Discrimination in Capital Jury Selection and Sentencing Resolution (2023)

Short Name: Discrimination in Capital Jury Selection and Sentencing Resolution (2023)
Year Adopted: 2023
Meeting Where Adopted: Annual
Policy Number: 2023 AM 512
Subjects: Death Penalty, Bias and Discrimination, Civil Rights

Resolution Text:

RESOLVED, That the American Bar Association urges the federal, state, and territorial governments in which capital punishment is a possible penalty to take steps to prevent racial, ethnic, gender and gender identity discrimination in capital jury selection, including: 

(1) Requiring questionnaires that allow potential jurors to identify their race, ethnicity, gender and gender identity prior to jury selection in capital cases;

(2) Requiring that capital jury selection, including any challenges for cause or peremptory challenges, be transcribed; 

(3) Requiring opportunities to challenge any strikes based on race, ethnicity, gender, or gender identity; and

(4) in jurisdictions that permit the imposition of a death sentence without a unanimous jury vote, requiring jury verdict forms that list each vote cast regarding penalty, with an opportunity for jurors to identify their race, ethnicity, gender and gender identity along with their corresponding vote; and 

FURTHER RESOLVED, That the American Bar Association urges the federal, state, and territorial governments in which capital punishment is a possible penalty to take steps to prevent discrimination in capital sentencing based on the race, ethnicity, gender or gender identity of the victim, the defendant, or a combination thereof, including:   

(1) gathering data on whether capital punishment is disproportionately sought in cases in which the defendant is a member of a racial or ethnic minority and the victim is (a) white, (b) a member of the same racial or ethnic minority group as the defendant, and (c) a member of a different racial or ethnic minority group; 

(2) adopting procedures which might include independent review panels to review capital charging decisions before final charges are brought; 

(3) requiring prosecuting authorities to state in writing the rationale for choosing to charge a capital offense; 

(4) except when race, ethnicity, gender or gender identity is an element of a crime or is relevant to the criminal conduct, requiring trial judges to instruct juries that it is impermissible for them to consider the race, ethnicity, gender, or gender identity of either the defendant or a victim in deciding whether to impose capital punishment, and to bar either the prosecution or the defense from relying in their argument to the jury on the race, ethnicity, gender or gender identity of either the defendant or a victim;

(5) allowing attorneys for both parties to conduct voir dire of potential jurors on issues related to potential racial, ethnic, gender, or gender identity biases that could be relevant to a juror’s perception of the defendant, the alleged victim, or potential witnesses;

(6) gathering data on whether juries disproportionally vote to impose capital punishment in cases in which the defendant is a member of a racial or ethnic minority and the victim is (a) white, (b) a member of the same racial or ethnic minority group as the defendant, and (c) a member of a different racial or ethnic minority group; and

(7) providing opportunities for defendants facing the death penalty at trial or who are sentenced to death to seek relief from the death penalty pre-trial or in postconviction proceedings based upon a showing that the data that has been gathered, and other relevant evidence, supports a claim that capital punishment has been sought or imposed discriminatorily in that jurisdiction, based on the race of the defendant, the race of the alleged victim, or discrimination based on race, ethnicity, gender or gender identity in the prosecution’s exercise of peremptory strikes in jury selection. 

View the full resolution and report.