dire, they may find the challenges aren't over. In March a Riverside, California, jury announced its conviction of a man accused of a heinous kidnapping and torture-murder. Under California's two-part system, the jurors then deliberated on the sentence. When they had trouble reaching agreement, the judge removed a black juror for "racial bias" and a Catholic juror for his religious views. Both had voted to spare the murderer's life. With those two removed, the jury voted the death sentence.

Are such practices either what Americans want or what the Founders intended? Vivian Berger, the Nash Professor of Law at Columbia Law School, notes that "the court is now ruling out of the jury precisely those influences that should come to bear in a criminal case."

The Founders saw the jury as both a needed protection for individual rights and a means of ensuring communal support for judicial procedures. Stacking the deck to ensure the death penalty does neither.

Julia Vitullo-Martin, a senior fellow at the Vera Institute of Justice, is writing a book on the American jury.