Rethinking Death Penalty Reform: The Case Against Death-qualified Juries

By Anonymous Associate Editor

Since the U.S. Supreme Court reinstated the death penalty through Gregg in 1976, racial bias has continued to pervade its administration.[1] 34.5% of defendants executed have been Black and 55.6% have been white,[2] despite the fact that only 13.3% of people in the U.S. identify as Black, while 77.1% identify as white.[3]  I consider myself an abolitionist regarding the death penalty, as I do not think that it is justified for the state to kill a citizen in any circumstance. However, given these alarming statistics and the dire situation they illuminate, I find that efforts to reform the capital process to reduce racial disparity are also worthwhile. Reformers would do well to focus on the elimination of the death qualification process, as well as Eighth Amendment and Batson challenges to the death penalty.

Reformers take a variety of approaches to advocating for changes to the death penalty. Many scholars and practitioners who are interested in death penalty reform to reduce racial disparities focus on giving teeth to Batson, which prevents prosecutors from illegally removing Black venirepersons from jury pools.[4] Batson forbids prosecutors from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant. However, successful Batson challenges are rare, as defendant must show that the prosecutor engaged in purposeful discrimination. For example, Gilad Edelman’s piece, Why is it so Easy for Prosecutors to Strike Black Jurors?,  describes how Timothy Tyrone Foster was convicted of murder and sentenced to death by an all-white jury in 1987 after prosecutors struck four eligible black jurors.[5] During voir dire, the prosecutors highlighted black juror’s names in green, circled the answer “black” to the jury questionnaire question about race, labelled three jurors B#1, B#2, and B#3, and selected which person they would keep if they had to keep one black juror.[6] (In 2016, the U.S. Supreme Court granted Foster a new trial on Batson grounds.)[7] Others focus on reforming the death penalty through the Eighth Amendment by pointing out the unpredictability and cruelty of the execution process.[8] These are certainly problems that contribute to the inhumanity of the death penalty.

However, the scholarship glosses over another issue: judicially administered, unlimited, for-cause strikes used to select a death qualified jury also remove disproportionate numbers of Blacks, as opposition to the death penalty is higher among Blacks than whites.[9] In a capital case, the court strikes jurors who express that they would be unable to serve on a jury that imposes the death penalty for moral or religious reasons or are categorically opposed to the capital punishment. This overlooked, completely legal manner of whitewashing juries in capital cases exacerbates racial disparity in the administration of the death penalty. Reform efforts should incorporate advocacy to end the death qualification process by eliminating for-cause strikes for potential jurors who oppose to the death penalty. This is necessary to ensure that capital defendants’ right to be tried by a jury of their peers is fully realized.

According to a 2016 study, 63% of Blacks, compared to 35% of whites, oppose the death penalty for a defendant convicted of murder.[10] Melynda J. Price conducted focus groups with Blacks in Houston to understand the reasoning behind their views on the death penalty, and recounted their discussions in her book At the Cross: Race, Religion, and Citizenship in the Politics of the Death Penalty.[11] Some participants explained their opposition in terms of religion. They expressed beliefs that only should God make life-or-death decisions.[12] Others were opposed due to concerns about racial disparities in the administration of the death penalty, and compared the modern death penalty to historical lynchings.[13] Still others believed that life imprisonment without parole was a more just and meaningful punishment.[14] All of these opinions could serve as the basis of a for-cause strike during the death qualification process in a capital case.

The lack of Black presence on juries in capital cases has important implications. Paul Butler’s piece, Racially Based Jury Nullification: Black Power in the Criminal Justice System, discusses Black jurors’ power to derail a racist prosecution, even in the face of robust state evidence, through jury nullification.[15] While Butler’s piece focuses on jury nullification where Black defendants are on trial for non-violent offenses, the same moral logic applies to refusal to impose the death penalty when prosecutors seek it for a Black defendant in an abuse of their prosecutorial discretion.

