belief in the defendant’s likely guilt. The nature of the
questioning that occurs during death qualification also
has the potential to desensitize jurors to the issue of
imposing the death penalty, to lead some jurors to
believe that they have committed themselves to actu-
ally imposing the death penalty if they find the defen-
dant guilty, and to imply that death penalty imposition
is the legally approved sanction in the penalty trial of
their case. Obviously, these process-related biases
occur in addition to the effects that death qualification
has on the composition of the capital jury.
There is one additional aspect of death qualification
that continues to have legal and social scientific signif-
icance. The process of excluding potential jurors from
participation in capital trials solely on the basis of their
feelings about the death penalty has implications for an
important legal judgment that courts make about the
scope of death penalty support in the United States. In
particular, as Justice John Paul Stevens and others have
acknowledged, one of the key “societal factors” that
the U.S. Supreme Court has continued to look to “in
determining the acceptability of capital punishment to
the American sensibility is the behavior of juries”
(Thompson v. Oklahoma, 1988, p. 831). Thus, the
behavior of capital juries, each one of which has been
created through a process that includes death qualifica-
tion, continues to serve as a measure of the “national
consensus” on the death penalty and an important
index of the extent to which certain death penalty laws
offend evolving standards of decency, the hallmark of
an Eighth Amendment analysis. However, because
death-qualified juries are selected precisely on the
basis of their willingness to actually impose the death
penalty, and therefore differ from non-death-qualified
jurors on this dimension (as well as many others), their
death-sentencing behavior is unlikely to be representa-
tive or reflective of the true “American sensibility”
with respect to capital punishment.Legal Challenges
to Death Qualification
Social science research documenting the range of
biasing effects produced by death qualification has
served as the basis for a number of constitutional chal-
lenges arguing that the unrepresentative and convic-
tion-prone nature of the capital jury compromises the
fair trial rights of capital defendants. In one of the first
of these cases, the U.S. Supreme Court raised
the threshold of legal exclusion from one of mere“scruples” against the death penalty (which had been
the operative death qualification standard for more
than 100 years) to “unequivocal opposition”—a belief
strong enough to preclude the juror from ever return-
ing a death verdict. (See Witherspoon v. Illinois,
1968.) However, the social science data offered in
support of the petitioner’s claim that death qualifica-
tion was unconstitutional were deemed too “tentative
and fragmentary” to support such a ruling.
A little more than a decade later, a major challenge
to death qualification was lodged in California. It
relied on a large body of more recently assembled
social science data and was based on state constitu-
tional grounds. Although the state Supreme Court cited
and discussed the numerous social scientific studies
that were introduced in an evidentiary hearing in the
case, the court stopped short of prohibiting death qual-
ification, at least as it was practiced in California.
However, the court did seek to minimize the biasing
effects of the process of death qualification itself by
requiring that it be conducted on an individual,
sequestered basis (to minimize the extent to which any
one juror was repeatedly exposed to it; see Hovey v.
Superior Court, 1980).
In Lockhart v. McCree(1986), the U.S. Supreme
Court rejected a federal constitutional challenge that
was based on many of the same studies that had been
introduced in the California case. The Court ques-
tioned the validity of the relevant social science
research, noting that none of the studies was method-
ologically perfect and, of course, could entirely re-
create the “felt responsibility” of an actual capital jury.
In addition, however, the Court ruled that, even if
valid, the research was not dispositive since juries
biased in the ways that death-qualified juries appeared
to be could have arisen by chance. Specifically, Justice
Rehnquist wrote for the majority that “it is hard for us
to understand the logic of the argument that a given
jury is unconstitutionally partial when it results from a
State-ordained process, yet impartial when exactly the
same jury results from mere chance” (p. 178).Changes in the Legal
Standard of Exclusion
The legal standard that is used in the death qualifica-
tion process has changed several times. As noted ear-
lier, in 1968, the U.S. Supreme Court modified the
operative standard that had been in use for more than a
century. In addition, however, some 17 years after thisDeath Qualification of Juries——— 191D-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 191