To serve in a capital trial, potential jury members must be “death qualified,” meaning they have declared that they would be willing to impose the death penalty. According to a new report by the American Civil Liberties Union (ACLU), Black Americans are more likely to oppose the death penalty and therefore less likely to pass the death qualification process, leading to skewed juror pools that do not adequately reflect American communities.
The report authors examined several prior studies that demonstrated the disproportionate exclusion of Black people – especially Black women – from capital juries. They also found evidence of the disproportionate exclusion of women overall, as well as religious Americans.
In California, a prior study found 37 percent of Black people in Solano County are likely to be excluded by the death qualification, compared to 20 percent of their White neighbors. Another California-wide report found people of color represent 18.5 percent of total juror respondents, but represent roughly 30 percent of those excluded from selection due to their opposition to the death penalty.
A study from Duval County, Florida, showed 39 percent of otherwise-eligible potential Black jurors and 43 percent of eligible Black women were removed from capital juries through death qualification, compared to just 17 percent of their White counterparts. The authors found a similar pattern in Wake County, North Carolina, with 25 percent of Black jurors and 36 percent of Black women jurors dismissed through the death qualification, compared to only 11 percent of White potential jurors. Disparities in juror selection were also found in Sedgwick County, Kansas, where 38 percent of Black jurors and 39 percent of Black women are likely to be excluded by death qualification, compared to 25 percent of White jurors.
“Death qualification creates a vicious loop,” the authors write. “Black people are often more likely to distrust the death penalty because of their experiences of discrimination in the criminal legal system and the death penalty’s historical outgrowth from lynching. This distrust then leads to disproportionate exclusion, which in turn increases discrimination in our criminal legal system in the form of nonrepresentative and biased juries more likely to err.”
They continue, “The Constitution envisions the jury as a wall standing high and firm between the awesome powers of the government and individual persons. Passing over the wall requires persuading the jury. The jury should be drawn from the full community, not merely those who favor the government.”
