. ? I concur in the reversal of the special circumstance findings and death sentence, but respectfully dissent from that portion of the plurality opinion that permits the prosecution to utilize peremptory challenges to remove from a jury all persons who express mere doubts about or opposition to the death penalty. Freed from the analytic fog that shrouds the discussion of this issue, the plurality’s bottom-line holding is that the state is authorized to use peremptory challenges to obtain a sentencing jury which is, as the United State Supreme Court has explicitly held, a “hanging jury” and “a tribunal organized to return a verdict of death.” (Witherspoon v. Illinois (1968) 391 U.S. 510, 521, 523 [20 L.Ed.2d 776, 784-785, 88 S.Ct. 1770].)
However, a hanging jury is not the only unfortunate consequence of the plurality’s resolution of this issue. Another foreseeable effect is to reduce substantially the number of blacks and women serving on juries in capital cases. A sentencing jury in a capital case is supposed to “express the conscience of the community on the ultimate question of life or death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519 [20 L.Ed.2d at p. 783].) A jury systematically culled of blacks and women simply cannot “speak for the community” on the question as to whether death is warranted. (See id., at p. 520, fn. omitted [20 L.Ed.2d at pp. 783-784].) The underrepresentation of these important segments of the community undermines the legitimacy and reliability of any death verdict reached by such a jury.
I.
Prior to 1968, prospective jurors who expressed any doubts about or conscientious scruples against capital punishment were excluded for cause from serving on juries in death penalty cases.1 Under this system, a jury selected
*331to decide whether a convicted person should live or die was composed exclusively of people who favored the death penalty or were indifferent towards it.2
In 1968, the United States Supreme Court determined that a sentencing jury empanelled under this system “fell woefully short of that impartiality to which [a capital defendant is] entitled under the Sixth and Fourteenth Amendments.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 518 [20 L.Ed.2d at p. 783].) Such a jury was found to be a “hanging jury,” a “jury uncommonly willing to condemn a man to die,” and a “tribunal organized to return a verdict of death.” (Id., at pp. 521, 523 [20 L.Ed.2d at pp. 784-785].) “[W]hen 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.” (Id., at p. 520 [20 L.Ed.2d at p. 784].) It “stacked the deck” against the accused and “necessarily undermined ‘the very integrity of the . . . process’ that decided [his] fate . . . .” (Id., at p. 523 and fn. 22 [20 L.Ed.2d at p. 785], quoting from Linkletter v. Walker (1965) 381 U.S. 618, 639 [14 L.Ed.2d 601, 614, 85 S.Ct. 1731].) The result was a violation of the “basic requirements of procedural fairness.” (391 U.S. at p. 521, fn. 20 [20 L.Ed.2d at p. 784].)
The court based its conclusion on the role played by the jury at a capital sentencing proceeding. One of the most important functions of a sentencing jury, the court stated, is to “maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” (391 U.S. at p. 519, fn. 15 [20 L.Ed.2d at p. 783], quoting Trop v. Dulles (1958) 356 U.S. 86, 101 [2 L.Ed.2d 630, 642, 78 S.Ct. 590].) Thus, “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.” (391 U.S. at p. 519 [20 L.Ed.2d at p. 783], fn. omitted.)
However, the court held that a jury from which all death penalty skeptics3 have been excluded “cannot perform the task demanded of it.” (Ibid. [20 *332L.Ed.2d at p. 519].) Culled of all who harbor doubts about the wisdom of capital punishment and of all who would be reluctant to pronounce the extreme penalty, such a jury “cannot speak for the community” on the question of the appropriateness of a death sentence. (Id., at p. 520 [20 L.Ed.2d at p. 783].) Instead, that jury is “deliberately tipped toward death” when compared to the community as a whole. (See id., at pp. 521-522, fn. 20 [20 L.Ed.2d at pp. 784-785].)
Behind the Supreme Court’s recognition that a jury culled of death penalty skeptics is biased in favor of the state lies an important principle, i.e., the constitutional requirement of jury neutrality. It is worthwhile to examine this concept closely.
The issue to be decided by a sentencing jury in a capital case is whether the defendant should live or die. Clearly, that requires a discretionary judgment by a juror. (391 U.S. at p. 519 [20 L.Ed.2d at p. 783].) And just as clearly, a juror’s preexisting attitudes toward the death penalty—whether in favor or against—are likely to influence his or her resolution of that issue. As the Witherspoon court stated, “a juror’s general views about capital punishment play an inevitable role in any such decision.” (Ibid. [20 L.Ed.2d at p. 783].)
A jury empanelled under the pre-Witherspoon system was drawn from a jury pool containing at least some, if not a majority of, supporters of capital punishment. (See ante, fn. 2 and accompanying text.) Death penalty supporters obviously have preconceived attitudes directly relating to the issue to be decided, and these attitudes tend to favor one of the litigants in the case, i.e., the state. Arguably, therefore, under one possible view of the concept of a neutral jury, these death penalty supporters should be excluded from capital trials in order to render the jury neutral.
However, in holding that the pre-Witherspoon system was biased in favor of the state, the high court did not find fault with the presence of the death penalty supporters in the jury pool. It did not rule that sentencing juries in capital cases must be composed solely of those rare persons who neither favor nor oppose the death penalty. Rather, the court held that a jury pool limited to death penalty supporters and abstainers violated due process because such a pool was underinclusive. What rendered the pre-Witherspoon system illegal was the absence of certain community attitudes concerning *333the death penalty, i.e., the attitudes of those community members who opposed the death penalty but could vote for it in some cases.
The clear import of Witherspoon’s approach to the issue of jury neutrality is that neither death penalty skeptics nor its supporters may be said to be “biased.” “If this had been the [supreme] court’s concern, it would have ordered that such jurors be excluded from future capital cases.” (Hovey v. Superior Court, supra, 28 Cal.3d at p. 19.) Rather, as a careful consideration of the Witherspoon decision demonstrates, the Constitution requires inclusion of the attitudes and viewpoints which death penalty skeptics bring to a sentencing jury in a capital case. Only this reading of Witherspoon explains why their exclusion resulted in a “hanging jury” and a “tribunal organized to return a verdict of death.” (391 U.S. at pp. 521, 523 [20 L.Ed.2d at p. 784-785], See generally, Hovey v. Superior Court, supra, 28 Cal.3d at pp. 19-21.)
