Death Qualification in Black and White: Racialized Decision Making and Death‐Qualified Juries

• Date: 01 April 2018
• Published date: 01 April 2018
• Author: Mona Lynch,Craig Haney
• DOI: http://doi.org/10.1111/lapo.12099

Death Qualification in Black and White: Racialized

Decision Making and Death-Qualified Juries

MONA LYNCH and CRAIG HANEY

Death qualification has been shown to have a number of biasing effects that appear to undermine a

capital defendant’s Sixth Amendment right to a fair jury. Attitudes toward the death penalty have

shifted modestly but consistently over the last several decades in ways that may have changed the

overall impact of death qualification. Specifically, the very large gap between black and white

Americans’ current support for capital punishment raises the question of whether death

qualification procedures disproportionately exclude African Americans from capital jury

participation. In order to examine this possibility, we conducted two countywide death penalty

attitude surveys in the California county that has the highest percentage of African American

residents in the state. Results show that death qualification continues to have a number of serious

biasing effects—including disproportionately excluding death penalty opponents—which result in

the significant underrepresentation of African Americans. This creates a death-qualified jury pool

with the potential to be significantly more likely to ignore and even misuse mitigating factors and to

rely more heavily on aggravating factors in their death penalty decision making. The implications of

these findings for the fair administration of capital punishment are discussed.

I. INTRODUCTION

Persons called to jury service in capital cases must submit to a unique process before they are

deemed qualified to serve. They are questioned explicitly about their attitudes toward the

death penalty, and if those attitudes are so strong as to “prevent or substantially impair” a

potential juror from following the law and from considering all of the sentencing options in

the case (including the imposition of the death penalty), they are excluded from serving

(Morgan v Illinois 1992; Wainwright v Witt 1985; Witherspoon v Illinois 1968). This process,

known as “death qualification,” occurs only in capital cases and poses a correspondingly

unique set of challenges to the fair administration of the death penalty. Most critically, a

robust body of research has found that death-qualified jurors, as a group, tend to be more

conviction prone (Filkins, Smith, and Tindale 1998; Cowan, Thompson, and Ellsworth

1984; Haney 1984a; Thompson et al. 1984) and death prone (Butler and Moran 2002;

Luginbuhl and Middendorf 1988) compared to jury-eligible citizens in general.

Death-qualified jurors are also more likely to be white and male (Eisenberg 2017;

Summers, Hayward, and Miller 2010; Haney, Hurtado, and Vega 1994), to hold attitudes

that are less supportive of due process ideals (Butler and Wasserman 2006; Filkins, Smith,

and Tindale 1998; Haney, Hurtado, and Vega 1994; Fitzgerald and Ellsworth 1984), and

We wish to thank Lois Heaney and Elisabeth Semel for their thoughts and advice on this research, and the

anonymous reviewers for their helpful comments on earlier drafts of this article.

Address correspondence to: Mona Lynch, Criminology, Law & Society, University of California, Irvine,

Irvine, CA 92697-7080, USA. Telephone: (949) 824-0047; E-mail: lynchm@uci.edu; Fax: (949) 824-3001.

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doi: 10.1111/lapo.12099

to hold more “out-group” biases, including having negative attitudes toward women,

racial minorities, gays, the elderly, and the physically disabled (e.g., Levinson, Smith, and

Young 2014; Butler 2007, 2010). Although modern death qualification procedures are

supposed to identify and remove potential jurors at both ends of the attitudinal spectrum,

research suggests that strong death penalty supporters—even those whose views should

perhaps disqualify them—are much more likely to be deemed “fit to serve” than those

who strongly oppose capital punishment (Sandys and Trahan 2008; Dillehay and Sandys

1996). Consequently, death-qualified juries tend to be significantly more in favor of the

death penalty than jury pools in general.

While these research findings are robust, the great majority of death qualification studies

were conducted a decade or more ago, before support for capital punishment in the United

States began its modest but steady decline (e.g., Pew Research Center 2014, 2016). It remains

to be seen whether and how much the changed attitudinal landscape with respect to capital

punishment has impacted the biasing effects of death qualification. The present study thus

has several goals. First, we provide an up-to-date evaluation of some of the effects of death

qualification on representative samples of jury-eligible adults in a death penalty jurisdiction.

Second, we examine the potential consequences of extremely low levels of death penalty sup-

port among African Americans on the composition of capital jury pools. Finally, we

uncover and document some of the mechanisms by which the underrepresentation of Afri-

can Americans on capital juries may facilitate death-prone decision making.

Specifically, in this article we report on findings from two county-level surveys conducted

approximately eighteen months apart in Solano County, California, an economically,

racially, and ethnically diverse county in the greater San Francisco Bay Area. Because one

of our primary goals was to assess differences between whites and African Americans in

attitudes toward the death penalty—and the potential impact of these differences on the

racial makeup of the group deemed to be “death-qualified”—Solano County was an ideal

site. It has the highest percentage of African Americans of any county in the state, and the

district attorney’s office remains active in pursuing death penalty cases.

Our overarching goal is to usecontemporary data gathered after death penalty attitudes

had begun their recentshift to examine the tension between the constitutionally sanctioned

practice of death-qualification and a capitaldefendant’s constitutionalright to be tried by a

representativeand unbiased jury. Specifically,we examine some of the ways in which death

qualification mightjeopardize “the American tradition of trial by jury ...[that] necessarily

contemplates an impartial jury drawn from a cross-section of the community” (Glasser v

United States 1942, 85–86). We examine the various ways in which death qualification

might create a potential jury pool thatis heavily biased in favor of capital punishment,par-

ticularly through the disproportionate removal of African Americans from the jury pool

due to their opposition to the death penalty. Finally, extending our own prior research on

juror demographicsand capital decision making (Lynch and Haney 2009, 2011), we exam-

ine potential differences between the way that whites and African Americans assess the

nature and importance of various aggravating and mitigating factors—thefactors that cap-

ital jurors are instructed to consider and weigh as they decide between a sentence of life or

death. Thus, we explore whether and in what ways African American respondents may be

more receptiveto mitigating evidence, such thattheir disproportionate removalwould tend

to produce a stronglydeath-leaning jurypool.

A. LEGAL STATUS OF DEATH QUALIFICATION

Witherspoon v Illinois (1968), decided by the US Supreme Court a half-century ago, was

the first case to clearly articulate the rules governing whether and how potential jurors

Lynch and Haney DEATH QUALIFICATION IN BLACK AND WHITE 149

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