Death Foes’ Jury Exclusion Upheld : High Court Rejects One of Last Few Major Capital Punishment Challenges

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Times Staff Writer

The Supreme Court, rejecting a sweeping constitutional challenge to capital punishment, ruled Monday that unyielding opponents of the death penalty may be excluded from juries in capital cases.

In a far-reaching 6-3 decision, the court refused to accept the contention that barring jurors who would never vote for the death penalty unfairly forced defendants in such cases to face “conviction-prone” juries.

The practice of excluding such jurors, long followed in California and other states that allow capital punishment, does not deny defendants their constitutional right to an impartial jury reflecting a fair cross section of the community, the court said in an opinion by Justice William H. Rehnquist.


1,714 on Death Row

The ruling, according to authoritative estimates, affects not only most pending appeals among the 1,714 inmates now on Death Row--but also perhaps several thousand other capital cases in which convicted defendants ultimately received prison sentences instead of death. In many such cases, however, retrials are being sought on other issues as well.

It represents also a substantial setback to death penalty foes, who saw the case as one of the few remaining broad-based attacks on capital punishment. One other major constitutional challenge, now pending in a petition seeking high court review, contends that the death penalty is far more likely to be imposed when defendants are black and their victims are white.

The court’s three dissenters bitterly assailed the ruling. Justice Thurgood Marshall, in an opinion joined by Justices William J. Brennan Jr. and John Paul Stevens, accused the majority of giving prosecutors an unfair advantage “with a glib nonchalance ill-suited to the gravity of the issue.”

“Such a blatant disregard for the rights of a capital (punishment) defendant offends logic, fairness and the Constitution,” Marshall wrote.

John Charles Boger of the NAACP Legal Defense and Education Fund Inc., one of the attorneys representing an Arkansas inmate in the case before the court, expressed sharp disappointment.

“We thought the evidence showed overwhelmingly that the practice biased the verdicts of capital (punishment) juries in favor of the state,” Boger said. “This was one of the major unresolved constitutional questions on the horizon.”


The decision overturned a ruling by a federal appeals court striking down the exclusion of death penalty foes as a violation of the right to fair trial.

‘Devastating Impact’

A wide-ranging coalition of state prosecutors, including California Atty. Gen. John K. Van de Kamp, joined Arkansas authorities in appealing that decision, saying that, if upheld, it would have a “devastating impact” on efforts to impose the death penalty.

On Monday, Deputy California Atty. Gen. Edward O’Brien said that, had the justices upheld the appeals court, it likely would have enabled hundreds of convicted murderers--including those on Death Row and those facing life in prison--to bring new appeals seeking retrials. “We are certainly pleased with today’s ruling,” O’Brien said.

The decision (Lockhart vs. McCree, 84-1865) resolved an important question left unanswered nearly 18 years ago in a landmark ruling, Witherspoon vs. Illinois. Until then, jurors who voiced even modest opposition to the death penalty were routinely excluded from death penalty cases.

In 1968, the court said that prosecutors could remove only those jurors who in no circumstances could vote for capital punishment. Jurors who could set aside their scruples and follow the law were permitted to serve--and the justices’ decision Monday left that provision intact.

Two-Part Proceedings

Later, after then-existing death penalty statutes were struck down by the court in 1972, new laws enacted in California and other states established two-part proceedings in capital punishment cases: the first to decide guilt or innocence; the second, if necessary, to determine whether a convicted defendant was to be sentenced to death or life in prison. Ordinarily, the same jury resolves both questions.


In the case before the court, an Arkansas inmate sentenced to life without parole for the robbery-murder of a gift shop and service station owner, challenged his conviction on the grounds that persons flatly opposed to capital punishment were improperly excluded from the jury, unfairly increasing the likelihood that he would be found guilty.

A federal District Court overturned Ardia McCree’s conviction, relying heavily on sociological studies indicating that such “death-qualified” juries were more likely to convict than other juries. One such study contended that up to 17% of all potential jurors adamantly opposed capital punishment. The U.S. 8th Circuit Court of Appeals in St. Louis upheld the District Court in a 5-4 decision.

Would Need Two Juries

The appellate ruling raised the possibility that states would be required to impanel two juries in capital punishment cases--one, including death penalty foes, to acquit or convict; the second, with alternate jurors replacing those opposed to capital punishment, to decide the sentence. Such a requirement would have wide impact: 33 of the 37 states that have the death penalty require a jury to impose the sentence or make a recommendation to a judge; the rest leave it entirely to the judge.

Rehnquist’s majority opinion was deeply skeptical of the sociological data relied on by the lower courts. But even if the data was adequate, Rehnquist said, the Constitution still did not bar the process of “death qualification” in capital cases.

Although the Constitution does prohibit the wholesale exclusion of blacks, women or other such groups from juries, he said, it does not prevent the state from singling out individuals because of their viewpoints on capital punishment. The state has a “concededly legitimate interest” in obtaining a single jury that can impartially apply the law in both the guilt and sentencing phases of a trial, he said.

On a practical level, Rehnquist continued, if the Constitution required a “balance” of individual viewpoints on a jury, trial judges would be faced with the hopeless task of making sure juries contained “the proper number of Democrats and Republicans, young persons and old persons, white-collar executives and blue-collar laborers and so on.”


Rehnquist’s opinion was joined by Chief Justice Warren E. Burger and Justices Byron R. White, Lewis F. Powell Jr. and Sandra Day O’Connor. Justice Harry A. Blackmun concurred separately.

3rd Death Penalty Ruling

The ruling was the third by the court this term concerning important aspects of the death penalty. Earlier, the justices had held that convicted defendants must be allowed to cite their good behavior in jail as evidence that they should receive prison sentences rather than death.

They ruled also that capital punishment defendants accused in interracial crimes must be permitted to question jurors about their views on race.

Another case, to be decided by July, will test state procedures for evaluating the mental competence of defendants facing execution.