Wednesday, October 10, 2018
Aliza Cover (University of Idaho College of Law) has posted The Pope and the Capital Juror (Yale Law Journal Forum (Forthcoming)) on SSRN. Here is the abstract:
Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term. The reason for this peculiarity is the “death qualification” of capital jurors – the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict. This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries. First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease. Second, with more believing Catholics excluded from jury service, the representativeness – and hence the legitimacy – of capital juries will suffer. Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite – indeed, because of – societal movement against it. The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.