‘Death Qualification’ Is as Bad as It Sounds - OZY | A Modern Media Company


Because how we deal with life and death says a lot about us. 

When on April 15, 2013, the brothers Tsarnaev turned the storied Boston Marathon into a mess of shrapnel and blood, three people lost their lives, 16 lost limbs and the entire city wept — shocked at such a brutal assault on “something that’s so pure and good,” as Boston resident Amy Nash puts it. She’s a lifelong runner and mother of two young boys. 

What to do with such rage, such loss? When it came to Dzhokhar Tsarnaev, the teenage terrorist, the People made their intentions clear: They sentenced him to death. But it turned out that the People did not represent the residents of Boston, who opposed the death penalty in the Tsarnaev case by a margin of 4-to-1. One reason for the discrepancy between Bostonians and the Tsarnaev jury is something called “death qualification” — a proviso in capital murder cases that says, basically, prosecutors can exclude from the jury anyone who objects to the death penalty.  

To which we say: WTF? Look: Jury duty isn’t just a pain, it’s also a chance for a society to work out profound ethical matters, like what it means to be a good person or a bad person, what we should do with people who cause harm, and how we ourselves should grieve and go on. Excluding from a jury anyone who doesn’t buy “an eye for an eye” is a mistake — it guarantees that the jury will not represent “the conscience of the community,” says Robert Dunham, head of the Death Penalty Information Center. All the more so in a place like Massachusetts, which hasn’t executed anyone since 1947. And maybe all over the United States, where support for the death penalty has dropped about a percentage point each year of the past 20. 

“Death qualification” has become an excuse to filter out potential jurors even “marginally opposed to” the death penalty.

This idea of death qualification goes back a ways. Some believe it started in more punitive times, when only a few outliers — Quakers, namely — opposed the death penalty absolutely. If you had any Quakers on a capital jury, no one would ever be sentenced to death, says Clay Conrad, a defense attorney in Houston and author of Jury Nullification: The Evolution of a Doctrine. In a 1968 case called Witherspoon v. Illinois, the Supreme Court said that mere opposition to the death penalty isn’t a basis to be excluded from a jury. So long as potential jurors could set aside their personal views to follow the law, they could serve. Yet over the past half century, “death qualification” has become as stern as it sounds, an excuse to filter out anyone who is “marginally opposed to it,” according to Conrad. The result, he says, is that juries in criminal cases tend to be a lot “whiter, more male and older than the jury pool in general.”

That’s one way to get a conviction!

To be sure, death qualification is not the only reason that the Tsarnaev jury and Boston are so at odds, why so many Bostonians consider the sentencing “a blot on our city,” as a friend who lives there tells me. Massachusetts abolished the death penalty in 1984, and death wouldn’t have been on the sentencing agenda were this not a federal prosecution. 

The sentence saddens Nash, too — as a death-penalty opponent, there’s little chance she’d have been able to serve on the jury. Luckily, she has her own resources to draw on. Back in April 2013, she knew right away: “The only way to do it — to give the middle finger to people blowing up a bunch of innocent kids — would be for me to run a race I cared about,” she says. In April 2014, Nash posted a time of 3 hours, 22 minutes in the Boston Marathon.


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