The Death of Death-Qualification

39 Pages Posted: 18 Aug 2009 Last revised: 10 Aug 2010

See all articles by G. Ben Cohen

G. Ben Cohen

The Promise of Justice Initiative

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute)

Date Written: August 17, 2008


The Framers understood criminal petit juries to be responsible for making determinations of both fact and law. This 'jury review' power provided the people with a 'check' against the government's judicial function. Today, juries are limited solely to findings of fact. As Blackstone predicted, this erosion of the jury function did not pro-ceed with grand assault, but with minor deployments. The result is a less powerful citizenry, and an unchecked government.

The modern jury's diminished power is of particular consequence in cases involving the "death-qualification" of jurors. At issue is whether the State may-at the outset of a capital prosecution-remove from a jury all those who appear to be opposed to imposing the maximum punishment allowed by law. Or, placed into a series of questions: What were the qualifications for jury service at the time of the Constitution's adoption? Will the United States Supreme Court support the slow accumulation of additional qualifications without addressing the residual erosion of the Sixth Amendment's guarantee?

This Article considers the 'death-qualification' of jurors, including how the process arose, why the Court continues to justify its existence today, and how a proper historical understanding of the Sixth Amendment right to a jury trial requires that this practice be put to rest. This Article will also highlight a second and more-global theme: the Court's Sixth Amendment jurisprudence is in the midst of an originalist revolution. Starting with Jones v. United States and continuing through Apprendi v. New Jersey, Ring v. Arizona, Blakely v. Washington, and Crawford v. Washington, the Court stands poised to refasten Sixth Amendment jurisprudence to its historical underpinnings.

This "refastening" is no small undertaking. Courts have long undervalued, if not ignored, the original understanding of the Framers as to the nature and scope of the criminal jury. Focusing instead on questions of function and con-venience, the pre-Apprendi Court systematically eliminated requirements of jury unanimity, jury size, and the role of the jury as final arbiter as to whether a convicted felon will be sentenced to death. The modern Court's willingness to overturn precedent rooted in functional and ahistorical reasoning suggests that the jury may eventually re-ceive the full scope of its authority as envisioned by the Founders. Eliminating the death-qualification process is an important step in this transformation. At the time of the founding, citizen-jurors who believed the death penalty to be unconstitutional in any particular case or context would not have been subject to a 'for cause' challenge on the basis of partiality, for the ac-cused's right to an 'impartial jury' was simply a tool to eliminate relational bias and personal interest from the criminal adjudication process. A citizen's view on the constitutionality of a particular law did not constitute personal interest, but instead marked an important component of society's deliberative process.

Modern 'death-qualification' jurisprudence frustrates the Framers' understanding as to the role of the criminal jury. Whereas the jury envisioned by the Framers had the power to rule on the constitutionality of the death penal-ty-though the force of any ruling applied only to the particular case on which they sat-a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death. The practical effect of 'death-qualification' is to expose the capitally accused to increased odds of receiving the death penalty, and to eliminate the voices of citizens who would opt to 'check' the government's decision to inflict this penalty.

Worse, perhaps, is that as judges and justices attempt to determine how much opposition to the death penalty warrants a challenge for cause during voir dire, the discretion left to individual judges results in wildly different determinations.

Though the exclusion of prospective jurors based upon their views on the death penalty was not permitted at common law or at the adoption of the Sixth Amendment to the United States Constitution, it is now a de facto component of capital proceedings. The Supreme Court has authorized the lower courts to wander from the historical basis of the Sixth Amendment. The overarching problem-beginning in Witherspoon v. Illinois and continuing throughout the Court's death-qualification jurisprudence-is that the development of an ahistorical standard for determining when views on the death penalty are too much has resulted in the creation of a juror exclusion process that substantially weakens the people's check.

Allowing the exclusion of conscientious objectors from criminal juries began with state efforts to punish bigamy and slavery-abolitionists in the nineteenth century, but appellate courts' review of death-qualification procedures became firmly unhinged from the textual basis of the Constitution in Witherspoon. There, the United States Supreme Court, though recognizing that the State's removal of jurors opposed to capital punishment violated the Sixth Amendment, held that mere reversal of the subsequent death sentence was all that was necessary-as if a little violation of the Sixth Amendment was acceptable, or only providing half a remedy for a Sixth Amendment violation was required. The error continued in Wainwright v. Witt, where the Court endorsed and attempted to modify the 'balancing' test between the defendant's Sixth Amendment right to a jury trial and 'the State's legitimate interest in administering con-stitutional capital sentencing schemes.' The Court's death-qualification analysis descended to a constitutional nadir-from an originalist's perspective in Lockhart v. McCree, where the debate turned on whether social science studies established that the removal from the jury of Witherspoon-excludables led to a death-prone jury. Ultimately, the Lockhart Court subscribed to an ahistoric and textually absurd suggestion that the Sixth Amendment simply prohibited the exclusion of "distinct groups" such as blacks, women, and Hispanics.

In the same way that Crawford overturned significant case law to hold that the Sixth Amendment right to confront witnesses required the exclusion of testimonial hearsay evidence regardless of the reliability of that evidence, and Apprendi and Blakely reversed long-standing precedent to maintain that the Sixth Amendment right to a jury determination of guilt required the jury to make factual findings even if a judge might be more accurate, this Article suggests that the Court should reevaluate-in its historical context-the Sixth Amendment right to a jury trial. Specifically, the Court should reconsider the framework laid out in Witherspoon v. Illinois, Wainwright v. Witt, and Lockhart v. McCree to hold that the Sixth Amendment prohibits the state from excluding prospective jurors based upon their political or moral views.

This Article begins by tracing the roots of death-qualification. In so doing, it will illustrate how historical inaccuracy as to the meaning of the term 'impartial' led to the first for-cause exclusion of death penalty objectors. The Article will then illustrate how the Court arrived at the same anti-objector result by altogether shifting away from the original understanding of the proper role of the criminal jury. After reviewing the Court's current death-qualification jurisprudence, the Article will explore the modern Court's willingness to confront and reverse Sixth Amendment precedent where ahistorical or functional considerations subvert the Framers' original understanding of the right to a jury trial. Next, the Article will detail the basis for concluding that the Framers would have found death-qualification abhorrent to their understanding of the jury function in a democracy. It will conclude by showing what is at stake for the capitally accused individual, as well as for society. The time for the death of death-qualification is now.

Keywords: death penalty, voir dire, witherspoon, death qualification

Suggested Citation

Cohen, G. Ben and Smith, Robert J., The Death of Death-Qualification (August 17, 2008). Case Western Reserve Law Review, Vol. 59, No. 87, 2008. Available at SSRN:

G. Ben Cohen

The Promise of Justice Initiative ( email )

1024 Elysian Fields Ave
New Orleans, LA 70117
United States

Robert J. Smith (Contact Author)

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) ( email )

Cambridge, MA
United States

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