Whether the Eighth Amendment permits a verdict of guilt returned by a jury from which all prospective jurors opposed to the death penalty have been improperly removed

QUESTION PRESENTED Petitioner was charged with capital murder. During voir dire, and based solely on answers to jury questionnaires, the state trial court systematically discharged prospective jurors who were opposed to the death penalty, even those who explicitly agreed to set their views aside and consider death as a sentence. The jury that remained after all such jurors were discharged convicted defendant and sentenced him to death. On appeal, petitioner alleged that under the Sixth Amendment his death sentence could not stand, and under the Eighth Amendment, his conviction could not stand. In Witherspoon v, Illinois, 391 U.S. 510 (1968) the Court held that the Sixth Amendment did not permit a death sentence to stand when returned by a jury from which the state discharged prospective jurors solely because of opposition to the death penalty. Witherspoon also held, however, the Sixth Amendment did not require reversal of the verdict of guilt. In accord with Witherspoon, the state court here granted penalty phase relief. The Court rejected petitioner’s separate Eighth Amendment claim as to the guilt phase, ruling that it was merely a restatement of his Sixth Amendment claim. The question presented here, and not addressed in Witherspoon or any later decisions of this Court, is whether the Eighth Amendment permits a verdict of guilt returned by a jury from which all prospective jurors opposed to the death penalty have been improperly removed. i