WASHINGTON — As public opinion polls increasingly show that a significant portion of the community opposes the death penalty, constitutional questions are resurfacing about whether capital juries truly reflect a “fair cross-section” of the community.
The Constitution mandates that juries be drawn from a “fair cross-section” of the community. However, public opinion polls have now shown that a substantial portion of the community opposes the death penalty.
This has led many to question how the government can seat a jury that will fairly decide whether to impose the death penalty while protecting a defendant’s constitutional jury rights.
According to an article written by the Death Penalty Information Center, the answer to this question is a procedure called “death qualification.” This procedure allows prosecutors to dismiss any prospective jurors who say they would never impose a death sentence.
In fact, 40 years ago, in Lockhart v. McCree (1986), the U.S. Supreme Court was confronted with social science research demonstrating that the death qualification process resulted in a jury that was more likely to sentence a person to death, as well as convict them.
According to the article, the Court was asked to decide whether the removal of prospective jurors opposed to the death penalty unconstitutionally violated the fair cross-section requirement of the Sixth Amendment. The Court answered no.
“The state has a legitimate interest to impanel jurors who can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial,” Chief Justice William wrote for the 6-3 majority. “Groups defined solely in terms of shared attitudes” did not qualify as distinctive.
Decades after that decision, however, studies have found that death qualification has measurable effects on jury composition. Black Americans — particularly Black women — are excluded from capital juries in large numbers because they are more likely to oppose the death penalty.
Evidence also suggests that prosecutors recognize this effect, and some use it alongside peremptory strikes to engineer white capital juries.
For centuries, there have been systematic efforts to exclude people of color from jury participation. During the 18th and 19th centuries across the United States, jury service was limited to white male property owners.
For example, the article discusses Swain v. Alabama (1965). The Supreme Court heard the case of a Black man who was sentenced to death for rape by an all-white jury in a county where no Black person had served on a jury in more than a decade.
According to scholars Mona Lynch and Craig Haney, death qualification emerged in the 19th century as a broad standard “that essentially allowed prosecutors to remove potential jurors for cause if they expressed any reservation about capital punishment.”
The Supreme Court did confront the practice in Witherspoon v. Illinois (1968), in which a man’s death sentence was overturned after nearly half the jury pool was removed for expressing qualms about the death penalty.
Illinois had “stacked the deck” against the defendant, and the Court wrote: “In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.”
The Court held that jurors who oppose the death penalty but can set aside that belief and impose a death sentence cannot be dismissed.
As decades of research and legal challenges have shown, the practice of death qualification continues to raise concerns about fairness, racial exclusion and the integrity of capital juries. Although the Supreme Court has upheld the procedure as constitutional, many argue that it undermines the promise of a truly representative “fair cross-section” of the community.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