Butler also explains that because of the long history of discrimination against Blacks in the criminal justice system, Black jurors serve as a symbol of “the fairness and impartiality of the law.”[16] This perception exists on the ground, too. As a legal intern with Orleans Public Defenders last summer, I spent several days observing jury selection and assisting my supervising attorneys in deciding how to use peremptory strikes. I often consulted my clients during this process, asking them if they had strong feelings about any potential jurors. On one occasion, my client, a Black man, leaned over to me and whispered, “Just make sure I get some Black ones.” My client’s request was well-founded: mock jury experiments demonstrate that in racially mixed settings, jurors raise more facts, make fewer errors, deliberate longer, and conduct broader discussions, including discussions of racism, than in all-white settings.[17]

Finally, Black defendants are more likely than their white counterparts to be sentenced to death. A study of death penalty cases decided between 1978 and 2000 in Philadelphia determined that “the odds of receiving a death sentence at the weighing stage of the penalty trial were, on average, 3.8 times higher for Black defendants than for similarly situated non-Black defendants.”[18] This is borne out in statistics on the demographics of people executed in the U.S. in the past 40 years.[19]

Doing away with the death qualification process would not completely eliminate racial disparity in the administration of the death penalty. Racially biased policing would persist, increasing the likelihood that Blacks are investigated and arrested.[20] Prosecutors would still abuse their discretion in making sentencing decisions.[21] Many indigent Black defendants would still rely on state-appointed attorneys from overworked, under-resourced public defender offices to represent them.[22]

Still, this aspect of the problem deserves attention. Reformers should demand that the death qualification process is eliminated to reduce the whitewashing of juries in capital cases and to ensure that capital defendants’ right to a trial by a jury of their peers, including those who oppose the death penalty, is fully realized.

[1] Gregg v. Georgia, 428 U.S. 153 (1976).

[2] National Statistics on the Death Penalty and Race, Death Penalty Information Center, https://deathpenaltyinfo.org/race-death-row-inmates-executed-1976#defend.

[3] Quick Facts: United States, United States Census Bureau, https://www.census.gov/-quickfacts/table/PST045216/00.

[4] Batson v. Kentucky, 476 U.S. 79 (1986).

[5] Gilad Edelman, Why is it so Easy for Prosecutors to Strike Black Jurors?, The New Yorker (June 5, 2015), http://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors; see also Andrew Cohen, Racial Bias in Death Penalty Cases: A North Carolina Test, The Atlantic (April 23, 2012), https://www.theatlantic.com/national/archive/-2012/04/racial-bias-in-death-penalty-cases-a-north-carolina-test/256197/.

[6] Id.

[7] Foster v. Chatman, 136 S.Ct. 1737 (2016).

[8] Alan Blinder, Federal Judge Blocks Arkansas Executions, The New York Times (April 15, 2017), https://www.nytimes.com/2017/04/15/us/arkansas-executions.html?_r=0.

[9] Clay S. Conrad, Are You “Death Qualified?”, Cato Institute (August 10, 2000), https://www.cato.org/publications/commentary/are-you-death-qualified.

[10] Baxter Oliphant, Support for the Death Penalty Lowest in More than Four Decades, Pew Research Center (September 29, 2016), http://www.pewresearch.org/fact-tank/2016/09/29-/support-for-death-penalty-lowest-in-more-than-four-decades/.

[11] Melynda J. Price, At the Cross: Race, Religion, and the Politics of the Death Penalty (2015).

[12] Id.

[13] Id.; see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

[14] Price, supra.

[15] Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, in Critical Race Theory: The Cutting Edge 282 (Richard Delgado & Jean Stefancic eds., 3rd ed. 2013).

[16] Id. at 286.

[17] Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. of Pers. & Soc. Psychol. 597, 603-608 (2006).

[18] David C. Baldus et al., Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance, 39 Colum. Hum. Rts. L. Rev. 143 (2007).

[19] See supra text accompanying notes 2-3.

[20] Consent Decrees, Racial Bias and Policing, The New York Times (August 10, 2016), https://www.nytimes.com/2017/04/04/us/heres-how-racial-bias-plays-out-in-policing.html.

[21] Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012).

[22] John Pfaff, A Mockery of Justice for the Poor, The New York Times (April 29, 2016), https://www.nytimes.com/2016/04/30/opinion/a-mockery-of-justice-for-the-poor.html.