Witherspoon v. Illinois


No. 1015 Argued: April 24, 1968 --- Decided: June 3, 1968
MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was brought to trial in 1960 in Cook County, Illinois, upon a charge of murder. The jury found him guilty, and fixed his penalty at death. At the time of his trial, an Illinois statute provided:

In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same. [n1]

Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order [p513] to exclude those jurors who, in the words of the State's highest court, "might hesitate to return a verdict inflicting [death]." [n2] At the petitioner's trial, the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment. From those who remained were chosen the jurors who ultimately found the petitioner guilty and sentenced him to death. The Supreme Court of Illinois denied post-conviction relief, [n3] and we granted certiorari [n4] to decide whether the Constitution permits a State to execute a man pursuant to the verdict of a jury so composed.


The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. [n5] Nor does it involve the State's assertion of a [p514] right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it. In the present case, the tone was set 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." In rapid succession, 47 veniremen were successfully challenged for cause on the basis of their attitudes toward the death penalty. Only five of the 47 explicitly stated that, under no circumstances would they vote to impose capital punishment. [n6] Six said that they did not "believe in the death penalty" and were excused without any attempt to determine whether they could nonetheless return a verdict of death. [n7] Thirty-nine [p515] veniremen, including four of the six who indicated that they did not believe in capital punishment, acknowledged having "conscientious or religious scruples against the infliction of the death penalty" or against its infliction "in a proper case," and were excluded without any effort to find out whether their scruples would invariably compel them to vote against capital punishment.

Only one venireman who admitted to "a religious or conscientious scruple against the infliction of the death penalty in a proper case" was examined at any length. She was asked: "You don't believe in the death penalty?" She replied: "No. It's just I wouldn't want to be responsible." The judge admonished her not to forget her "duty as a citizen," and again asked her whether she had "a religious or conscientious scruple" against capital punishment. This time, she replied in the negative. Moments later, however, she repeated that she would not "like to be responsible for . . . deciding somebody should be put to death." [n8] Evidently satisfied that this elaboration of the prospective juror's views disqualified her under the Illinois statute, the judge told her to "step aside." [n9] [p516]


The petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the prosecution's version [p517] of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he describes as "competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence." [n10]

The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. [n11] We simply cannot [p518] conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.


It does not follow, however, that the petitioner is entitled to no relief. For, in this case, the jury was entrusted with two distinct responsibilities: first, to determine whether the petitioner was innocent or guilty, and second, if guilty, to determine whether his sentence should be imprisonment or death. [n12] It has not been shown that this jury was biased with respect to the petitioner's guilt. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments. See Glasser v. United States, 315 U.S. 60, 84-86; Irvin v. Dowd, 366 U.S. 717, 722-723; Turner v. Louisiana, 379 U.S. 466, 471-473.

The only justification the State has offered for the jury selection technique it employed here is that individuals who express serious reservations about capital punishment cannot be relied upon to vote for it even [p519] when the laws of the State and the instructions of the trial judge would make death the proper penalty. But in Illinois, as in other States, [n13] the jury is given broad discretion to decide whether or not death is "the proper penalty" in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.

A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, "free to select or reject as it [sees] fit," [n14] a jury that must choose between life imprisonment and capital punishment can do little more -- and must do nothing less -- than express the conscience of the community on the ultimate question of life or death. [n15] Yet, in a [p520] nation less than half of whose people believe in the death penalty, [n16] a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment -- of all who would be reluctant to pronounce the extreme penalty -- such a jury can speak only for a distinct and dwindling minority. [n17]

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply "neutral" with respect to penalty. [n18] But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a [p521] jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die. [n19]

It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal "organized to convict." Fay v. New York, 332 U.S. 261, 294. See Tumey v. Ohio, 273 U.S. 510. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. [n20] Specifically, [p522] we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. [n21] No defendant can constitutionally be [p523] put to death at the hands of a tribunal so selected. [n22] Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.


1. Ill.Rev.Stat., c. 38, § 743 (1959). The section was reenacted in 1961 but was not expressly repeated in the Code of Criminal Procedure of 1963. Ill.Rev.Stat., c. 3, § 115-4(d) (1967) now provides only that "[e]ach party may challenge jurors for cause," but the Illinois Supreme Court has held that § 115-4(d) incorporates former § 743. People v. Hobbs, 35 Ill.2d 263, 274, 220 N.E.2d 469, 475.


In the trial of the case where capital punishment may be inflicted a juror who has religious or conscientious scruples against capital punishment might hesitate to return a verdict inflicting such punishment, and, in the present proceedings, [a post-sentence sanity hearing] a juror having such scruples might likewise hesitate in returning a verdict finding [the defendant] sane, which in effect confirms the death sentence.

People v. Carpenter, 13 Ill.2d 470, 476, 150 N.E.2d 100, 103. (Emphasis added.)

3. 36 Ill.2d 471, 224 N.E.2d 259.

4. 389 U.S. 1035.

