The U.S. Supreme Court’s deci­sion in Uttecht v. Brown on June 4, 2007 appears to enhance the state’s abil­i­ty to remove poten­tial jurors with doubts about the death penal­ty. But by expand­ing the class of peo­ple who can­not serve on cap­i­tal juries, the deci­sion may ulti­mate­ly ren­der the death penal­ty invalid as juries fail to rep­re­sent the true diver­si­ty of the American pub­lic.

In a 5 – 4 deci­sion over­turn­ing an opin­ion writ­ten by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (an out­spo­ken sup­port­er of cap­i­tal pun­ish­ment), the Supreme Court held that the rul­ing of the tri­al judge exclud­ing a juror who had expressed only doubts, but not uni­form oppo­si­tion, to impos­ing the death penal­ty, should be giv­en def­er­ence and upheld. The juror from the state of Washington stat­ed on six occa­sions dur­ing voir dire that he could fol­low the law on apply­ing the death penal­ty. However, some of his oth­er state­ments were equiv­o­cal and the judge excused him from jury ser­vice.

Justice Stevens, writ­ing for the dis­sent, expressed dis­may that such a juror was exclud­ed because of his doubts about the death penal­ty:

​“Millions of Americans oppose the death penal­ty. A cross
sec­tion of vir­tu­al­ly every com­mu­ni­ty in the coun­try includes
cit­i­zens who firm­ly believe the death penal­ty is
unjust but who nev­er­the­less are qual­i­fied to serve as
jurors in cap­i­tal cas­es. An indi­vid­u­al’s opin­ion that a life
sen­tence with­out the pos­si­bil­i­ty of parole is the sever­est
sen­tence that should be imposed in all but the most heinous
cas­es does not even arguably ​‘pre­vent or sub­stan­tial­ly
impair the per­for­mance of his duties as a juror in
accor­dance with his instruc­tions and his oath.’ ”

Justice Stevens con­clud­ed that the major­i­ty had inter­pret­ed the law ​“hor­ri­bly back­ward” and ​“appears to be under the impres­sion that tri­al courts should be encour­ag­ing the inclu­sion of jurors who will impose the death penal­ty rather than only ensur­ing the exclu­sion of those who say that, in all cir­cum­stances, they can­not.”

According to an arti­cle in the New York Times cit­ing experts in law and psy­chol­o­gy, this deci­sion by the Supreme Court ​“will make the pan­els (of jurors) whiter and more con­vic­tion prone.” The arti­cle cit­ed DPIC’s recent poll show­ing that 39% of Americans believe they would be dis­qual­i­fied from serv­ing on a cap­i­tal jury because of their beliefs. The per­cent­ages are even high­er among African Americans and oth­er sub­groups. An edi­to­r­i­al in the Boston Globe, also cit­ing DPIC’s poll, crit­i­cized the Court’s deci­sion and said, ​“Juries, over time, are like­ly to become less and less rep­re­sen­ta­tive of the com­mu­ni­ties from which they are drawn.”
(Uttecht v. Brown, No. 06 – 413, June 4, 2007; N.Y. Times, June 9, 2007, at A1; edi­to­r­i­al, Boston Globe, June 10, 2007). See also DPIC’s report: A Crisis of Confidence: Americans’ Doubts About the Death Penalty.

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