You probably didn't know that, in a criminal trial where the defendant might receive the death penalty, you can't sit on the jury if you oppose the death penalty. The theory is that if the judge decides that death is an appropriate punishment, you cannot hear the case if you refuse to even consider the judge's instruction that the defendant be sent to the electric chair. Juries have to follow the judge's instruction no matter what they think of the fairness of the laws they have to follow.
According to today's New York Times, "The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as 'death-qualifying' a jury." In other words, if you won't even consider the possibilty of the death penalty, you are not death-qualified and cannot sit on the jury.
The practical result of "death qualification" is that in capital cases, the jury is going to be much more conservative and sympathetic to law enforcement and the prosecution than usual. An enlightened liberal who knows about the frailties of the criminal process and distrusts law enforcement will be a much different juror than some stuffy authoritarian who thinks that you're guilty if the police say so. Knocking out a substantial portion of the population from sitting on a jury in a murder case means that the defendant will not have a jury of his peers. But this is an unavoidable consequence of (1) having the death penalty and (2) making sure that jurors will not decide the case based on their own view of what the law should be.
Yesterday, this scenario played out in a Supreme Court addressing what to do when the potential juror during the pre-trial screening process does not jump up and down in vigorous support of the death penalty. In that case, according to the New York Times, the potential juror said "he did not believe the death penalty should be used very often. One appropriate use, he said, was when there was a high likelihood that a murderer would kill again if released from prison." The judge kicked the potential juror out of the building, and the defendant was convicted by a less nuanced jury and he got the death penalty.
So the case went to the Supreme Court, stacked with conservatives who support the death penalty. The Court said that the trial judge was right to kick the potential juror off the trial because his "answer thus led to a 'reasonable inference' that he would not give full consideration to the prospect of sentencing [the defendant] to death." The dissenting Justices said the defendant received an unfair trial because the potential juror "had also made 'numerous statements' about his willingness to consider the death penalty, and that his comments about capital punishment for those who might kill again were just one example of when he might find death an appropriate punishment — too flimsy a basis for dismissing a juror."
The dissenters also noted that "Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual's opinion that a life sentence without the possibility of parole is the severest sentence that should be imposed in all but the most heinous cases does not even arguably 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"
Makes sense to me. The problem is that there were only four dissenters and five justices in the majority who went the other way and made it easier to kick off jurors who do not whole-heartedly support the death penalty. What this means is that the potential juror was sent home and the defendant got a hard-core jury because Mr. Nuanced Juror did not have a "kill 'em all" approach to criminal law.
Anyone who pays attention to the debate over the death penalty is familiar with the pros and cons of this kind of drastic punishment. Opponents point out that many death row prisoners walk to freedom when DNA testing shows they didn't commit the crime. Opponents also point out that defendants with no money can't afford high-priced lawyers with a team of investigators who can pick apart the prosecution's case the way that O.J. Simpson's defense team did. But a hidden argument against the death penalty is that the process systematically excludes any potential jurors who see the world in shades of gray and who will not reach for the gun at the first sign of trouble. If you were fighting for your life in criminal court, would you want a jury that only saw things in black and white?
