Death Qualification and the Right to Trial by Jury: An Originalist Assessment.

• Author: Colby, Douglas

INTRODUCTION

The Sixth Amendment of the Constitution guarantees criminal defendants the right to a trial "by an impartial jury." (1) But criminal procedure has evolved substantially since 1791, raising the question of which changes are permissible under the original meaning of the Sixth Amendment. As now-Judge Joan Larsen notes, the modern jury "bears such faint resemblance to the jury of 1791, that if the Court decides to seriously engage the project of restoring the original jury it will find itself very busy indeed." (2) However, the Court has shown some willingness to cut through precedent to return to the original public meaning in criminal procedure cases. Indeed, "the Court's Sixth Amendment jurisprudence is in the midst of an originalist revolution. Starting with Jones v. United States and continuing through Apprendi v. New Jersey, Ring v. Arizona, Blakely v. Washington, and Crawford v. Washington, the Court stands poised to refasten Sixth Amendment jurisprudence to its historical underpinnings." (3) This "originalist revolution" continued this year in Ramos v. Louisiana, (4) where the Court held that nonunanimous jury convictions for serious crimes violate the Sixth Amendment. (5) Given this trend, it is possible that the Court will reassess its death qualification jurisprudence on originalist grounds.

This Note analyzes whether death qualification--the process of removing potential jurors who are unwilling to impose the death penalty--survives an originalist assessment. It begins with the background of death qualification and then analyzes whether the process survives a number of potential originalist objections. Ultimately, it concludes that although there was no direct analogue for death qualification at common law or in criminal procedure at the time of the ratification of the Constitution and Bill of Rights, death qualification does not violate an originalist understanding of the Sixth Amendment right to an impartial jury or of a constitutional criminal trial.

1. SUPREME COURT JURISPRUDENCE AND THE POLICY OF DEATH QUALIFICATION

   1. Legal Background

      Death qualification is a step in the jury selection process in capital cases in which potential jurors are dismissed if they would be categorically unwilling to impose the death penalty. (6) This includes potential jurors who are unwilling to impose the death penalty as a sentence as well as those who are, regardless of the evidence, unwilling to find guilt when execution is a potential penalty. (7) These potential jurors are excluded from the jury for cause, thus not requiring any of the prosecution's peremptory strikes. (8) Only potential jurors who are unwilling to impose the death penalty are excluded: those who personally oppose the death penalty but would be willing to impose it are not. (9)

      The question of whether death-qualified juries violate the original meaning of the right to an impartial jury is significant in criminal procedure. In Lockhart v. McCree, (10) the Supreme court rejected the argument that excluding jurors who are unwilling to impose the death penalty in capital cases violates a defendant's Sixth Amendment right to an impartial jury. (11) Writing for the court, Justice Rehnquist stated:

      [T]he Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. (12) However, Justice Rehnquist relied on precedent and reason rather than analysis of the original public meaning of the Constitution to arrive at this conclusion. (13) As the current Court revisits various aspects of criminal procedure with an originalist lens, it is worth analyzing whether the original meaning of the Sixth Amendment would prevent the exclusion of jurors who would be unwilling to impose capital punishment.

   2. The Policy Significance of Death Qualification

      The impact of a constitutional ban on death qualification would be significant. Allowing those who are unwilling to impose the death penalty to serve on capital juries would effectively end the death penalty in America. Because the death penalty has become more controversial and less popular over the last several decades, (14) it is likely that many capital juries would include at least one person that is unwilling to impose the sentence. But the elimination of the death penalty by objecting jurors could be just the tip of the iceberg if the Court found that jurors could not be excluded for cause if they were unwilling to uphold the law. Indeed, with the rise of the prison abolition movement and the increasing categorical opposition to imprisonment as well as the death penalty, objecting jurors could potentially alter the entire system of criminal justice in America. (15)

      On the other hand, the exclusion of those who are unwilling to impose the death penalty from juries raises compelling questions of partiality as the word is commonly understood today. There is robust literature to suggest that death qualification disproportionately reduces the number of women and people of color on capital juries. (16) There is also evidence to suggest that death-qualified juries are more conviction-prone than normal juries in criminal trials. (17) However, the Court in Lockhart rejected these arguments, noting "serious doubts about the value of these studies in predicting the behavior of actual jurors." (18) The Court went further and said that, even assuming they accepted the studies as true, death qualification would still be constitutional. (19) The Court noted that there is no "fair-cross-section" requirement for petit juries, but that even if there were such a requirement, the Court found that:

      The essence of a "fair-cross-section" claim is the systematic exclusion of "a 'distinctive' group in the community." In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors ... are not "distinctive groups" for fair-cross-section purposes. (20) in short, the Court found that the exclusion of potential jurors with beliefs that render them unwilling to impose a penalty does not violate the Sixth Amendment because they are not a "distinctive group," but rather an ideological one.

      However, death qualification can occasionally result in juries that substantially diverge from their communities' values. The case of Dzhokhar Tsarnaev, the Boston Marathon Bomber, is an illustrative example. Though Massachusetts abolished the death penalty under state law, Tsarnaev was convicted under federal law for his attack which killed three people, and he was sentenced to death. (21) However, a Boston Globe poll released shortly after Tsarnaev's trial found that only a third of Massachusetts residents and only a quarter of Boston residents favor the death penalty for egregious crimes. (22) This discrepancy between state law and public opinion and federal charges led to an unusual situation where the majority of potential jurors might be excluded based on their unwillingness to impose the death penalty. (23) Despite death qualification excluding ideological adherents rather than any specific demographic group, the fact that it likely removes the majority of the community as a whole from serving as jurors in some cases is uncomfortable.

2. POTENTIAL ORIGINALIST OBJECTIONS TO DEATH QUALIFICATION

   An originalist, however, is not concerned with policy arguments or precedent in determining whether a constitutional right exists. Instead, an originalist looks to the public meaning of the document at the time of its enactment to determine the rights guaranteed by constitutional text. (24) In determining the original meaning of the right to trial by jury, Judge Larsen states that:

   [I]f the jury provisions [of the Constitution] state a rule, demanding trial by a particular entity called a jury, then the originalist's task is to give effect to those terms as they were understood in 1791. Put differently, the question for an originalist is ... what attributes comprised the jury trial of 1791? Those are retained because the text so demands. (25) In short, the originalist must try to determine the "attributes" that defined jury trials in 1791.

   To determine these attributes and interpret the Constitution, Judge Larsen notes that an originalist must start with the text of the document, searching it for clear rules or standards. (26) The Sixth Amendment provides that:

   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (27) Unlike some provisions of the Constitution that provide clear rules, (28) the term "impartial jury" and its related protections are not apparent from the text.

   In determining the protections guaranteed under the Sixth Amendment right to an impartial jury, Justice Thomas wrote in dissent in Pena-Rodriguez v. Colorado (29) that the right "is limited to the protections that existed at common law when the Amendment was ratified." (30) In other words, Justice Thomas asserts that the right to a trial by an impartial jury had a specific legal meaning which governs its interpretation. (31) Justice Thomas views the originalist interpretation of the term "impartial jury" to be the contemporaneous legal meaning. (32) As evidence for his assertion that the original public meaning of the Sixth Amendment right to an impartial jury is derived from English common...