Black History: Forty Years After Supreme Court Upheld ​“Death Qualification” of Juries, Data Consistently Shows Disproportionate Racial Exclusion

The Constitution man­dates that juries be drawn from a ​“fair cross-sec­tion” of the com­mu­ni­ty. Yet pub­lic opin­ion polls show that a sub­stan­tial por­tion of the com­mu­ni­ty oppos­es the death penal­ty. How, then, can the gov­ern­ment seat a jury that will fair­ly decide whether to impose the death penal­ty and pro­tect a defendant’s con­sti­tu­tion­al jury rights? 

The legal system’s long­stand­ing answer to this ques­tion is a pro­ce­dure called ​“death qual­i­fi­ca­tion,” which allows pros­e­cu­tors to dis­miss any prospec­tive jurors who say they will not ever impose a death sen­tence. Forty years ago, in Lockhart v. McCree (1986), the U.S. Supreme Court was con­front­ed with social sci­ence research demon­strat­ing that the death qual­i­fi­ca­tion process result­ed in a jury that was not only more like­ly to sen­tence a per­son to death, but to con­vict them. The Court was asked to decide whether the removal of prospec­tive jurors opposed to the death penal­ty uncon­sti­tu­tion­al­ly vio­lat­ed the fair cross sec­tion require­ment of the Sixth Amendment. 

The Court answered no. The state has a legit­i­mate inter­est to impan­el jurors who ​“can prop­er­ly and impar­tial­ly apply the law to the facts of the case at both the guilt and sen­tenc­ing phas­es of a cap­i­tal tri­al.” The ​“essence of a ​‘fair cross-sec­tion’ claim is the sys­tem­at­ic exclu­sion of ​‘a dis­tinc­tive group in the com­mu­ni­ty,’” then-Justice William Rehnquist wrote for the 6 – 3 major­i­ty, and ​“groups defined sole­ly in terms of shared atti­tudes” did not qual­i­fy as dis­tinc­tive. He offered con­trast­ing exam­ples. “‘Death qual­i­fi­ca­tion,’ unlike the whole­sale exclu­sion of [B]lacks, women, or Mexican-Americans from jury ser­vice,” he wrote, ​“is care­ful­ly designed to serve” the state’s inter­ests. The major­i­ty con­clud­ed there was ​“very lit­tle dan­ger” that death qual­i­fi­ca­tion was or could become ​“a means for the State to arbi­trar­i­ly skew the com­po­si­tion of capital-case juries.” 

But in the decades since the deci­sion, stud­ies have con­clu­sive­ly demon­strat­ed that death qual­i­fi­ca­tion does just that. Black Americans — and Black women in par­tic­u­lar — are exclud­ed from cap­i­tal juries in large num­bers because they are more like­ly to oppose the death penal­ty. And evi­dence sug­gests that pros­e­cu­tors rec­og­nize this effect, and some use it along­side peremp­to­ry strikes to engi­neer whiter capital juries. 

This Black History Month, the Death Penalty Information Center exam­ines the trou­bling lega­cy of Lockhart at 40. 

The Long History of Racial Discrimination in Jury Selection 

There have been sys­tem­at­ic efforts to exclude peo­ple of col­or from jury par­tic­i­pa­tion for cen­turies. Across the United States, dur­ing the 18^th and 19^th cen­turies, jury ser­vice was legal­ly lim­it­ed to white male prop­er­ty own­ers. In Swain v. Alabama (1965), the Supreme Court heard the case of a Black man sen­tenced to death for rape by an all-white jury, in a coun­ty where no Black per­son had served on a jury in over a decade. Such out­comes were not anom­alies but the prod­uct of inten­tion­al, sys­tem­at­ic exclu­sion of Black cit­i­zens from jury service. 

Legal chal­lenges to jury selec­tion prac­tices gained momen­tum in the ear­ly 20^th cen­tu­ry. In 1935, fol­low­ing advo­ca­cy from orga­ni­za­tions includ­ing the NAACP, the Court held in Norris v. Alabama that the sys­tem­at­ic exclu­sion of Black jurors in the cap­i­tal tri­al of nine Black teenagers — known as the Scottsboro Boys—vio­lat­ed the Equal Protection Clause of the Fourteenth Amendment.  