Witherspoon remains as valid today as when it was decided. If anything, its premises and analysis have been reaffirmed and reinforced. For example, although Witherspoon was decided at a time when juries had unfettered discretion to choose between life imprisonment and death, it is still applicable to death penalty trials today when the jury’s discretion is constitutionally required to be more circumscribed. (Adams v. Texas (1980) 448 U.S. 38, 45-47 [65 L.Ed.2d 581, 589-591, 100 S.Ct. 2521].) The Adams court recognized that even in the post-Furman4 era, jurors still “unavoidably exercise a range of judgment and discretion” at a capital sentencing proceeding. (Id., at p. 46 [65 L.Ed.2d at p. 590].) “[I]t is apparent,” the Adams court stated, “that a . . . juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the ‘guided jury discretion’ . . . permitted him under [state] law.” (Id., at pp. 46-47 [65 L.Ed.2d at p. 590], citation omitted.)
Other Supreme Court decisions have reinforced another of Witherspoon’s underlying premises, i.e., the notion that a sentencing jury in a capital case must “maintain a link between contemporary community values and the penal system” and “express the conscience of the community on the ultimate question of life or death.” (391 U.S. at p. 519 and fn. 15 [20 L.Ed.2d at p. 783].) Indeed, in upholding capital punishment against the claim that it per se violated community standards of decency under the Eighth Amendment, the court looked to “the actions of juries . . . since Furman. ” (Gregg *334v. Georgia (1976) 428 U.S. 153, 182 [49 L.Ed.2d 859, 880, 96 S.Ct. 2909] (opn. of Stewart, Powell, & Stevens, JJ.).) It explicitly relied on the linkage concept of Witherspoon, explaining that a jury “is a significant and reliable objective index of contemporary values because it is so directly involved.” (Id., at p. 181 [49 L.Ed.2d at p. 879].) Similarly, when it struck down on Eighth Amendment grounds a state law requiring a death sentence upon conviction for certain murders, the court again looked to jury decisions as one of two “crucial indicators of evolving standards of decency respecting the imposition of punishment in our society . . . .” (Woodson v. North Carolina (1976) 428 U.S. 280, 293 [49 L.Ed.2d 944, 954, 96 S.Ct. 2978] (opn. of Stewart, Powell, & Stevens, JJ.).)
Professor Winick has aptly described the continuing significance of Witherspoon’s “conscience of the community” premise: “Capital punishment is constitutional only on the assumption that its continued imposition does not violate the enlightened conscience of the community. For the jury to serve as the conscience of the community, it must decide cases the way the community would, and to do this, it must be fairly representative of the community.” (Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis (1982) 81 Mich.L.Rev. 1, 82 [hereinafter, Winick].)
Thus, in view of Witherspoon, Adams, and the post-Furman death penalty cases, it is clear that (1) an individual on trial for his life is entitled to an unbiased sentencing jury; (2) an unbiased sentencing jury in a capital case is one that is capable of speaking for the community on the question as to whether an individual should live or die; (3) a jury is incapable of performing this role if the state excludes from the jury all who oppose or are skeptical toward the death penalty; and (4) therefore, a jury from which such persons have been excluded is a jury biased in favor of the state.
II.
In the present case, the state has once again “swept from the jury”5 all otherwise qualified jurors who expressed opposition to, doubts about, or hesitancy toward the death penalty.6 The pool of jurors that the state per*335mitted to serve at appellant’s trial is identical to the pool of jurors allowed to serve at Mr. Witherspoon’s trial. If the state’s purge of death penalty skeptics “crossed the line of neutrality” in Witherspoon (ibid [20 L.Ed.2d at p. 784].), it is rather difficult to see why the same result is not reached here.
There is, of course, one distinction between Witherspoon and the present case. In Witherspoon, the state produced a biased jury through its use of challenges for cause; at appellant’s trial, it achieved this result through the use of peremptory challenges. But this distinction is of no logical or legal significance. A jury culled of death penalty skeptics is no less biased nor more capable of speaking for the community when the culling is done by peremptory challenges rather than by challenges for cause. Under either scenario, the actual composition of the jury is the same. The jury is made up exclusively of death penalty supporters and abstainers, but the viewpoints of death penalty skeptics are wholly excluded. Each jury is equally incapable of expressing the conscience of the community as a whole. Each is “deliberately tipped toward death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 522, fn. 20 [20 L.Ed.2d at p. 785].)
Witherspoon itself did not turn on which methods the state had used to systematically exclude death penalty skeptics. The Witherspoon court was concerned with substance, not form, and the fact remains that a jury purged of death penalty skeptics via peremptory challenges is substantively identical to one purged via challenges for cause.
This court recognized this fact more than 15 years ago in In re Anderson (1968) 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]. There, a number of *336venirepersons had been excluded for cause in violation of Witherspoon's standards. The Attorney General argued that this error was harmless, since the prosecutor would have used his remaining peremptory challenges to remove these venirepersons. (Id., at p. 619.) This argument was rejected by the court since the contention was based on “a concept of an impartial jury that is in conflict with the majority opinion in Witherspoon." (Id., at p. 620.) The court explained that “a jury from which all prospective jurors opposed [to] the death penalty have been excluded is not an impartial jury but rather constitutes a ‘hanging jury’ . . . .” (Ibid.)
Not even Swain v. Alabama (1965) 380 U.S. 202 [13 L.Ed.2d 759, 85 S.Ct. 824] would support the prosecutor’s actions in peremptorily excluding all death penalty skeptics.7 In Swain, a black defendant was convicted and sentenced to death by an all-white jury after the prosecution had struck each of the six blacks on the venire by the equivalent of peremptory challenges. (See People v. Wheeler, supra, 22 Cal.3d at p. 283.) On appeal, the defendant claimed that the prosecution’s use of its peremptory challenges violated the federal Constitution’s prohibition of intentional discrimination against blacks. (Swain v. Alabama, supra, 380 U.S. at pp. 203-205 [13 L.Ed.2d at pp. 763-764].) The court rejected this contention, out of an apparent desire to avoid “a radical change in the nature and operation of the [peremptory] challenge.” (Id., at pp. 221-222 [13 L.Ed.2d at p. 773].) Noting the long established purpose and functions of such challenges, the high court reasoned that if it agreed with defendant’s argument, a peremptory challenge “would no longer be peremptory, each and every challenge being open to examination . . . .” (Id., at p. 222 [13 L.Ed.2d at p. 773].)
