# Witherspoon v. Illinois/Concurrence Douglas

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Mr. Justice DOUGLAS.
My difficulty with the opinion of the Court is a narrow but important one. The Court permits a State to eliminate from juries some of those who have conscientious scruples against the death penalty; but it allows those to serve who have no scruples against it as well as those who, having such scruples, nevertheless are deemed able to determine after a finding of guilt whether the death penalty or a lesser penalty should be imposed. I fail to see or understand the constitutional dimensions of those distinctions.
The constitutional question is whether the jury must be 'impartially drawn from a cross-section of the community,' or whether it can be drawn with systematic and intentional exclusion of some qualified groups, to use Mr. Justice Murphy's words in his dissent in Fay v. People of State of New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043.
Fay v. New York, which involved a conviction of union leaders for extortion, was the 'blue ribbon' jury case in which the jury was weighted in favor of propertied people more likely to convict for certain kinds of crimes. The decision was 5-4, Mr. Justice Murphy speaking for Mr. Justice Black, Mr. Justice Rutledge, and myself:
'There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution, representative of all qualified classes of people.' Id., at 299-300, 67 S.Ct., at 1633.
The idea that a jury should be 'impartially drawn from a cross-section of the community' certainly should not mean a selection of only those with a predisposition to impose the severest sentence or with a predisposition to impose the least one that is possible.
The problem is presented in different postures under several types of state laws. Many States, including Illinois, specifically grant the jury discretion as to penalty; in some, this discretion is exercised at a special penalty trial, convened after a verdict of guilt has been returned. In other States, death is imposed upon a conviction of first degree murder unless the jury recommends mercy or life imprisonment, although in these States the jury is allowed to find a lesser degree of murder (or to find manslaughter, if under state law there are no degrees of murder), if the evidence will permit, without regard to the formal charge. In some States, the death penalty is mandatory for certain types of crimes. In still others, it has been abolished either in whole or in part. And a few States have special rules which do not fit precisely into the above categories.
A fair cross-section of the community may produce a jury almost certain to impose the death penalty if guilt were found; or it may produce a jury almost certain not to impose it. The conscience of the community is subject to many variables, one of which is the attitude toward the death sentence. If a particular community were overwhelmingly opposed to capital punishment, it would not be able to exercise a discretion to impose or not impose the death sentence. A jury representing the conscience of that community would do one of several things depending on the type of state law governing it: it would avoid the death penalty by recommending mercy or it would avoid it by finding guilt of a lesser offense.
In such instance, why should not an accused have the benefit of that controlling principle of mercy in the community? Why should his fate be entrusted exclusively to a jury that was either enthusiastic about capital punishment or so undecided that it could exercise a discretion to impose it or not, depending on how it felt about the particular case?
I see no constitutional basis for excluding those who are so opposed to capital punishment that they would never inflict it on a defendant. Exclusion of them means the selection of jurors who are either protagonists of the death penalty or neutral concerning it. That results in a systematic exclusion of qualified groups, and the deprivation to the accused of a cross-section of the community for decision on both his guilt and his punishment.
The Court in Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429, held that prospective jurors who had conscientious scruples concerning infliction of the death penalty were rightly challenged by the prosecution for cause, stating that such jurors would be prevented 'from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence * * *.' That was a federal prosecution, the requirement being 'an impartial jury' as provided in the Sixth Amendment, a requirement now applicable to the States by reason of the incorporation of the Jury Clause of the Sixth Amendment into the Due Process Clause of the Fourteenth. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.
But where a State leaves the fixing of the penalty to the jury, or provides for a lesser penalty on recommendation of mercy by the jury, or gives the jury power to find guilt in a lesser degree, the law leaves the jury great leeway. Those with scruples against capital punishment can try the case 'according to the law and the evidence,' because the law does not contain the inexorable command of 'an eye for an eye.' Rather 'the law' leaves the degree of punishment to the jury. Logan v. United States in the setting of the present case does not state what I believe is the proper rule. Whether in other circumstances it states a defensible rule is a question we need not reach. Where the jury has the discretion to impose the death penalty or not to impose it, the Logan rule is, in my opinion, an improper one. For it results in weeding out those members of the community most likely to recommend mercy and to leave in those most likely not to recommend mercy.