5. Unlike the statutory provision in this case, statutes and rules disqualifying jurors with scruples against capital punishment are often couched in terms of reservations against finding a man guilty when the penalty might be death. See, e.g., Cal.Penal Code, § 1074, subd. 8. Yet, despite such language, courts in other States have sometimes permitted the exclusion for cause of jurors opposed to the death penalty even in the absence of a showing that their scruples would have interfered with their ability to determine guilt in accordance with the evidence and the law. See, e.g., State v. Thomas, 78 Ariz. 52, 58, 275 P.2d 408, 412; People v. Nicolaus, 65 Cal.2d 866, 882, 423 P.2d 787, 788; Piccott v. State, 116 So.2d 626, 628 (Fla.); Commonwealth v. Ladetto, 349 Mass. 237, 246, 207 N.E.2d 536, 542; State v. Williams, 50 Nev. 271, 278, 257 P. 619, 621; Smith v. State, 5 Okla.Cr. 282, 284, 114 P. 350, 351; State v. Jensen, 209 Ore. 239, 281, 296 P.2d 618, 635; State v. Leuch, 198 Wash. 331, 333-337, 88 P.2d 440, 441-442.

6. The State stresses the fact that the judge who presided during the voir dire implied several times that only those jurors who could never agree to a verdict of death should deem themselves disqualified because of their scruples against capital punishment. The record shows, however, that the remarks relied upon by the State were not made within the hearing of every venireman ultimately excused for cause under the statute. On the contrary, three separate venires were called into the courtroom, and it appears that at least 30 of the 47 veniremen eliminated in this case were not even present when the statements in question were made.

7. It is entirely possible, of course, that even a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State. See Commonwealth v. Webster, 59 Mass. 295, 298. See also Atkins v. State, 16 Ark. 568, 580; Williams v. State, 32 Miss. 389, 395-396; Rhea v. State, 63 Neb. 461, 472-473, 88 N.W. 789, 792.

8. Compare Smith v. State, 55 Miss. 410, 413-414:

The declaration of the rejected jurors, in this case, amounted only to a statement that they would not like . . . a man to be hung. Few men would. Every right-thinking man would regard it as a painful duty to pronounce a verdict of death upon his fellow-man. . . . For the error in improperly rejecting [these] two members of the special venire the case must be reversed.

9. As the voir dire examination of this venireman illustrates, it cannot be assumed that a juror who describes himself as having "conscientious or religious scruples" against the infliction of the death penalty or against its infliction "in a proper case" (see People v. Bandhauer, 66 Cal.2d 524, 531, 426 P.2d 900, 905) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him. See also the voir dire in Rhea v. State, 63 Neb. 461, 466-468, 88 N.W. 789, 790. Cf. State v. Williams, 50 Nev. 271, 278, 257 P. 619, 621. Obviously many jurors

could, notwithstanding their conscientious scruples [against capital punishment], return . . . [a] verdict [of death] and . . . make their scruples subservient to their duty as jurors.

Stratton v. People, 5 Colo. 276, 277. Cf. Commonwealth v. Henderson, 242 Pa. 372, 377, 89 A. 567, 569. Yet such jurors have frequently been deemed unfit to serve in a capital case. See, e.g., Rhea v. State, supra, 63 Neb., at 470-471, 88 N.W. at 791-792. See generally Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545, 547-548 (1961); Comment, 1968 Duke L.J. 283, 295-299.

The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood -- or misunderstood -- by prospective jurors. Any

layman . . . [might] say he has scruples if he is somewhat unhappy about death sentences. . . . [Thus,] a general question as to the presence of . . . reservations [or scruples] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.

Id. at 308-309. Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.

10. In his brief, the petitioner cites two surveys, one involving 187 college students, W. C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964), and the other involving 200 college students, F. J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated). In his petition for certiorari, he cited a study based upon interviews with 1,248 jurors in New York and Chicago. A preliminary, unpublished summary of the results of that study stated that

a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit,

and that "the defendant's chances of acquittal are somewhat reduced if the objectors are excluded from the jury." H. Zeisel, Some Insights Into the operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957).

11. During the post-conviction proceedings here under review, the petitioner's counsel argued that the prosecution-prone character of "death-qualified" juries presented "purely a legal question," the resolution of which required "no additional proof" beyond "the facts . . . disclosed by the transcript of the voir dire examination. . . ." Counsel sought an "opportunity to submit evidence" in support of several contentions unrelated to the issue involved here. On this issue, however, no similar request was made, and the studies relied upon by the petitioner in this Court were not mentioned. We can only speculate, therefore, as to the precise meaning of the terms used in those studies, the accuracy of the techniques employed, and the validity of the generalizations made. Under these circumstances, it is not surprising that the amicus curiae brief filed by the NAACP Legal Defense and Educational Fund finds it necessary to observe that, with respect to bias in favor of the prosecution on the issue of guilt, the record in this case is "almost totally lacking in the sort of factual information that would assist the Court."