In Swain, a contention involving federal cross-sectional principles was considered. At that time, these principles grew exclusively out of the equal protection clause but they were subsequently incorporated into the Sixth Amendment. (See Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692]; see also People v. Wheeler, supra, 22 Cal.3d at p. 270, fn. 8 and accompanying text.) While Swain's holding may have survived this relocation to the Sixth Amendment,8 its cross-sectional approach is dis*337tinct from, though related to, the due process analysis of Witherspoon. (See People v. Fields (1983) 35 Cal.3d 329, 342 [197 Cal.Rptr. 803, 673 P.2d 680].) The defendant in Swain did not claim that the jury resulting from the prosecutor’s peremptory challenges was a biased jury, and nothing in the Swain decision authorizes the state to utilize its challenges to obtain a jury that has been demonstrated to be biased. Indeed, the Swain court premised its holding on the salutary purposes of the challenge—to eliminate or reduce the risk of partiality9—and it has never been a purpose of peremptory challenges to entitle a litigant to obtain a jury slanted in his favor.
In summary, the state stacked the deck against the appellant in the present case and obtained a hanging jury. That is strictly forbidden under the principles set forth in Witherspoon. Nothing—not even Swain v. Alabama— permits a court to uphold a death sentence imposed by a jury organized to return a verdict of death.
III.
There is another way in which the prosecutor’s use of peremptory challenges to remove all death penalty skeptics countermands the requirements of Witherspoon. For a sentencing jury to “express the conscience of the community on the ultimate question of life or death” as required by Witherspoon (391 U.S. at p. 519 [20 L.Ed.2d at p. 783], fn. omitted), it must be fairly representative of the community. (See Winick, op. cit. supra, 81 Mich.L.Rev. at p. 82.)
Blacks and women are, of course, members of the community whose conscience is to be expressed. They are also disproportionately likely to be opposed to capital punishment. Thus, to permit the exclusion of all death penalty skeptics by peremptory challenge is to promote the significant underrepresentation of these groups on capital juries.
It is undeniable that the proportion of blacks and women on capital case juries will suffer if all death penalty opponents may be removed by the *338prosecution. In Hovey v. Superior Court, supra, 28 Cal.3d at pages 54-56, this court found that women have consistently opposed the death penalty in greater numbers than men. Over the 25-year period from 1953 to 1978, an average of 11 percent more women than men expressed opposition to the death penalty. {Id,., at p. 54.)
The disparity between whites and blacks exceeds that between men and women. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 56-57.) Over the same 25-year period, an average of 23 percent more whites favored the death penalty than blacks. (Id., at p. 56.) And the gap was increasing over time: by 1978, 73 percent of whites but only 46 percent of blacks favored the death penalty. (Ibid.)
From the evidence presented in Hovey, it is possible to obtain some quantitative indication of the impact of the prosecutor’s use of peremptory challenges to remove all death penalty skeptics. During the years 1953 through 1978, an average of about 44 percent of women and 33 percent of the men opposed the death penalty. Thus, if all death penalty opponents are excluded from a jury pool, women will be excluded proportionally more often than men: 44 percent of all women will be removed, as opposed to only 33 percent of men.10
The situation is worse for blacks. During the 25-year period in question, an average of approximately 57 percent of blacks opposed the death penalty, as compared with 37 percent of whites. As a result, the exclusion of all death penalty opponents would result in the exclusion of more than half of all blacks but only about one-third of whites.
I recognize that some underrepresentation of women and blacks on capital sentencing juries is unavoidable, since the views of women and blacks regarding the death penalty make them more prone to being excluded for cause than men and whites, respectively. (See Hovey v. Superior Court, supra, 28 Cal.3d at pp. 55-56 [women], 57 [blacks].) However, the fact that a certain degree of underrepresentation is inevitable makes it all the more imperative that the proportion of women and blacks not be diluted *339further. This would seem to be a particularly compelling concern in capital cases, where the issue is literally life or death. And it should be an even greater imperative where one of the underrepresented groups is also the group that has traditionally been singled out in disproportionate numbers to receive death sentences.
IV.
There is still another way in which the use of peremptories to excuse death penalty skeptics violates the Constitution. Such a procedure contravenes the Eighth Amendment’s requirement that “any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 357-358 [51 L.Ed.2d 393, 402, 97 S.Ct. 1197].)11 Time and again the Supreme Court has stressed that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” (Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 989, 98 S.Ct. 2954] (plurality opn.); Woodson v. North Carolina, supra, 428 U.S. at p. 305 [49 L.Ed.2d at p. 961] (plurality opn.).)
This “reliability” principle has moved the court to hold, for example, that a sentencer cannot be precluded from considering, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio, supra, 438 U.S. at p. 604 [57 L.Ed.2d at p. 990], fn. & italics omitted.) A statute which precludes such consideration “creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” (Id., at p. 605 [57 L.Ed.2d at p. 990].)
Similarly, the court has held that a statutory prohibition on lesser included homicide instructions in the guilt phase of a capital case violates due process. (Beck v. Alabama, supra, 447 U.S. 625.) Using the “reliability” principle, the Beck court found that the unavailability of such instructions “encourage[d] the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished.” *340(Id., at p. 642 [65 L.Ed.2d at p. 406].) Since that possibility “introduce[d] a level of uncertainty and unreliability into the factfinding process” it could not “be tolerated in a capital case.” (Id., at p. 643 [65 L.Ed.2d at p. 406].)