Challenges for cause and peremptory challenges do not conflict with the constitutional right of the accused to trial by an 'impartial jury.' No one is guaranteed a partial jury. Such challenges generally are highly individualized not resulting in depriving the trial of an entire class or of various shades of community opinion or of the 'subtle interplay of influence' of one juror on another. Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261, 264, 91 L.Ed. 181. In the present case, however, where the jury is given discretion in fixing punishment, the wholesale exclusion of a class that makes up a substantial portion of the population produces an unrepresentative jury.
Although the Court reverses as to penalty, it declines to reverse the verdict of guilt rendered by the same jury. It does so on the ground that petitioner has not demonstrated on this record that the jury which convicted him was 'less than neutral with respect to guilt,' ante, at 520, n. 18, because of the exclusion of all those opposed in some degree to capital punishment. The Court fails to find on this record 'an unrepresentative jury on the issue of guilt.' Ante, at 518. But we do not require a showing of specific prejudice when a defendant has been deprived of his right to a jury representing a cross-section of the community. See Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181; Ware v. United States, 123 U.S.App.D.C. 34, 356 F.2d 787 (1965). We can as easily assume that the absence of those opposed to capital punishment would rob the jury of certain peculiar qualities of human nature as would the exclusion of women from juries. Ballard v. United States, 329 U.S., at 193-194, 67 S.Ct., at 264. I would not require a specific showing of a likelihood of prejudice, for I feel that we must proceed on the assumption that in many, if not most, cases of class exclusion on the basic of beliefs or attitudes some prejudice does result and many times will not be subject to precise measurement. Indeed, that prejudice 'is so subtle, so intangible, that it escapes the ordinary methods of proof.' Fay v. New York, 332 U.S., at 300, 67 S.Ct., at 1633 (dissenting opinion). In my view, that is the essence of the requirement that a jury be drawn from a cross-section of the community.

## Notes

1 'It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.' Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84. And see Ballard v. United States, 329 U.S. 187, 191, 67 S.Ct. 261, 263, 91 L.Ed. 181. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 ('The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community'); Glasser v. United States, 315 U.S. 60, 85-86, 62 S.Ct. 457, 86 L.Ed. 680.
2 Ala.Code, Tit. 14, § 318 (1958); Ariz.Rev.Stat.Ann. § 13 453 (1956); Colo.Rev.Stat.Ann. § 40-2-3 (1963); Haw.Rev.Laws § 291 5 (1955); Idaho Code Ann. § 18-4004 (1948); Ill.Rev.Stat., c. 38, § 1-7(c)(1) (1967); Ind.Ann.Stat. § 9-1819 (1956); Kan.Stat.Ann. § 21-403 (1964); Ky.Rev.Stat. § 435.010 (1962), Ky.Rule Crim.Proc. 9.84 (1965); Mo.Rev.Stat. § 559.030 (1959), V.A.M.S.; Neb.Rev.Stat. § 28-401 (1964); Nev.Rev.Stat. § 200.030 (1963); Okla.Stat.Ann., Tit. 21, § 707 (1958); Tenn.Code Ann. § 39-2406 (1955); Vernon's Ann.Tex.Pen.Code Art. 1257 (1961), Tex.Code Crim.Proc., Art. 37.07 (1967 Supp.); Va.Code Ann. §§ 18.1-22, 19.1 291 (1960). In most of these States, a jury decision of death is binding on the court. In a few States, however, the judge may overrule the jury and impose a life sentence. Ill.Rev.Stat., c. 38, § 1-7(c)(1) (1967); State v. Anderson, 384 S.W.2d 591 (Mo.1964); S.D.Code § 13.2012 (1960 Supp.).
3 Cal.Pen.Code, § 190.1 (1967 Supp.); N.Y. Penal Law, McKinney's Consol.Laws, c. 40, §§ 125.30, 125.35 (1967); Pa.Stat., Tit. 18, § 4701 (1963). And see S.D.Code § 13.2012 (1960 Supp.) (trial court may ask jury to retire to deliberate on penalty after verdict of guilt returned).
