WHEN FIVE justices of the US Supreme Court rejected a death row inmate's challenge to his sentence last week, they acknowledged that a capital defendant has the right to trial by an impartial jury -- one that is drawn from a pool that has not been tilted in favor of the death penalty by selective challenges to would-be jurors. Having recognized that principle, though, the justices went on to eviscerate it.
In an opinion written by Justice Anthony Kennedy, the court ruled that a Washington state judge had the discretion to grant a prosecutor's request to strike "Juror Z," who supported the death penalty but nonetheless expressed some reservations. In doing so, the Supreme Court has given prosecutors permission to try to stack juries toward death, by seeking an all but unconditional commitment to the death penalty on the part of jurors.
In capital cases, prosecutors have long been able to exclude opponents of the death penalty, or at least those unwilling to set their own beliefs aside, on the grounds that they cannot impartially decide whether a defendant should be executed. Yet that was not at issue in the Washington case. During jury selection, Juror Z asserted that executions should be allowed but not frequent; that the possibility that a murderer might be released and kill again was the main reason for a death sentence; that, even so, he or she could still consider imposing a death sentence if the alternative were life in prison without parole. Yet this was too much for the prosecutor, who asked the judge to strike Juror Z.
In a compelling dissent, Justice John Paul Stevens suggested that the court has misunderstood Juror Z's testimony and the relevant law. Even if death-penalty states have an interest in finding jurors who will consider that option, Stevens pointed out, "that does not and cannot mean that jurors must be willing to impose a death sentence in every situation in which a defendant is eligible."
The effect of this decision will not be subtle. Prosecutors can now seek from jurors ever higher levels of commitment to executing convicts. Juries, over time, are likely to become less and less representative of the communities from which they are drawn. According to a poll conducted for the nonprofit Death Penalty Information Center before the Supreme Court ruling, most African-Americans, and nearly half of women and Catholics, think their beliefs would exclude them from capital juries.
Many who oppose the death penalty -- we on this page are among them -- do so whether public support for it is narrow or broad. It does not deter crime; it is unevenly applied; above all, it is irrevocable. And now five justices choose to compound the potential for error. To the nation's highest court, it is now basically fine if capital juries exclude those whose views extend beyond "fry him" or "hang him high."