A Criminal Enterprise

The Death of Death-Qualification

Posted in Uncategorized by Robert Smith on August 26, 2009

Thank you to the Crim Prof Blog for highlighting a recent article that Ben Cohen and I wrote in the Case Western Law Review. The abstract for that article, The Death of Death-qualification, is available  here, so I won’t go into too much detail. The basic gist is that both at the Founding and in Blackstone’s England, no mechanism existed that would allow the State to remove from a jury–at the outset of a capital prosecution– all those who appear to be opposed to imposing the maximum punishment allowed by law. We conclude that “modern ‘death qualification’ jurisprudence frustrates the framers’ understanding as to the role of the criminal jury. Whereas the framers’ jury had the power to rule on the constitutionality of the death penalty, though the force of any ruling applied only to the particular case on which they sat, a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death.”

Attempting to move this argument from the academic into the real world, we filed a cert petition in Campbell v. Louisiana (which was rejected late last year, but the Petition and amici briefs are available from Scotus Blog here (scroll down the list of Petitions to Watch)). In order to prevail on the historical argument in a state court case, we need to prove that (1) historical understanding is the proper methodology and (2) our historical arguments are right, and thus the state statute allowing for the for-cause removal of citizens who have reversations about whether the death penalty is a proper or even constitutional punishment. BUT, as Ben recently noticed shortly after assuming his role as counsel on a federal death penalty appeal, there is NO federal statute that authorizes the exclusion of such jurors at the federal level.

So, at the federal level, where does the source of the power to exclude or “death-qualify”  jurors come from? Not a statute (unlike in Witherspoon, Adams, and Witt).  And, if our historical argument is correct, not from common law either.

This isn’t an academic exercise or even an ideologically driven quest to re-fasten the Sixth Amendment to its historical underpinnings. Death qualified juries severely undermine the fairness of capital trials—both at the guilt and penalty phases. Social scientists have demonstrated, and even the noted District Attorney Joshua Marquis admits, that death qualification results in juries that are more likely to convict at the guilt phase: “I won’t deny that a death-qualified juror is probably more likely to be willing to look at a guilty verdict. I think that the difference is negligible.” (See NYT article below).  Also, it is likely true that who receives a death sentence is more easily predicted by an examination of the quality of voir dire lawyering than in the severity of the crime (defense lawyers who use the “Colorado Method” of selecting a jury, and who do it well,  rarely see a death verdict returned against their clients).

Moreover, the death-qualification process most likely operates to exclude a disproportionate number of racial and ethnic minorities. This is not the only way death-qualification strips the defendant of a fair cross-section of the community. Adam Liptak summarizes the findings of empirical studies by Professor Brooke Butler’s and others in a 2007 NYT article that can be found here:

““They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences.

In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.”

So death-qualification would not have been acceptable to the Framer’s, no statute authorizes its operation in the federal death penalty context, and its likely practical effect is to create guilt-prone juries and to exclude broad swaths of the community…. but there are at least two more  problems:

First, removing all of the voices of jurors who might not be willing to sentence a person to death undermines the ability of the Court to assess how much its citizens have cooled to the idea that capital punishment is an acceptable punishment in light of our evolving standards of dececeny. As the Court has repeatedly stated, because they are an “on-the-ground” assessment, jury verdicts  are one of the most powerful objective indicators that a particular punishment is excessive.

Second, the Witt standard, which says that jurors must not be “substantially impaired” from considering a sentence of death, is applied unevenly.* Now retired Chief Justice Calogero of the Louisiana Supreme Court forcefully articulated an example of this issue in his dissent in State v. LaDerrick Campbell:

I believe there should be a level playing field for the accused and the state in jury selection in capital cases. In this case, the majority found that the trial judge had properly excused on the state’s challenge for cause prospective juror Rosie Lee. The majority reasons, “Lee’s admission that she would consider the death penalty under certain extreme circumstances is outweighed by her consistent statements during the majority of voir dire that she would not impose the death penalty under any circumstance.” Ante, p. 84. That same rationale should have applied to the majority’s treatment of the defendant’s challenge for cause of juror Payne. Payne repeatedly expressed his presumption in favor of the death penalty and his unwillingness to even consider a life sentence unless the defendant proved the existence of mitigating circumstances “beyond a really reasonable doubt.” Therefore, this juror’s mere acknowledgment that he could consider a life sentence was surely “outweighed” by his consistently strong statements during the majority of voir dire that the death penalty was the “appropriate” sentence for this crime and that he would hold the defendant to an improperly onerous burden of proof to overcome that presumption. Thus, had the trial judge and the majority today applied the law evenhandedly, in my view, both would have found that juror Payne was no more qualified to sit on the jury than was prospective juror Lee.

I’ll end this post with three recent quotes from Justice Stevens:

Baze v. Rees, 128 S. Ct. 1520,1550 (2008)(Stevens, J., dissenting)(The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.)

Baze v. Rees, 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring) (“Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”).

Uttecht v. Brown, 127 S. Ct. 2218, 2238-2239 (2007) (Stevens, J., Souter, J. Ginsburg, J., and Breyer, J.,dissenting) (“Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. . . . Today the Court ignores these well established principles, choosing instead to defer blindly to a state court’s erroneous characterization of a juror’s voir dire testimony.”).


*While this observation comes from reading transcripts from numerous jurisdictions, there is no hard data. Hopefully, that will soon change as I understand that a long-term study is underway. From what I can tell, the inequality happens in at least three ways.

First, jurors who repeatedly say that they cannot impose death, but then admit under defense questioning that they could consider it if the judge tells them to, etc, are still excluded on the idea that the totality of the answers suggests that the juror could not be fair. But, when a juror will not consider a life sentence, but then agrees to “just consider” a death sentence or to “follow the law” that juror is less frequently excluded for cause.

Second, judges appear to give the “can you follow the law” bit more often to jurors who will not consider life than to jurors who will not consider death. And, come on, how many people are going to tell the judge that they will not “follow the law.”

Third, prosecutors use the “you only have to consider the mitigating evidence but you can give it “any weight that you want to” … will you just consider death? Well “consider” does not equal an honest and open possibility. And the problem here is that when you oppose death on moral or religious grounds, you will not “consider” it as a sentence (even if only in name) but how many people morally or religiously oppose a life sentence (rather than just think the “guy deserves it”). And if you are not morally tied-up in the issue, then you can at least “consider” a life-sentence even if  in name only. So people who are equally unwilling to truly consider a sentence (life or death) are unequally excluded depending on whether the sentence they won’t consider is life or death.

At issue is
whether the State may – at the outset of a capital prosecution –
remove from a jury all those who appear to be opposed to
imposing the maximum punishment allowed blawThclosest historical basis for a for-causexlcusion i

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