4 Ark.Stat.Ann. §§ 41-2227, 43-2153 (1964); Conn.Gen.Stat.Rev. § 53-10 (1965 Supp.); Del.Code Ann., Tit. 11, §§ 571, 3901 (1966 Supp.); Fla.Stat. §§ 782.04, 919.23 (1965), F.S.A.; Ga.Code Ann. § 26-1005 (1953); La.Rev.Stat. § 14:30 (1950); Md.Ann.Code, Art. 27, § 413 (1967); Mass.Gen.Laws Ann., c. 265, § 2 (1959); Miss.Code Ann. § 2217 (1957); Mont.Rev.Codes Ann. § 94-2505 (1949); N.J.Rev.Stat. § 2A:113-4 (1953), N.J.S.A.; N.M.Stat.Ann. § 40A-29-2 (1953); N.C.Gen.Stat. § 14-17 (1953); Ohio Rev.Code Ann. § 2901.01 (1954); S.C.Code Ann. § 16-52 (1962); Utah Code Ann. § 76-30-4 (1953); Wyo.Stat.Ann. § 6-54 (1959). In two of these States, the court possesses discretion to impose a life sentence despite the failure of the jury to recommend mercy. Ga.Code Ann. § 26-1005 (1953) (if conviction based solely on circumstantial evidence); Md.Ann.Code, Art. 27, § 413 (1967). In Delaware and Utah the court may overrule a jury recommendation of life imprisonment and impose the death penalty. Del.Code Ann., Tit. 11, §§ 571, 3901 (1966 Supp.); Utah Code Ann. § 76-30-4 (1953), State v. Romeo, 42 Utah 46, 128 P. 530 (1912).
5 Arkansas: Ark.Stat.Ann. § 43-2152 (1964); Connecticut: Conn.Gen.Stat.Rev. § 53-9 (1965 Supp.); Delaware: State v. Price, 30 Del. 544, 108 A. 385 (1919); Florida; Brown v. State, 124 So.2d 481 (1960); Georgia: (no degrees of murder) Graham v. State, 34 Ga.App. 598, 130 S.E. 354 (1925); Louisiana: (no degrees of murder) State v. Goodwin, 189 La. 443, 179 So. 591 (1938); Maryland: Md.Ann.Code, Art. 27, § 412 (1967), and see Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953), Gunther v. State, 228 Md. 404, 179 A.2d 880 (1962); Massachusetts: Commonwealth v. Kavalauskas, 317 Mass. 453, 58 N.E.2d 819 (1945), Commonwealth v. DiStasio, 298 Mass. 562, 11 N.E.2d 799 (1937); Mississippi: (no degrees of murder) Anderson v. State, 199 Miss. 885, 25 So.2d 474 (1946); Montana: State v. Le Duc, 89 Mont. 545, 300 P. 919 (1931); State v. Miller, 91 Mont. 596, 9 P.2d 474 (1932); New Jersey: State v. Sullivan, 43 N.J. 209, 203 A.2d 177 (1964), State v. Wynn, 21 N.J. 264, 121 A.2d 534 (1956); New Mexico: State v. Smith, 26 N.M. 482, 194 P. 869 (1921); North Carolina: State v. Lucas, 124 N.C. 825, 32 S.E. 962 (1899); Ohio: State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15 (1952); South Carolina: (no degrees of murder) State v. Byrd, 72 S.C. 104, 51 S.E. 542 (1905); Utah: State v. Mewhinney, 43 Utah 135, 134 P. 632 (1913); Wyoming: Brantley v. State, 9 Wyo. 102, 61 P. 139 (1900).
6 Ala.Code, Tit. 14, § 319 (1958) (person serving life term at time of commission of offense); Ariz.Rev.Stat.Ann. § 13-701 (1956) (treason); Mass.Gen.Laws Ann., c. 265, § 2 (1959) (rape murders); Miss.Code Ann. § 2397 (1957) (treason); Ohio Rev.Code Ann. §§ 2901.09, 2901.10 (1954) (murder of President, Vice-President, Governor, or Lieutenant Governor); R.I.Gen.Laws Ann. § 11-23-2 (1956) (person serving life term at time of commission of offense).
