Loading the Dice for Death

Seeking the death penalty makes false convictions more likely.

The death penalty is incredible divisive. Some consider it a necessary tool of a just society; others call it state-sanctioned murder.

But most people on either side of the issue – at least most non-lawyers- probably take for granted that the men and women on death row in fact are guilty, that only the “worst of the worst” are sentenced to die.

What if the reverse is true? What if the state’s decision to seek the death penalty makes false conviction not less but more likely?

If merely charging a defendant with a capital crime makes false conviction more likely, then the system is worse than arbitrary; it is grotesquely unfair.

Dissenting in Glossip v. Gross, a death-penalty case decided in June by the Supreme Court, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, made exactly that claim. Breyer’s dissent cited the danger of false convictions as a major reason why, the two Justices believe, the death penalty violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”

As a professor of criminal law, I have studied the workings of the American death penalty. Breyer’s dissent cited one of my articles to support their claim that capital convicts are actually more likely to be innocent than ordinary convicts. The piece they cited was published in the Arizona State Law Journal in 2006. In it, I reviewed the previous fifty years of independent social science research. The conclusion, which held stable over time and across researchers, is both unanimous and shocking: juries in capital cases are more, not less, likely to convict on questionable evidence.

This anomalous result stems from a procedure that upends two constitutionally required presumptions. First, capital defendants are supposed to enter the process with a presumption of innocence. We are all innocent until proven guilty, and the more serious the crime charged, the more important that presumption.

Second, capital juries are supposed to begin deliberation about sentencing with a presumption that life is more appropriate than death. Not every murder – intentionally causing the death of another – is bad enough, under the law, to qualify for capital punishment. Only when the particular murder involves one or more “aggravating factors” (performing a murder for hire, for example, or murdering multiple victims) does death become a possibility. We reserve death, the law says, for the worst of the worst.

In capital cases, these required presumptions of innocence and life are not just missing, but affirmatively backwards.

The procedure responsible for reversing these presumptions is called “death qualification.” In order to sit on a capital jury, jurors must be willing to consider with an open mind whether the defendant is guilty of a death-eligible crime, and if so, whether death is the appropriate punishment.

Yet that screening process, intended to produce impartial jurors, has the opposite effect. Death qualification encourages exactly what it is supposed to prevent: jurors deciding the issues without hearing the evidence. It seeks to excuse potential jurors who decided in advance that they would not convict, or that they would not consider death; in the process, it convinces in advance those who are chosen to serve that this defendant is guilty, and deserves to die.

Prospective jurors in capital cases observe the process of juror selection. They see that any juror who says he or she would not vote for death is immediately excluded. Therefore, they conclude, the defendant must be guilty and deserve to die. “Of course he got death,” one capital juror told two researchers in Florida. “That’s what we were there for.”

Two small changes would help prevent the perverse effects of death qualification.

To begin with, while capital murder trials are “bifurcated” (in the sense that they proceed in two phases: guilt and sentencing), we should bifurcate them more. A defendant who pleads not guilty first faces the guilt phase of trial. Only if the defendant is convicted does a sentencing phase begin. Many jurisdictions’ laws, however, require the same jurors hear both phases. This unitary jury requirement should be repealed.

There is no reason to death qualify guilt-phase jurors. Their votes will determine only whether the defendant is guilty or not guilty of the crime charged. For that reason, we need not ask about their willingness to consider death. Under my proposal, a defendant who is convicted of a capital offense would then face a second jury, whose only job would be sentencing. These jurors could be death qualified, leaving the guilt-phase jurors untouched by the process that perverts the presumption of innocence into a presumption of guilt.

Secondly, courts should follow existing law in juror selection. Under the law today, capital jurors are obligated to listen to the evidence and consider impartially whether life or death is more appropriate under the circumstances. In practice, however, potential jurors are disqualified for statements like, “I would never vote for death.” But general philosophical opposition to the death penalty, under the law today, is not disqualifying. In fact, the Constitution prohibits using that as a ground for exclusion.

A juror is properly excluded if he or she will refuse to consider the facts of the individual case. And so the proper judicial response to “I would never vote for death” is a gentle redirection” “We need a sentencing recommendation for this person, seated here today. Would you listen to the evidence presented to you, weigh it, and determine whether, in your judgment, this particular defendant deserves a life sentence or a death sentence? Either recommendation is legally permissible. All we require is that you consider the evidence before you decide.”

It may seem like splitting hairs, but disqualifying people for their general opposition to the death penalty matters because it also perverts the presumptions of innocence and life. Different demographic groups feel differently about capital punishment. Blacks, women, and Democrats, for example, oppose the death penalty more strongly than other groups. Refusing to seat otherwise suitable death penalty opponents, then, disproportionately shrinks jury representation by those groups. And studies show that conviction, and a death sentence, become stunningly more likely without those voices in the jury room. Adding a lone African American male to the jury, for example, dramatically reduces the likelihood of a death sentence: from more than 70 percent for juries without any black males to less than 40 percent for those that include one.

In the 1972 case of Furman v. Georgia, the Supreme Court called a halt to executions. Justice Potter Stewart wrote in his concurrence that “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

A dice throw is a better metaphor for a death sentence, though. As Stewart noted, “[I]f any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race.” The dice game of death is worse than random: these dice are loaded.

But race is not the only arbitrary factor at play. The state’s decision to seek the death penalty also makes false convictions more likely. And that is a defect we can fix now, today. Reinstate the presumptions of innocence and life. They safeguard us all.

Susan D. Rozelle

Susan D. Rozelle is an associate dean and professor of law at Stetson University. Rozelle's article, "The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation," was cited in the U.S. Supreme Court's dissenting opinion in the case of Glossip vs. Gross.