North Carolina ACLU Challenges Death Qualification of Jurors as Racially and Sexually Discriminatory

Lawyers for a North Carolina cap­i­tal defen­dant have filed a sweep­ing chal­lenge to the method by which death-penal­ty jurors are empan­eled, argu­ing that the com­bi­na­tion of a process known as ​“death qual­i­fi­ca­tion” and dis­cre­tionary jury strikes pro­duces a jury so racial­ly and sex­u­al­ly unrep­re­sen­ta­tive that it vio­lates a defendant’s right to a fair trial.

Death qual­i­fi­ca­tion refers to the process of remov­ing poten­tial jurors from ser­vice in a cap­i­tal case because of their expressed oppo­si­tion to the death penal­ty. On August 16, 2022, the ACLU filed a motion on behalf of Brandon Xavier Hill (pic­tured), who faces the death penal­ty for a dou­ble mur­der in Wake County, North Carolina, to bar that prac­tice. In sup­port of that motion, Hill’s lawyers pre­sent­ed two days of evi­dence on August 29 and September 1, 2022 to Judge Paul Ridgeway, as well as the results of a Michigan State University study of jury selec­tion in eleven Wake County cap­i­tal tri­als between 2008 and 2019 that doc­u­ment­ed sig­nif­i­cant racial and gen­der dis­par­i­ties caused by the death-qualification process. 

The study, con­duct­ed by law pro­fes­sors Catherine M. Grosso and Barbara O’Brien and updat­ed on September 11, 2022, involved more than 1,400 prospec­tive jurors. The researchers found sta­tis­ti­cal­ly sig­nif­i­cant evi­dence of racial dis­par­i­ties in death qual­i­fi­ca­tion, with Black poten­tial jurors removed ​“at 2.16 times the rate of their white coun­ter­parts.” With respect to jurors for whom no oth­er basis for exclu­sion applied, they found that ​“Black venire mem­bers were removed on this basis at 2.27 times the rate of white venire members.”

Collectively, the com­bi­na­tion of death qual­i­fi­ca­tion and dis­cre­tionary strikes pro­duced two cas­es with no Black jurors, four with only one Black juror, and sev­en with no female Black jurors.

Grosso and O’Brien also found that women were deemed death unqual­i­fied at a rate that was 1.63 times greater than men were. ​“This dis­par­i­ty was dri­ven large­ly by the dis­parate removal of Black women, who were removed under death qual­i­fi­ca­tion at 2.75 times the rate of oth­er poten­tial jurors,” they wrote in an expert report sub­mit­ted to the court.

The use of dis­cre­tionary peremp­to­ry strikes fur­ther dilut­ed Black rep­re­sen­ta­tion on death penal­ty juries. Grosso and O’Brien found that pros­e­cu­tors ​“struck Black poten­tial jurors at 2.04 times the rate it struck white venire mem­bers” with Black women exclud­ed at 2.0 times the rate of all oth­er jurors. ​“The cumu­la­tive effect of the death qual­i­fi­ca­tion process and the state’s exer­cise of peremp­to­ry strikes meant that Black poten­tial jurors were removed at almost twice the rate of their rep­re­sen­ta­tion in the pop­u­la­tion of poten­tial jurors,” the researchers found. By con­trast, ​“white poten­tial jurors were removed at 0.8 times their rate.”

Mona Lynch, a crim­i­nol­o­gy pro­fes­sor at University of California, Irvine, tes­ti­fied about the impact of death qual­i­fi­ca­tion on indi­vid­ual defen­dants as doc­u­ment­ed in numer­ous stud­ies nation­wide. ​“The research is very strong that Black defen­dants are going to suf­fer as a result of hav­ing dis­pro­por­tion­ate exclu­sion,” she told the court.

The hear­ing has been put on hold when one of the lawyers in the case became seri­ous­ly ill. Additional evi­dence is expect­ed to be pre­sent­ed when the hearing resumes. 

‘Death Qualification’ and the Distortion of Capital Sentencing Juries

Studies have long shown that death-qual­i­fied jurors are dis­pro­por­tion­ate­ly white and male and are more con­vic­tion-prone than oth­er jurors. Nevertheless, the U.S. Supreme Court upheld the con­sti­tu­tion­al­i­ty of the death-qual­i­fi­ca­tion process in Lockhart v. McCree in 1986 against a chal­lenge that it vio­lat­ed a defen­dan­t’s Sixth Amendment rights to an impar­tial jury drawn from a fair cross-sec­tion of the com­mu­ni­ty. The Court has not revis­it­ed that deci­sion since. Hill’s coun­sel present a more expan­sive chal­lenge that address­es the com­bined impact of death qual­i­fi­ca­tion and dis­cre­tionary strikes. They hope that the record pro­duced in the hear­ing will per­suade North Carolina’s courts to recon­sid­er the per­mis­si­bil­i­ty of the prac­tice under the state constitution.

The U.S. Supreme Court has said that to be con­sti­tu­tion­al under the Eighth Amendment, death-sen­tenc­ing prac­tices must reflect the evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety. As part of that inquiry, deci­sions of cap­i­tal sen­tenc­ing juries are sup­posed to express the con­science of the com­mu­ni­ty. Hill argues that death qual­i­fi­ca­tion so dis­torts the com­po­si­tion of the venire that the result­ing juries are inca­pable of per­form­ing that constitutional function.

Grosso and O’Brien found that that the use of jury strikes in Wake County cap­i­tal tri­als was dis­pro­por­tion­ate based on race and gen­der. Black jurors, they found, were exclud­ed via death qual­i­fi­ca­tion at a sig­nif­i­cant­ly high­er rate than white jurors. Death qual­i­fi­ca­tion removed 24% of Black jurors, while only 11% of white jurors were removed. 18% of women — and 33% of Black women — were exclud­ed, while only 11% of men were removed.

The study also found sta­tis­ti­cal­ly sig­nif­i­cant evi­dence that pros­e­cu­tors exer­cised their peremp­to­ry strikes in a racial­ly dis­crim­i­na­to­ry man­ner. According to the researchers, pros­e­cu­tors exer­cised their dis­cre­tionary strikes to remove 51% of eli­gi­ble Black jurors com­pared to 25% of eli­gi­ble white jurors. 

Grosso and O’Brien found that the com­bined impact of death qual­i­fi­ca­tion and peremp­to­ry sig­nif­i­cant­ly dis­tort­ed the racial com­po­si­tion of the venire. Although Black jurors con­sti­tut­ed 18% of the ini­tial jury pool, they account­ed for 31% of all removals. By con­trast, white jurors con­sti­tut­ed 82% of the ini­tial venire and 69% of all removals. The com­bined strikes removed 42% of prospec­tive Black jurors, com­pared to 20% of white jurors. 

[Note: the text and images have been updat­ed to report the results of the revised Wake County jury study, dat­ed September 11, 2022, which includ­ed jury selec­tion data from an addi­tion­al Wake County capital trial.]