Florida State Representative Brad Drake recently introduced a bill that would change the State’s death penalty options from lethal injection, to firing squad or electric chair. Apparently, this would somehow speed-up the infamously long death penalty process. Drake noted:
“I say let's end the debate. We still have 'Old Sparky.' And if that doesn't suit the criminal, then we will provide them a .45-caliber lead cocktail instead... If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it… In the words of Humphrey Bogart (sic), 'Frankly my dear, I don't give a damn.'" (The "sic" is due to his misquote. Clark Gable said that.)
Deliberations does not take a position on the righteousness of the death penalty. However, it’s fair to suggest that the most important problem with capital murder trials is overlooked by the media, the public and (obviously) our elected officials: the dangers of death-qualified juries.
Typically, the death penalty debate is couched as a moral fight. There are those who believe that the ultimate crimes (aggravated murders) deserve the ultimate punishment. In fact, the U.S. Federal Government and 35 states offer the death penalty as a potential sentence. According to Gallup, national support for the punishment has not dropped below 60% since the early 1970’s (peaking at 80% in 1995).
Conversely, a vocal minority has suggested that taking a life should be outside the State’s reach. This group blends an interesting coalition of those who hold traditionally liberal stances with those who are cut from a Libertarian cloth. Either way, their quarrel comes down to a moral opposition to the government’s right to impose executions. The most common argument cites the potential for the death of an innocent person (which is possible given the 15 exonerations by DNA evidence of death row inmates.)
Most people have an opinion on this issue, but they seldom bring up jury selection. Death-qualification is a process that forces the judge to remove potential jurors for cause if the court believes that the juror could not impose the death penalty or would be highly influenced by it. In effect, anyone who opposes a death sentence can’t sit on a jury that decides one. Many attorneys view the death-qualified jury as a significant advantage for the State because it removes a large number of people who might be more open to the defense’s perspective.
In Lockhart v. McCree (1986), the Supreme Court found that the Constitution does not prevent death-qualification. The Court did not believe that “opposition to the death penalty” created a “distinctive group” whose exclusion would endanger a “fair cross-section” of the jury pool. It should be noted that according to Gallup, 75% of the public was in favor of the death penalty in 1986.
Today, 61% of Americans favor the death penalty. This also means that 39% oppose the measure. Moreover, this proportion changes greatly as one moves from jurisdiction to jurisdiction. In many urban populations, it’s safe to say that the majority is likely opposed to the death penalty. This would suggest that most of that community would be unqualified to answer the public’s gravest question: life or death for a fellow citizen.
The potential side effect of removing fruitful debate from our most dire deliberations is troubling. Our jury system depends on a robust discussion from a random (yet unbiased) cross section of the community. Voir dire is intended to eliminate prejudice, not stack the deck. If the death penalty cannot be decided by a fair jury, then we must ask ourselves whether it is worthwhile by our measure of law (not our measure of morality).
Representative Drake is focused on the wrong question. Method of execution is simply a means to determined end. Debating the morality of the end is equally wasteful, as two people cannot negotiate morals. Instead, the question should be focused on integrity of the process. Whether supporting or opposing the death penalty, we all agree that these cases deserve the most impartial jurors available.
Blogger: Matt McCusker
