The Death of Death-Qualification

QUALIFICATION8 not have been subject to a "for cause" challenge on the basis of partiality, for the accused's right to an "impartial jury" was simply a tool to eliminate relational bias and personal interest from the criminal adjudication process.A citizen's view on the constitutionality of a particular law did not constitute personal interest, but instead marked an important component of society's deliberative process.Modem "death-qualification" jurisprudence frustrates the Framers' understanding as to the role of the criminal jury.15 Whereas the jury envisioned by the Framers had the power to rule on the constitutionality of the death penalty-though the force of any ruling applied only to the particular case on which they sat-a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death.The practical effect of "death-qualification" is to expose the capitally accused to increased odds of receiving the death penalty,' and to eliminate the voices of citizens who would opt to "check" the government's decision to inflict this penalty.Worse, perhaps, is that as judges and justices attempt to determine how much opposition to the death penalty warrants a challenge for cause during voir dire, the discretion left to individual judges results in wildly different determinations.'17 15 It is necessary to note that at common-law, jurors were limited to freeholding men.See Douglas Hay, The Class Composition of the Palladium of Liberty.Trial Jurors in the Eighteenth Century, in TWELVE GOOD MEN AND TRUE 3 05, 3 10 (J. S. Cockbumn and Thomas A. Green, eds., 1988) (citing J.C. Oldham, The Origins of the Special Jury, 50 U.CHI.L. REv.137, 214-21 (1983)).The removal of this qualification, along with invidious qualifications of race and gender, secured for the jury more authority rather than less.See infra note 68 and accompanying text.