Death-Qualification and True Bifurcation: Building on the Massachusetts Governor's Council's Work
University of Denver Sturm College of Law
Jeffrey J. Pokorak
Suffolk University Law School
Indiana Law Journal, Vol. 80, p. 131, 2005
In this essay we build on the work of the Massachusetts Governor's Council's on Capital Punishment and the ideas developed at a conference at Indiana University, using both as a spring-board for the formulation of an appropriate set of procedures for death-qualification in capital trials. In particular, we recommend the following approach to death-qualification and bifurcation in a capital trial:
A capital defendant should be given the option of electing to have a separate jury impaneled for the sentencing phase of the trial, in the event that the guilt-phase jury convicts him of capital murder. The defendant should be allowed to exercise this option either prior to the guilt phase of the trial, or after conviction of capital murder. If the defendant makes a pretrial election to have a separate jury impaneled for sentencing, then the guilt-phase jury will not be death-qualified. If the defendant decides to defer the election until after conviction of capital murder, then the guilt-phase jury will be death-qualified.
We argue in this essay that this approach meets both a state's interest in impaneling a jury willing to comply with its charge and the defendant's interest in having a jury as impartial as both practical and possible. While the procedures that we propose might require a greater expenditure of time and resources than currently-conducted capital trials, we believe such incremental increase is more than justified by the significant enhancement to fairness that such a system would provide. In fact, we argue that any state that takes seriously the goals of creating as fair a death penalty system as possible ought to include such a plan for true bifurcation and limited death-qualification.
Number of Pages in PDF File: 22
Keywords: capital punishment, legislation, reform, death qualification, bifurcated trialAccepted Paper Series
Date posted: April 29, 2005
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