*This post is part of our two-week symposium on racial inequalities in the criminal justice system.
This country’s commitment to the jury system, enshrined in founding documents like the Declaration of Independence and Bill of Rights, is rooted in the ideal that the people should play a central role in the enforcement of societal standards. In reality, however, racial discrimination in the selection of juries is a longstanding and enduring feature of American criminal justice.
Prior to the Civil War, laws and customs rooted in white supremacy largely restricted jury service to white men. During the Reconstruction era that followed the war and the abolition of slavery, the 14th Amendment declared all natural-born Americans – including African Americans – citizens with all associated rights and privileges. The Civil Rights Act of 1875 included a provision outlawing race-based discrimination in jury service. And in 1880, the U.S. Supreme Court in Strauder v. West Virginia struck down a statute restricting jury service to whites. This progress was short lived.
Southern lawmakers soon stopped passing explicitly discriminatory jury service laws but continued empaneling all-white juries during the late 19th and early 20th Centuries using highly discretionary practices controlled by white officials. In an era of racial terror –characterized by widespread lynching of African Americans – discrimination in jury selection allowed all-white juries to remain a standard feature even in largely black counties, empowered lynchers to exact brutal racial violence with impunity and no fear of prosecution or conviction, and rendered the Constitution’s promise of full citizenship a hollow guarantee.
Judicial intervention was slow and inconsistent. In 1935, the Supreme Court overturned the death sentences of the Scottsboro Boys in Norris v. Alabama because black people had been excluded from serving on the trial jury, but then in 1945 the Court upheld a Texas county’s token policy of including exactly one black person on each grand jury. By the 1960s and 1970s, the Court adopted and consistently enforced a rule that jury lists and venires must represent a “fair cross-section” of the community. In response, the method of discrimination soon shifted from the composition of the jury pool to the selection of the final jury.