By Liliana Yearns, J.D. Candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
The Sixth Amendment of the United States Constitution guarantees capital defendants the right to an impartial jury. The Eighth Amendment forbids the infliction of cruel and unusual punishment. The Fourteenth Amendment mandates that the U.S. government provide equal protection and due process under the law. Over several decades, courts have found that capital jury selection procedures comply with these constitutional requirements. Scholars, however, report that capital juries often produce lower-quality verdicts, disregard mitigating sentencing factors, and impose unequal punishment. According to scholars, these results stem at least in part from a capital jury-selection process known as death-qualification.
Death-qualification and its history
In most United States jurisdictions, the process of deciding who sits on a jury for a particular trial involves demanding that a set of potential jurors selected (perhaps randomly) from a larger list (voter or driver’s license lists, for example) appear in court on a particular day. That set undergoes a screening process requiring them to answer questions, some written and some oral, requesting information about suitability to serve as jurors. Potential jurors who have disqualifications, such as a family relationship with one of the litigants or one of their lawyers, are dismissed “for cause.” After the for-cause dismissals, each side in the litigation has a certain number of “peremptory” strikes, meaning those that it can exercise without explanation or reason.
Death-qualification involves the for-cause exclusion of prospective jurors who express an unwillingness to impose the death penalty during jury selection. Through the screening process described above, jurors typically disclose (1) whether they could decline to convict if capital punishment were a possible sentence, (2) whether their views would “interfere with or impair” their ability to sentence fairly, and (3) whether they would never impose the death penalty. Death-qualification proponents argue that excluding individuals who answer any of these questions affirmatively ensures that only jurors who can follow the law will sit, given that the law requires juries in a death-eligible case to consider the full range of punishments during the sentencing phase. Death-qualification opponents argue that excluding the 39% of Americans who claim that their views on the death penalty would disqualify them from serving in a capital case undermines the principle of representative juries. Note that capital juries must also be life-certified, meaning individuals who support the imposition of the death penalty in all capital cases are also ineligible.
The death-qualification process has survived several constitutional challenges. In Witherspoon v. Illinois, the Court found that excluding individuals with any reservations about the penalty was unconstitutional because it produced a jury “uncommonly willing to condemn a man to die.” The Court nonetheless permitted exclusion of jurors who would automatically oppose the death penalty. Lockhart v. McCree similarly upheld death-qualification, finding that a jury’s disproportionate willingness to inflict the death penalty did not constitute a deprivation of a representative jury as guaranteed under the Sixth and Fourteenth Amendments.
Death-qualification has also survived procedural reforms in capital cases. Capital crimes initially carried mandatory death penalties, meaning juries determined only the defendant’s guilt without further deliberation on the appropriate sentence. In a series of cases beginning in the 1972 ruling in Furman v. Georgia, the Supreme Court required states to bifurcate proceedings into guilt and sentencing phases. States must also require juries to make specific findings on the severity of the crime and the nature of the defendant, and juries must compare the case at hand with others of a similar nature. These reforms rendered the original purpose of death-qualification, ensuring that jurors could return a lawful verdict, largely obsolete. Jurors instead can now return a guilty verdict in the trial’s first phase and then consider aggravating and mitigating factors during the sentencing phase. Most states that retain the death penalty nonetheless continue to death-qualify juries.
Unrepresentative juries
The death-qualification process produces juries that are less representative and less accurate than standard juries.
Social science research shows that the death-qualification process disproportionately excludes people of color, religious people, and women from juries because these groups often express greater opposition to the death penalty. A 2016 survey of Solano County, California residents found that 37% of Black respondents were excludable based on their opposition to the death penalty, compared to 20% of white respondents. Similarly, 29% of female respondents were excludable compared to 17% of male respondents. A 2022 study analyzed ten capital trials that occurred between 2008 and 2019 in Wake County, North Carolina and found that the process excluded 25% of Black potential jurors compared to 11% of white potential jurors. The process also excluded 19% of female potential jurors compared to 11% of men. Scholarship examining death-qualified juries in Florida, Kansas, and Louisiana revealed similar disparities. Because the core function of juries is to reflect the common-sense judgment of the community, systematically excluding a significant portion of eligible jurors undermines that purpose. Death-qualification, as applied, also deprives individuals of the political right to participate in a key democratic process.
