John Paul Stevens: 'Two ways sentencing is tipped in favour of death'

In many of these cases the outrageously brutal facts cry out for retribution. In close cases it must be extremely difficult for jurors to resolve doubts in favour of permitting a possible perpetrator of a heinous crime to go free. Gruesome facts pose a danger that emotion will play a larger role in the decisional process than dispassionate analysis.

Two aspects of the process of selecting juries in capital cases are troublesome. In case after case many days are spent conducting voir dire examinations in which prosecutors engage in prolonged questioning to determine whether the venire person has moral or religious scruples that would impair her ability to impose the death penalty. Preoccupation with that issue creates an atmosphere in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant.

More significantly, because the prosecutor can challenge jurors with qualms about the death penalty, the process creates a risk that a fair cross-section of the community will not be represented on the jury.

Two aspects of the sentencing process tip the scales in favour of death. The fact that most of the judges who preside and often make the final life-or-death decision must stand for re-election creates a subtle bias in favour of death. Moreover, the admissibility of victim impact evidence that sheds absolutely no light on either the issue of guilt or innocence, or the moral culpability of the defendant, serves no purpose other than to encourage jurors to decide in favour of death rather than life on the basis of their emotions rather than their reason.