The racism permeating the U.S. justice system is blatantly obvious in jury selection. On Aug. 17, Reprieve Australia, an anti-capital-punishment advocacy group, released a study showing that prosecutors in Caddo Parish, Louisiana, excluded black people from juries three times as often as white people over 10 years. A similar study in 2010 by Alabama-based nonprofit Equal Justice Initiative, conducted in eight Southern states, found significant racially discriminatory practices in jury selection.
The U.S. Supreme Court will hear a case this fall, Foster v. Humphrey, regarding a prosecutor’s use of challenges to eliminate black jurors. Such tactics result in fewer acquittals as well as deny a basic right and duty of citizenship. While court decisions are important, they are not enough. Community-based actions such as public campaigns and protests are needed to demand the enforcement of existing legal prohibitions of discrimination against black jurors.
Jury selection in U.S. courts is complicated. In a criminal trial, the prosecution and the defense may challenge prospective jurors. Challenges come in two forms: for cause and peremptory. A for-cause challenge means there is reason to believe the juror would not be impartial. Some for-cause challenges are obvious — for example, a prospective juror who is the cousin of a witness or lives next door to the defendant or a juror who says that she always believes police officers or thinks that the police always lie might be challenged for cause. If one side challenges a juror for cause and the other side objects, the judge decides whether the challenge stands.
The prosecutor or defense may also reject prospective jurors by using peremptory challenges, which don’t require stating any cause. The number each side is allowed varies, depending on the court and the case. In federal courts, each side is given 20 peremptory challenges in death penalty cases and only three in misdemeanor cases in which the maximum penalty is less than one year in jail.
Peremptory challenges may not be based on race. In 1880 the Supreme Court held that barring black people from juries violates the Constitution. More than 100 years later, the court ruled in Batson v. Kentucky that prosecutors are not allowed to use race-based peremptory challenges, holding that this practice violates the rights of both defendants and prospective jurors.
But how to prove someone excluded potential jurors because of race? In his concurring opinion on the Batson case, Justice Thurgood Marshall wrote, “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons.” That is exactly what has happened.
In 2010, Bryan Stevenson, the director of the Equal Justice Initiative, listed reasons given by prosecutors to justify peremptory challenges using nonracial characteristics, including being too old (43) or too young (28), wearing eyeglasses, chewing gum and “having relatives who attended historically black colleges.” In a North Carolina case (PDF) in which the court found discriminatory jury selection, the court’s opinion included details of a cheat sheet for prosecutors with acceptable excuses to use for race-based challenges.
In many jurisdictions, jury pools (which are based on voter registration rolls) are disproportionately white compared with the population. The use of peremptory challenges makes juries even whiter than the pools. In the Caddo Parish study, Reprieve looked at 300 criminal trials and found that prosecutors challenged 46 percent of black prospective jurors and only 15 percent of nonblack prospective jurors.
The overwhelming majority of defendants in Caddo Parish were black. In Louisiana unanimous verdicts are not required for conviction, with a minimum of 10 jurors needed to vote guilty. In juries with at least 10 nonblack people, every defendant was convicted. In cases with three or more black jurors, the acquittal rate was 12 percent. In juries with five or more black jurors, the acquittal rate was 19 percent.
A 2011 class action lawsuit by prospective black jurors in Alabama’s Houston and Henry counties, where 24 percent of the population is black, challenges the disproportionately white jury pools and juries. Citing examples of death penalty cases tried in the counties from 2006 to 2010, the suit argues that prosecutors used challenges to remove 82 percent of eligible black jurors in those cases, resulting in all-white juries or juries with a single black member.
Foster v. Humphrey concerns the trial of Timothy Foster, a black man accused of murdering a 79-year-old woman in Georgia, for which the prosecutor’s jury selection notes include racial identification of black prospective jurors and a ranking of black jurors, if “it comes down to having to pick one of the black jurors.” The prosecutor succeeded in excluding all the black potential jurors, and an all-white jury convicted Foster and sentenced him to death. The Supreme Court will rule on Foster’s appeal (PDF), on the basis of exclusion of black jurors, in the coming term.
But what could that ruling do?
As in Batson, the justices could condemn racial discrimination in jury selection and reverse the death penalty in this case. But they can’t sit in every courtroom, supervising every prosecutor’s jury selection. Almost 30 years after the Batson ruling, racial bias is still the norm.
Legal solutions have been suggested — such as giving greater authority over juror questioning to judges or to prosecutors and defense attorneys and limiting or eliminating peremptory challenges; those solutions raise additional problems and are unlikely to work.
Community-based action is essential to hold prosecutors accountable. “I don’t believe you change hearts,” Democratic presidential candidate Hillary Clinton told leaders of the Black Lives Matter movement during a recent exchange. “I believe you change laws, you change allocation of resources, you change the way systems operate.” But activists have questioned the effectiveness of legal solutions alone to combat racial injustice and insist on public acknowledgement of anti-black prejudices and practices in U.S. government and society.
Raising awareness about racial bias by police, in jury selection and in other institutions of government is key to changing standards and public opinion on racism. Court monitoring and studies similar to the Caddo Parish report are crucial to eliminating prejudiced practices and attitudes. However, as in Ferguson, Missouri, the ultimate solution includes holding public officials accountable, removing those who engage in discriminatory practices and electing judges and prosecutors who will not tolerate racially biased jury selection.