Over the years, the Court has empha­sized the con­sti­tu­tion­al impor­tance of rep­re­sen­ta­tive juries and the need to be vig­i­lant in the face of racial dis­crim­i­na­tion in jury selec­tion. In Taylor v. Louisiana (1975), the Court held that ​“the con­sti­tu­tion­al right to a jury of one’s peers requires that the jury be select­ed from a group of peo­ple tru­ly rep­re­sen­ta­tive of the com­mu­ni­ties with­out the exclu­sion of dis­tinc­tive groups.” In Batson v. Kentucky (1986), Justice Lewis F. Powell Jr. held for the Court that racial dis­crim­i­na­tion in the selec­tion of jurors not only deprives the accused of impor­tant rights dur­ing a tri­al, but also is dev­as­tat­ing to the com­mu­ni­ty at large because it ​“undermine[s] pub­lic con­fi­dence in the fair­ness of our sys­tem of jus­tice.” The Death Penalty Information Center has iden­ti­fied near­ly 70 cap­i­tal cas­es in 16 states in which a court vacat­ed a con­vic­tion or death sen­tence based on racial dis­crim­i­na­tion in jury selec­tion. 

However, Batson focus­es on racial dis­crim­i­na­tion in peremp­to­ry strikes, the dis­cre­tionary strikes that both par­ties may use to exclude poten­tial jurors who have not been removed ​“for cause.” ​“For cause” strikes result fromdis­qual­i­fy­ing infor­ma­tion such as unavail­abil­i­ty, a con­nec­tion to one of the par­ties in the case — or unwa­ver­ing oppo­si­tion to the death penal­ty. When chal­leng­ing the racial com­po­si­tion of a jury, defen­dants have a clear legal frame­work to argue that the state improp­er­ly lim­it­ed the lists of peo­ple eli­gi­ble for jury ser­vice, or ille­gal­ly exer­cised peremp­to­ry strikes for racial rea­sons dur­ing jury selec­tion (though those process­es are imper­fect).However, defen­dants do not have the same legal foun­da­tion to attack ​“for cause” strikes, even when they appear to have been racial­ly moti­vat­ed. In this way, as Professor Thomas Ward Frampton wrote, ​“the Supreme Court has insu­lat­ed the chal­lenge-for-cause process from mean­ing­ful review” despite robust evi­dence of the practice’s discriminatory results. 

Legal Foundations of Death Qualification: Witherspoon & Lockhart 

As chron­i­cled by schol­ars Mona Lynch and Craig Haney, death qual­i­fi­ca­tion emerged in the 19^th cen­tu­ry as a broad stan­dard ​“that essen­tial­ly allowed pros­e­cu­tors to remove poten­tial jurors for cause if they expressed any reser­va­tions (or what were com­mon­ly termed ​‘scru­ples’) about cap­i­tal pun­ish­ment.” The Supreme Court con­front­ed the prac­tice in Witherspoon v. Illinois (1968), over­turn­ing a man’s death sen­tence after near­ly half the jury pool was removed for express­ing qualms about the death penal­ty. Illinois ​“stacked the deck” against the defen­dant, the Court wrote: ​“In its quest for a jury capa­ble of impos­ing the death penal­ty, the State pro­duced a jury uncom­mon­ly will­ing to con­demn a man to die.” The Court held that jurors who oppose the death penal­ty, but who can set aside that belief and impose a death sen­tence, can­not be dismissed. 

However, the Witherspoon Court explic­it­ly left open the ques­tion of whether death qual­i­fi­ca­tion itself was con­sti­tu­tion­al as a prac­tice. The data, the Court said, was ​“too ten­ta­tive and frag­men­tary” to estab­lish that death-qual­i­fied jurors were biased. In a con­cur­ring opin­ion, Justice William Douglas argued death qual­i­fi­ca­tion was uncon­sti­tu­tion­al, because the jury must be drawn from the com­mu­ni­ty and the com­mu­ni­ty includes peo­ple who oppose the death penalty. 

Eighteen years lat­er in Lockhart, the same year as the Court’s land­mark deci­sion on jury dis­crim­i­na­tion in Batson, the Court heard the case of Ardia McCree. Mr. McCree was con­vict­ed and sen­tenced to life in prison by a death-qual­i­fied Arkansas jury, and he argued that death qual­i­fi­ca­tion was uncon­sti­tu­tion­al because it result­ed in a jury more like­ly to con­vict him than if he had not been tried cap­i­tal­ly. He pre­sent­ed sev­er­al stud­ies show­ing this bias and won in the low­er fed­er­al courts. Yet as described in the intro­duc­tion, the Supreme Court reversed, hold­ing that peo­ple with ​“shared atti­tudes” did not amount to a ​“dis­tinc­tive group” like “[B]lacks, women, or Mexican-Americans.” 