Obviously, the state’s “heightened interest” in the reliability of capital judgments also plays a major role in assessing the fairness of a state’s jury selection procedures.12 It is no wonder, then, that Witherspoon requires a capital jury that “express[es] the conscience of the community on the ultimate question of life or death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519 [20 L.Ed.2d at p. 783].) When a capital jury fails to maintain “a link between contemporary community values and the penal system,” its determination does not “reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” (Id., at p. 519, fn. 15 [20 L.Ed.2d at p. 783], quoting Trop v. Dulles, supra, 356 U.S. at p. 101 [2 L.Ed.2d at p. 642].) The result is a death sentence predicated less on the evidence and reason, and more on “whim, passion, prejudice or mistake.” (Eddings v. Oklahoma, supra, 455 U.S. at p. 118 [71 L.Ed.2d at p. 13] (conc. opn. of O’Connor, J.); see Swain v. Alabama, supra, 380 U.S. at p. 220 [13 L.Ed.2d at p. 772].)
For this reason, concerns about reliability injury selection procedures are as fundamental to the Eighth Amendment as concerns that the state permit the sentencer access to individualized information about the accused. (See Gillers, op. cit. supra, 129 U.Pa. L.Rev. at p. 86; Winick, op. cit. supra, 81 Mich.L.Rev. at pp. 78-82; see also Haney, Epilogue: Evolving Standards and the Capital Jury (1984) 8 Law & Human Behav. 153, 157.)
Obviously, in order to serve as “a significant and reliable objective index of contemporary values” (Gregg v. Georgia, supra, 428 U.S. at p. 181 [49 L.Ed.2d at p. 879] (plurality opn.)), a capital jury must not be purged of a significant segment of community attitudes. Witherspoon permits but one exception to this rule. It sanctions the removal of jurors who would never vote to impose a death sentence regardless of the evidence in the case before them. This limited exception fully satisfies the state’s interest in removing from the jury those who would nullify a state’s statutory scheme. (Winick, op. cit. supra, 81 Mich.L.Rev. at p. 44.)
To permit further exceptions heightens the probability that a capital jury’s sentence will not enjoy the reliability that recent United States Supreme Court pronouncements find essential. Yet, that is precisely the effect of *341permitting the wholesale removal of death penalty skeptics by peremptory challenge.
In spite of these compelling considerations, a plurality of this court see no problem with the state’s use of peremptory challenges to exclude all death penalty skeptics from a capital case jury. (See lead opn., ante, at pp. 313-315.) With all due respect, I must demur.
V.
By inference, the plurality argue that death penalty skeptics are not a cognizable class and that their exclusion does not violate the representative cross-section requirement.13 Initially, even if this were correct, it is irrelevant. The cognizable class requirement is an element of the representative cross-section mandate of the Sixth Amendment to the federal Constitution, as well as article I, section 16 of the California Constitution. (See Taylor v. Louisiana, supra, 419 U.S. 522; People v. Wheeler, supra, 22 Cal.3d 258.)
As this court has carefully explained,14 Witherspoon was not a “representative cross-section” case. It was based on due process principles, i.e., “basic requirements of procedural fairness.” (391 U.S. at p. 521, fn. 20 [20 L.Ed.2d at p. 784]; see also id., at p. 523 [20 L.Ed.2d at pp. 785-786].)15 These principles prohibit judicial proceedings before a biased tribunal. It is irrelevant whether or not the bias involves cognizable classes.
Both the representative cross-section analysis and Witherspoon’s due process approach attempt ultimately to ensure a neutral jury. (See Hovey v. Superior Court, supra, 28 Cal.3d at p. 20, fn. 45.) However, whereas bias—or risk of bias—must be demonstrated under the due process analysis, it is presumed under the representative cross-section approach. Under a cross-section analysis, the systematic exclusion of cognizable classes—but *342only cognizable classes—is prohibited. However, any systematic exclusionary policy—even one not involving constitutionally cognizable groups—can be struck down under due process principles, if it has been demonstrated to result in a biased tribunal.
Therefore, the fact that an exclusionary practice of the state might not affect a cognizable class means only that the practice does not violate representative cross-section principles. It does not mean that the exclusion necessarily comports with due process.16 Today’s plurality opinion appears to have overlooked this important fact.
Even viewing the issue as cross-sectional, there are serious flaws in the reasoning which would hold such a class not cognizable on the basis that the viewpoints of the death penalty skeptics are too diverse.17 I recognize that in People v. Fields, supra, 35 Cal.3d at pages 342-350, three members of this court held that persons who would never vote for a death sentence, but who could be fair and impartial on the issue of guilt, do not comprise a constitutionally cognizable class for purposes of the guilt phase of a capital trial.18 Even if full credence were given to that argument, the exclusion of death penalty skeptics in the present case cannot be sustained. There is a critical difference between the two cases.
First, death penalty skeptics are likely to be an even larger group than guilt phase indudables. Under cross-sectional principles heretofore articulated by the courts, the greater the size of a group the more it weighs in favor of cognizability, not against it. In discussing the test for what constitutes such a class, the courts have tended to talk about the need to include “ ‘any large and identifiable segment of the community’ ” and any “ ‘substantial and identifiable class of citizens.’” (People v. Wheeler, supra, 22 Cal.3d at p. 269, quoting from Peters v. Kiff( 1972) 407 U.S. 493, 503 [33 L.Ed.2d 83, 94, 92 S.Ct. 2163] (plur. opn.).)
*343More importantly, the “diversity” argument fails to recognize that diversity is not what determines its cognizability or lack thereof. Blacks, women, and Mexican-Americans are highly diverse groups in many respects, yet all are constitutionally cognizable. What makes each of these groups cognizable are not the characteristics, viewpoints, and attitudes which the groups tend to share with the rest of society, but those which distinguish it from the population at large. Each of these groups is cognizable, in large part, because it tends to bring to the jury room certain viewpoints and attitudes which are relevant to the tasks juries are asked to perform and which otherwise would go unrepresented or underrepresented.
The proper focus should be on what the death penalty skeptics would add to the functioning of a capital case jury. Even assuming that death penalty skeptics were identical to all other jurors in all other respects, they nevertheless bring their unique and otherwise unrepresented viewpoints concerning the death penalty. Moreover, unlike the situation in Fields, this is an important addition to the jury, since these viewpoints are directly relevant to an issue which the jury is required to decide.
