Live Free and Nullify: Against Purging Capital Juries of Death Penalty Opponents

Harvard Law Review, May 2014 | Go to article overview

Live Free and Nullify: Against Purging Capital Juries of Death Penalty Opponents


The work of death-qualifying a capital jury can be an intensive, (1) "exacting," (2) and ultimately high-stakes endeavor. (3) A jury is qualified, at least doctrinally, to sit in judgment of a peer facing death if its members' views on the death penalty would not "prevent or substantially impair" them from abiding by court instruction, their oaths, and the limits of the law. (4) A prospective juror must "be willing to consider all of the penalties provided by state law" and "not be irrevocably committed, before the trial has begun, to vote against ... death regardless of the facts and circumstances." (5) Exactly which words, sentiments, and demeanors trigger removal is an exercise in line drawing that has split the nation's highest court. (6) In practice, mere reflection and discomfort on the part of death penalty equivocators have rendered prospective jurors ineligible. (7) A man who admitted to supporting the ultimate penalty for a person who "was in my home, [and] killed my children," (8) but told the court that he would "prefer to see a person rehabilitated" (9) and that he did not "know if [he] could push for the death penalty," (10) found himself dismissed for cause on the basis of those answers. (11) Trial judges are lent wide discretion in divining the boundaries of acceptable death penalty reservations, and the public has seemingly gleaned that room for misgivings is narrow. Nearly forty percent of Americans believe their views on the death penalty would disqualify them from serving on a capital jury (12)--a body meant to reflect "a fair cross section of the community" (13) on a matter meant to incorporate the "conscience of the community." (14)

Capital juries whose members reject the death penalty out of hand, without consideration of the individual circumstances of the case or defendant, could be said to be nullifying the law on capital punishment. A jury generally nullifies the law when it fails to apply it as interpreted and instructed by the judge, instead acquitting a defendant whom the state has proven guilty beyond a reasonable doubt. (15) The nullifying jury sends a message of disapprobation, targeted at the specific prosecution or the general enforcement of the criminal law at issue. Proponents characterize this blunt tool as a right long ago conferred to the jury, as much ingrained in American historical traditions (16) as in the country's constitutional law. (17) Detractors distinguish the right to nullify--an arguable and largely academic proposition--from the power to nullify, (18) conceding that the latter is an "anomaly in the rule of law" that is merely "tolerated." (19) Its validity notwithstanding, the practice is intentionally shrouded in mystery --left unspoken (20) and, at times, outright denied. (21)

"[P]urging nullifiers from juries is an American tradition," (22) but it does not have to persist. The prospect of jury nullification as legitimate runs in particular tension with the Supreme Court's death-qualifying jurisprudence. This Note argues that the for-cause removal of antideath jurors ought to be abolished. Part I provides background on the historical development and current status of the nullification doctrine generally. Part II offers doctrinal support for the case against striking potential nullifiers with antideath values from capital juries. The Part argues that, even if nullification is not a right, it is a jury prerogative that is rightfully unreviewable and inevitable, and the Part explains how a reimagined death-qualification jurisprudence would affect the

practice of voir dire. Part III presents the affirmative case for allowing opponents of the death penalty to serve on capital juries. It argues that the evil of arbitrary imposition is a feature already inextricably woven into the criminal justice system and, because death is different, somewhat arbitrary capital mercy is a fitting counterbalance to a system that already overpenalizes. It proceeds to note that in excluding death penalty opponents from capital juries, community values unrepresented through the democratic process are inappropriately flouted. …

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Live Free and Nullify: Against Purging Capital Juries of Death Penalty Opponents
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