Capital punishment

[nerdanel]

To serve on any jury, you have to be capable of returning a verdict for either side, which of course is not possible for an abolitionist in the penalty phase of a death proceeding. That's not prejudicing the trial, it's ensuring it is not futile. In a jurisdiction requiring unanimity among jurors to impose the death penalty, your presence on the jury would render the penalty phase pointless, as a death verdict would never be rendered.

I don't think, either, that we should presume that conservatives are pro death and thus eligible to serve on juries, while liberals are not. Some of the most anti death penalty folks I know are right to life conservatives, while many of my otherwise liberal Bay Arean friends support the death penalty for aggravated murder but would bring their otherwise not necessarily "tough on crime"/law and order sensibilities to a capital jury.

[Voronwë the Faithful]

While that is of course true in individual cases, I still believe that overall the requirement that death penalty case juries be willing to impose the death penalty (a requirement that I agree is necessary so long as there are death penalty cases) skews such juries more towards conservative, law and order jurors. I do not, however, have any statistics to back up that belief.

I would be curious to read any thoughts that you might have about the SCOTUS granting review in the Oklahoma case, and what might happen next.

[Teremia]

nel, I do see the reason things are done this way. But where you say,

That's not prejudicing the trial, it's ensuring it is not futile.

, I would suggest it is ensuring the trial's not futile, at the possible [even likely] price of . . . prejudicing the trial. It's not a case of one thing or the other!

We don't know the effect of that "prejudice" (hard to run a test!!), but I would bet my eyeteeth that the anti-death-penalty population IS, as a group, different in some ways from the pro-death-penalty crowd. And I worry about the bias that results from excluding them.

[nerdanel]

But every trial (civil or criminal) is "prejudiced" to the extent that people who could not return a verdict for either (or any) side are excluded from the jury. Essentially, this reflects the judgment of the legislature that a range of judicial responses need to be available for a particular civil or criminal violation. Any citizen may serve on the jury who is capable of finding for either (any) side and (where the penalty for a violation is set by the jury) capable of imposing any relevant penalty; any citizen who is not capable of doing this is excluded.

[nerdanel]

We don't know the effect of that "prejudice" (hard to run a test!!), but I would bet my eyeteeth that the anti-death-penalty population IS, as a group, different in some ways from the pro-death-penalty crowd.

I'm not necessarily disagreeing with you, but I'm genuinely very interested to hear what differences you are alluding to. Could you please be more specific?

[Teremia]

Well, I'm curious about this myself, so I looked around and found some interesting survey data here: http://www.pewforum.org/2014/03/28/shri ... fn-20067-1

There do seem to be some important demographic differences between death penalty supporters and death penalty opponents, and some of those differences suggest a "death qualified" jury will indeed look different from an ordinary jury.

For instance, 63% of white adults support the death penalty; 30% oppose it. But black adults OPPOSE the death penalty, 55% against to 36% for. Right there you have a disproportionate number of jurors disqualified from among the black pool, which seems to me problematic. Only 36% of black jurors would qualify, right off the bat! Hispanics also oppose the death penalty (50% to 40%), so there, too, we would have half the jury pool ruled out right at the starting line. Not to mention that even the 63% approval of the death penalty among white adults suggests that 37% of that pool is cut.

Political differences are pretty striking: 71% of Republicans support the death penalty; 45% of Democrats support it. That will tend to skew the "death qualified" jury away from Democrats.

[yovargas]

That's very interesting, Teremia. Thanks for posting that.

[nerdanel]

Interesting, indeed. Parenthetically, it's regrettable that they don't collect data on Asian-Americans.

