One of the little known facts about the death penalty is that juries have to be "death qualified" meaning that jurors cannot be morally opposed to the death penalty. I was reminded of this odd legal fact by a piece in the Knoxville News Sentinel today discussing the death qualification of a jury in Sevier County.

There are a myriad of problems with this process, of course. For one thing, death qualification eliminates about a third of the population, making a "jury of one's peers" a questionable claim. For another, death penalty trials are divided into two stages, the guilt phase and the sentencing phase. Now the guilt phase is like any other criminal trial, but, in a capital case, if the defendant is found guilty, a second stage of the trial ensues in which mitigating and aggravating evidence is presented and the jury selects a sentence. Now, the problem is that supporters of the death penalty are more likely across the board to find a defendant guilty, which already tilts the jury against the defendant.

Moreover, people of color are far more likely to oppose the death penalty, so death qualifying a jury is another way of eliminating people of color from a jury. Maybe this is one of the reasons that one in four African-American men sentenced to death in Tennessee were sentenced by all white juries. A much fairer way to conduct this process would be to have a second jury, which could be death qualified, step in for the sentencing phase, but have a truly representative jury decided guilt or innocence. Or we could realize that the death penalty is a classist, racist, expensive failure as a public policy and eliminate it all together.