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?