It may be useful to elaborate. Fields dealt with the exclusion of the guilt phase indudables from the guilt phase of a capital trial. The present case involves the exclusion of the death penalty skeptics from the penalty phase. This is a crucial difference. Fields upheld the exclusion of the guilt phase indudables from the guilt phase because in all matters except their death penalty views, this group was the same as the remaining jurors. Inasmuch as an individual’s views on penalty are technically irrelevant to a jury’s functioning at the guilt phase, the exclusion of persons harboring distinctive views only as to penalty would not alter the guilt phase performance of a jury from which they had been excluded.
The situation is drastically different in the present appeal. The issue in this case, unlike Fields, involves the penalty phase of a capital trial. Unlike Fields, it involves the exclusion of viewpoints that “play an inevitable role” in the decision on the ultimate issue in that phase of the trial, i.e., “whether or not death is ‘the proper penalty’ in [the] case . . . .” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519 [20 L.Ed.2d at p. 783], italics deleted.) In this situation, to exclude all persons with reservations about the death penalty is to thwart the very purpose of the cross-section requirement. “[T]he goal of the cross-section rule is to enhance the likelihood that the jury will be representative of significant community attitudes . . . .” (Rubio v. Superior Court (1979) 24 Cal.3d 93, 98 [154 Cal.Rptr. 734, 593 P.2d 595], italics deleted (lead opn. of Mosk, J.).) Without the death penalty *344skeptics, virtually one-half of all attitudes relevant to the very issue to be decided will go entirely unrepresented.19
Finally, even if one were to accept the conclusion that the death penalty skeptics are not themselves constitutionally cognizable, that would not end the cross-section inquiry. Constitutional cross-section principles forbid not merely those systematic exclusions that are aimed at cognizable classes but also those which “lead to” or “result in” the exclusion of cognizable classes. (See, e.g., People v. Harris (1984) 36 Cal.3d 36, 45, 52, 56-57 [201 Cal.Rptr. 782, 679 P.2d 433].)
It is well established that blacks and women are constitutionally cognizable classes. It is also clear, as I have already pointed out, that the exclusion of all death penalty skeptics will result in the significant underrepresentation of blacks and women on capital sentencing juries. Today’s plurality opinion does not even attempt to address this cross-section problem.
The plurality also sanction the use of peremptory challenges to remove all death penalty skeptics from capital juries on the basis that such persons allegedly have “specific juror attitudes on the death penalty.” (Lead opn., ante, at p. 315.) May I respectfully suggest that this contention has not been carefully thought out.
If all death penalty skeptics have a “specific attitude” which entitles the prosecutor to remove them from death penalty cases, it is difficult to understand why the Supreme Court forbade their exclusion in Witherspoon. Why are they not excludable for cause? Did Witherspoon command that biased jurors be permitted to serve on capital cases?20
The answer should be obvious. The jury which had imposed a death sentence on Mr. Witherspoon was biased because of the absence of the views of the death penalty skeptics. Their inclusion was constitutionally required in order to prevent the jury from being a hanging jury. To permit these same jurors to be excluded once again for alleged “bias” is to restore the *345jury to its former status as a hanging jury. This result clearly violates due process. The reasoning by which that result is reached is flatly inconsistent with Witherspoon’s view of what constitutes a neutral penalty jury, as this court recognized in In re Anderson, supra, 69 Cal.2d at page 620.
The fact is that death penalty skeptics are not biased in a constitutionally recognized way. They, like all other jurors allowed to serve, would impose death in a “proper” case, although they may differ as to what a “proper” case is. But that is the very reason their presence is constitutionally required, i.e., to ensure that a decision to impose death is made by a jury whose views regarding a “proper” case will reflect—as closely as the process of random draw allows—the views of the community at large. (See People v. Wheeler, supra, 22 Cal.3d at p. 277.) This cannot be done if one end of the “proper case” spectrum is swept away at the state’s whim. Instead of serving as a “significant and reliable objective index of contemporary values,”21 death sentences by such juries will reflect a “distorted exaggeration of the community’s willingness to impose the death penalty.”22
This practice has been expressly refuted by the United States Supreme Court. In Adams v. Texas, supra, 448 U.S. 38, the court held that even when death penalty skeptics “frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt,” they may not constitutionally be excluded from the jury. (Id., at p. 50 [65 L.Ed.2d at p. 593].) “Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.” (Ibid. [65 L.Ed.2d at p. 593].) Obviously, this holding is wholly inconsistent with today’s rule permitting such jurors to be excluded for bias.
There is a further problem with the premise that death penalty skeptics may be peremptorily excused for bias. I have no quarrel whatsoever with the proposition that a peremptory challenge may be exercised on the basis of evidentiary subtleties that would be insufficient to sustain a challenge for cause. But that was not the case here. As the transcript of the voir dire makes clear, several of the excluded jurors were death penalty skeptics. (See ante, fn. 6.) Here, the state’s peremptory challenges to those jurors *346were exercised on legal reasoning which could never serve as a basis for a challenge for cause.
This court’s landmark decision in People v. Wheeler, supra, 22 Cal.3d 258, demonstrates the distinction between evidentiary and legal bases for challenges for cause. Wheeler did not alter the rule that an evidentiary showing was unnecessary to sustain a peremptory challenge. It did, however, require that there be some valid legal reasoning underlying the peremptory challenge. As the court specifically noted, while “no reason need be given” for the exercise of a peremptory challenge, “it does not follow therefrom that it is an objection for which no reason need exist..” (Id., at p. 274.) For that reason, there are only certain “kinds of bias upon which the [peremptory] challenge may permissibly be based.”23 (Id., at p. 275.)
If—as Witherspoon holds—the Constitution forbids the state from excusing a class of jurors for cause based on their death penalty views, what suddenly transforms those same views into the “kind[] of bias upon which [a peremptory] challenge may permissibly be based”? The plurality do not begin to address, let alone answer, this question. They appear to assume that any reasoning may serve as the basis for the exercise of a peremptory challenge, even if it is a constitutionally impermissible ground for a challenge for cause. But that assumption has no support in the law. It does not survive even a cursory reading of the Wheeler decision. Wheeler is the only instance where this court has previously addressed such a problem. Significantly, this court refused to permit a peremptory challenge to be exercised on the basis of the “kind of bias” which could never constitutionally serve as a challenge for cause.
