Witherspoon v. Illinois

The decision represented an expansion of the High Court's authority to review the regulation and administration of state court death penalty cases. It also served as precedent for the selection of jurors in death penalty cases.

In 1960, William C. Witherspoon was tried in a Cook County, Illinois court on a charge of murder, a crime that carried a sentence of death. In choosing the jury for Witherspoon's trial, the prosecutor was allowed, under Illinois law, to remove any juror who was opposed to capital punishment or possessed "conscientious scruples against capital punishment." Jury selection procedures typically allow attorneys for all sides to exclude a certain number of jurors at their discretion with "peremptory challenges," and an unlimited number of jurors "for cause," or for a reasonable belief that the juror may be biased. Witherspoon was convicted and sentenced to death by the jury.

Witherspoon spent his round of state court appeals without success. Thereafter, Witherspoon petitioned the state courts for post-conviction habeas corpus relief. The state courts rejected Witherspoon's requests, and the U.S. Supreme Court denied Witherspoon's writ of certiorari. Undeterred, Witherspoon filed another claim for post-conviction relief in February of 1965, this time asking for any form of remedy provided by state law and, for the first time, claiming that his constitutional rights were violated when the prosecutor was allowed to excuse jurors for expressing doubts about the death penalty. Witherspoon lost again in the state courts, but this time the U.S. Supreme Court agreed to hear his case. After oral arguments in April of 1968, the High Court reversed Witherspoon's sentence of death by a vote of 6-3.

Justice Stewart, writing for the majority, began the analysis by noting that almost half of the prospective jurors, or veniremen, in Witherspoon's trial had been excused by the prosecution. These veniremen were challenged for cause and excused during voir dire for having expressed "qualms about capital punishment." The question in the case, the majority observed, was "whether the Constitution permits a State to execute a man pursuant to the verdict of a jury so composed." The majority then examined the juror selection procedures in Witherspoon's case, the nature of juries, and public sentiment on the death penalty.

The issue was not, maintained the majority, whether the state of Illinois could exclude prospective jurors who could not make an impartial decision about guilt or innocence. Nor was the issue whether the state could exclude jurors who said they could never impose the death penalty. Those issues had already been decided in the affirmative. The real issue was whether the state had the right to exclude all persons "who indicated that they had conscientious scruples" against imposing the death penalty.

The "tone" in Witherspoon's case was set, the majority opined, "when the trial judge said early in the voir dire, `Let's get these conscientious objectors out of the way, without wasting any time on them.'" The court then proceeded to allow the prosecution to exclude 47 veniremen on the basis of their feelings on the death penalty. Of these 47, only five had stated that they would never impose the death penalty. Six had stated that they did not "believe in the death penalty" and were summarily excused without further inquiry into whether they nevertheless could, as jurors bound to follow the law, deliver a sentence of death. Thirty-nine veniremen were excused after admitting to conscientious or religious misgivings about the infliction of capital punishment or against its infliction in a certain case.

Witherspoon argued that his conviction was unconstitutional, but the Court dismissed this argument. According to Witherspoon, the jury was unrepresentative of a cross-section of the community and its selection substantially increased his chances for conviction, and these made his conviction unconstitutional. The Court was not ready to say that the jury in Witherspoon's case was too biased to deliver a fair verdict on guilt or innocence.

The majority of the Court was, however, ready to hold that Witherspoon's jury was too biased to deliver a fair and impartial sentence. The state argued that persons who express doubts about the death penalty cannot be relied upon to deliver a verdict of death, even when the law of the state and the trial court's instruction "would make death the proper penalty." The majority rejected this argument, observing that in some states, including Illinois, the jury had broad discretion to determine the proper penalty. "A man who opposes the death penalty, no less than one who favors it," the majority explained, "can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror."

