Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field. Jim I'm your host, Jim Greiner and this is Proof Over Precedent.
This week we're bringing you a student
[00:00:36] Speaker B: Voice, since I'm a 1L at Harvard Law School, and today I'll be discussing death qualification and the jury selection process.
I'll start out just giving a bit of background on the topic on my own. And then later on we'll be joined by Megan Byrne from the ACLU to give us a bit more information on some recent litigation in this area of law.
So, just jumping right in, how are juries selected in the first place?
So, in most US Jurisdictions, what this entails is that a pool of potential jurors are selected and appear in court.
They undergo a screening process that requires them to answer questions, requesting information as a whole about their suitability to serve as jurors.
And then potential jurors who are disqualified at this stage can be excluded, quote, for cause.
A good example of what this might look like is say, if one of the jurors has a familial relationship with one of the parties, they are excluded at this stage.
So that's the first way that a potential juror can be excluded. The second way is using what's called peremptory strikes.
So each part, each side of the litigation has a limited number of these strikes, and they can use them to exclude potential jurors without any sort of reason or explanation.
And the process of death qualifying a jury involves the exclusion of jurors for cause. So again, fitting into that first bucket.
So before forming a capital jury, these potential jurors are asked about their views of the death penalty and if they would be willing to impose that penalty.
And if a potential juror expresses that they would not be willing to do so for moral reasons rather than for any sort of reason specific to the case at hand, then they can be excluded for cause.
And the underlying logic of this exclusion is that we want juries that can return lawful verdicts in which they are able to consider all of the potential punishments available to them and then select the one that is most applicable or appropriate for the case at hand.
What we found through a pretty significant body of social science research, though, is that Death qualifying juries actually introduces quite a lot of bias into the jury that ends up sitting for the capital punishment case.
And we have studies really all across the country. So most notable ones are some in California, North Carolina, Florida, Kansas and Louisiana.
One in Solano County, California, that I'll kind of focus on was surveying jury eligible individuals in that county and found that 37% of Black respondents were excludable based on their opposition to the death penalty, compared to 20% of white respondents.
And similarly, 29% of female respondents were excludable compared to 17% of male respondents.
So as a whole, again, these studies really show that death qualified juries tend to be disproportionately white, disproportionately male.
I don't really touch on this as much, but they're also disproportionately areligious. Specifically, Catholic individuals rarely have ever sit on capital punishment juries.
So this is troublesome for one, because sitting on a jury is actually a key democratic right akin to voting. So those who are excluded disproportionately are being deprived of their ability to participate in that process.
And then this is also troublesome for criminal defendants who have the constitutional right to a jury trial before their peers.
It's also troublesome because social science research tells us that these less diverse juries actually produce lower quality verdicts. So another mock jury study found that white juries, when compared to their racially diverse counterparts, deliberate for a shorter amount of time. They consider less case facts, and white jurors are also less likely to consider mitigating evidence.
So, for example, mitigating evidence might look like the criminal defendant's social background, context surrounding the crime, anything really that could justify a lesser sentence.
White jurors are less likely to consider those facts, which of course is an undesirable outcome.
So we know that death qualifying juries introduces these biases that we do not want.
And as a result, the process has been challenged under the Sixth Amendment, the Eighth Amendment, the 14th Amendment.
So far, these challenges have been relatively unsuccessful. Most notably, the Supreme Court in 1986, Lockhart Fee McCree ruled that death qualified juries, disproportionate likelihood to inflict the death penalty didn't constitute a deprivation of a representative jury as guaranteed by the 6th and the 14th amendment. But advocacy groups are still working to chip away at this practice, including the aclu. I just gave a brief intro on the issue of death qualified juries, and now I'm joined by Megan Byrne. She's a staff attorney with the ACLU's Capital Punishment Project, and she served as a lead attorney in a Kansas case challenging death qualification recently. Thank you so much for being here, Megan.
[00:06:07] Speaker C: Yes, thank you for having me.
[00:06:09] Speaker B: Yeah, absolutely. So just jumping in, could you tell us a bit about the litigation that the ACLU took part in in Kansas?
[00:06:17] Speaker C: Yeah. So we challenged the, the Kansas death penalty under the federal constitution as well as the Kansas constitution in terms of the arbitrary and capricious nature of the Kansas death penalty, the multiple racial disparities in the death penalty, and its effect on the right to a fair and impartial jury.
