Boston Bombing Jury Is Already Biased

If a juror believes the death penalty is wrong, she’s off the jury. That's a problem.

This isn't a starting point.

Photographer: Mike Simons/Getty Images

The lengthy jury-selection process in the trial of Dzhokhar Tsarnaev, the accused in the Boston Marathon bombing, isn’t like ordinary jury selection: It includes an ideological litmus test. Under federal law, the prosecution can find out if a juror believes the death penalty is categorically wrong. If she does, she’s off the jury, no matter if she says she could have adjudicated Tsarnaev’s guilt or innocence fairly.

The practice of selecting what’s called a death-qualified jury should shock you. Not only does it mean that the jury deciding on the death penalty won’t include people who think the death penalty is a bad idea, but it also means that guilt or innocence will be decided by a jury that excludes anyone who opposes capital punishment. And there’s a fair amount of evidence that such a jury is on the whole more likely to convict than a jury made up of people with all sorts of views about death.

But wait, you ask, does the U.S. Supreme Court know this is going on? It does -- and how. In fact, the whole strange structure of death qualification grows out of Supreme Court precedent. How we got here turns out to be a painful story in judicial lawmaking, with serious implications for justice in the Tsarnaev's trial.

The story begins with Witherspoon v. Illinois, a 1968 case that was a logical and legal mess. The Supreme Court considered the appeal of a man sentenced to death under a state statute that categorically excluded from the jury anyone with “conscientious scruples” about the death penalty.

On first glance, anyone reading the opinion would think that the Supreme Court found death qualification repugnant. The decision, written by Justice Potter Stewart, was brief and unanimous. The court reversed the defendant’s death sentence. It insisted that “a man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” A juror with conscientious scruples could fairly determine not only guilt or innocence but also the penalty.

What was more, the court continued, “a jury from which all such men have been excluded cannot perform the task demanded of it.” The point of the jury was to “express the conscience of the community on the ultimate question of life or death,” the court explained. “Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community.”

Clear enough for you? Well, no. The devil was in the details, as it usually is when the Supreme Court deals with death. In footnote 21 of the Witherspoon opinion, the Supreme Court actually opened the door to death-qualified juries that it sounded like it was closing in the body of the text. The court said that “the most that can be demanded” of a prospective juror is “that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death.”

By specifying “the most” of what could be asked, the court in effect told prosecutors what they should ask. If a juror was “irrevocably” against the death penalty in all circumstances, she could be excluded -- notwithstanding the Supreme Court’s high-flown rhetoric.

The mechanics of death qualification got their more precise present form in the Ronald Reagan years, when the court had become more conservative. The case then was Lockhart v. McCree, a 1986 decision written by Justice William Rehnquist, who would soon become chief justice. Rehnquist considered studies that suggested a death-qualified jury was more likely to convict, all else being equal, than an ordinary jury. His opinion pooh-poohed the studies and delivered a blow to the use of social scientific evidence to impugn death-qualified juries.

Rehnquist wrote that even if studies did in fact show that a death-qualified jury was more likely to convict, it didn’t matter for constitutional purposes. The requirements that juries be drawn from a cross-section of the population applied only to the jury pool, not the jury selected, Rehnquist maintained. But even if the fair cross-section requirement did apply, that requirement only prohibited the systematic exclusion of “distinctive groups,” such as blacks or women.

Ideological exclusion was different, Rehnquist concluded. A death-qualified jury in contrast was “carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts.” In essence, Rehnquist was saying that the jury was selected to apply the law as it exists. Because the death penalty -- or at least the possibility of the death penalty -- is the law, those opposed to capital punishment are essentially conscientious objectors who may be excluded from the function of applying the law.

This was stunningly different from Stewart’s invocation of the divided public and his call for the conscience of the community. Justice Thurgood Marshall wrote an impassioned dissent, joined only by justices William Brennan and John Paul Stevens. But 1986 was not 1968. Death-penalty politics had shifted, and the court had shifted with them.

Of course, 2015 is not 1986, either. Several states that had capital punishment have recently declared moratoriums or even abolished the practice in the face of increasingly visible instances in which innocent people have been not only convicted but also executed. There’s no death penalty in Massachusetts.

Yet the federal death penalty remains, albeit rarely used. It’s on the books precisely to cover extreme cases of terrorism, such as the crime of which Tsarnaev is accused. The Boston Marathon bombing was intended to frighten a city, and it did.

Even those who favor capital punishment and think Tsarnaev is a good candidate should balk at the procedures being used to make the decision. A jury should not be chosen by ideological litmus test -- especially not when life is on the line.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

    To contact the author on this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor on this story:
    Kirsten Salyer at

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