I'm assuming that when you mean an "ordinary jury," you mean a jury that reflects the racial demographics of the community. It's worth noting that "ordinary juries" often do not reflect the racial demographics of the community because there are racial disparities with respect to summoned adults reporting for jury duty. This routinely comes up in Alameda County, California, for instance. In the numbers from this 2010 study (and I have heard anecdotally that the same racial disparities persist to date):

African-Americans were 18 percent of the jury service-eligible population (i.e., English-speaking US citizens without felony convictions), but only 8 percent of those who appeared after a summons;
Latinos were 12 percent of the jury service-eligible population, but 8 percent of those who appeared;
Whites were 54 percent of the jury service-eligible population, and 54 percent of those who appeared;
Asian-Americans were 15 percent of the jury service-eligible population, and 26 percent of those who appeared.

So, this issue strikes me as a promising area of focus for those focused on racial disparities in jury composition, because it affects all criminal trials (thus having a MUCH greater impact on criminal justice than the miniscule number of capital cases that receive disproportionate attention and resources) and is within the control of the public to remedy. Contrast to the death-qualification issue about which you're concerned, which (a) is a Supreme Court requirement, so is not directly within the control of the public to alter; and (b) is literally a fundamental prerequisite to having the death penalty at all (i.e., there is no purpose whatsoever to holding penalty phase trials with seated abolitionist jurors). I find the death-qualification issue a bit of a red herring, because in practical terms everyone who objects to death qualification objects to the death penalty for other, bigger-picture reasons (I've never met someone who opposes the death penalty solely because the US death qualifies its juries.) And for those whose opposition to the death penalty is primarily grounded in jury comp issues (and I know almost no one for whom this is true), I think there are honestly much bigger issues for them to focus on, including the difficulties in determining whether capital peremptory challenges are exercised for racially-tinged reasons.

[yovargas]

Also very interesting. How complex our country's racial issues are.

From that article:

The ACLU said the study, though based on a limited number of cases, suggests that the county's courts need to change their procedures for assembling pools of prospective jurors.

Are they suggesting that it's something in the procedures that is causing whites and Asians to show up more regularly than blacks and hispanics/latinos? If so, I'm having a hard time imagining what those reasons could possibly be.

[nerdanel]

The SCOTUS has agreed to take a case regarding the constitutionality of Oklahoma's lethal injection procedure. This comes just a few days after the court refused to stay the executions involved, and one of the inmates who was challenging the procedure was put to death. The three remaining inmates who brought the challenge are all scheduled to be put to death before the case will be heard by the court. Richard E. Glossip, is currently scheduled to die next Thursday; John M. Grant has an execution date of February 19; and Benjamin Cole, is scheduled to die March 5. They will likely move quickly to move for stays but because it only takes four justices to agree to hear a case, but five to order a stay, it is entirely possible that all three will be put to death before the case is ever heard by the court (in which I would guess that it would be dismissed as moot, although nel would know better than I).

I don't know for sure. You may have seen this article, highlighting the 4 votes vs. 5 issue, and the concept of a "courtesy 5th vote" - not required by any actual law or Supreme Court rule.

Death of all petitioners usually moots a case unless the cause of action survives the petitioners' deaths. In this case, because the claim deals with the manner by which petitioners are to die, it's difficult to understand how the claim would survive. So, if no stay is extended to Glossip, Grant, and Cole, it seems to me that the clearest path to keep the claim alive would be for another Oklahoma inmate to have his execution scheduled by March 5, but to take place somewhat later in the year. The Court will substitute his name on the caption and move smoothly along.

I think this situation is one that should be addressed formally in the Supreme Court rules. I can understand the rationale behind requiring five justices for a stay; it makes sense that a majority, not minority, of the Court is required to intervene in a state's criminal justice mechanism - particularly at the 11th hour, after the petitioner has ordinarily received 1-3+ decades of legal process. But if the entire Court is prepared to sit to hear a case, it seems sensible that the Court should take reasonable measures to keep the parties to that dispute alive.

