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October 13, 2018

"The Pope and the Capital Juror"

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

Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term.  The reason for this peculiarity is the “death qualification” of capital jurors — the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict.

This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries.  First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease.  Second, with more believing Catholics excluded from jury service, the representativeness — and hence the legitimacy — of capital juries will suffer.  Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite — indeed, because of — societal movement against it.  The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.

October 13, 2018 at 11:19 AM | Permalink


The author, based on her resume, appears never to have defended (or prosecuted) a capital case. I am weary of academic articles by persons who have never experienced, first hand, a capital case. No, working for the late Justice Stephen Reinhardt and then on to appellate advocacy on behalf of the condemned doesn’t count.

Posted by: David | Oct 14, 2018 10:58:21 AM

The number of American Catholics who closely follow the Pope's pronouncements on issues are few and far between. If you look at other issues on which the church has taken a significant stand -- contraception, abortion, LGBT rights, defense spending, immigration, health care -- there is, at most, a small difference between the cross-tabs for Catholic voters and the general results. Sometimes that difference is in the direction of the Church's teachings but sometimes it is in the opposite direction. I guess it depends upon how you define "believing Catholics," but if it means somebody who follows the Church's teachings on all issues, the number of potential jurors who meet that definition is likely to be very small.

Posted by: tmm | Oct 15, 2018 11:36:44 AM

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