In voir dire, both the prosecutor and the defense lawyer will ask various questions to the panel of potential jurors about their thoughts on punishment, if the defendant has elected to seek jury rather than judge punishment. Obviously, this can be tricky proposition for the defense, because you need to know their feelings on the subject, without making it seem like you are expecting a guilty verdict in the first place.
Not surprisingly, the defense often focuses on the potential juror’s ability to sentence his client on the low end of the punishment range. Prosecutors do their best to weed these people out.
The law now requires that a juror be able to consider the full range of punishment for any particular offense they sit in judgment on. Not that they promise to give the low end of the punishment range, simply that they could consider it an appropriate case.
According to Texas Code of Criminal Procedure Section 35.16, both the State and the Defense are allowed “challenges for cause” when a potential juror shows a bias or prejudice against any phase of the law upon which the [State or Defense] is entitled to rely for conviction or punishment”.
This means, for example, if a potential juror says he could never convict anyone of Possession of Marijuana, because he thinks the law is silly/stupid/immoral/whatever, the State is automatically allowed to boot that sane, forward thinking person off the jury. “Shows a bias against the law, your honor.” “Strike granted.”
(d) The state or the defense may not make a challenge for cause against a juror solely because the juror indicates that, if the defendant is found guilty, the juror will be unable or unwilling to consider recommending to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision under Article 42.12.
Plain language translation? The defense lawyer would no longer be able to disqualify someone from the jury, “solely” for the reason that they said, “Yes, I could convict the defendant – but even though he was eligible for probation under the law, I could never give it to him.” (The amendment pretends to be fair by not allowing the State to disqualify someone for the same reason – however, it should be patently obvious that this rule would always benefit the State, and never the defense.)
As usual, Scott hits the nail on the head with some plain common sense (i.e., non-lawyer, non-legislator) thinking:
That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end.
If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander.