Anyone looking for evidence that the death penalty should be abolished need only look at the case of Zacarias Moussaoui, the so-called twentieth hijacker, now on trial for his life for allegedly being part of the plot to blow up a building in Washington, DC, on September 11, 2001.

Normally in the United States, you don't get executed unless you actually kill somebody, and the odds are that even if Moussaoui is found to have been one of those plotting the 9/11 hijackings, he won't go to the gallows because he never even made it to an airport. The point, however, is that government prosecutors really don't care that much whether Moussaoui dies. What they want is a conviction, and like most prosecutors, they know that the best way to assure that is to first make it a capital case.

Why? Because then they get to purge the jury panel of anyone who expresses qualms about the death penalty. In a piece discussing Justice Department plans to authorize the seeking of the death penalty against Moussaoui back on March 28, the New York Times, without comment, quoted Professor Michael Tigar, the lawyer who defended Oklahoma City bombing conspirator Terry Nichols, as saying, "The government is seeking a death-qualified jury because it is far more likely to be favorable to the prosecution and thus amenable to the government's conspiracy case."

Think about the implications of that statement a moment! It is, in fact, a dirty secret among prosecutors that if they can get a jury of pro-death-penalty jurors, they will have a panel that will be more disposed to believe them than what defense attorneys and their witnesses have to say--a jury, in other words, that will be more "conviction prone." Numerous academic studies have demonstrated this.

This indeed is why the Philadelphia district attorney's office seeks the death penalty initially in 85 percent of the murder cases it tries--a percentage that ranks among the highest in the nation. Philadelphia prosecutors know death is inappropriate and would never be approved for many of these cases, but it's the death-qualified jury, not the death sentence, that they want.

If there were any type of trial in which one would hope the jury would be open-minded and deliberate, it would be a capital trial, where the ultimate punishment was being contemplated; yet under our system of justice, it turns out that the opposite is true. Thanks to death-qualifying, capital juries are more likely to be white, older, predominantly male, Protestant and less educated than other criminal juries, and than the society from which they were picked.

How could it be otherwise?

If the rule is that a sentence of death must be unanimous, and if roughly half the population in America is opposed to the death penalty, the odds that any twelve-member jury panel will have at least one opponent of the death penalty are enormous. As a result, unless courts allowed prosecutors to remove all jurors who admit that they could never vote for a death sentence, no one would ever be sentenced to death.

That's why in every death penalty case, during jury selection, jurors are always "death qualified," meaning they are asked if they could vote for a death penalty. Clearly such a jury cannot be representative of the defendant's community, since every community has many death penalty opponents.

There have been proposals to fix this rarely mentioned problem, but none are very practical, and none would really do the job completely. One idea has been to impanel two juries--one that would not be death-qualified, to decide upon guilt or innocence, and a second death-qualified one to decide on the penalty following a guilty verdict. A major problem with this is cost and logistics. Choosing juries takes time and imposes a burden on the public, and this would double both, plus the second jury would have wasted its time if the verdict is not guilty. Furthermore, to avoid having to retry each case, both juries would have to sit through the trial; to prevent mistrials, the two panels would have to be separated, requiring a reconfiguration of capital-case courtrooms. But the biggest problem--the inherent bias of pro-death-penalty jurors--would still exist on the penalty jury panel.

The other idea has been to have judges do the sentencing, but defense attorneys say the reason for assigning sentencing to juries in the first place was that some judges are too quick to execute, and that sentencing varies too widely from case to case.

Until we confront this problem, America will have unacceptably high error rates in death-penalty cases. When we do finally confront the problem honestly, we will have to recognize that the death penalty is fatally flawed and needs to be scrapped.

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