I am not suggesting here that no death penalty skeptic may ever be peremptorily challenged. As in the Wheeler context, it may well be that some individual death penalty skeptics may be excused if there is other evidence suggestive of partiality. But that is not what was involved in this case, nor does the plurality opinion so limit the practice.
The plurality’s conclusion that the prosecution may use peremptories to excuse death penalty skeptics is also based on the premise that both the prosecution and defense have “equal [and] limited numbers of peremptory challenges . . . (Lead opn., ante, at p. 315; see Pen. Code, § 1070.24) *347The force of this fact, the plurality presumably reason, is that this “equal opportunity” “cures” any imbalance that results from the state’s use of peremptories to achieve a biased jury. While the plurality’s abstract reading of the Penal Code is correct, their reliance on it in the present context is severely flawed.
In People v. Wheeler, supra, 22 Cal.3d 258, this court forbade prosecutors from using peremptory challenges to remove blacks for group bias. Significantly, the court did not find that the existence of “equal and limited” numbers of such challenges—which would enable the defense to get blacks onto a jury by using its peremptory challenges against whites—remedied the problem.25 What today’s plurality appear to have done is to permit an evisceration of the principles on which Wheeler was based.
One very good reason why the Wheeler court would have been ill advised to accept this line of reasoning is that it will not work in the real world. Whites significantly outnumber blacks in this state. Thus, to have a realistic chance of maintaining the proper proportion of blacks to whites, the defense will have to challenge several whites for each black peremptorily excused by the prosecution. To borrow the words of the Red Queen to Alice, it will “take[] all the running you can do, to keep in the same place.”26 Even at this pace, the effort is doomed to fail. Since the prosecution’s number of peremptory challenges equals that of the defense, the proper proportion of blacks can be maintained only for a limited time.
This reasoning is equally impractical in the present context. A conservative estimate would place the ratio of death penalty supporters to skeptics at four-to-one,27 so that the defense would have to remove four supporters *348to every one death penalty skeptic peremptorily removed by the prosecution. If only 5 death penalty skeptics were thus excused, the defense would have to use 20 of its 26 challenges to keep any balance. And if any more such jurors happen to appear thereafter, the prosecutor would have 21 challenges left with which to remove them. It is of little comfort to the defense that the prosecutor is “limited” to 26 such challenges, since that number is probably more than sufficient to remove all of the death penalty skeptics from a given panel. In short, a minority viewpoint simply cannot be maintained on the premise that both sides have an “equal and limited” number of peremptory challenges.
Not only is this premise impractical in the real world, it is extremely unfair. For while the defense must use up a disproportionate amount of its challenges in an attempt to keep the penalty phase jury unbiased, the prosecution is free to use the majority of its challenges to tailor the jury to its liking as to guilt. The defense, but not the prosecution, is forced to choose between using its peremptory challenges to obtain a fair penalty jury or a fair guilt jury.
There is another way in which this reasoning is unrealistic. It assumes that current death-qualifying voir dire procedures are as likely to reveal the death penalty supporters as death penalty skeptics. I suggest, however, that this is not the case. In fact, a far greater percentage of death penalty skeptics identify themselves at voir dire than do death penalty supporters. Review of the voir dire transcripts of automatic appeals decided by this court confirms the existence of the problem.
Although death penalty supporters vastly outnumber opponents, it is a rare voir dire transcript where more venirepersons acknowledge support for capital punishment than opposition. Consequently, unless we begin to allow venirepersons to be questioned about their general views on capital punishment—an innovation I, for one, would not welcome—the individual on trial will continue to have difficulty identifying those death penalty supporters he should peremptorily challenge in order to maintain a properly balanced penalty jury.
VI.
A jury from which all death penalty skeptics have been excluded is a jury “organized to return a verdict of death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 521 [20 L.Ed.2d at p. 784].) It is a jury that substantially underrepresents blacks and women. And it is, therefore, a jury which has specifically been condemned by the United States Supreme Court for it violates one of the “basic requirements of procedural fairness.” (Id., at *349p. 521, fn. 20 [20 L.Ed.2d at p. 784].) It “cannot speak for the community” and hence “cannot perform the task demanded of it” (id., at pp. 519, 520 [20 L.Ed.2d at p. 783]), and its verdict is less reliable.
The only death penalty opponents who may be excluded from a capital trial on the basis of their views concerning the death penalty are those who can never vote to impose death in any case or who cannot be fair and impartial on guilt. (Id., at pp. 522-523, fn. 21 [20 L.Ed.2d at p. 785].) “[T]o exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible.” (Adams v. Texas, supra, 448 U.S. at p. 49 [65 L.Ed.2d at p. 592].)
The plurality today continue to sanction the wholesale removal of death penalty skeptics on “broader grounds” than those permitted by Witherspoon and Adams. They continue to permit the selection of a jury which is identical in composition to the jury which was condemned in Witherspoon. A hanging jury by any other name is still a hanging jury.
One would think that at least a prima facie due process violation has been established here. The burden should shift to the state to justify its use of a jury “deliberately tipped toward death.” (See Witherspoon v. Illinois, supra, 391 U.S. at pp. 521-522, fn. 20 [20 L.Ed.2d at p. 785].) Not a hint of a legitimate state interest has been offered to justify this trial by a biased jury. Further, it is doubtful any can be conjured up, since Witherspoon itself was “designed to accommodate the State’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths.” (Adams v. Texas, supra, 448 U.S. at p. 44 [65 L.Ed.2d at p. 589].)
What the plurality have done today is to countenance a wholesale subversion of Witherspoon and fundamental principles of due process. Indeed, if a somewhat broader overview of this case is taken, the vista is truly bewildering. Recently, in People v. Fields, supra, 35 Cal.3d 329, a plurality of this court refused to permit certain death penalty opponents to serve at the guilt phase of a capital trial, even though those jurors swore they could be fair and impartial. The Fields plurality based its decision, in large part, on speculation that such jurors might be biased against the prosecution. (Id., at pp. 351-352.) In the present case, the plurality must know for certain— since Witherspoon explicitly so holds—that a jury culled of death penalty skeptics is a biased jury, albeit in favor of the prosecution. Yet, this jury is valid. It is impossible to satisfactorily reconcile the decision in this case with Fields.
