Commentary

Are You “Death Qualified”?

By Clay S. Conrad
August 10, 2000

Although recent controversy over the death penalty has concentrated on the forensics of guilt and innocence (such as DNA evidence) and the effectiveness of appointed defense counsel, little attention has been paid to the workings of another vital constituent of our criminal justice system: the jury. Of the over three thousand people on death row in America (the overwhelming majority of whom are guilty), not a single one has received a trial before a jury representative of the community in which they were tried. In each and every case, the juries who tried these prisoners were biased against them.

Few Americans know that there is a unique jury selection procedure for capital cases, known as “death qualification.” Any citizen with qualms about inflicting death can be disqualified from jury duty. While most Americans favor the death penalty, many do not. More importantly, 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. And yet such qualms can be sufficient to disqualify them from jury duty in a capital case.

Because of this, 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 are white males. (That may explain why capital juries are approximately 43 percent more likely to sentence a killer to die if his victim is white.) Numerous academic studies show that those who survive the death qualification process are not only biased towards death (instead of life imprisonment), but conviction. People who have no qualms about the death penalty just tend to favor the prosecution - whether the crime is shoplifting, drunk driving, or murder.

In 1986, the Supreme Court ruled that the interest of the State in carrying out the death penalty trumps the right of the accused to a jury representative of the community. If those with qualms about the death penalty were allowed to serve on the jury, the logic went, the death penalty would seldom, if ever, be invoked.

The jury — historically referred to as the “conscience of the community” — has now been tamed, at least in capital cases. Only those who support capital punishment are permitted to serve. You have doubts that the death penalty is just? You think the death penalty may be over-used? 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. And in capital litigation, some prosecutors view life imprisonment as a professional “setback.”

Modern death-penalty law revolves around guiding jury discretion into state-approved channels. As 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 selected jury. If there is one issue on which supporters and opponents of the death penalty ought to be able to agree, it is that no person should be executed after a trial before a jury that was stacked against them.

Clay S. Conrad is a criminal defense lawyer in Houston and the author of the Cato Institute book Jury Nullification: The Evolution of a Doctrine.