Witherspoon v. State of Illinois

Decision Date03 June 1968
Docket NumberNo. 1015,1015
Citation88 S.Ct. 1770,20 L.Ed.2d 776,391 U.S. 510
PartiesWilliam C. WITHERSPOON, Petitioner, v. STATE OF ILLINOIS et al
CourtU.S. Supreme Court

See 89 S.Ct. 67.

[Syllabus from pages 510-511 intentionally omitted] Albert E. Jenner, Jr., Chicago, Ill., for petitioner.

Donald J. Veverka, Westchester, Ill., for respondent.

James B. Zagel, Chicago, Ill., for respondent, pro hac vice, by special leave of Court.

Robert R. Granucci, San Francisco, Calif., for the State of California, as amicus curiae.

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.'1

Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order to exclude those jurors who, in the words of the State's highest court, 'might hesitate to return a verdict inflicting (death).'2 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,3 and we granted certiorari4 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.5 Nor does it involve the State's assertion of a 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.6 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.7 Thirty- nine 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.'8 Evidently satisfied that this elaboration of the prospective juror's views disqualified her under the Illinois statute, the judge told her to 'step aside.'9


The petitioner contends that a State cannot confer upon a jury selected in this matter the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a crosssection 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 ver- sion 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.'10

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.11 We simply cannot con clude, 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. 12 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, 62 S.Ct. 457, 471—472, 86 L.Ed. 680; Irvin v. Dowd, 366 U.S. 717, 722—723, 81 S.Ct. 1639, 1642 1643, 6 L.Ed.2d 751; Turner v. State of Louisiana, 379 U.S. 466, 471—473, 85 S.Ct. 546, 549—550, 13 L.Ed.2d 424.

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 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,13 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,'14 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.15 Yet, in a nation less than half of whose people believe in the death penalty,16 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.17

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.18 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 jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.19

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. People of State of New York, 332 U.S. 261, 294, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043. See Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. 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 or death.20 Specifically, 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.21 No defendant can constitutionally be put to death at the hands of a tribunal so selected.22

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.


Mr. Justice DOUGLAS.

My difficulty with the opinion of ...

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