The prosecutorial peremptory challenge practices utilized in this case produce juries that do not reflect the conscience of the community. Such juries
*350are also disproportionately white and male. Purged of all persons who express any skepticism or reluctance concerning the death penalty, such juries produce verdicts that are “a distorted exaggeration of the community’s willingness to impose the death penalty.” (Winick, op. cit. supra, 81 Mich.L.Rev. at p. 81.) Like the Supreme Court in Witherspoon, I would forbid a death sentence to be imposed by a hanging jury.
Reynoso, J., concurred.
This was the law in most jurisdictions which authorized capital punishment. (See Meltsner, Cruel and Unusual (1973) p. 118. See also, e.g., People v. Duncan (1960) 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103]; People v. Hoyt (1942) 20 Cal.2d 306, 318 [125 P.2d 29]; cf. People v. Bandhauer (1967) 66 Cal.2d 524, 531 [58 Cal.Rptr. 332, 426 P.2d 900]. See also, e.g., Witherspoon v. Illinois, supra, 391 U.S. at pp. 512-513 and fn. 5 [20 L.Ed.2d at p. 779]; Logan v. United States (1892) 144 U.S. 263, 298 [36 L.Ed. 429, 441, 12 S.Ct. 617].)
In California, and in at least a few other jurisdictions, some death penalty supporters were excused for cause, if they would never consider a sentence short of death. (See Hovey v. Superior Court (1980) 28 Cal.3d 1, 20, fn. 48; p. 21, fn. 49; p. 63; p. 65, fn. 112 [168 Cal.Rptr. 128, 616 P.2d 1301].)
Indeed, since death penalty supporters vastly outnumbered those with no opinion pro or con, a jury empanelled to determine whether to impose a death sentence consisted primarily of death penalty supporters. (See Flanagan et al., Sourcebook of Criminal Justice Statistics— 1981 (U.S. Dept, of Justice, Bur. of Justice Statistics 1982) p. 209, figure 2.12 [hereinafter, Sourcebook].)
I use the term “death penalty skeptics” to refer to those qualified jurors who have reservations about capital punishment but who cannot be excluded for cause under Witherspoon. (See 391 U.S. at pp. 522-523, fn. 21 [20 L.Ed.2d at p. 785].) The term includes, for example, all those persons who have been variously described as opposing capital punish*332ment in principle, harboring doubts or qualms or scruples concerning capital punishment, expressing general objections to capital punishment, hesitating to impose it. In Hov'ey v. Superior Court, supra, 28 Cal.3d 1, this group was called the “oppose death penalty” group.
Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], The Furman decision held that a sentencing jury may not be vested with complete and unguided discretion to impose the death penalty. (See Beck v. Alabama (1980) 447 U.S. 625, 639 [65 L.Ed.2d 392, 404, 100 S.Ct. 2382].) Furman effectively invalidated all existing death penalty laws in the nation.
Witherspoon v. Illinois, supra, 391 U.S. at page 520 [20 L.Ed.2d at page 784].
A sampling of the voir dire indicates that several of the challenged jurors had reservations about the death penalty, although they also emphasized their ability to impose it in an appropriate case.
For example, Judith K. acknowledged that she “would hate to be put in a position to have to decide in favor of capital punishment,” but believed that she could if called upon to do so. Mary K. stated that “in some cases capital punishment should be used and in some it shouldn’t,” but admitted that “it all depend[ed] on how serious the crime [was].” And, Mary H. believed that she would “not always ... in every case vote against the death *335penalty.” She conceded that she was “not so strongly in favor of it,” but indicated that “[e]verything would be considered,” and “[i]t would depend on the situation and the seriousness of the matter."
Finally, Opal S. voiced strong feelings against the death penalty. The following colloquy is representative:
“[Counsel for Codefendant Souza]: Are you morally and philosophically opposed to the imposition of death?
“A. As a punishment, yes.
“Q. Can you envisage any circumstance under which you could vote for such a penalty?
“A. There might be, there might be.
“[Counsel for Appellant]: You have indicated to the Court that with some reluctance you could impose the death penalty should we get to that phase of the trial. You understand that?
“A. Yes.
“Q. Is that your position?
“A. Yes.”
In each juror’s case, the prosecutor exercised a peremptory challenge shortly after these answers were given.
I say “not even Swain,” because the representative cross-section requirement of the California Constitution imposes more limits on the prosecutor’s use of peremptory challenges than are required by Swain’s interpretation of the federal equal protection clause. (See People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].)
As I shall discuss shortly, even under the federal Constitution, Swain does not authorize the prosecutor’s actions in this case, because Swain was based on constitutional principles quite different from those applied in Witherspoon.
See People v. Wheeler, supra, 22 Cal.3d at pages 284-285.
It is arguable that Swain did not survive. The old equal protection analysis, under which Swain was decided, required a showing of “purposeful or deliberate” or “intentional” discrimination against blacks. (380 U.S. at pp. 203-204, 205 [13 L.Ed.2d at pp. 763-764].) *337Arguably, it was this requirement of intent—and the perceived difficulties with inferring discriminatory purpose from a state officer’s actions at a single trial—that led the Swain court to impose strict limits on defense attacks on the prosecution’s use of peremptory challenges. (Id., at pp. 222, 223 [13 L.Ed.2d at pp. 773-774].)
However, a showing of intent to discriminate is no longer required under the cross-section requirement. (See Duren v. Missouri (1979) 439 U.S. 357, 368, fn. 26 [58 L.Ed.2d 579, 589, 99 S.Ct. 664].) It is, therefore, quite possible that Swain is no longer viable in light of the more recent Sixth Amendment cases. (See McCray v. New York (1983) 461 U.S. 961, [77 L.Ed.2d 1322, 103 S.Ct. 2438, 2439] [memo. opn. of Stevens, J. on den. cert.], 461 U.S. 961, [77 L.Ed.2d 1322, 103 S.Ct. 2438, 2439] [dis. opn. of Marshall, J. on den. cert.]; see also Gilliard v. Mississippi (1983) 464 U.S. 867, 868 [78 L.Ed.2d 179, 104 S.Ct. 40, 40] [dis. opn. of Marshall, J. on den. cert.].)
