« Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform | Main | Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter »

June 7, 2016

"The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency"

The title of this post is the title of this notable new article authored by Aliza Plener Cover now available via SSRN. Here is the abstract:

The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty.  While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts.  This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013.  Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty.  These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black.  These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials.  Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.

June 7, 2016 at 09:39 PM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB