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 18th and 19th 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.
