The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility. A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
Brandon L. Garrett et al., Capital Jurors in an Era of Death Penalty Decline, 126 Yale Law Journal Forum 417-430 (2017)