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. [Footnote 1]"Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order Page 391 U. S. 513 to exclude those jurors who, in the words of the State's highest court, "might hesitate to return a verdict inflicting [death]." [Footnote 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, [Footnote 3] and we granted certiorari [Footnote 4] to decide whether the Constitution permits a State to execute a man pursuant to the verdict of a jury so composed.IThe 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. [Footnote 5]  Nor does it involve the State's assertion of a Page 391 U. S. 514 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. [Footnote 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. [Footnote 7]  Thirty-nine Page 391 U. S. 515 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." [Footnote 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." [Footnote 9] Page 391 U. S. 516IIThe petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt.  He maintains that such a jury, unlike one chosen at random from a cross-section 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 version Page 391 U. S. 517 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." [Footnote 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. [Footnote 11]  We simply cannot Page 391 U. S. 518 conclude, 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.IIIIt 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. [Footnote 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,  315 U. S. 84-86; Irvin v. Dowd, 366 U. S. 717,  366 U. S. 722-723; Turner v. Louisiana, 379 U. S. 466,  379 U. S. 471-473.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 Page 391 U. S. 519 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, [Footnote 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," [Footnote 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. [Footnote 15]  Yet, in a Page 391 U. S. 520 nation less than half of whose people believe in the death penalty, [Footnote 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. [Footnote 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. [Footnote 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 Page 391 U. S. 521 jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die. [Footnote 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. New York, 332 U. S. 261,  332 U. S. 294.  See Tumey v. Ohio, 273 U. S. 510.  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 of death. [Footnote 20]  Specifically, Page 391 U. S. 522 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. [Footnote 21]  No defendant can constitutionally be Page 391 U. S. 523 put to death at the hands of a tribunal so selected. [Footnote 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.Reversed
U.S. Supreme CourtWitherspoon v. Illinois, 391 U.S. 510 (1968)Witherspoon v. IllinoisNo. 1015Argued April 24, 1968Decided June 3, 1968391 U.S. 510SyllabusPetitioner was adjudged guilty of murder and the jury fixed his penalty at death.  An Illinois statute provided for challenges for cause in murder trials "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."  At petitioner's trial, the prosecution, under that statute, eliminated nearly half the venire of prospective jurors by challenging all who expressed qualms about the death penalty.  Most of the veniremen thus challenged for cause were excluded with no effort to find out whether their scruples would invariably compel them to vote against capital punishment.  The Illinois Supreme Court denied post-conviction relief.Held:1. Neither on the basis of the record in this case nor as a matter of judicial notice of presently available information can it be concluded 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.  Pp.  391 U. S. 516-518.2. Although it has not been shown that this jury was biased with respect to guilt, it is self-evident that, in its distinct role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which a defendant is entitled under the Sixth and Fourteenth Amendments.  P.  391 U. S. 518.3. A man who opposes the death penalty, no less than one who favors it, can make the discretionary choice of punishment entrusted to him by the State, and can thus obey the oath he takes as a juror; but in a nation where so many have come to oppose capital punishment, a jury from which all such people have been excluded cannot perform the task demanded of it -- that of expressing the conscience of the community on the ultimate question of life or death.  P.  391 U. S. 519.4. Just as a State may not entrust the determination of whether a man is innocent or guilty to a tribunal organized to convict, so it may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death, and no sentence of death can be carried out, regardless of when Page 391 U. S. 511 it was imposed, if the voir dire testimony indicates that the jury that imposed or recommended that sentence was chosen by excluding veniremen for cause simply because they voiced general objections to capital punishment or expressed conscientious or religious scruples against its infliction.  Pp.  391 U. S. 521-523.36 Ill. 2d 471, 224 N.E.2d 259, reversed. Page 391 U. S. 512