IT IS NO SECRET that America, alone among developed nations, continues to rely on capital punishment as a penalty for crime. While polls show that Americans support the death penalty in theory, few of them are aware of the unique procedures employed in capital cases. If known, they would in all likelihood cause public support for the death penalty to evaporate. Even the most ardent death penalty supporters want to be sure that nobody is executed without having first received a fair trial, before a fairly selected jury, with competent counsel, and with all legal procedures and formalities scrupulously respected. Yet, the actual death penalty that exists in the U.S. has resisted public scrutiny and, in practice, makes a mockery of these aspirations.
There are currently more than 3,000 people on death row in this country. The vast majority of them are guilty, but some are innocent--and one can only hope that their innocence will be proven while there is still time. Meanwhile, not a single death row inmate has received a trial before a jury fairly representative of the community in which he or she was tried. In every case, the juries who convicted those prisoners were chosen through special selection procedures, unique to capital cases, that effectively stacked the juries against the accused.
These unique jury selection procedures are known as "death-qualification." In a death-qualified jury, any potential jurors whose verdict may be affected by their misgivings about the death penalty are removed from the panel. The only individuals allowed to serve in capital cases are those who state that they would not be affected by the specter of the executioner.
Death-qualification began as early as 1820, when Supreme Court Justice Joseph Story began eliminating Quakers from capital juries because their religion would not permit them to impose death as a penalty for crime. Since then, courts have attempted to refine and regulate how much opposition to the death penalty is required to disqualify a citizen from jury duty in a capital case. As we will see, not much is needed.
The procedures followed to death-qualify juries vary from state to state, but, in general, the judge, prosecuting attorney, and defense attorney question all potential jurors individually about their views concerning the death penalty. If potential jurors are not comfortable sending someone to die, and if their discomfort might affect their verdict, they can be legally disqualified from capital jury duty. Far more people are disqualified, in a typical case, than are selected to serve. (On the other side, those who would automatically sentence defendants to die if they find them guilty of murder are also disqualified from capital jury people, however, are rare indeed.)
After it is determined which potential jurors are disqualified from serving, both sides get to strike a number of the remaining jurors for no reason. In Texas, the most active death penalty state, both sides get to eliminate an additional 15 potential jurors through these "peremptory" strikes. Thus, 12 jurors are left remaining from a pool of 42 death-qualified individuals. The resultant jury is hardly representative of the community.
Largely due to the time it takes to complete death-qualification, jury selection in capital cases often takes weeks, if not months, as "conscientious objectors" are winnowed out by prosecutors. Women and minorities are removed from the panels at a much higher rate than white males are. (That may explain why capital juries are approximately 40% more likely to sentence a killer to die if the victim is white than if the victim is a member of a minority.) Numerous academic studies show that those who survive the death-qualification process are not only biased towards sentencing convicted defendants to death (as opposed to life in prison), but biased towards convicting the accused as well. People who have no qualms about imposing the death penalty tend to favor the prosecution--whether the crime is shoplifting, drunk driving, or murder. …