The Inherent Bias of Death Qualification

In light of the fact that Errol Morris' documentary on a Texas death penalty case is due to be released on DVD next week, I thought that death qualification was an issue I should discuss here.

There are roughly four thousand people on death rows across America as this is published. Some, undoubtedly, are guilty. Some are certainly innocent, and we as citizens can only hope their innocence will be proven while there is still time. But, sadly, not one of the people on death row in this country has received a trial before a jury fairly representative of the community in which they were tried. And there is evidence that in each and every case, the juries who tried these defendants were biased against them.

The justification for these statements is found in the unique jury selection procedures employed in capital cases. In a capital case, every individual with qualms about imposing death as a penalty for crime is disqualified from jury duty. This is called “death qualification.” While until 1986, only those jurors who would never vote for death were disqualified, since that time any juror whose judgment would be affected by the sentence involved could be removed.

While many Americans favor the death penalty, many do not, and few believe the death penalty should be used as widely as it is. Many people - including the most conscientious members of society - approach the death penalty only with fear, trepidation and hesitation. Even former Illinois governor George Ryan, a Republican, had enough doubts about the death penalty that he imposed a moratorium on executions in his state. Indeed, prosecutorial misconduct and harmful attorney errors occur in roughly two/thirds of all capital cases. Knowing this, many people who support the death penalty in theory may be removed from a capital jury in practice, because of their extraordinary caution at imposing the ultimate penalty. It takes a great deal of courtroom time, and some pretty intrusive voir dire, to remove any juror who would be so affected.

Because of this, jury selection in capital cases often takes weeks, if not months, as the “death qualified” jurors are isolated by the State. Women and minorities are eliminated at a much higher rate than are white males. (Perhaps as a result of this, capital juries are about 43% more likely to sentence a killer to die if his victim is white.) Death qualified jurors are more concerned about crime, more cynical of defense lawyers, and more likely to be punitive, than society at large. Numerous studies have shown that those who survive the death qualification process are inherently biased towards conviction. People who have no qualms about the death penalty favor the State. They would be more likely to convict in a jay-walking case.

The Supreme Court in the 1986 case of Lockhart v. McCree ruled that the interest of the State in carrying out its death penalty trumps the rights of the accused to a jury fairly representative of the community. The Court believed that the interest of the accused in being tried before an unbiased jury of his or her peers had to give way to the State’s interest in carrying out its death penalty. 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. Juries would nullify the death penalty, refusing to sentence people to die for reasons the State did not consider adequate.

Hence, because a fairly selected jury would not sentence people to die as reliably as the State would like, the Court allowed States to stack juries against the accused. The jury - historically referred to as the “conscience of the community” - has now been turned on its head. Only those who support the State are allowed to serve - no critics need apply. You have doubts that the death penalty is just? You think the death penalty may be over-used? You think that the death penalty requires extraordinary caution? The Supreme Court not only does not want to hear your opinion - the Court does not even want to allow you to speak. At least, not on a jury, where your opinion would mean the most.

Modern death-penalty law revolves around guiding jury discretion into approved channels. To prevent jury nullification, courts have deprived capital defendants of an impartial jury selected from a fair cross-section of the community, and from a determination of guilt and punishment in accordance with the conscience of the community. Moreover, many prosecutors, as Miller-El shows, are willing to use racism and prejudice, ignoring the Constitution in the process, to further their chances of getting a capital verdict.

Restricting capital jury service to those elements of society who are most inclined to convict hardly provides a balanced or impartial judging of the case. We have excluded any points of view save those of the jurors most likely to convict and sentence a person to die. Then we imagine that the resulting verdict represents the judgment of the community as a whole. Nothing could be farther from the truth.

It is impossible to preserve the core values of the criminal justice system while concentrating jury selection procedures entirely on the prevention of jury nullification, at the expense of a fairly selected jury. Have we really reached a point in this country where we are willing to allow human beings to be executed after a trial before a biased jury, stacked against them and sworn to execute? Apparently so.