Death Penalty Dilemma

Whether opponents of the death penalty may be excluded from juries in capital cases underscores one of the basic dilemmas of capital punishment. If people who oppose the death penalty are excluded, the jury will not be a representative cross section of the community. But if people who oppose the death penalty are not excluded, such jurors may vote against convicting a guilty defendant because they don’t like the punishment he will receive. Either way, this supreme and irreversible penalty leads to a logical trap.

The United States Supreme Court seeks to ignore the trap by denying it. It’s all right to exclude death-penalty opponents from capital juries, Justice William H. Rehnquist wrote for a six-justice majority on Monday, as long as the remaining jurors conscientiously and fairly apply the law and find the facts in the case before them. Despite evidence that persons who favor the death penalty are more likely to believe a prosecutor’s case than persons who oppose it, the court found that defendants could still get a fair trial.

The facts are indisputable that death-penalty opponents are more likely to be skeptical of the prosecutor’s evidence than those who favor it. They are more likely to be sensitive to a defendant’s constitutional rights. On the other hand, those who favor the death penalty are more likely to return a guilty verdict than those who oppose it. So excluding death-penalty opponents allows the prosecutor to put his thumb on the scales of justice. But not excluding them gives the defendant an unfair advantage. In fact, neither side should have an advantage, but such even-handedness is not possible to achieve in these cases.

Apart from the logical problems of the court’s ruling, the decision clears away one of the last remaining generalized challenges to the death penalty and makes it likely that there will be a spate of executions in coming months. Many of the nation’s 1,700 death-row inmates--including at least one in California--were convicted by juries from which death-penalty foes had been excluded. The executions are expected go forward in what could be a blood bath whose magnitude is unprecedented in recent history.

But this decision should not obscure the fact that the death penalty cannot be fairly imposed regardless of the Supreme Court’s willingness to turn its head and look the other way. The prospect of capital punishment at the conclusion of a murder trial makes it impossible for the defendant’s guilt or innocence to be impartially decided. The court will decide another case this term in which further unfairness in the administration of the death penalty will be shown. Capital punishment is almost never applied to persons accused of killing blacks; it is much more likely to be used when the victim was white. (The state of Florida, for example, has never executed someone for killing a black person.)

So the court will have another opportunity to promote justice in capital cases. They should do a better job next time than they did this time.