Qualified Support: Death Qualification, Equal Protection, and Race

By Alec T. Swafford*

Volume 39.1

* J.D. Candidate, The University of Texas School of Law, 2012; B.A., 2009, Rice University.  Law Clerk to the Honorable Phyllis Kravitch, United States Court of Appeals for the Eleventh Circuit, 2012–2013 term.  The author would like to thank Professor Cary Franklin for her advice, guidance, and critiques.  Also, the author would like to thank Clinical Professors Rob Owen, Maurie Levin, and Jim Marcus for being constant sources of inspiration in their representation of inmates on Texas’s death row.


The trial of Mumia Abu-Jamal, an African-American, for murder demonstrates how pernicious death qualification can be for minority prospective jurors.  In Philadelphia, which at that time had a population that was forty-four percent African-American, the prosecutor was successful in striking twenty African-Americans from the venire using death qualification. The prosecutor then used his peremptory challenges to strike another eleven African-American prospective jurors who had not expressed any opposition to the death penalty, resulting in a jury that did not have any African-American members. Prosecutors in general have been known to utilize the death qualification process to produce a jury they believe is more favorable to the state.

Death qualification has been described as an ethnic cleansing of the jury pool in capital cases due to its disproportionate effect on minority populations. Jurors must be “death qualified” in order to sit on a capital jury. During death qualification, prospective jurors are questioned concerning their attitudes on the death penalty. Prospective jurors may not be challenged for cause based on their views on capital punishment unless those views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oath.

Death qualification has a significant racial dimension.  Much of the academic literature and litigation concerning death qualification has focused on its tendency to create juries that are more “guilt prone.” The racial effects of death qualification are just as dangerous.  I will argue that death qualification should be ruled unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  I will also argue that the Equal Protection Clause, as interpreted in Batson v. Kentucky, could be applied to racially discriminatory applications of death qualification in particular trials.

In Part II, I will show how current Supreme Court jurisprudence on death qualification has created a system that accords too much discretion to the actors at the trial level, allowing room for racial discrimination to flourish.  In Part III, I will explore the historical and sociological evidence behind the public support of capital punishment and the opposition to it.  Support for capital punishment, which is directly related to the likelihood that a juror will be struck for cause under death qualification, continues to be heavily influenced by general racial attitudes and by past and present racism in the implementation of capital punishment.  I will then explore the damaging effects death qualification has on the criminal justice system in Part IV.  In Part V, I will discuss the most important challenge to death qualification to date, Lockhart v. McCree. Finally, in Part VI, I will apply Equal Protection analysis to death qualification.

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