In all the debates over the death penalty in the political arena, the actual mechanics of how the penalty is imposed are often forgotten. As Stetson University law professor Susan Rozelle (whose work has been cited in Supreme Court opinions on the subject) explains in a web exclusive at Republic 3.0 today, the exclusion of potential jurors who do not favor the death penalty (known as “death qualifying” jurors) has the effect of creating panels more likely to hold defendants guilty as compared to non-capital cases. This is turn means an irreducible minimum of Americans executed for crimes they did not commit.

Rozelle has a sensible proposal to deal with this injustice:

[W]hile 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 This unitary jury requirement should be repealed.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.

Without such reforms, capital cases will continue to suffer from juries prone to conviction.

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.

Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.