Among the many inconsistencies in the law is the manner in which we distinguish death penalty cases from those cases in which the state seeks something less than the life of the defendant. The courts are content to ignore these inconsistencies because, as the Supreme Court put it, "death is different." But if that is so, why, in capital cases, do we go out of our way to assure that the jury fails to reflect a fair cross section of the community?
I am referring, of course, to the insidious practice of "death qualification" of jurors. A line of cases reaching back to Wainwright v. Witt, 469 U.S. 810 (1985) permits the practice. As refined by the later case of Witherspoon v. Illinois, 391 U.S. 510 (1968), death qualification permits exclusion of those jurors who make it unmistakeably clear that their opposition to the death penalty would either make it impossible for them to impose the penalty, or would not be impartial during the guilt phase of the trial.
For neophytes, here are some basics: A capital trial takes place in phases. In the first part, a the state seeks to prove that the defendant committed a "death eligible" offense. If the state prevails, the state then attempts to prove in a second trial before the same jury the presence of an aggravating factor such that the defendant should be put to death. The defense presents evidence of mitigating factors. Jurors then retire to balance the so-called aggravants and mitigants before signalling thumbs up or down.
In many jurisdictions, including Connecticut, jurors are routinely told in non-death penalty cases that they are not to consider punishment. That is the judge's job. Jurors are expected to make decisions about guilt or the lack thereof in a vacuum. They are transformed into moral automatons and deprived of the right to make a reasoned moral response to the evidence before them. The theory goes something like this: Focusing the juries attention on whether the defendant committed the crime eliminates the danger of improper motives' contaminating the process.
So why when the stakes are at their highest do we invite jurors to decide the question of life or death?
The vanilla answer is that the stakes are so high we want the reasoned moral response of the jury in making the decision. But that glamorizes death penalty trials in a way that mocks justice. Surely killing someone is different than locking them away for 30 or 40 years, or for life, but the distinction between physical death and social annihilation is the sort of armchair line-drawing that makes little sense in the trenches: Sit, sometime, with a client sentenced to natural life explain the "up" side some time. It's not very convincing.
Juries should know the consequences of what they are doing. Would jurors send a young man to prison for decades for selling a little cocaine? In most cases not. The penalty is disproportionate to the harm. And what of statutory rape? A young man has sex with a willing partner who falls just short of the line separating those the law deems able to give consent from those unable to do so. Would jurors routinely send their neighbor's son to prison for an indiscretion many of the jurors themselves may have committed as young men and women?
Juries are supposed to be a means of checking the government's power to abuse ordinary citizens. The threat of abuse comes not just from an overweening executive branch making vindictive decisions about who to charge with crimes. The threat also comes from legislatures inspired by passion to "get tough on crime" each and every time some new, and spectacular, crime captures the airwaves. Lawmakers don't deliberate on juries and learn about the character of the defendant and circumstances of the crime. Lawmakers read newspapers, answer phone calls from angry constituents and earn their livelihood promising to make us safe. Is it any wonder that many lack an abiding concern for justice? When it comes to the criminal justice system, lawmakers are the most dangerous branch of all: They can belch out mandatory minimum sentences without ever once studying a trial transcript.
Jurors, I repeat, should know the consequence of their decisions, and they should participate in the process of deciding punishment.
So why isn't death qualification in capital cases a good thing?
Death qualification is used to exclude those folks opposed in principle to the death penalty from a jury. That is a significant part of the American public.
Last October, a Gallup poll indicated that 69 percent of Americans favor the death penalty for those accused of murder. This number, according to the pollsters, has held more or less steady during the past 13 years. Excluding those who are undecided, that leaves roughly 30 percent of Americans opposed to killing in the name of justice.
In a capital case, then, a defendant is likely to find about 30 percent of jurors challenged for cause because these jurors believe it is wrong for the state to kill. Of course, some small percentage of this 30 percent may find themselves on a jury if they are able to persuade a judge and prosecutor they could put their convictions aside and vote to kill. But odds are such jurors will be excused peremptorily by the state.
The pool of jurors in a capital case is selected to exclude those members of the community who cannot impose the ultimate penalty. Why, I wonder, aren't jurors in non-capital cases told, for example, the following? "Do you favor imposition of a 20 year sentence for the sale of crack cocaine?" There is no good reason to pull a punch by permitting "death qualification" but not "punishment qualification".
And there is the lingering suspicion that those jurors who favor the death penalty are, in fact, more likely to find in favor of guilt. It takes a lot, one hopes, to overcome the normal social instinct against killing. When we death qualify aren't we in effect looking for jurors already mad as a Hell and just looking to do something about it?
A moving example of death qualification at work took place in New Haven, Connecticut, yesterday, where a juror broke down in tears during jury selection in the case of State v. Hayes , the home invasion case involving the murder of a popular doctor's family. "A college student broke down in tears on the witness stand when asked about the death penalty," The Hartford Courant reported. "It makes me feel uncomfortable," she said, sobbing into her hands. Those tears represent the salf of the Earth.
This young woman's voice will not be heard on this jury. Yet if the defendant faced the possibility of life without parole the issue of consequences would never have arisen.
I am not opposed to asking questions about the consequences of a conviction. It should be permitted in all cases, capital or not. Jurors who have reservations about what the state seeks should not routinely be excluded from service, unless, of course, the process is designed to remove barriers to execution. Jurors are a check not just on abuse of power by the executive branch, but a means of checking the excess of passion reflected by legislators.