380 U.S. at pages 220-221 [13 L.Ed.2d at pages 772-773],
These figures were derived from charts in Hovey which, in turn, were based on the results of nationwide polls. The data displayed in the charts does not include the responses of those persons who stated they did not know whether they favored the death penalty. (See 28 Cal.3d at pp. 55, 56.) If it is conservatively assumed that prosecutors would not peremptorily challenge any of such persons, the figures I have set forth would overstate somewhat the percentages of persons removed from the jury due to their death penalty views. The disparity is not likely to be substantial, however. (See ante, fn. 2.)
My figures differ slightly from those reported by the petitioner in Hovey, since I have calculated averages using figures for each of the 25 years, not merely those years in which a poll was taken.
Justice O’Connor recently explained the Supreme Court’s concern in this area by noting that the court “has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 118 [71 L.Ed.2d 1, 13, 102 S.Ct. 869] (conc. opn. of O’Connor, J.).)
As Professor Gillers observes, reliability “is a function not only of the information provided the sentencer but of the identity of the sentencer as well . . . (Gillers, Deciding Who Dies (1980) 129 U.Pa. L.Rev. 1, 86 [hereafter Gillers].)
The plurality fail to explicitly advance this argument. However, it is implicit in their discussion of People v. Wheeler, supra, 22 Cal.3d 258, which they view as having “merely condemned the use of peremptory challenges to indulge so-called ‘group bias’—the presumption that persons are biased ‘because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds . . . .’” (Lead opn., ante, at p. 315, quoting People v. Wheeler, supra, 22 Cal.3d at p. 276, italics theirs.) Presumably, this passage is strong evidence that the plurality agree with the premise that death penalty skeptics do not constitute a “group”—or constitutionally cognizable class—to which the Wheeler holding would apply.
Hovey v. Superior Court, supra, 28 Cal.3d at pages 10-11, footnote 17, pages 17-18, footnote 38, page 20, footnote 45.
I believe that these same principles are embodied in the due process clause of the California Constitution, in addition to and independent of the federal Constitution.
An example may further illustrate this point. Suppose a prosecutor in a small county or judicial district were able to use his peremptory challenges to exclude from the jury pool all persons who were unrelated to or unacquainted with a crime victim. As a result, the jury panel would consist of relatives and friends of the victim. The excluded group obviously is not a “cognizable class,” so no cross-section violation has occurred. But just as obviously, the jury would be unconstitutional under due process principles because it is not neutral. This is precisely the kind of jury that was produced here—a jury that the Supreme Court has already determined to be biased.
The Attorney General has advanced such an argument in this case.
The Fields plurality argued that this group—the “guilt phase indudables”—was “united only by their determination to vote automatically against the death penalty” and have “diverse views on all other matters.” (Id., at p. 349.) The guilt phase indudables harbor stronger and more uncompromising views against capital punishment than do death penalty skeptics. (See People v. Fields, id., at pp. 348-349, fn. 5.)
Of course, the state may choose to exclude from a sentencing jury those venirepersons who make unmistakably clear that they would never vote to impose death. (See Witherspoon v. Illinois, supra, 391 U.S. at pp. 522-523, fn. 21 [20 L.Ed.2d at p. 785].) The state has a significant interest in ensuring that a sentencing jury is capable of making a decision based on the evidence. (See Hovey v. Superior Court, supra, 28 Cal.3d at p. 21, fn. 51.) No such interests are implicated in the present case. (See Adams v. Texas, supra, 448 U.S. at p. 44 [65 L.Ed.2d at p. 589].)
The plurality attempt to downplay this unconstitutional result by characterizing death penalty skeptics’ views as “leanings,” “strong opinions,” and “attitudes.” (Lead opn., ante, at p. 315.) Such terms cannot mask the fact that it is precisely because of these jurors’ biases on the death penalty that the prosecutor exercised her peremptory challenges.
Gregg v. Georgia, supra, 428 U.S. at page 181 [49 L.Ed.2d at page 879],
Winick, op. cit. supra, 81 Mich.L.Rev. at page 81.
Even Swain v. Alabama, supra, 380 U.S. at page 223 [13 L.Ed.2d at page 774], indicated that the permissible grounds for the exercise of peremptory challenges were limited to “acceptable considerations related to the case.”
Penal Code section 1070, subdivision (a) provides in part that where the offense carries a maximum penalty of life imprisonment or death, “the defendant is entitled to 26 and the state to 26 peremptory challenges.”
I also question whether the premise of this argument is good policy. Do the plurality truly desire to encourage a litigant—here, the defense—to exercise peremptory challenges for no reason other than to make up for the opposing party’s use of peremptory challenges? Yet, that is the implication of the plurality opinion.
Carroll, Through the Looking-Glass (1872) chapter II.
If the result of the most recent statewide vote concerning the death penalty is any indication, supporters of the death penalty outnumber opponents by about three-to-one. (Cal. Sec. of State, Statement of Vote - Nov. 7, 1978, Gen. Election, p. 39.) This figure is in rough agreement with the most recent national statistics. (Sourcebook, op. cit. supra, at p. 212, Table 2.37.)
Not all opponents of the death penalty would survive a challenge for cause. According to Professor Winick, public opinion polls show that between one-half and two-thirds of death penalty opponents would be excludable for cause. (Winick, op. cit. supra, 81 Mich.L.Rev. at p. 76, fn. 302.) This means that no more than one-half of the death penalty opponents would be classified as death penalty skeptics. These figures would place the ratio of death penalty supporters to skeptics at between six-to-one and nine-to-one.
Of course, some death penalty supporters will be removable for cause as well, but that number will be small. (See Adams v. Texas, supra, 448 U.S. at p. 49 [65 L.Ed.2d at p. 592].) It most certainly will not approach the percentage of death penalty opponents who are excludable for cause.
Thus, I conservatively estimate there are four qualified death penalty supporters for every death penalty skeptic.