The majority recognized the difficulty in determining whether a juror cannot follow the rule of law. Such determinations are based on questions asked by attorneys and judges during voir dire. This difficulty was only natural, the Court observed, given the sympathies of human beings. In a footnote, the Court cited Smith v. State, an old Mississippi case in which the state's supreme court noted that most jurors did not like imposing the death penalty. "Few men would," said the Court. "Every right-thinking man would regard it as a painful duty to pronounce a verdict of death upon his fellow-man." The majority felt that the expression of such feelings by potential jurors should not prevent all such jurors from deciding the sentence in a death penalty case. To hold otherwise, the Court reasoned, would produce "a jury uncommonly willing to condemn a man to die."

In another footnote, the majority cited studies revealing that Americans were split in their opinions over the death penalty for convicted murderers. In a country where a decreasing number of persons supported the death penalty, said Stewart, "a jury composed exclusively of such people cannot speak for the community . . . such a jury can speak only for a distinct and dwindling minority."

The majority closed its opinion by citing a prior case in which the Court held that a state "may not entrust the determination of whether a man is innocent or guilty to a tribunal `organized to convict.'" By the same token, a state should not "entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death." Without commenting further on its own attitude toward the death penalty, the Court felt it sufficient to declare that a sentence imposed "by a hanging jury" was unconstitutional under the due process clause of the Fourteenth Amendment.

Justice Douglas, in a concurring opinion, contended that the majority had made the right decision in the case, but that it had incorrectly analyzed the issue. The real issue, Douglas said, quoting Fay v. New York, was whether the jury was "`impartially drawn from a cross-section of the community.'" If the jury was drawn "with systematic and intentional exclusion of some qualified groups," then the jury was not a cross-section of the community and the voir dire was unconstitutional. Douglas saw no constitutional basis for excluding even those persons who would never impose the death penalty on any defendant. "Exclusion of them . . . results in a systematic exclusion of qualified groups," Douglas maintained, "and the deprivation to the accused of a cross-section of the community for decision on both his guilt and punishment."

Douglas felt the Court should have overturned Witherspoon's conviction in addition to his death sentence. The conviction should have been overturned, Douglas argued, because it was reasonable to believe that a jury predisposed to the death sentence would be predisposed to a finding of guilt. Douglas would not have required Witherspoon to make a specific showing of prejudice because, according to Douglas, such prejudice "is so subtle, so intangible, that it escapes the ordinary methods of proof."

Justices Harlan and White joined a dissenting opinion written by Justice Black. Black felt that the Court's opinion would force states to try their murder cases before biased juries. Black hinted that the real reason behind the Court's holding was the majority's personal feelings on the death penalty. "If this Court is to hold capital punishment unconstitutional," Black chided, "I think it should do so forthrightly, not by making it impossible for States to get juries that will enforce the death penalty."

Black reminded the majority that the case had been tried and appealed long before Witherspoon ever raised the issue of jury bias. He also noted that Witherspoon had received above-average legal representation at all stages of the prosecution. According to the dissent, a juror with moral scruples against the death penalty would "seldom if ever" vote for it. "This is just human nature," Black wrote. At the same time, though, Black said he "would not dream of foisting on a criminal defendant" a juror who would invariably vote for capital punishment of a convicted murderer.

Black criticized the Court's holding as an unwarranted entry into the realm of psychology. It assumed, insisted Black, that all persons not opposed to the death penalty were "somehow callous to suffering" and, in the words of legal commentators, "'prosecution prone.'" That assumption represented to Black "a psychological foray into the human mind that I have considerable doubt about my ability to make."

Justice White filed a separate dissenting opinion. White defended the Illinois statute that allowed the exclusion of potential jurors who have "conscientious scruples against capital punishment" and jurors who are opposed to capital punishment. "The legislature undoubtedly felt that . . . if one citizen with especially pronounced `scruples' could prevent a decision to impose death, the penalty would almost never be imposed." White dismissed the majority's analysis and objected to what he saw as personal politics replacing legal reasoning. In White's opinion, the Court should have "restrain[ed] its dislike for the death penalty" and left the decision about penalties to the duly elected state governments.