The Witherspoon Doctrine at Witt's End -- Death-Qualification Reexamined

Until the introduction of discretionary sentencing in capital cases by Tennessee in 1838, American jurisdictions almost uniformly adhered to the traditional English practice of mandating the death penalty for everyone convicted of a capital offense. But juries could, and did, mitigate “the harshness of mandatory death sentences” by refusing to convict palpably guilty defendants in cases in which they felt death to be an inappropriate penalty. Thus, the formal legal doctrine contrasted sharply with the courtroom reality. The legal system initially responded to this situation in two, complementary, ways. On the one hand, possibly sharing the juries’ view that the law prescribed the death penalty in cases in which it was not called for, legislatures passed laws restricting the class of capital offenses. On the other hand, given the general requirement that guilty verdicts be unanimous, the fear of jury nullification of the criminal laws for the violation of which death remained the automatic sentence led to the adoption of statutes and judge-made rules designed to allow for the exclusion for cause of potential jurors whose opposition to the death penalty would render them unwilling to convict guilty defendants in capital cases (“nullifiers”). However, the practice of disqualifying prospective jurors in capital cases because of their opposition to capital punishment—which has become known as the death-qualification of juries—survived the nation-wide replacement, between 1838 and 1963, of mandatory sentencing schemes with statutes providing for the imposition of the death penalty at the absolute discretion of the jury. Several justifications for its retention were advanced. It was argued that jurors who would not consider voting to impose the death penalty in the event that the defendant were to be convicted of the crime charged—to whom I shall refer as automatic voters against death (“AVADs”)—were incapable of making the discretionary sentencing judgments in individual cases that the applicable statutes demanded of them. It was also said that their inclusion on sentencing juries would result in the de facto abolition of capital punishment, in violation of the legislative will. Both of these positions were predicated on the assumption that the legislature wanted sentencing decisions to be made by “open-minded,” or uncommitted, jurors. From this premise, it was a short step to a third defense of death-qualification: the State desired the selection of “impartial” sentencers, and that was translatable into a right to exclude AVADs on grounds of sentencing bias. On a more pragmatic level, it was claimed that, in jurisdictions in which guilt and penalty were to be decided by a single, unanimous, verdict, the seating of AVADs would lead to hung juries and “practical immunity [for] murder[ers]”. Finally, in jurisdictions in which the death penalty was automatic upon conviction of a capital offense unless the verdict included a recommendation of mercy, the possibility remained that AVADs’ desire to prevent the imposition of the death penalty might cause them to vote to acquit guilty defendants. Accordingly, it was generally agreed that AVADs could be excluded for cause in capital cases even though juries had been given the right to refuse to impose the death penalty at their untrammelled discretion. This almost universal practice was not confined to the exclusion of venire members who admitted that they were AVADs. Because the defendant’s right to an “impartial” jury was thought to require only that his case be tried by a group of “impartial” jurors, there was no apparent reason not to exclude any juror whose feelings about capital punishment might ultimately prevent him from considering its imposition in the case at bar. Therefore, once it became evident that a venire member’s views on capital punishment might have that effect, there was no perceived need to try to find out whether they actually would. Thus, a simple acknowledgement of opposition to, disbelief in, or “conscientious scruples” about—to which I shall refer collectively as “reservations” concerning—the death penalty generally rendered a potential juror subject to immediate disqualification, as they might prove strong enough to make the juror an AVAD. Similarly, a juror who expressed reservations about voting to impose the death penalty under certain circumstances could be disqualified when it was possible that these circumstances might be present in the case at hand. Many jurisdictions even considered a prospective juror’s honest claim that he could put his reservations aside and make the sentencing decision on the evidence, in conformity with the law, insufficient to render him fit for service. After all, there was no reason to take the chance that that prediction might prove incorrect, for as long as the individual jurors who finally tried the case were not biased, the exclusion of such a juror would not affect the defendant’s rights. This legal landscape was suddenly, and dramatically, altered by the Supreme Court’s 1968 decision in Witherspoon v. Illinois, 391 U.S. 510 (1968). Witherspoon held that the Constitution limits the State’s power to disqualify prospective capital sentencing jurors because of their views about capital punishment, and that no death sentence imposed by a jury from which venire members had been excluded in violation of these restrictions can be carried out. Further, the Court ruled that the standard practice of regarding the expression by potential capital sentencing jurors of reservations about the death penalty as proof of bias is impermissible. Systematically removing people with reservations about capital punishment from capital sentencing juries, the Court found, unjustifiably skews their overall composition, rendering them tribunals disproportionately biased in favor of the ultimate sanction, rather than the “impartial” sentencers to whom the sixth and fourteenth amendments require that the life-or-death decision be committed. If capital sentencing juries can constitutionally be death-qualified at all, the Court declared, it can only be on the basis of “unmistakably clear” admissions that the excused jurors are AVADs or nullifiers. The broad contours of the constitutional prohibition whose discovery was announced in Witherspoon were fleshed out in a series of decisions spanning more than a decade. In the process, the Court recognized, albeit in dicta, that the State has a legitimate interest in, and that the Constitution prima facie permits, the for-cause exclusion from capital sentencing juries of prospective jurors whose opposition to the death penalty would prevent them from “impartially” determining the accused’s guilt or considering the appropriateness, under applicable sentencing laws, of imposing capital punishment in the event of a conviction. However, these decisions provided mixed signals regarding the extent to which the Court would demand meticulous implementation of the “unmistakable clarity” requirement. Last Term, in Wainwright v. Witt, 489 U.S. 412 (1985), the Court conducted its first comprehensive review of Witherspoon and the doctrine that it had developed in the wake of that case. The products of this reappraisal were an emphatic rejection of Witherspoon’s skepticism regarding the legitimacy of the State’s desire to death-qualify capital sentencing juries and the removal of the principal obstacle that Witherspoon had placed in the way of the State’s practical attainment of its goal. On the one hand, Witt reaffirmed the Court’s prior indications that, prima facie, prospective capital sentencing jurors may be excused for cause on the ground that they are AVADs or nullifiers, and, for the first time, it actually upheld such an exclusion. At the same time, the Court decided that Witherspoon had excessively allocated to the Government the risk of error with regard to the identification of venire members whose reservations would prevent their “impartial” service in the case to be tried. As a result, the Court repudiated Witherspoon’s strict standard of proof and effectively lifted its ban on the inference of bias from a juror’s expression of reservations concerning capital punishment. This Article will examine the Court’s decisions on the prima facie legitimacy of the death-qualification of capital sentencing juries from Witherspoon to Witt. It will show that the history of the Court’s involvement in this area presents a most disturbing spectacle. Initially, the Court embarked upon a campaign to limit, under the banner of the accused’s right to an “impartial” sentencing tribunal, the State’s ability to obtain capital sentences. More recently, as it has come to attach greater importance to the State’s interest in the effective use of this sanction, the Court has changed directions. The plain truth, however, is that not once in this cycle of doctrinal development has the Court ever presented a coherent theoretical defense of the course it was charting. As a result, it is still not even clear whether the Court’s basic presumption—that the State’s desire to death-qualify capital sentencing juries is constitutionally legitimate—can be defended on a principled basis consistent with the theoretical underpinnings of the eighth amendment jurisprudence that has regulated the task capital sentencers must perform since Furman v. Georgia, 408 U.S. 238 (1972).