7 Alaska Stat. § 11.15.010 (1962); Iowa Code Ann., § 690.2 (1967 Supp.); Me.Rev.Stat.Ann., Tit. 17, § 2651 (1964); Mich.Stat.Ann. § 28.548, Comp.Laws 1948, § 750.316 (1954); Minn.Stat. § 609.185 (1965); Ore.Rev.Stat. § 163.010 (1967); W.Va.Code Ann. § 61-2-2 (1966); Wis.Stat. § 940.01 (1965). In North Dakota the death penalty has been abolished except in the case of murder committed while under a life sentence for murder in which case the death penalty may be imposed at the jury's discretion. N.D.Cent.Code §§ 12-27-13, 12-27-22 (1960). Vermont has also abolished the death penalty except in the cases of an unrelated second offense of murder or the killing of a peace officer or prison official, in which cases the death penalty may be imposed at the jury's discretion. Vt.Stat.Ann., Tit. 13, § 2303 (1967 Supp.). In Rhode Island the death penalty has been abolished except that it is mandatory in cases of murder committed while under a life sentence for murder. R.I.Gen.Laws Ann. § 11-23-2 (1956). In Georgia the death penalty may not be imposed if the person convicted was under 17 years of age at the time of the offense. Ga.Code Ann. § 26-1005 (1967 Supp.). In California it may not be imposed if the person was under 18 years of age. Cal.Pen.Code § 190.1 (1967 Supp.). In New York capital punishment has been abolished except that it may be imposed at the jury's discretion in cases of the murder of a peace officer while in the course of performing his official duties or of murder committed while under a life sentence for murder. N.Y. Penal Law § 125.30 (1967).
8 New Hampshire and Washington provide for life imprisonment unless the jury recommends death. N.H.Rev.Stat.Ann. § 585:4 (1955); Wash.Rev.Code § 9.48.030 (1956). Maryland permits the trial court alone to decide the penalty in its discretion without submitting the matter to the jury in cases of rape and aggravated kidnaping. Md.Ann.Code, Art. 27, §§ 461, 338 (1967).
9 The ruling on the 'impartial jury' in Logan v. United States, seems erroneous on the facts and the applicable law of that case. The governing statute (a Texas statute), 144 U.S., at 264, n. 1, 12 S.Ct., at 618, left to the jury 'the degree of murder, as well as the punishment.'
10 '(T)he gulf between the community and the death-qualified jury grows as the populace becomes the more infected with modern notions of criminality and the purpose of punishment. Accordingly, the community support for the death verdict becomes progressively narrower, with all that this connotes for the administration of justice. Moreover, as the willingness to impose the death penalty that is, to be sworn as a juror in a capital case-wanes in a particular community, the prejudicial effect of the death-qualified jury upon the issue of guilt or innocence waxes; to man the capital jury, the resort must increasingly be to the extremists of the community-those least in touch with modern ideas of criminal motivation, with the constant refinement of the finest part of our cultural heritage, the dedication to human charity and understanding. The due-process implications of this flex seem obvious. Yesterday's practice becomes less and less relevant to today's problem.'
Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545, 556-557 (1961).
11 In the words of the Illinois Supreme Court, the death penalty is 'an optional form of punishment which (the jury is) free to select or reject as it (sees) fit.' People v. Bernette, 30 Ill.2d 359, 370, 197 N.E.2d 436, 443 (1964). See also People v. Dukes, 12 Ill.2d 334, 146 N.E.2d 14 (1957); People v. Weisberg, 396 Ill. 412, 71 N.E.2d 671 (1947); People v. Martellaro, 281 Ill. 300, 117 N.E. 1052 (1917).
12 As the Court points out, a substantial number of the veniremen (47 out of 95), who we may assume represented a fair cross-section of the community, were excluded because of their opposition to the death penalty.
13 In Rudolph v. State of Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, I joined the opinion of Mr. Justice Goldberg, dissenting from the Court's denial of certiorari, who expressed the view that this Court should consider the question whether the Eighth Amendment prohibits 'the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life.' Ibid. In contrast, the instant case concerns a convicted murderer who has been sentenced to death for his crime. The requirement imposed by the Sixth and the Fourteenth Amendments that a jury be representative of a cross-section of the community is, of course, separate and distinct from the question whether the death penalty offends the Eighth Amendment.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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