Nikolas Cruz is a mass murderer. He killed 14 students and three adults at Marjory Stoneman Douglas High School in Parkland, Fla., on Valentine's Day in 2018, and he has confessed and pleaded guilty. Now it's time to sentence him.
No other killer of so many people in a single attack has ever been brought to court in the modern U.S. The rest have died by suicide or been killed during their attacks. So this is one of the rare cases in which society will decide how to punish such monstrous behavior.
Should he be put to death or sentenced to life imprisonment without parole?
That's for the 12 men and women on the jury to decide. Their job during the sentencing trial is to weigh potentially aggravating factors, such as the heinousness of the crime, as well as potentially mitigating factors, like the gunman's background and mental health, in determining his fate.
Like all defendants — even mass murderers — Cruz is entitled to a fair trial by an impartial jury.
But he won't get that. Unfortunately, the jury that began hearing evidence and testimony Monday does not represent a balanced, impartial cross-section of the community.
Instead, it is biased against him.
How so? Everyone on the jury is a supporter of the death penalty — or if not an out-and-out supporter, at least someone who would feel comfortable imposing it.
That's not a mistake, coincidence or stroke of bad luck for Cruz. It's just the way we do it. In almost all capital cases around the country, before prospective jurors can qualify for a jury, they are asked to make it clear that they are willing to impose the death penalty. If they express moral opposition to capital punishment or doubts that might "prevent or substantially impair" them from imposing a sentence of death, they in all likelihood will be excluded by the judge.
That process is known as "death qualifying" the jury.
The argument in favor of it is straightforward. The government has an interest in empaneling a jury that will enforce the law. If prospective jurors have such strong objections to the death penalty that they can't impose it under any circumstances, the state says they have no business being on the jury.
I get that argument. It's entirely logical.
But death qualification brings with it a host of other problems. For one thing, it guarantees that juries in capital cases will be highly unrepresentative of the public at large. Fully 43% of Americans oppose the death penalty for murderers, according to Gallup.
Yet juries in capital cases are 100% made up of people who support the death penalty, or who are neutral enough that they would impose it. Theoretically, jurors who oppose the death penalty may serve if they can set aside their beliefs and follow the law — but in reality, defense lawyers say, most end up being excluded.
As a result, millions of Americans are denied their right to serve on juries in capital cases. The juries that are empaneled do not fairly reflect the views of the population. And they therefore cannot fulfill their role as "the conscience of the community," as the Supreme Court has put it, when meting out the ultimate punishment.
In 2015, for instance, 12 death-qualified jurors in Massachusetts unanimously sentenced Dzhokhar Tsarnaev to death for the Boston Marathon bombing in a city where only a quarter of the residents supported the death penalty for murder.
Unsurprisingly, juries tend to impose the death penalty if they are death-qualified.
"If you're eliminating people who have reservations about the death penalty, who do you end up with on the jury?" asks Elisabeth Semel, a UC Berkeley law professor who co-directs the university's Death Penalty Clinic. "You end up with a disproportionate number of people who strongly support it. It's pretty clear what that's going to mean."
Studies have repeatedly shown that death-qualified juries are not just more partial to the death penalty, they are more prosecution-friendly in general and more likely to convict defendants. They include fewer women and people of color because those groups are much more likely to oppose the death penalty and be excluded.
In February, the American Civil Liberties Union filed a motion in Duval County, Fla., to bar the death qualification of juries as racially discriminatory. Included with the motion was a countywide study demonstrating that the death-qualification process "whitewashes" juries by excluding prospective Black jurors at a rate of more than twice the exclusion rate of white prospective jurors. According to the ACLU, that violates their client's right to equal protection of the laws.
Death qualification of juries goes back to cases in the early U.S. involving Quakers and abolitionists. But since 1992, the Supreme Court has also said that jurors may be excluded if it is determined that they will always vote for the death penalty in a capital murder case and won't consider imposing a life sentence. That "life qualification" was expected to have a moderating effect on the "death qualification."
But legal scholars say that the rule has been inconsistently applied and too often ignored, and that it has only "slightly reduced the racially disparate impact" of death qualification. It "escapes enforcement," says Robert Dunham, executive director of the Death Penalty Information Center.
I know many readers will wonder why they should waste energy worrying about fairness for people like Cruz, who wantonly massacred 17 innocent people.
Well, fair point. Like most people facing possible execution, Cruz is an unsympathetic character. But it is in just such cases that our system is tested.
Regardless of how you feel about capital punishment — and I oppose it — the right to a fair trial and an impartial jury needs to be protected, even for the most unsavory defendants. The death-qualification system needs to be revamped or abolished.
"It's said that a society is measured by how we treat the worst among us, the most marginalized, the most despised," says Semel. "The law applies to everybody. We don't get to pick and choose."
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