The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation

39 Pages Posted: 5 Apr 2007

See all articles by Susan D. Rozelle

Susan D. Rozelle

Stetson University College of Law


Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest.

Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which require that the same jury that determined guilt also determine punishment, place defendants in a double-bind. Death-qualifying a unitary jury before the conviction stage asks jurors to presume the defendant is guilty before the trial has even begun. Waiting to death-qualify the unitary jury until after conviction, however, means jurors will be asked about their willingness to impose death after having heard all the gristly details of the crime, and not a scrap of evidence in mitigation.

True bifurcation offers an escape from the double-bind, but the unitary jury requirement forbids it. This article considers the rationales for the unitary jury requirement, framed as objections to true bifurcation, and proves them to be illusory. As the only real barrier to the improved fairness true bifurcation offers is the statutory requirement itself, that requirement should be abandoned. Surely the principled executioner would agree.

Keywords: death qualification, voir dire, capital punishment, unitary jury, bifurcation, bias, impartial, fair cross section, federal death penalty act, Capital Jury Project, social science

JEL Classification: K14, K41

Suggested Citation

Rozelle, Susan D., The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation. Arizona State Law Journal, Vol. 38, p. 769, 2006, Available at SSRN:

Susan D. Rozelle (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics