A study pub­lished in The Yale Law Journal pro­vides new evi­dence that, as pub­lic opin­ion con­tin­ues to shift away from the death penal­ty, juries empan­eled in cap­i­tal cas­es may become even less rep­re­sen­ta­tive of the com­mu­ni­ty and even more prone to con­vict. The study—con­duct­ed by Professors Brandon Garrett (University of Virginia), Daniel Krauss (Claremont-McKenna College), and Nicholas Scurich (University of California Irvine) — found that with increased pub­lic oppo­si­tion to the death penal­ty, more prospec­tive jurors may be exclud­ed from serv­ing on cap­i­tal juries because of their views against the death penal­ty. The researchers sur­veyed peo­ple report­ing for jury duty in Orange County, California about their views on the death penal­ty itself and on the impact of the rar­i­ty of exe­cu­tions in California. Orange County is one of the ten most pro­lif­ic death-sen­tenc­ing coun­ties in the United States and was one of just 16 U.S. coun­ties that imposed five or more death sen­tences from 2010 to 2015. But despite those facts, about one-third (32%) of those sur­veyed said they would auto­mat­i­cal­ly vote for life with­out parole in the sen­tenc­ing phase of a death penal­ty case. This view would make them exclud­able from a cap­i­tal jury in a process known as death qual­i­fi­ca­tion, a result that the authors said, ​“rais­es new con­sti­tu­tion­al ques­tions con­cern­ing [death qual­i­fi­ca­tion’s] effect on the abil­i­ty to secure a fair cross-sec­tion of the com­mu­ni­ty in the jury venire.” The researchers also found that near­ly one in four jurors (24%) said that, as a result of their con­cerns about the death penal­ty, they would ​“refuse to vote for mur­der in the first degree mere­ly to avoid reach­ing the death penal­ty issue.” These so-called ​“nul­li­fiers” would also be exclud­able from the jury, pro­duc­ing a jury that would be more prone than the over­all pop­u­la­tion to find the defen­dant guilty. But at the same time that death qual­i­fi­ca­tion ​“excludes far high­er per­cent­ages of the pop­u­la­tion than ever before,” the researchers found that it ​“also has become an even less pre­dictable pros­e­cu­tion tool, because even many stat­ed death penal­ty pro­po­nents now har­bor seri­ous doubts about the death penal­ty.” Finally, researchers asked the jurors whether the fact that California has not car­ried out an exe­cu­tion since 2006 would make them more like­ly or less like­ly to impose a death sen­tence. 67% of those sur­veyed said it made them less like­ly to vote for death. The authors urge fur­ther research into jury atti­tudes about the death penal­ty and con­clude, ​“These find­ings have impli­ca­tions for how we should think about pun­ish­ment as well as the Eighth Amendment in the area of the death penal­ty, but also far more broad­ly. Perhaps unusu­al pun­ish­ments appear cru­el or unsup­port­ed due to their rar­i­ty in practice.”

(B Garrett, D. Krauss, and N. Scurich, ​“Capital Jurors in an Era of Death Penalty Decline,” Yale Law Journal Vol. 126, March 6, 2017.) See Studies and Public Opinion.

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