And drilling down on that last point, we separately challenged the practice of death qualification, where before the process of peremptory strikes even begins. And as you might have already introduced, jurors are removed for cause if they stated they would never sentence someone to death.
[00:06:55] Speaker B: Right. And could you discuss a little bit more, and I think some of the ACLU filings discuss this sort of how you guys approached the political rights of potential jurors and those who are being disproportionately excluded from Capitol juries versus the due process rights of criminal defenses, or, I'm sorry, criminal defendants.
[00:07:16] Speaker C: Yeah, sure. So an initial point that I would make is that a juror's duty in capital sentencing Kansas is kind of a three step process of one, determining whether aggravating circumstances exist, two, if any mitigation exists, and then three, weighing those two. In addition to that, in Kansas as well as generally across the country, you can always consider things like mercy. So I say that to say that in Kansas, the process of death qualification, as elsewhere, strikes people from juries, even though they can do those three things that I just said and they can fulfill their duties under the law.
So for the first part of your question as to the potential juror, you know, this is infringing on a right that's fundamental to citizenship. Right up there with voting jury services is so important, you know, because it allows some of the most serious decisions that we have to make in our community to be made by community members.
And, you know, that's why we have courts who have issued decision after decision making sure that the right to serve on a jury is not being infringed, particularly on the basis of race or class.
And then the qualification just so happens to disproportionately affect people along those same lines.
[00:08:31] Speaker B: Right, that makes sense. And you kind of touched on this in your previous answer, but what is your response to those who are concerned that juries that aren't death qualified can't return lawful verdicts specifically because, you know, they might not go in being able to consider mitigating and aggravating factors.
[00:08:50] Speaker C: Yeah, so I think it's. Yeah, just picking up from, from where I left off. I think it's helpful to talk about what a capital jury can do versus what a capital jury must do.
So a capital jury, of course, can sentence someone to death, but nowhere in the law in any state or federally is a requirement that they sentence someone to death no matter what the crime is.
Whereas what a capital jury must do everywhere is to find aggravating factors. At least a aggravating factor is present that makes someone able to be capitally sentenced. And then what they must do is consider in way mitigating evidence and making an ultimate decision. So those are like the two musts. And so, yeah, you know, people who don't support the death penalty can do both of those two musts. But people on the other side who say, I will send someone to death every time I don't care about mitigation, they can't do those two musts. And so I think that is the important distinction that it's helpful to make about what it is that is lawful that a jury can do even if they don't support the death penalty.
[00:09:57] Speaker B: Right, okay. And that's super helpful because I feel like throughout my research I've been kind of trying to square death qualifying a juror versus life qualifying a juror. And why are those two things distinct and why should we maybe care about one but not the other? So I feel like that, that clears things up on that front. So thank you so, and I talk a bit about this in my introduction, but my understanding is that a lot of the social science research talks about how all white juries are less likely to consider mitigating factors. But how, how did the ACLU kind of think about the social science research that existed and pulling those and weaving those into some of your legal arguments?
[00:10:38] Speaker C: Yeah, so yeah, like you said, that's the kind of. Yeah. The flip side of this is, you know, for the person who is being capitally tried is that they're just not getting the same consideration.
And what's interesting is that's true both in terms of the guilt phase decision, innocence or guilt, and the sentencing decision in terms of life or death. So non diverse juries are not as good at both of those because they, for a range of reasons, including that they don't get facts right as often, they don't just discuss things as thoroughly. And I think this kind of goes to what you were just talking about. They might even interpret what is mitigating differently based on their own background and that might affect the way that they treat people of different races.
So, yeah, that's, that's all kind of working together here. So, yeah, for us, we wanted to use social science in this case in I would say, two buckets. The first is we really wanted to talk about this thing that we all know generally to be true or we all feel to be true in terms of the disproportionate effect that qualification has on people based on race or based on gender is true. Right. So we had an expert who did do a survey of the particular county we were practicing in for this. We brought this case in and found, you know, what we expected, which is that there is this disparity in terms of race, in terms of gender and in religious belief in that, in that, in that county. So that was kind of one bucket of social science and the other went to. More to what you were just talking about in terms of many studies that have been done talking about what it is, what is the effect of these non diverse juries in terms of the fact that factual determination and the mitigation decision.
[00:12:23] Speaker B: Sure.
