Today, all nine Justices of the Supreme Court met to decide whether to continue to permit juries in capital cases that are inherently biased toward imposing a sentence of death, or to finally revisit a much-maligned and problematic practice of “death qualification” of juries.
In 1968, the Supreme Court announced a seemingly bright-line test for determining when the State could unilaterally prevent jurors from serving on a capital case (exercising a peremptory challenge): when those jurors stated that they were unequivocally opposed to the death penalty and could not impose a sentence of death in any circumstance. In Witherspoon v. Illinois, the Supreme Court held that the State could legally excuse jurors:
who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.
Witherspoon, reaffirmed in Wainwright v. Witt, still rules the day. Death qualified juries are the norm and community members are regularly excluded based on their moral opposition to the death penalty.
The idea of the “death qualified” jury is an especially appealing one: if the State provides for two forms of punishment and asks jurors to determine guilt and the sentence to be imposed, it should follow naturally that the juror should be able to consider either one of those punishments and impose it. Thus, any juror on either end of the spectrum (automatic life or automatic death) would be in violation of her oath to apply the law and determine the appropriate punishment as required by the court’s instructions.
Ah, but if only humans could be trusted to be so dispassionate and analytical. The truth is that automatically excluding those unequivocally opposed to the death penalty not only deprives the defendant of a “jury of his peers” (for he can reasonably be assumed to be opposed to the death penalty as well1), but also results in a jury that is significantly pre-disposed to returning verdicts of guilt and death.
For starters, research shows that2:
death-qualified jurors are more likely to be male, Caucasian, moderately well-educated, politically conservative, Catholic or Protestant, and middle-class. Death-qualified jurors are also more likely to be more receptive to aggravating circumstances and less receptive to mitigating circumstances. They are more likely to be racist, sexist, and homophobic and skeptical of defenses involving mental illness (including the insanity defense). They are also more susceptible to the pretrial publicity that surrounds capital cases. They are more affected by the victim impact statements that occur during the sentencing phase of capital trials.
And on. Is it time to re-evaluate this practice of excluding a sizeable portion of the community from deciding whether one of its own gets to live or die? The last poll in CT before abolition revealed a split in support for the death penalty vs. LWPOR. 46% of residents were in favor of one or the other. And yet “death qualification” systematically excludes one half of the state’s population.
But Carter raises a different argument, perhaps specifically tailored to whet Justice Scalia’s appetite. He argues that death qualification is the one area of Sixth Amendment jurisprudence (the right to an impartial jury) that the Supreme Court hasn’t reconfigured in recent years to mesh with The Framers’ Intent (copyright pending).
In essence, Carter argues that the Framers would never have excluded jurors unequivocally opposed to the death penalty because they believed in the jurors’ power to nullify. As I mentioned in a post last week, jurors at the time the Framers were alive and thereafter were expected to be arbiters not only of fact, but also law. Carter’s petition for certiorari reproduces that Justice John Jay quote about the power of the jury to render a verdict in contravention of the law and in accordance with their moral beliefs.
At base, the notion of striking a juror because of his opinion on the propriety of the law was entirely foreign to the nation’s founders. In fact, it was expected that the jurors would follow their conscience and render a verdict that was against a law they deemed unjust—this was at the heart of the impartial jury as understood by the Framers. As John Adams wrote in 1771:
And whenever a general Verdict is found, it assuredly determines both the Fact and the Law. It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And, if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment, and Conscience[?]
In modern, TL;DR English: jurors aren’t rubber stamps, nor should we require them to be. To the contrary, jurors must be permitted to vote their conscience.
Will the Supreme Court’s conscience permit it?
H/T: SCOTUSblog, which has links to all the other briefs.
1You will, I’m sure, allow me this little joke.
2The assertions made in this blockquote are taken directly from the article linked to just prior to it, but I’ve joined several paragraphs together into one for the sake of brevity. The relevant citations are included in that article and have not been checked by me. Your mileage may vary.