[yovargas]

([OT]I just watched the first couple episodes of Suits last night and naturally was thinking of you the whole time. [OT])

[Faramond]

African-Americans were 18 percent of the jury service-eligible population (i.e., English-speaking US citizens without felony convictions), but only 8 percent of those who appeared after a summons;
Latinos were 12 percent of the jury service-eligible population, but 8 percent of those who appeared;
Whites were 54 percent of the jury service-eligible population, and 54 percent of those who appeared;
Asian-Americans were 15 percent of the jury service-eligible population, and 26 percent of those who appeared.

I would like to see a breakdown of jury service based on income level, or even type of job ( salaried, hourly, part-time, unemployed ).

The thing is that it can be very hard to serve on a jury if you have a certain kind of job -- usually lower paying jobs. Last time I was called into jury service I overheard a woman who worked at Walmart talking about how her boss was displeased because she had to go into jury duty. Often in those kinds of jobs you don't get paid if you're on a jury, and there can be an implied or stated threat to your employment if you miss time. Some people who don't show up probably conclude that the threat to their jobs and the drain on income is not worth the fulfillment of civic duty and the nearly non-existent threat that the court system will come after them for shirking jury duty.

Does "appeared" count those who return the summons with a hardship excuse, or do hardship excuses just get lumped in with no-shows in the survey?

[Voronwë the Faithful]

I can understand the rationale behind requiring five justices for a stay; it makes sense that a majority, not minority, of the Court is required to intervene in a state's criminal justice mechanism - particularly at the 11th hour, after the petitioner has ordinarily received 1-3+ decades of legal process.

And, I would add (and I know you would agree) the victims of the crimes that the petitioners were convicted of committing have also endured 1-3 decades of legal process over the punishment for those crimes.

Nonetheless, obviously I agree with you that if the court is prepared to take up the question of the constitutionality of the way the petitioners are to be punished, it should take reasonable measures to keep them alive until it decides the case (although I would be more than a little surprised if a majority of this court found this lethal injection protocol unconstitutional).

Regarding the other issue being discussed, I wanted to note that in death penalty cases, the issue of jury selection works the other way as well, particularly in very high profile cases like the Boston marathon bombing case and the Aurora shooting case. Jurors needs to affirm that they would be willing to not impose a life imprisonment sentence if at the end of the case they deemed it appropriate. Otherwise they would not be able to follow the law, any more than opponents of the death penalty.

Cross-posted with Faramond, who brings up very pertinent points.

[nerdanel]

I would like to see a breakdown of jury service based on income level, or even type of job ( salaried, hourly, part-time, unemployed ).

Me too. Here is the study, which does not seem to have looked at your question. Interestingly, it does not even pose income level or job type as a potential cause of the disparity. Instead, it's focused on explanations like low-income individuals being harder to reach (summons being delivered to incorrect address, where low-income people are likely to move more frequently) and the lack in Alameda County of a failure to appear program, which provides additional notice and/or penalties to jurors who do not respond to a summons. The latter is actually linked to your final point: that the threat of penalty for failure to service is a "nearly non-existent threat" in many jurisdictions, apparently including this one. (I focused on Alameda County because it has been a focal point for public interest attorneys in Northern California interested in jury comp issues.)

It seems like meaningful strides can be made in addressing this issue by:
1. Focusing on how to provide more notice to low-income or transient prospective jurors;
2. Paying jurors who do not receive compensation from their employers during their service a minimum wage salary each day, as opposed to the current much-lower stipend. Yes, this is expensive, but arguably should be considered in order to vindicate everyone's right to serve on a jury and defendants' rights to be judged by a valid cross-section of their peers. And to some extent, this would be consistent with existing public policy - e.g., State of California employees receive full salary when serving on juries because the government has determined that employees' jury service should be facilitated.
3. Robust enforcement of requirements that (a) employers not penalize employees for serving on juries and (b) enforcement of penalties for jurors who fail to appear.