Justice Thurgood Marshall dis­sent­ed, joined by Justices William Brennan and John Paul Stevens. Justice Marshall argued that the stud­ies all came to the same unre­butted con­clu­sion: death-qual­i­fied juries had a ​“pro-pros­e­cu­tion bias.” In 1986, research had already rec­og­nized that death qual­i­fi­ca­tion exclud­ed ​“a dis­pro­por­tion­ate num­ber of [B]lacks and women.” And it wasn’t just that the peo­ple select­ed by death-qual­i­fi­ca­tion were more like­ly to con­vict. The ​“very process of death qual­i­fi­ca­tion — which focus­es atten­tion on the death penal­ty before the tri­al has even begun — has been found to pre­dis­pose the jurors that sur­vive it to believe that the defen­dant is guilty,” Justice Marshall noted. 

Data That Disqualifies: How Death Qualification Skews Capital Juries  

The sub­se­quent decades have proven that the dis­senters were cor­rect to be trou­bled. In an exhaus­tive 2018 arti­cle, Professors Lynch and Haney sum­ma­rize forty years of research demon­strat­ing that death-qual­i­fied jurors are more ​“con­vic­tion prone” and ​“death prone,” and ​“more like­ly to be white and male, to hold atti­tudes less sup­port­ive of due process ideals, and hold more ​‘out-group’ bias­es, includ­ing hav­ing neg­a­tive atti­tudes toward women, racial minori­ties, gays, the elder­ly, and the phys­i­cal­ly dis­abled.”¹ 

Challenges for cause remove peo­ple of col­or at dis­pro­por­tion­ate­ly high rates. A 2018 study of 1,300 felony tri­als involv­ing near­ly 30,000 prospec­tive jurors across North Carolina found that tri­al judges were 30% more like­ly to remove prospec­tive jurors of col­or for cause than white prospec­tive jurors. A 2020 study exam­in­ing near­ly 400 crim­i­nal tri­als in Louisiana and Mississippi found that Black prospec­tive jurors were more than three times as like­ly as white prospec­tive jurors to be exclud­ed by pros­e­cu­tors for cause. In Louisiana, pros­e­cu­tors used 58.9% of their chal­lenges for cause to remove Black prospec­tive jurors, though only 33% of the jury pool was Black. In Mississippi, pros­e­cu­tors used 79.5% of their chal­lenges to remove Black prospec­tive jurors, even though only 34% of prospec­tive jurors were Black. 

These dis­par­i­ties have impor­tant con­se­quences for the fair­ness of jury delib­er­a­tions. Research has shown that all-white juries engage in low­er qual­i­ty delib­er­a­tions when con­sid­er­ing Black defen­dants than when con­sid­er­ing White defen­dants. By con­trast, racial­ly diverse juries have been asso­ci­at­ed with more thor­ough and bal­anced delib­er­a­tions. ​“Diversity pro­motes con­tro­ver­sy, which in turn leads to a clos­er scruti­ny of the evi­dence,” Justice Marshall wrote in his Lockhart dis­sent. 

In a 2022 study, researchers Barbara O’Brien and Catherine M. Grosso ana­lyzed 11 cap­i­tal jury selec­tion pro­ceed­ings in Wake County, North Carolina, from 2008 to 2019. They found that more than twice as many (27%) Black venire mem­bers were removed by death qual­i­fi­ca­tion as white venire mem­bers (12%). In a 2025 fol­low-up arti­cle, Professors O’Brien and Grosso found that over one-third of Black women (36%) were exclud­ed by death qual­i­fi­ca­tion, the high­est rate of any race-gen­der com­bi­na­tion. Their data show that, com­bin­ing death qual­i­fi­ca­tion with peremp­to­ry strikes, half of all Black women were explic­it­ly removed from the jury pool by pros­e­cu­tors com­pared to 22% of all oth­er potential jurors. 

