Sunday, August 2, 2015

Tilting the Death Penalty Playing Field

While on holiday, I read the address of retired Supreme Court of the United States (SCOTUS) Associate Justice John Paul Stevens to the American Bar Association's Litigation Section on July 31, 2015 in Chicago. His remarks addressed the Supreme Court's 2014-15 term. Included were observations on Glossip v. Gross - the death penalty cocktail case - and Justice Breyer's dissent calling for a full review of the death penalty in America. Justice Stevens launched his discussion by observing Justice Breyer's dissent argued the growing number of states either abolishing the death penalty outright, or, while leaving it on the books not utilizing it, evidenced a growing national consensus against the death penalty.

Justice Stevens argued this could actually be used against eighth amendment based abolition by SCOTUS:
For those who continue to believe that the issue is best resolved on a state-by-state basis, Nebraska's decision [to abolish the death penalty] supports the view that we can safely rely on the democratic process to put an end to this form of cruel and unusual punishment.
I have lived through the entirety of the abortion debates, still raging more than forty years after SCOTUS supposedly made abortion on demand a constitutional right. What I have come to realize is any SCOTUS decision declaring a state law unconstitutional is a gift to those who wish to legitimately claim being frozen out of the political process.

However, Justice Stevens then made the case why state by state abolition is not the right way to go constitutionally:
But I am persuaded [Glossip v. Gross] actually enhances the need for a prompt nation-wide solution. For as the number of individual citizens opposed to this form of punishment continues to increase, the pool of jurors not subject to valid challenges by prosecutors continues to decrease. It  may have already become impossible to obtain a fair cross section of impartial jurors in death cases because the Supreme Court has endorsed a standard for determining the eligibility of jurors in such cases that puts the thumb on the prosecutor's side of the balance. As more and more people become convinced that capital punishment is unwise as a matter of policy, the risk that juries in death cases will not represent a fair cross section of the community will continue to increase. The inability to obtain a truly impartial jury in such cases may well provide the basis for a nation-wide solution that brings the United States to the point that most civilized nations reached long ago. 
Justice Stevens' argument is legally technical, time consuming to explain and therefore not likely to be bandied about on twitter or talk radio. He nevertheless hits the nail on the head for those who understand the nuts and bolts death penalty problem he uses to justify a national, not a state by state, resolution of the issue.

Trial court judges have immense discretion to allow challenges for cause against potential jurors who cannot follow the law. These challenges result in a potential juror being excused without either side using the limited number of peremptory strikes allotted to eliminate objectionable jurors. A potential juror who has qualms about the death penalty will generally be a less desirable potential juror for the state. If the state does not have to utilize a precious peremptory strike against the potential juror, it is one more they can save to use against another objectionable juror.

In death cases this mechanism inevitably works to the advantage of prosecutors.


To illustrate, below are variations of the "out" questions used to challenge potential jurors either in favor or opposed to the death penalty.
[Prosecution Challenge Question]: Knowing you oppose the death penalty, is there a set of circumstances in which you could answer the questions in such a way which would nevertheless result in a sentence imposing the death penalty? 
[Defense Challenge Question]: Knowing you support the death penalty, is there a set of circumstances in which you could answer the questions is a way which would nevertheless result in a sentence imposing life without the possibility of parole?
Michele Esparza laid the argument out to me years ago. It is much easier for a potential juror who favors the death penalty to say they could envision circumstances in which they could forego death in favor of a sentence of LWOP than a death penalty abolitionist to say they could envision circumstances in which they could actually impose the death penalty.

So much about the death penalty justifiably focuses on other things such as actual innocence and intellectual disability. However, at the trial court level, it is the jury actually seated, their individual belief systems and focus which is critical. Will their focus be on the inevitable brutal death facts of the victim? Or will the jury be listening for the mitigation evidence focusing on what brought the defendant to death's door?

Death penalty trials are much about whose narrative the individual jurors will listen and believe. By narrowing the pool of potential jurors to those who favor the death penalty, the more likely prosecution aggravation evidence and downplaying of mitigation evidence will win out. Defendants are yoked already to jury panels that less and less reflect a cross section of the community. Allowing challenges to the growing number of jury panelists who communicate opposition to the death penalty due to policy considerations such as cost and lack of deterrence further narrows and tilts the jury selection playing field toward the state.

This may not be sexy, but the tilting of this critical stage is harder and harder to ignore when debating all that is wrong with the death penalty process.

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