Court Rules Death Penalty Foes Can Be Kept Off Juries : ACLU Raps Decision by Justices

The Supreme Court, dealing a major blow to opponents of capital punishment, ruled today that it is fair to exclude ardent foes of the death penalty from juries in capital trials.

By a 6-3 vote, the justices reversed a federal appeals court ruling in an Arkansas case that had said excluding all such people from deciding guilt or innocence unfairly creates a “conviction-prone” jury.

Experts said the ruling also is likely to hasten executions for some of the 1,870 inmates on Death Rows around the country. Dozens of them had received temporary reprieves pending the court’s ruling.

Writing for the majority, Justice William H. Rehnquist said the Constitution “does not prohibit the states from ‘death qualifying’ juries in capital cases.”

‘Fair Cross Section’

“It is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints,” Rehnquist wrote.

“The Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury.”

Henry Schwarzschild of the American Civil Liberties Union called the ruling a major defeat for death penalty foes and branded it “constitutionally as well as morally scandalous.”

The decision affects not only Arkansas but also 33 of the 37 states that allow capital punishment and require the jury either to set the sentence or recommend a sentence to the judge.

Twofold Duty

In those states, citizens who say they could not vote for the death penalty under any circumstance routinely are eliminated from the juror pool because the same jury that determines guilt or innocence also sets the sentence.

(In California, the “Deukmejian law” has permitted exclusion of capital punishment opponents from juries since 1977. Los Angeles County Assistant Dist. Atty. Curt Livesay said today’s ruling strengthens the California practice.)

Numerous studies have shown that people who support the death penalty are more likely to convict suspected criminals, while those who oppose the death penalty are more likely to acquit them.

Impartiality Issue

But the court said, even if the studies are valid, it is necessary to keep off juries those citizens who say their attitudes toward the death penalty might affect their impartiality.

The death penalty ruling reinstates a life sentence for Ardia McCree, of Camden, Ark., who was convicted of the Valentine’s Day slaying of Evelyn Boughton, 54, during the 1978 robbery of the gift shop she operated.

McCree had argued that even though he was sentenced to life, his pro-death penalty jury was biased toward convicting him.

The ruling is viewed as a victory for states and their power to set their own criminal procedures. Twenty-six states had entered the case as friends of the court, arguing that it is better for a jury of 12 people to set a death sentence than to put the decision in the hands of a single judge.

Dissenting Opinion

Justices Thurgood Marshall, William J. Brennan Jr. and John Paul Stevens dissented.