Professors Lynch and Haney also con­duct­ed a study of jurors in Solano County, California from 2014 – 16, which con­firmed the find­ings of oth­er researchers that death qual­i­fi­ca­tion dis­pro­por­tion­ate­ly excludes Black peo­ple. They argue that the ​“impor­tance of ensur­ing the prop­er rep­re­sen­ta­tion of African Americans on cap­i­tal juries extends beyond their sta­tus as a con­sti­tu­tion­al­ly pro­tect­ed group,” because ​“African Americans have a unique his­tor­i­cal rela­tion­ship to cap­i­tal pun­ish­ment, and their life expe­ri­ences have giv­en them a spe­cial per­spec­tive on the death penal­ty.” Black jurors ​“are more like­ly to accept the pos­si­bil­i­ty that racial fac­tors may play a role in deci­sion mak­ing in the crim­i­nal jus­tice sys­tem gen­er­al­ly, and in the admin­is­tra­tion of the death penal­ty in par­tic­u­lar” — while “[w]hite sup­port for cap­i­tal pun­ish­ment, on the oth­er hand, is close­ly tied to both explic­it and implic­it racial ani­mus toward African Americans.” 

Professors Lynch and Haney also found that ​“the African Americans who were deemed death qual­i­fied were both much few­er in num­ber than in the orig­i­nal jury pools and also entire­ly unrep­re­sen­ta­tive of their peers.” The pro­fes­sors observed that “[b]ecause death qual­i­fi­ca­tion requires venire per­sons to express their opin­ions about cap­i­tal pun­ish­ment, often in the course of a pro­tract­ed line of ques­tion­ing, those who sur­vive the process may nonethe­less become prime tar­gets to be dis­missed through the use of peremptory challenges.” 

Florida cap­i­tal pris­on­er David Sparre recent­ly chal­lenged his death sen­tence based on a study of death qual­i­fi­ca­tion in Duval County, Florida (Jacksonville area). Examining 12 cap­i­tal jury tri­als between 2010 and 2018, includ­ing Mr. Sparre’s, Professor Jacinta M. Gau of the University of Florida found that Black jurors and oth­er jurors of col­or were exclud­ed at over twice the rate of white jurors. Over 40% of Black women were removed by death qual­i­fi­ca­tion, com­pared to just 16% of white men. After death qual­i­fi­ca­tion and peremp­to­ry strikes, an aston­ish­ing two-thirds of Black women and 55% of Black men had been removed from the jury pool, com­pared to 37% of white women and 31% of white men. 

However, on December 5, 2025, the Florida Supreme Court reject­ed his appeal in a short rul­ing. The court held that although the Gau study might be new, Mr. Sparre’s claim was untime­ly because the ​“under­ly­ing fac­tu­al basis for the study was avail­able” when the tri­als occurred, and the claim was pro­ce­du­ral­ly barred because Mr. Sparre did not bring it at an ear­li­er stage of pro­ceed­ings. In a char­ac­ter­is­tic response to death qual­i­fi­ca­tion chal­lenges, the court then wrote that even if Mr. Sparre’s claim was con­sid­ered on the mer­its, he would lose because only his jury pool was required to com­prise a ​“fair cross-sec­tion” of the com­mu­ni­ty — not the 12-mem­ber jury that heard his case. Therefore, Mr. Sparre had no avenue to chal­lenge ​“the com­po­si­tion and rep­re­sen­ta­tive­ness of the actu­al jury that tried him.” 

The con­sen­sus among schol­ars is essen­tial­ly unan­i­mous: death qual­i­fi­ca­tion serves as a ​“means for the State to arbi­trar­i­ly skew the com­po­si­tion of cap­i­tal-case juries” by race and sex, the very out­come that Chief Justice Rehnquist claimed was of ​“lit­tle dan­ger” in Lockhart. Yet even with this evi­dence, death-sen­tenced pris­on­ers like Mr. Sparre have lit­tle legal recourse. In some instances, even more mem­bers of minor­i­ty groups are dis­missed at the death qual­i­fi­ca­tion stage than the peremp­to­ry stage of jury selec­tion, result­ing in a dev­as­tat­ing cumu­la­tive ​“white­wash­ing” of the jury. 

And beyond the dis­parate racial impact of death qual­i­fi­ca­tion, anoth­er ques­tion posed by the Witherspoon Court lingers. In 2025, polling found that just 52% of Americans sup­port the death penal­ty, a five-decade low — with sup­port among young adults at just 41%. “[I]n a nation less than half of whose peo­ple believe in the death penal­ty, a jury com­posed exclu­sive­ly of such peo­ple can­not speak for the com­mu­ni­ty,” the Witherspoon Court wrote 58 years ago. ​“Culled of all who har­bor doubts about the wis­dom of cap­i­tal pun­ish­ment — of all who would be reluc­tant to pro­nounce the extreme penal­ty — such a jury can speak only for a dis­tinct and dwindling minority.”