Biased jury selection

“Representative government and trial by jury are the heart and lungs of liberty”.

-  John Adams 1774

In death penalty cases, the most decisive moment often comes before the trial even begins. Long before evidence is heard or arguments are made, the outcome is quietly shaped by a far more consequential question: who is allowed to sit in the jury box? What is presented as a “jury of peers” in capital cases, is instead a jury carefully filtered to favour conviction and death.

Removal of Anyone Who Might Say No to Killing

The process begins with death qualification, whereby any potential juror who expresses moral, religious or philosophical opposition to the death penalty is dismissed outright. This is not a neutral procedural safeguard and “ironically…creates juries unfairly biased toward guilt and death”. Empirical research spanning more than fifty years has consistently shown that death-qualified juries are more punitive and more inclined toward imposing death. In relation to the death penalty convictions, DPIC’s Prosecutorial Accountability project has uncovered at least 68 death sentences were overturned due to jury discrimination.

Exclusion

The next stage involves peremptory strikes, which allow prosecutors to remove jurors without providing substantive justification. In theory, Batson v Kentucky bans racial discrimination in their use but, in practice, it has taught prosecutors to disguise it. In a 2017 study of South Carolina capital jury selection, prosecutors were more than twice as likely to use peremptory strikes against Black potential jurors compared to white potential jurors. Judge Thurgood Marshall saw this clearly, warning that “merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge”.

When Bias is Clear

24 September 2024, the state of Missouri executed Marcellus Williams. During jury selection, prosecutors struck six potential jurors, including a young Black man. The juror was not excluded because of a questionnaire answer or lack of experience, but simply because he and Mr Williams “looked like they could be brothers”. This was not unconscious bias; it was racial exclusion stated plainly. This resulted in Marcellus Williams being tried, convicted and sentenced to death by a 12-person jury, with just one Black juror, despite the county being 20% Black.

This bias is also highlighted by Curtis Flowers, who received four death sentences, each later overturned after courts found that prosecutor Doug Evans had illegally excluded Black jurors from the jury pool. A later 2018 study by APM revealed that during Evan’s tenure at Mississippi court, prosecutors exercised peremptory strikes to exclude African Americans from jury service at nearly 4.5 times the rate at which they struck white jurors. These are not isolated failures, but predictable consequences of a system that permits exclusion.

Aims to Reform?

Some states have begun to acknowledge what this evidence makes impossible to deny. Arizona has become the first state to abolish peremptory challenges altogether. A punishment as irreversible as death demands the highest standard of fairness. A system that can only function by narrowing who counts as a “peer” has no moral authority to decide who lives and who dies.