The Dilemma of Jury Death Qualification
The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to a trial by an impartial jury, among several other rights. Critical to ensuring jury impartiality is voir dire, the process in which attorneys screen potential jurors from a pool of candidates (a “venire”) — for capital punishment cases, this is known as “jury death qualification.” To become “death-qualified,” or deemed fit to serve on a capital case, potential jurors are questioned about their views on the death penalty and must adhere to certain standards, the scope of which the Supreme Court has refined in the past century. The issue lies in the fact that there are no clear guidelines on what views constitute grounds for a potential juror to be eliminated, or “challenged for cause.”
The Supreme Court first articulated these standards in Witherspoon v. Illinois, 88 S. Ct. 1770 (1968), a case in which the prosecution of a criminal trial eliminated nearly half the venire of potential jurors based on their personal scruples about capital punishment. The resultant jury found the defendant guilty and sentenced him to death. The Supreme Court of Illinois affirmed the trial court’s decision to dismiss the defendant’s petition for habeas corpus, leading to the defendant petitioning the Supreme Court for certiorari.
Granting certiorari, the Supreme Court reversed the death penalty sentence, finding that the blanket removal of all potential jurors who had simply expressed conscientious or religious scruples against the death penalty effectively produced a jury “uncommonly willing to condemn a man to die.” The majority contended that such a process would deprive the defendant due process of law.
The Court instead implied that a state could exclude only those potential jurors who would automatically vote against a death penalty sentence regardless of a case’s facts.
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear [...] 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[.]
88 S. Ct. 1770, 1968 U.S. LEXIS 1469, 18 n.21. (emphasis added)
Effectively, the Court held that potential jurors could not be removed during voir dire for having general reservations about the death penalty. However, the Court imparted a critical caveat:
We simply cannot conclude … that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury … or substantially increases the risk of conviction.
Thus, the Court drew a clear line: exclusion does not inherently cause a jury to be unrepresentative. By failing to question the essence of the death qualification process itself, Witherspoon has opened up a can of legal worms, prompting questions about the process’ potential biasing effect and licensing more punitive and unrepresentative jury compositions in capital punishment cases across the nation.
Interestingly, subsequent cases have criticized the Witherspoon standard, not by pointing to its role in engendering unrepresentative juries, but by asserting that it went too far in its death qualification limitations. In Wainwright v. Witt, 105 S. Ct. 844 (1985), the Supreme Court replaced the Witherspoon standard with broader standards for exclusion articulated in Adams v. Texas, 100 S. Ct. 2521 (1980). The Court held that potential jurors in capital cases could be excluded if their views would "prevent or substantially impair” their juror duties and that any removal of a potential juror would not require that their bias be proved with “unmistakable clarity” — clearly a marked departure from Witherspoon’s narrow standard requiring automatic opposition to capital punishment.
The Court reached this analysis by explaining that the “automatic” standard of Witherspoon was impractical.
…determinations of juror bias cannot be reduced to question-and-answer sessions … many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear[.]”
The Court then used this assumption to justify extending discretionary power to trial judges.
…the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law … this is why deference must be paid to the trial judge who sees and hears the juror.
These Supreme Court precedents are increasingly important given the wealth of empirical studies produced in the wake of new capital punishment statutes post-Furman (in Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court declared all existing capital punishment laws as unconstitutional). Many of these studies point to discrimination in capital sentencing procedures. For example, a study examining the arbitrariness and discrimination under capital statutes in Florida, Georgia, Texas, and Ohio found that courts were more likely to impose death sentences in cases involving white victims rather than Black victims, and that Black people who killed white people were more likely to receive death sentences than white people with the same crime.
Findings of discrimination extended to jury composition, as well. A study examining who would be eliminated during voir dire, for example, found that Black people were eliminated at greater proportions than white people. Further, not only were death-qualified jurors more prone to side with the prosecution, but they also were more likely to be punitive and prioritize crime control over due process.
The overwhelming research on the biasing effect on juries culminated in Lockhart v. McCree, 476 U.S. 162 (1986). Lockhart involved an inmate at the Arkansas Department of Corrections who was sentenced to death. The defendant, however, was granted habeas corpus relief after the District Court found that the death qualification process, utilizing the Witherspoon standard, violated the inmate’s right to trial by impartial jury.
The Court of Appeals affirmed, but the Supreme Court granted the Department of Corrections’ writ of certiorari petition, reversed the lower courts’ decisions, and held that death qualification is not unconstitutional. In fact, the Court went even further, stating that even if social science were to demonstrate that death qualification led to more conviction-prone juries, that jury death qualification would retain its permissibility.
The Constitution does not prohibit the removal for cause … of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial. This is so even assuming … that the social science studies introduced in the courts below were adequate to establish that "death qualification" in fact produces juries somewhat more "conviction-prone" than "non-death-qualified" juries.
476 U.S. 162, 1986 U.S. LEXIS 153, 2.
Even when death qualification standards were narrow pre-Wainwright, social science studies demonstrated the biasing effects of jury death qualification. Yet, instead of seriously challenging the process’ constitutionality, the Supreme Court decided to loosen the standards to remove potential jurors.
With death qualification firmly entrenched in America’s capital punishment cases, one can only imagine how much more troubling America’s jury compositions will continue to be and if the Court will ever recognize its mistake before the effects become ubiquitous and irremediable.
Kevin Kim ‘24 is a senior at Brown University, concentrating in International and Public Affairs with a certificate in Engaged Scholarship. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at kevin_s_kim@brown.edu.
Maia Eng ‘26 is a sophomore at Brown University concentrating in International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu.