The Pope and the Capital Juror
Yale Law Journal Forum (Forthcoming)
8 Pages Posted: 2 Oct 2018
Date Written: September 16, 2018
Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term. The reason for this peculiarity is the “death qualification” of capital jurors – the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict. This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries. First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease. Second, with more believing Catholics excluded from jury service, the representativeness – and hence the legitimacy – of capital juries will suffer. Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite – indeed, because of – societal movement against it. The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.
Keywords: death penalty, capital punishment, Eighth Amendment, law and religion, criminal law, sentencing, juries, constitutional law, fair cross-section
Suggested Citation: Suggested Citation