So you mentioned at the beginning of this call that the ACLU brought challenges to the death penalty and to death qualification under the Kansas Constitution as well as the federal constitution.
[00:12:36] Speaker C: Yes.
[00:12:36] Speaker B: So do you think that one of those avenues is more preferable than the other? Or like, how do you, how do you predict going forward courts will respond to state versus federal constitutional challenges?
[00:12:49] Speaker C: Yeah, no, it's a really great question.
And you know, it's interesting because what I just said about the law on what capital juries can do versus what they must do, that is, like I said, it's. It's the same throughout the states, throughout, you know, throughout the federal government. But that being said, the state constitutions do provide more opportunity to advance these arguments that we made in Kansas.
And two large reasons for that are. The first, some of the state constitutions are literally written differently than the, you know, federal constitution or have different provisions that can be relied upon.
So that's always, you know, a basis for distinction. And then the second thing is that even where state constitutions do have the same wording as the federal constitution or similar wording, many states do interpret their constitutions in a way that provides greater protections for their citizens than do rural court.
[00:13:43] Speaker B: Sure. Okay. So, I mean, it sounds like we have a lot of research, we have some precedent. I know that the challenge that just happened in Kansas. The court laid out some really useful language going forward for advocates who want to get rid of debt qualification.
But going forward, what do you think is going to be the most effective means at actually getting the job done of getting rid of death qualification? Do you think it's legislative solutions? Do you think it's, you know, continuing to litigate this in court? Mixture of both.
Yeah.
[00:14:18] Speaker C: No. Yeah, yeah, yeah. So not to sidestep your question, I do think it's really going to be a mixture at the end of the day, although, as with many of the issues with the death penalty and even the criminal system more broadly, I think a comprehensive approach is always best. And I do think that starts at the end of the day with public education and public awareness, because, to be honest, these are topics that are not spoken about often. And some of the ins and outs here might not be as intuitive as other things might be. And so I think it's really important that the public knows how their rights are being affected as people who might want to serve on a jury, you know, in terms of death qualification and just more broadly. So I think that is the baseline step. And then I do think it's going to be a mixture of, you know, legislative. Legislative solutions, as well as court decisions that are interpreting constitutional provisions or other laws in line with the protection of the rights of not only people who are on trial, but also potential jurors generally.
[00:15:17] Speaker B: Sure, Yeah. I think that. I mean, of course, capital punishment is a big. A big ticket issue, but I feel like the nitty gritty of that and how it works and the, you know, the guilt phase as well as the sentencing phase. Even when I was doing this project, a lot of my classmates had not heard of debt qualifications. So, yeah, hopefully people will just sort of start to learn about it and give pushback on that front. But that's all the questions I have for you. Unless you have any sort of closing thoughts. This was super helpful.
[00:15:47] Speaker C: Yeah, no, thanks. Yeah, this is. This is. It's great. Like I said that y' all are working on this, and I do think that, you know, death caucation is just not something one might know about unless they go to serve on a Capitol jury and even then might not understand exactly what it is that happened. So I think it is. It is very important that we talk about death qualification more, and in particular, the disproportionate impact it has on different portions of our society, because I think that's also something that isn't discussed as much.
[00:16:14] Speaker B: Thank you again. To Megan for that really interesting and important perspective.
I did want to just close the loop on something that she and I didn't get to discuss, which was the ultimate outcome of that Kansas challenge.
So again, the case was brought on behalf of two criminal defendants in Kansas by the aclu.
The court declined to address the constitutional challenges for procedural reasons.
So the death penalty was taken off of the table for those two criminal defendants, meaning that they no longer had standing to bring that challenge.
But the trial court in Kansas did issue a written order discussing the extensive and irredeemable defects that were involved in capital punishment's administration over the past 30 years.
So it cited death qualification and the racial biases that it introduces. It also cited the ineffective nature and the costly nature of the death penalty.
So really important, an important step in getting states and courts to acknowledge the problematic nature of death qualification and the death penalty as a whole.
So I believe that's all I have for that case and for this podcast. I hope that it was interesting and informative. It definitely was.
[00:17:29] Speaker A: For me, Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:17:55] Speaker B: So today we're giving a different perspective on a study we've discussed before. On this podcast, we're talking again about the online court study, but we are talking with Nathaniel, who in his former role before his pre tirement was our field partner working with the Third Judicial District in Utah, and our collaborating researcher Emily, to give us a perspective of the research process from these two different lenses.
