Can ‘Death-Qualified’ Jurors Be the ‘Impartial Jury’ Promised by the 6th Amendment?

In the United States, any juror selected to serve on a death row case must be ‘death-qualified’: they must believe that the death penalty is an appropriate penalty for some murder cases. Lesser known is that they must also be ‘life-qualified’: they must believe that life in prison is an appropriate penalty for other murder cases. The idea behind this is that jurors should be open to voting for either sentence.

So far, so good. But there’s a twist. These ‘death-qualified’ jurors don’t just determine a defendant’s sentence. They also determine their guilt or innocence. When I started work at Amicus ALJ as a Casework Volunteer in December, I was surprised to learn this. My mind instantly flew to the fact that the application of the death penalty disproportionately targets Black defendants, and has done so for a long time. (One particularly shocking finding is that between 1924 and 1974 in Texas, any Black offender convicted of raping a white woman was virtually assured of being sentenced to death. But in the history of the USA, no white man has ever been sentenced to death for raping a black woman – except in cases where she was killed in the process).

With such racial disparities evident in the death penalty’s application, surely potential Black jurors must be less likely to support the death penalty, be less ‘death-qualified’, and therefore serve on juries at a lower rate? And if that means Black people are underrepresented on juries, does that make it less likely that Black defendants will receive a just verdict?

At Amicus ALJ, I learned that prosecutors strike Black jurors at twice the rate they strike white jurors. One of the charity’s empirical studies, which I am fortunate to be working on, is on this very topic. This is surely because non-Black jurors are perceived as being less sympathetic to Black defenders. If Black jurors are being struck simply for being Black (which is illegal, but can be done with a ‘peremptory strike’, under which no reason for the strike needs to be admitted), and Black jurors are also being struck for not being ‘death-eligible’, then this means Black jurors are likely doubly underrepresented on capital juries.

This got me thinking about the promise of the 6th amendment, that ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed’. Could there be a constitutional argument that the ‘death-qualified’ system and its racial implications undermine this 6th-amendment right to an ‘impartial jury’? It seems fair enough that the jury for the sentencing phase of the trial should be ‘death-qualified’, as they have to determine whether the death penalty is applied. But it seems less fair – much less fair, in fact – that this same ‘death-qualified’ jury should also determine the defendant’s guilt or innocence. The demographics of death penalty support show that its supporters are not representative of US society as a whole. People who oppose the death penalty are more likely to be Black, Hispanic, young, college educated, and Democrats. The jury formed after excluding such ‘non death-qualified’ folks would arguably not constitute the ‘impartial jury’ mandated by the 6th amendment.

I was interested in whether this position had ever been argued, so I did some research. I found that there have been at two notable challenges to the constitutionality of death-qualified jurors – though not for almost forty years.

In Witherspoon v Illinois (1968), the Supreme Court ruled that the state had crossed the line of impartiality in striking those with any death scruples, and creating a jury more likely to sentence Witherspoon to die. However, the Court ruled that this line-crossing applied only in respect of the sentencing phase of the trial, and not of the guilt phase. So Witherspoon’s death sentence was overturned, as his rights in that stage of the trial were violated, but his guilty verdict was not overturned, as that phase of the trial was not deemed to be unconstitutional. So this case was not relevant to my idea that the policy of striking non-death-qualified jurors could undermine the 6th amendment in the guilt phase of a capital trial.

The second relevant case did deal with the constitutionality of the guilt phase of the trail. That case, Lockhart v McCree, was brought before the Supreme Court in 1986. McCree had been judged guilty of murder by a death-qualified jury, but when it came to the sentencing phase of the trial, the jury voted for a life sentence. After the conviction was affirmed on appeal, McCree filed a federal habeas corpus petition, citing his 6th and 14th amendment rights, which respectively guarantee an ‘impartial jury’ and ‘the equal protection of the laws’. When the case eventually reached the Supreme Court, his arguments challenging the constitutionality of his conviction were rejected.

McCree had cited several social scientific studies which concluded that disqualification of jurors on death penalty grounds resulted in a jury which was more likely to convict in the guilt phase of capital cases. So these studies supported my idea (which I was not surprised to find was unoriginal). In ruling against the case, however, the majority opinion of the court, written by Rehnquist, stated that the removal of jurors on death penalty grounds was not unconstitutional. The reason given by Rehnquist was that the studies cited by McCree were in fact flawed, and did not show what he purported they did.

Now, whether or not the specific studies McCree cited were actually flawed is a less interesting question, to me, than why we haven’t seen another case challenging the constitutionality of juror death-qualification in the 38 years since Lockhart v McCree was decided. As Rehnquist argued against the empirical evidence offered, rather than the principle behind McCree’s point, that leaves open the possibility of using better social scientific studies to make the same argument in future. If we can present studies which are less easily dismissed by the Supreme Court justices, and, using such studies, if we can can prove that the policy of death-qualification makes a jury more likely to convict in the guilt phase of a capital trial, then we can show that this policy is unconstitutional as it violates the 6th amendment right to an ‘impartial jury’. Having worked alongside capital defenders in the USA through Amicus ALJ, I am less certain that this type of case hasn’t been brought through lack of merit than through lack of time; I have seen first hand that capital defenders are run off their feat, underfunded, and overworked. The tantalising idea that the unconstitutionality of the ‘death-qualified’ policy is just waiting to be successfully argued is one I will certainly keep mulling over even after my time with Amicus ALJ has ended.