"Death-Qualification" Leads to Biased Juries - capital punishment views impact jury selection - Statistical Data Included

USA Today (Society for the Advancement of Education), March, 2001 by Clay S. Conrad

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."