ACLU Report Shows How Death Penalty Jury Selection Discriminates Against Black Americans, Women, and People of Faith

A new report from the ACLU doc­u­ments how the process of select­ing juries for death penal­ty cas­es sys­tem­at­i­cal­ly excludes Black prospec­tive jurors, women, and peo­ple of faith, fun­da­men­tal­ly under­min­ing the con­sti­tu­tion­al promise of a tri­al by a jury of one’s peers. The report, Fatal Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury, exam­ines the prac­tice of ​“death qual­i­fi­ca­tion,” a require­ment that poten­tial jurors must be will­ing to impose a death sen­tence to serve on a cap­i­tal jury. Drawing on research from mul­ti­ple states, the report shows how this process cre­ates juries that are whiter, more con­vic­tion-prone, and less rep­re­sen­ta­tive of American communities. 

To serve on a cap­i­tal jury in the United States, an indi­vid­ual must first demon­strate his will­ing­ness to poten­tial­ly sen­tence a defen­dant to death. This process, while intend­ed to ensure impar­tial delib­er­a­tion, removes spe­cif­ic demo­graph­ic groups from cap­i­tal jury pools. Fatal Flaws reveals that this fil­ter­ing dis­pro­por­tion­ate­ly impacts com­mu­ni­ties of col­or, par­tic­u­lar­ly Black peo­ple who his­tor­i­cal­ly have expressed high­er rates of oppo­si­tion to the death penal­ty. The exclu­sion is even more pro­nounced for Black women. Individuals of faith, par­tic­u­lar­ly Quakers, Buddhists, and Catholics, are also dis­qual­i­fied from juries at high rates because of their reli­gious val­ues and beliefs. 

The report draws atten­tion to mul­ti­ple stud­ies that have doc­u­ment­ed the dis­crim­i­na­to­ry impact of the death qual­i­fi­ca­tion process. A 2016 study in California that polled 500 jury-eli­gi­ble adults in Solano County, California, found that Black peo­ple and women were more like­ly than their white or male coun­ter­parts to be exclud­ed from selec­tion because of death qual­i­fi­ca­tion. 37% of Black respon­dents were exclud­ed because of their oppo­si­tion to sen­tenc­ing some­one to death, while just 20% of white respon­dents were exclud­ed. The same study found that while women made up just under half of the respon­dents (49%), they account­ed for 63% of those exclud­ed because of their oppo­si­tion to cap­i­tal pun­ish­ment. A 2022 analy­sis of ten cap­i­tal tri­als in Wake County, North Carolina found the death qual­i­fi­ca­tion process dis­pro­por­tion­ate­ly exclud­ed reli­gious jurors. 20% of prospec­tive jurors who iden­ti­fied as reli­gious were removed because of death qual­i­fi­ca­tion, while only 12% of jurors who iden­ti­fied as not reli­gious were removed. On aver­age, 14 % of all poten­tial jurors are removed dur­ing death qual­i­fi­ca­tion, but 27% of Catholic prospec­tive jurors were removed. 

Fatal Flaws argues that death qual­i­fi­ca­tion cre­ates a con­sti­tu­tion­al para­dox where indi­vid­u­als fac­ing the death penal­ty have juries that are less rep­re­sen­ta­tive of their com­mu­ni­ties than defen­dants fac­ing less­er pun­ish­ments. Brian Stull, deputy direc­tor of the ACLU Capital Punishment Project, con­sid­ers the prac­tice a vio­la­tion of con­sti­tu­tion­al rights: ​“The result­ing juries do not reflect our com­mu­ni­ties, con­vict more fre­quent­ly, and are com­posed to ignore evi­dence favor­ing a life sen­tence in vio­la­tion of our Constitution.” Mr. Stull con­cludes, ​“Justice depends on equal access to the jury box. We must demand an end to this cycle of dis­crim­i­na­tion and exclu­sion once and for all.” 

The report con­cludes with sev­er­al rec­om­men­da­tions. It urges state leg­is­la­tures to pass leg­is­la­tion pre­vent­ing jury dis­qual­i­fi­ca­tion based on death penal­ty oppo­si­tion in cap­i­tal cas­es; askes courts to reex­am­ine the jus­ti­fi­ca­tion for the con­tin­ued use of death qual­i­fi­ca­tion, par­tic­u­lar­ly in states where they are not bound by law to use the process; calls on pros­e­cu­tors to decline ques­tion­ing prospec­tive jurors on their sup­port or oppo­si­tion of the death penal­ty; and encour­ages defense attor­neys to chal­lenge the prac­tice of death qual­i­fi­ca­tion with evi­dence of its discriminatory effects.