The skewed racial composition of death-qualified juries weakens the legitimacy of capital trials. It also affects verdict quality. A mock jury study illuminated this point by comparing deliberations within all-white groups to those within racially diverse groups. After watching a video summary of a trial involving a Black defendant charged with sexual assault, participants received simulated jury instructions and deliberated. The all-white groups deliberated for an average of 38 minutes, 12 minutes less than the diverse groups, before reaching a verdict. The all-white groups, at a statistically significant rate, also considered fewer case facts, produced more factual inaccuracies, and raised fewer race-related issues.
White jurors are also significantly less likely to consider mitigating evidence when deciding between life sentences and capital punishment. A study that interviewed approximately 1,200 people who had served on death-qualified capital juries showed that about half of the respondents said they had already decided whether to impose the death penalty before the sentencing phase of the trial began. In other words, half of the surveyed jurors would not consider mitigating evidence about the defendant’s character, record, or circumstances as, according to Lockett v. Ohio, the Constitution requires. The disproportionately white composition of death-qualified juries may help explain these results. A 2016 Solano County, California survey (discussed above) found that Black and white respondents differed in how they weighed a range of aggravating and mitigating factors in their sentencing decisions. White respondents were particularly unwilling to consider mitigating factors relating to the defendant’s social history and background. These factors, said Justice O’Connor in her California v. Brown concurrence, were central to the “moral inquiry into the culpability of the defendant.” And the Supreme Court has reversed a death sentence because defense counsel failed to investigate a defendant’s social history, suggesting that the Court considers these factors important (Williams v. Taylor).
Moving forward
What should states do given the problems created by death-qualifying juries?
Scholars such as Robert M. Berry have proposed that states use one set of jurors from the general population in a capital trial’s guilt phase and a different, death-qualified group in its sentencing phase. Although this proposal addresses concerns of racial biases introduced through death-qualification, it does not address white jurors’ reluctance to consider mitigating sentencing factors. The administrability of such a proposal is also problematic, as it would require summoning and screening a new set of jurors and repeating facts and issues already communicated during the guilt phase.
Judges may also take the place of the jury during the trial’s sentencing phase. Once the jury determines that a defendant is guilty, the judge would decide whether to impose the death penalty. Judges may, in theory, consider mitigating evidence more thoroughly, but they do not better represent the “community conscience.” Like death-qualified juries, judges are predominately white and male.
The shortcomings of other proposed solutions lead to the one that is most straightforward: abandoning death-qualification. Under this proposal, the privileged status of death-qualification as “for-cause” would instead require that attorneys use their limited peremptory strikes to remove jurors biased against the death penalty. On this proposal, judicial intervention is unlikely to succeed, as the Supreme Court has already rejected constitutional challenges in Witherspoon and Lockhart. Yet at least nine states impose no statutory mandate for death-qualification, allowing judges to reject the for-cause exclusion of death-averse jurors. Legislative solutions may offer a more promising path as public disapproval of capital punishment grows. In states that retain death-qualification, lawmakers could introduce bills to bar such exclusions, as Representative Michele Rayner proposed in Florida. Even on an individual level, prosecutors can prevent death-qualification by choosing not to question potential jurors about their views on the death penalty.
Chaya Weinberg-Brodt succinctly sums up the problem of death-qualification in her article, Jury Nullification and Jury-Control Procedures. “[I]n their desire to eradicate irrational acquittals and nullifications, courts have undermined the basic procedural guarantees granted to a criminal defendant.” A defendant’s right to trial by a representative jury that deliberates seriously and impartially must be protected, even in the face of narrowed sentencing options.
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