Death qualification process in California’s Solano County excludes 37% of eligible Black jurors, compared to 20% of white jurors.
A new report released Tuesday by the American Civil Liberties Union has found that the process of selecting jurors in death penalty trials—known as “death qualification”—systematically excludes Black Americans, women, and religious individuals from the jury box, raising grave constitutional concerns.
In Solano County, California, the report revealed that 37 percent of eligible Black jurors would likely be excluded through death qualification, compared to just 20 percent of white jurors.
The study, conducted by Professors Mona Lynch and Craig Haney, found similarly stark disparities based on gender, with 29 percent of women likely to be excluded versus 17 percent of men.
These findings serve as a microcosm of a nationwide pattern of racial and religious exclusion in capital jury selection that the ACLU calls “a fatal flaw” in the American justice system.
Titled Fatal Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury, the 65-page report argues that death qualification—a legal process that bars anyone unwilling to impose the death penalty from serving on a capital jury—effectively gerrymanders the jury pool by race, gender, and faith.
It contends that the practice yields juries that are not only unrepresentative of their communities, but also more punitive, more conviction-prone, and less likely to fairly consider life sentences. Though death qualification is not required by the Constitution, it remains standard practice in capital trials across the United States.
According to the ACLU, it has the effect of removing nearly 44 percent of Americans from jury eligibility simply because they oppose the death penalty, despite being capable of rendering lawful verdicts.
“The Constitution guarantees that every person accused of a crime has the right to be tried by a jury of their peers, but that promise is by definition denied for people facing the death penalty,” said Brian Stull, deputy director of the ACLU’s Capital Punishment Project. “Death qualification systematically excludes prospective jurors based on their race, sex, and religion, violating their own rights to civic participation. The resulting juries do not reflect our communities, convict more frequently, and are composed to ignore evidence favoring a life sentence in violation of our Constitution.”
The ACLU’s findings are backed by decades of empirical research and new data from multiple states. In Duval County, Florida, 43 percent of otherwise-qualified Black women were excluded from capital juries through death qualification, compared to just 15.9 percent of white men.
In Wake County, North Carolina, the exclusion rate for Black women reached 36 percent, with religious jurors also disproportionately disqualified. In Sedgwick County, Kansas, Black jury-eligible individuals were about 50 percent more likely to be excluded than white peers.
These disparities are not coincidental. They track closely with broader patterns of racial bias in the criminal legal system and reflect a historical continuity between capital punishment and America’s legacy of racial violence.
The report places death qualification in the context of slavery, lynching, and Jim Crow justice. The modern death penalty, it argues, emerged as a sanitized successor to lynching—especially in Southern states, where public executions replaced extrajudicial mob killings in the early 20th century.
Black people, disproportionately targeted by both lynchings and state-sanctioned executions, have long distrusted the legitimacy of the death penalty. That skepticism is now being used as a justification to exclude them from the most important decisions our legal system makes: whether a person lives or dies.
As the ACLU notes, “Death qualification creates a vicious loop. Black people are often more likely to distrust the death penalty because of their experiences of discrimination in the criminal legal system. This distrust then leads to disproportionate exclusion, which in turn increases discrimination.”
The data presented in Fatal Flaws shows that death-qualified juries are not only more white and more male, but also more likely to rush to judgment, more prone to ignore mitigating evidence, and more likely to favor the prosecution. In interviews and studies cited in the report, jurors who passed death qualification screening often admitted to deciding whether to impose death before even hearing evidence in the penalty phase.
One study of 1,200 former capital jurors found that about half had made up their minds before the penalty phase began—and 70 percent of them were “absolutely convinced” of their decision. The report also references mock jury studies that show whiter juries deliberate less thoroughly and are more likely to convict Black defendants, particularly in cases involving white victims. Just having one Black man on the jury, research suggests, significantly decreases the likelihood of a death sentence in such cases.
Religious discrimination also plays a major role. Faith traditions that formally or informally oppose the death penalty—such as Quakers, Buddhists, and Catholics—are often excluded from capital juries, even when jurors state they can follow the law. In Wake County, 27 percent of Catholic jurors were excluded through death qualification, despite comprising only 9 percent of the eligible religious jury pool. Religious objections to capital punishment are treated not as moral convictions to be respected but as liabilities to be eliminated.
While the U.S. Supreme Court has historically upheld the constitutionality of death qualification, the ACLU argues that recent data demand a reexamination. The report outlines several potential constitutional violations, including infringements on the Sixth Amendment right to an impartial jury, the Eighth Amendment ban on cruel and unusual punishment, and the Fourteenth Amendment’s guarantees of equal protection and participation in civic life.
The organization urges state legislatures to pass laws banning the exclusion of jurors who oppose the death penalty but are otherwise willing to follow the law. It also calls on prosecutors to voluntarily stop death-qualifying jurors and encourages defense attorneys to mount challenges using the growing body of evidence of bias and exclusion.
Since 1972, more than 200 people have been exonerated after being sentenced to death, and 108 of those were Black. According to the Death Penalty Information Center, Black defendants convicted of killing white victims are far more likely to be sentenced to death than those who kill Black victims. These wrongful convictions, the ACLU argues, are made more likely by death-qualified juries predisposed toward conviction and punishment, operating without the moral diversity that real community representation would provide.
“Executing a person is the most extreme punishment available in our criminal legal system,” the report concludes. “We must demand that any decision to apply the death penalty is made by a jury that truly represents the community and its values. Death qualification upends this standard and must be abolished.”
The full ACLU report can be accessed here: https://www.aclu.org/publications/fatal-flaws-revealing-the-racial-and-religious-gerrymandering-of-the-capital-jury
