By: Marina Rubio
The Bill of Rights guarantees criminal defendants the right to an impartial jury of one’s peers.[1] And the essential role of that jury is to determine the guilt or innocence of an individual charged with a crime based on the facts.[2]
Death disqualification in capital punishment cases permits the exclusion of potential jurors who express opposition to the death penalty.[3] Among the twenty-seven states that provide for a legal death penalty sentence, sixteen states have implemented specific capital juror disqualification criteria based on the stage of the trial.[4] Alabama, Colorado, Indiana, Ohio, and Texas disqualify prospective jurors if their views will prevent them from following the law during sentencing.[5] Meanwhile, Arkansas, Colorado, Delaware, Florida, Idaho, Montana, and Oklahoma base their disqualification criteria on whether a prospective juror can follow the law when assessing the defendant’s innocence or guilt.[6] Georgia, Utah, and Wyoming practice death disqualification but fail to identify a particular stage of trial where jurors’ potential capital punishment biases become problematic.[7] Louisiana, on the other hand, holds that death penalty biases are grounds for disqualification if a prospective juror cannot or will not follow the law during either the guilt or sentencing phase of a capital punishment case.[8]
In 1968, the Supreme Court weighed in on this practice.[9] The Court in Witherspoon took issue with the state of Illinois removing all jurors who expressed even minor “conscientious scruples” toward the death penalty, creating a distinction between potential jurors who emphatically oppose the death sentence from those who voice mere hesitation for imposing a death sentence.[10] The Court held that such a practice results in a jury “organized to return a verdict of death,” thus depriving the defendant “of his life without due process of law,”[11] while emphasizing the constitutional role of a juror: “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.”[12]
Nevertheless, the practice of death disqualification results in discriminatory jury selection, generally biased in imposing capital punishment sentences.[13] A recent study from the Michigan State University College of Law examined jury selection in trials of ten capital defendants in Wake County, North Carolina.[14] Significantly, the study points out that black jurors – especially black women – as well as people of faith who object to the death penalty are excluded from capital juries at higher rates than their white, male counterparts.[15] Specifically, when limiting the results of the study to venire members for whom no basis other than death disqualification applied, black members were removed over two times more than white venire members.[16] And regardless of race, women were excluded from juries at higher rate than men.[17] Further, the study found that death qualification excluded 20% of jurors who identified as religious compared to 12% of those identified as not religious, making religious venire members 69% of the members excluded for death qualification.[18]
Ultimately, this practice results in a jury that is more white, more male, and more likely to convict and impose death,[19] depriving the defendant “of his life without due process of law,” inconsistent with the Court’s ruling in Witherspoon.
[1] U.S. Const. amend. VI
[2] Role of the Jury, Citizens Information, https://www.citizensinformation.ie/en/justice/courtroom/jury.html (last visited Oct. 30. 2022).
[3] Britannica, The Editors of Encyclopaedia. “death-qualified jury”. Encyclopedia Britannica, 31 May. 2018, https://www.britannica.com/topic/death-qualified-jury. Accessed 30 October 2022.
[4] Alexander H. Updegrove & Rolando V. del Carmen, An Analysis of State Statutes On Capital Juror Disqualification and a Proposal for an Exploratory Statute (June 1, 2017), https://jcjl.pubpub.org/pub/v1-i1-updegrove-delcarmen-capital-juror-dq/release/1
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Witherspoon v. State of Ill., 391 U.S. 510 (1968)
[10] Id. at 514.
[11] Id. at 521, 523.
[12] Id. at 519.
[13] Challenging discriminatory jury selection in capital cases, ACLU, (Oct. 25, 2022), https://www.aclu.org/cases/state-north-carolina-v-brandon-hill
[14] Catherine Grosso & Barbara O’Brien, Report on Wake County Jury Selection Study (August 15, 2022), https://www.aclu.org/legal-document/wake-county-report-professors-catherine-grosso-barbara-obrien
[15] Id. at 14.
[16] Id.
[17] Id.
[18] Id. at 10.
[19] Challenging discriminatory jury selection in capital cases, ACLU, (Oct. 25, 2022), https://www.aclu.org/cases/state-north-carolina-v-brandon-hill
