The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency

44 Pages Posted: 5 Jun 2016 Last revised: 11 Feb 2017

See all articles by Aliza Cover

Aliza Cover

University of Idaho College of Law

Date Written: June 22, 2016


The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This Article presents a quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013. Of the 1445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty. These exclusions had a considerable impact on the racial composition of the jury pool: in the trials for which individualized information on race was available, one-third of black venire members were struck under Witherspoon, and nearly sixty percent of those struck on this basis were black. These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials. Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.

Keywords: Eighth Amendment, Death Qualification, Capital Punishment, Death Penalty, Constitutional Law, Criminal Law, Witherspoon, Jury Selection, Voir Dire, Capital Juries, Cruel and Unusual Punishment

Suggested Citation

Cover, Aliza, The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency (June 22, 2016). 92 Indiana Law Journal 113 (2016), Available at SSRN:

Aliza Cover (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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