Should a Juror be “Death Qualified?”

Anne Reed, whose appearances these days are as rare as hen’s teeth, has graced us with another thought provoking post at Deliberations about the Louisiana death penalty case of LaDerrick Campbell.  Campell has filed a petition for certiorari to address the issue:


Whether, under Wainwright v. Witt (1985), the trial judge improperly removed a juror despite a willingness to consider the death penalty in some circumstances while permitting a juror who reportedly had difficultly not imposing the death penalty.

It raises one of the most perplexing questions in jury selection imaginable.  Why is the prosecution in a capital case entitled to a jury consisting only of people who are willing to put people to death?  The name for such jurors is “death qualified.”


It’s the shorthand we use for the Supreme Court’s rulings, in Witherspoon v. Illinois and Wainwright v. Witt, that a juror can be struck for cause if his religious views on the death penalty “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”  (The quote is from Wainwright.)

The proposition is that a juror who does not believe in imposing the death penalty would not be “qualified” to sit because he would be unable, as a result of his beliefs, to return a verdict of death, should the “circumstances warrant” such a punishment.  Put otherwise, the juror must be willing to impose execution to be capable of serving.

When it comes to something as controversial as the death penalty, people tend to have clear feelings.  Some are proponents while others oppose.  The problem is that opponents cannot be “death qualified,” while proponents can and are.  This results in a loaded jury, inherently inclined to believe in the death penalty.  It doesn’t mean that they are chomping at the bit to execute someone, but that they won’t lose sleep over it either.

On top of the jury beginning (or ending, as the case may be) with a predisposition toward death, people who are proponents of the death penalty carry with them some heavy additional baggage.  They tend to favor order and security over law and freedom.  They tend to believe that cops are more likely to be truthful, and will give them the benefit of the doubt.  They tend to align themselves more with the prosecution, saving good, law-abiding citizens from evil criminals.

This isn’t to say that, under the right circumstances, they can’t be shaken from their bias, but it’s an uphill climb.  After all, you’ve taken the people inclined toward more socially liberal views out of the mix, because they aren’t “death qualified.”

As Anne points out, “this lady goes home:”



… it’s against my religion. I don’t believe you should take a person’s life. I think they should be put up in a place where they can be rehabilitated or life in prison.  [I would] have to really pray about it and see the evidence before I could vote to take a man’s life or a woman’s life.


And she didn’t say that she could never vote for death.  Merely that it’s against her religion.  Does that mean people who believe in particular religions are definitionally excluded from being “death qualified?”  Yes, it does, leaving a particular religion (at least those who follow the tenets of the religion, and don’t juggle them to suit their personal politics) precluded from being on a death jury.

Naturally, I would take the entire issue further than most, believing that the jury, as a reflection of the conscience of the community, should consist of people who haven’t decided that execution is a good idea.  I cannot see a reasonable argument to limit participation to those inherently biased in favor of death, placing one side in an advantageous position over the other.  It’s the whole fair jury thing, and once jurors are subject to being “qualified” before being allowed to sit, the burden of arguing punishment is already shifted against the defense.  There’s nothing fair about it.

SCOTUSBlog calls the cert petition in Campbell “one to watch.”  My expectations are fairly low.  We’ve largely accepted the proposition that if you put somebody on the jury who does not believe in the death penalty, then they would never vote to execute anybody.  What’s wrong with that?

4 thoughts on “Should a Juror be “Death Qualified?”

  1. Badtux

    Jury qualification has always baffled me in the first place. The Constitution says, In all criminal prosecutions, 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. It would seem to me that a random drawing would be sufficient to have an impartial jury, but apparently we have developed this bizarre notion of “qualifying” jurors over the past 200+ years where we remove jurors from the jury pool because of their personal beliefs. Sometimes that benefits the defense, and sometimes, as in death penalty cases, it benefits the prosecution, but it seems rather contradictory to the notion of an “impartial” jury, which is, a jury which as a whole does not represent any particular ideology or belief. When you discard jurors due to particular beliefs, you are removing diversity of belief from the jury pool, and thus inherently making the jury partial to the remaining beliefs.

    But then, I’m talking logic, not law, and as we all know those are two different topics altogether :-(.

  2. John Hayes

    What is sick is that the Supreme Court justified re-instituting the death penalty in the US b/c juries impose it, so it must be acceptable – yet only death-qualified jurors are allowed to sit on these cases. If jurors accurately reflected public opinion, there would be a lot fewer death sentences, thereby calling into question its acceptability at all. It is cynical bootstrapping – death is OK b/c juries impose it, but it is also allowed to only allow jurors who agree with death setences. Never mind that such jurors are also more likely to convict in the first place – so by seeking death, a prosecutor gets the advantage of a death-qualified jury – providing motivation to seek death.

  3. fred

    My belief is simple, the death penalty has its place. However, every murder does not deserve the death penalty. Careful consideration must be given to the circumstances surrounding the murder. Everyone does not think like this however I’m sure, so that raises my questioning as to how constitutional would it be to have only people who believe in the death penalty on a death jury. It is almost as if the state has a gun in their hand and are only hiring people who they know have no problem pulling the trigger.

    Makes me cringe.

  4. SHG

    That’s exactly what’s happening with a death qualified jury.  It’s as if the question of guilt isn’t even asked, and it’s only a matter of their willingness to execute.

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