Towards Death Disqualifications: Debunking Lockhart v. McCree on Sixth Amendment and Originalist Grounds to Dismantle the Practice of Death Qualifying Capital Cases
In Lockhart v. McCree, the U.S. Supreme Court held that the practice of death-qualifying capital juries did not violate the Sixth Amendment’s fair-cross-section requirement or right to an impartial jury. As a result, prospective jurors who are so opposed to capital punishment that they would not (1) find the defendant guilty regardless of the evidence or (2) consider death as a possible sentence regardless of the circumstances of the crime are automatically excluded “for cause” from capital jury service.
It is now widely accepted, however, that far from producing a law-abiding jury that considers all sentencing options, death qualification “systematically ‘whitewashes’ the capital eligible [jury] pool [and] leaves behind a subgroup that does not represent the views of its community” and that is “uncommonly conviction-and-death prone.” Footnote #1 content: Mona Lynch & Craig Haney, Death Qualification in Black and White: Racialized Decision Making and Death-Qualified Juries, 40 LAW & POL’Y 148, 165 (2018) [hereinafter Lynch & Haney, Death Qualification in Black and White] (quoting Aliza P. Cover, The Eight Amendment’s Lost Jurors: Death Qualification and Evolving Standards of Decency, 92 IND. L. J. 113, 121 (2016)). This problem has led several academics and practitioners to mount legal challenges to dismantle the practice of death qualification. This Note adds to that existing literature in its call to put the practice of death qualification to death.
First, I survey the U.S. Supreme Court’s jury selection jurisprudence to expose a doctrinal inconsistency: the Court condemns discriminatory jury selection practices under the Fourteenth Amendment while affirming death qualification under the Sixth Amendment, even though it effectively constitutes a discriminatory jury selection practice. Then, I rebut the Court’s opinion in Lockhart v. McCree by utilizing (1) the Court’s own test, proffered in Duren v. Missouri, to identify a violation of the Sixth Amendment’s fair-cross-section requirement and (2) modern empirical evidence to identify a violation of the Sixth Amendment’s right to an impartial jury. Finally, I use the nineteenth-century judicial decisions from which the practice of death-qualifying capital juries arose as a case study to demonstrate how death qualification cannot be squared with either the original public meaning of, or original intent underlying, the Sixth Amendment’s right to an impartial jury. Ultimately, I contend that dismantling the practice of death-qualifying capital juries—a necessary result of my rebuttal of Lockhart—is supported by an originalist assessment.
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