This is an example of an important issue with racial justice and plain old justice ramifications on which I think our system should focus. To me, the most persuasive argument for abolishing the death penalty is that we can focus system resources on these types of universal issues and make the system more just for *all* victims and defendants, rather than expending disproportionate resources on a small subset of murderers who are likely to serve effective life without parole sentences regardless of whether they are officially sentenced to "life" or "death" (and, as V rightly reminds us, forcing their victims' families through decades of protracted legal process as well).

Does "appeared" count those who return the summons with a hardship excuse, or do hardship excuses just get lumped in with no-shows in the survey?

If you provide a valid hardship excuse, you have not failed to appear, so I would be very surprised to hear that the two categories had been conflated.

[Voronwë the Faithful]

[ot]Faramond, it is hard to believe that it has been over eight years since you posted your very fascinating jury duty diary. [/ot]

[Voronwë the Faithful]

A slightly different twist on the Oklahoma case than I expected. It is the State of Oklahoma that has filed for a stay of the three executions. However, in their stay request, the state asked that they be given the option to seek a viable option to the challenged protocol and proceed with the executions if they do. Predictably, the petitioners have challenged that aspect of the stay request.

[Voronwë the Faithful]

The court has stayed the executions, but has left open the possibility of Oklahoma finding a different protocol to use to carry out the executions before the case is heard.

http://sblog.s3.amazonaws.com/wp-conten ... -Order.pdf

[Primula Baggins]

There's something . . . unseemly about this sense of sudden haste on the state's part, when the process has already dragged on for years.

[nerdanel]

I don't know about Oklahoma, but in some jurisdictions, the state does make an effort to keep the process moving to the extent possible, e.g., filling briefing as quickly as possible, not seeking extensions, opposing the other side's requested extensions, etc. The delays are usually attributable to other factors than the prosecution, such as the difficulty in finding qualified counsel to represent the condemned, multiple petitions and stay requests filed by their counsel, etc. The prosecution represents The People, who legally have an interest in the timely conclusion of litigation and the execution of lawfully imposed sentences, so they are just fulfilling their professional responsibilities.

[nerdanel]

This is technically not a capital issue because San Francisco does not pursue the death penalty. However, it relates to the prior discussion of jury composition, which is at issue in capital cases nationwide, so I thought I would put it here.

http://www.sfexaminer.com/sanfrancisco/ ... id=2919165

At present, more than 51 percent of the population in the San Francisco County Jail is black, although blacks represent at most 5-6 percent of the San Francisco population. This demographic disparity means that many black defendants are tried before juries without a single black member, which one study cited in the article found led to a greater conviction rate. The reality of few black jurors has several causes, including the high cost of living in San Francisco (which has caused an exodus of low-income communities of color), comparatively low rates of voter registration and driver licensing within the black community (which lists are used to create counties' jury pools), and the comparatively high rate of black men who are convicted felons ineligible to serve on juries (25 percent, according to our Public Defender).

Some of these causes are easier to address than others, and the criminal justice system should seize on the low-hanging fruit. For starters, instituting measures to increase voter registration (and possibly facilitating access to driver's licenses, as well) within black and other minority communities would be a relatively easy way to increase representation in the jury pool. Likewise, it would be good to brainstorm other ways to identify non-felon adult citizens to add to the jury pool - maybe through outreach to parents through the public schools, when delivering social services or Medi Cal/Healthy San Francisco, etc. But the reality is that when a racial group is ~ 5 percent of the population, they are not even statistically "entitled" (let alone legally entitled) to have one member of their own group on a 12 person jury, even if the group is adequately represented in lists of eligible jurors. (Since my ethnic group is just over 1 percent of the San Francisco population, if I am charged with a crime it is far from guaranteed that I will have a member of my ethnic group on the jury - unless my group is statistically overreporting for jury duty, as we saw was happening with Asian-American jurors in Alameda County. But my white friends, and probably my Chinese-American friends, almost certainly would have multiple members of their racial/ethnic groups on their juries. It is interesting to consider this when mulling what it means to have a jury of one's peers, and whether (and if so, how) race should be factored into that concept.)