Deference Spillover: The End of Witherspoon in Capital Appeals

abstract. In Witherspoon v. Illinois, the Supreme Court held that the state may not disqualify a capital juror based solely on their opposition to the death penalty. Sixty years later, that due-process principle is still good law. But as a matter of practice, Witherspoon is a mirage in capital appeals. Federal habeas courts have not overturned a death sentence based on Witherspoon error in more than a decade, and state courts do so only rarely.

This Comment explains why, providing the first complete account of how the Supreme Court eviscerated Witherspoon. It traces the doctrine’s demise to the Court’s adoption of an extraordinarily deferential standard of review—one that originated out of the federal habeas statute, yet which lower courts have now erroneously applied on direct appeal. This pattern of “deference spillover” risks the end of Witherspoon everywhere. However, if state courts decline to adopt this standard, they may still restore Witherspoon’s promise.

author. Yale Law School, J.D. 2025; Williams College, B.A. 2022. Thank you to Professor Stephen Bright, who sparked the idea for this Comment, and the editors of the Yale Law Journal, including Elizabeth Beling, Nellie Conover-Crockett, and Jeremy N. Thomas, for their insightful revisions.

I began to research Witherspoon through my work on a capital habeas case. I learned from a team of lawyers—tireless advocates and generous teachers—who have spent two decades fighting to save an innocent man from execution. This Comment is dedicated to them—including Miriam Gohara, George Kendall, and Carine Williams—and to our client, Chris Barbour.

Introduction

In April 1960, an Illinois jury sentenced William Witherspoon to death. Before his trial, the prosecution systematically removed nearly half of the venire for their “qualms” about the death penalty.1 Of the forty-seven excused jurors, only five had stated they would vote against death no matter the circumstance.2 By producing “a jury uncommonly willing to condemn a man to die,” the Supreme Court held, Illinois had “stacked the deck” against Mr. Witherspoon.3 To allow his execution by this “hanging jury” would “deprive him of his life without due process of law.”4

Witherspoon v. Illinois and its progeny establish a core due-process principle: the state may not strike a prospective capital juror based solely on their general opposition to the death penalty. That principle is still good law. In practice, however, federal habeas courts have not overturned a death sentence based on Witherspoon error in more than a decade, even when trial courts clearly violated Witherspoon’s commands. This Comment explains why—offering the first full account of how the Supreme Court eviscerated Witherspoon’s promise. Though Witherspoon’s demise has a long tail, this Comment traces the doctrine’s end to two habeas cases setting an extraordinarily deferential standard of review: Uttecht v. Brown and White v. Wheeler.5 Together, Uttecht and Wheeler imposed the deference requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to hollow out Witherspoon.6 After Wheeler, no federal habeas petitioner has ever prevailed on a Witherspoon claim.

By their terms, Wheeler and Uttecht apply only to defendants seeking habeas relief in federal courts. But this Comment finds that their impact has extended far beyond federal habeas. The “double deference standard” that these cases announced derives from the statutory strictures of AEDPA, yet both state courts and federal courts sitting on direct appeal have cited Uttecht and Wheeler to justify the denial of Witherspoon claims. This Comment terms this phenomenon “deference spillover”—how deferential standards of review developed in the federal habeas context spill over into rulings by courts not bound by AEDPA.

By introducing the concept of deference spillover, this Comment offers a new gloss on a familiar critique of AEDPA—that it has frozen the development of constitutional law by creating a nearly insurmountable barrier to federal review of state-court convictions.7 Giovanna Shay and Christopher Lasch have argued that the path to restarting this constitutional dialogue between state and federal courts is by seeking certiorari from state-court appeals.8 Deference spillover suggests that even this path is foreclosed. Rather than exercising their discretion to interpret federal constitutional law, state courts are reflexively mimicking deferential standards of review from federal habeas that do not bind them. In the Witherspoon context, the Supreme Court has expressly clarified that the federal habeas standard of review does not bind state courts, who are free to set their own standards for reviewing juror bias.9 But instead of heeding this guidance, state courts are regressing to AEDPA’s baseline—deference to trial judges even in cases of clear error.10 And foreclosing substantive review of Witherspoon error comes at an incalculable cost: the loss of fair juries for defendants facing death.

Empirical research confirms the high stakes of death qualification, the process by which life-leaning jurors are removed from the jury box. Aliza Plener Cover found that, in Louisiana, twenty-two percent of potential jurors in capital cases were struck for cause based on their opposition to the death penalty.11 These strikes resulted in stark racial disparities: nearly sixty percent of the life-leaning Louisianians who were excused were Black.12 In other words, one-third of all potential Black jurors were struck for their opposition to the death penalty alone.13 As Brandon Garrett, Daniel Krauss, and Nicholas Scurich confirm, this effect has only intensified with time. Death qualification today excludes “far higher percentages of the population than ever before.”14 Meaningful appellate oversight of the death-qualification process through Witherspoon can serve as a safeguard against these trends, limiting the number of life-leaning jurors who are improperly struck. The doctrine ensures that a trial judge’s impressions, often based on snap judgments during voir dire, are not the last word on whether a juror is impartial. By doing so, Witherspoon provides every capital defendant a second chance to demand that his jury represent a fair cross section of his community, including those who are opposed to the death penalty.

Despite the tide of deference spillover, some state courts have charted a different path. The California Supreme Court, in particular, has crafted more searching standards of review for identifying Witherspoon error. As a result, capital defendants in California continue to win reversals of death sentences imposed after trial judges improperly excluded life-leaning jurors. Other courts should follow by declining to adopt the federal habeas standard for reviewing death-qualification challenges. By doing so, these courts may still restore Witherspoon’s promise.

This Comment proceeds in three parts. Part I traces Witherspoon claims in the Supreme Court from Witherspoon to Wheeler, describing how federal courts applying these precedents in habeas cases have effectively foreclosed Witherspoon claims through complete deference under AEDPA. Part II analyzes state courts and federal courts hearing Witherspoon claims on direct appeal. It describes how non-habeas courts have seized on language from federal habeas cases governed by AEDPA to formulate their own deferential standards of review—the pattern of deference spillover. Because of this spillover, Section II.B illustrates, several state courts no longer find Witherspoon error, bringing the doctrine close to its end in state appeals too. Part III concludes with a path forward: state courts should develop their own standards for reviewing Witherspoon error—standards that do not mimic the extraordinary deference of federal habeas.