12. At the time of the petitioner's trial, the jury's penalty determination was binding upon the judge. Ill.Rev.Stat., c. 38, §§ 360, 801 (1959). That is no longer the case in Illinois, for the trial judge is now empowered to reject a jury recommendation of death, Ill.Rev.Stat., c. 38, § 1-7(c)(1) (1967), but nothing in our decision turns upon whether the judge is bound to follow such a recommendation.

13. See generally H. Kalven H. Zeisel, The American Jury 435, 444, 448-449 (1966).

14. People v. Bernette, 30 Ill.2d 359, 370, 197 N.E.2d 436, 443.

15. It is suggested in a dissenting opinion today that the State of Illinois might "impose a particular penalty, including death, on all persons convicted of certain crimes." Post at 541. But Illinois has attempted no such thing. Nor has it defined a category of capital cases in which "death [is] the preferred penalty." People v. Bernette, supra, at 369, 197 N.E.2d at 442. (Emphasis added.) Instead, it has deliberately "made . . . the death penalty . . . an optional form of punishment which [the jury remains] free to select or reject as it [sees] fit." 30 Ill.2d at 370, 197 N.E.2d at 443. And one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system -- a link without which the determination of punishment could hardly reflect "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and Mr. Justice Whittaker). Cf. n.19, infra.

16. I appears that, in 1966, approximately 42% of the American public favored capital punishment for convicted murderers, while 47% opposed it and 11% were undecided. Polls, International Review on Public Opinion, Vol. II, No. 3, at 84 (1967). In 1960, the comparable figures were 51% in favor, 36% opposed, and 13% undecided. Ibid.

17. Compare Arthur Koestler's observation:

The division is not between rich and poor, highbrow and lowbrow, Christians and atheists: it is between those who have charity and those who have not. . . . The test of one's humanity is whether one is able to accept this fact -- not as lip service, but with the shuddering recognition of a kinship: here but for the grace of God, drop I.

Koestler, Reflections on Hanging 166-167 (1956).

18. Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence -- given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.

19. The amicus curiae brief filed in this case by the American Friends Service Committee et al. notes that the number of persons under sentence of death in this country climbed from 300 at the end of 1963 to 406 at the end of 1966, while the number of persons actually executed fell from 21 in 1963 to 15 in 1964, seven in 1965, and one in 1966. The brief suggests that this phenomenon might be explained in part by society's "deep reluctance actually to inflict the death sentence" and by a widening "divergence of belief between the juries we select and society generally."

20. It should be understood that much more is involved here than a simple determination of sentence. For the State of Illinois empowered the jury in this case to answer "yes" or "no" to the question whether this defendant was fit to live. To be sure, such a determination is different in kind from a finding that the defendant committed a specified criminal offense. Insofar as a determination that a man should be put to death might require "that there be taken into account the circumstances of the offense together with the character and propensities of the offender," Pennsylvania v. Ashe, 302 U.S. 51, 55, for example, it may be appropriate that certain rules of evidence with respect to penalty should differ from the corresponding evidentiary rules with respect to guilt. See, e.g., Williams v. New York, 337 U.S. 241. But this does not mean that basic requirements of procedural fairness can be ignored simply because the determination involved in this case differs, in some respects, from the traditional assessment of whether the defendant engaged in a proscribed course of conduct. See, e.g., Specht v. Patterson,386 U.S. 605. Cf. Mempa v. Rhay, 389 U.S. 128.

One of those requirements, at least, is that the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death. It was in part upon such a premise that the Fourth Circuit recently invalidated a North Carolina murder conviction, noting that a juror who felt it his "duty" to sentence every convicted murderer to death was allowed to serve in that case, "while those who admitted to scruples against capital punishment were dismissed without further interrogation." This "double standard," the court concluded, "inevitably resulted in [a] denial of due process." Crawford v. Bounds, 395 F.2d 297, 303-304 (alternative holding). Cf. Stroud v. United States, 251 U.S. 15, 20-21; on petition for rehearing, id. at 380, 381 (dictum).

21. Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would, in fact, vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. See nn. 5 and 9, supra.

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were, in fact, excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.

22. We have considered the suggestion, advanced in an amicus curiae brief filed by 27 States on behalf of Illinois, that we should "give prospective application only to any new constitutional ruling in this area," particularly since a dictum in an 1892 decision of this Court approved the practice of challenging for cause those jurors who expressed "conscientious scruples in regard to the infliction of the death penalty for crime." Logan v. United States, 144 U.S. 263, 298. But we think it clear, Logan notwithstanding, that the jury selection standards employed here necessarily undermined "the very integrity of the . . . process" that decided the petitioner's fate, see Linkletter v. Walker, 381 U.S. 618, 639, and we have concluded that neither the reliance of law enforcement officials, cf. Tehan v. Shott, 382 U.S. 406, 417; Johnson v. New Jersey, 384 U.S. 719, 731, nor the impact of a retroactive holding on the administration of justice, cf. Stovall v. Denno, 388 U.S. 293, 300, warrants a decision against the fully retroactive application of the holding we announce today.