February 12, 2015

Private: Racial Discrimination in Jury Selection

Racial Inequalities in the Criminal Justice System symposium

by Jennifer Taylor, Staff Attorney, Equal Justice Initiative

*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.

During jury selection, counsel for both prosecution and defense may use an unlimited amount of “strikes for cause” against potential jurors who are demonstrably unfit for service because they don’t meet minimum legal criteria or because they are biased.  Next, counsel whittle the remaining prospective jurors down to a final jury using a set allowance of peremptory strikes.  Unlike strikes for cause, which must be justified to a judge, peremptory strikes do not have to be explained.

In 1965, the Supreme Court considered Swain v. Alabama, in which the prosecutor had used peremptory strikes to exclude all six black members of the jury pool, resulting in an all-white jury that ultimately sentenced the black defendant to death.  The Supreme Court’s decision upholding the conviction and sentence held that the defense had not sufficiently proven intentional discrimination and created an insurmountable standard of proof.  Over the next 20 years, no defendant ever prevailed on a Swain claim, and all-white juries remained a standard feature of many American courtrooms.

The Court’s 1986 decision in Batson v. Kentucky lowered that standard of proof by creating a two-step system for evaluating claims of racially discriminatory striking.  After Batson, counsel for either side could still exercise their peremptory strikes without explanation, but if a lawyer’s strikes were challenged and the trial court found a prima facie case of discrimination, that lawyer would have to explain the reasons for the strike.  The trial court would then have final discretion to decide whether those reasons were sufficiently race neutral or if a new jury needed to be empaneled.

Still law today, Batson has resulted in new trials for many individual defendants but has come nowhere near eradicating racial discrimination in jury selection.  In 2010, a report by the Alabama-based Equal Justice Initiative (EJI) found that racially biased use of peremptory strikes continues to result in the dramatic underrepresentation of people of color on juries, especially in capital and serious felony cases, and especially in the South.  In the 21st Century, data indicates that prosecutors in Jefferson Parish, Louisiana, have used peremptory strikes to exclude black prospective jurors at three times the rate of white prospective jurors; and in Houston County, Alabama, prosecutors have used peremptory strikes to exclude 80% of African Americans otherwise qualified for jury service. 

Racial discrimination in jury selection persists largely due to three factors: 

(1)  Prosecutors have learned not to express racial motivations for their strikes even where they exist, and trial and reviewing courts remain all too willing to accept pretextual explanations.  As documented in EJI’s report, prosecutors’ claims that they used peremptory strikes against black citizens because they were of low intelligence, wore tinted glasses, chewed gum, were separated from a spouse, or “looked hostile” are routinely accepted by trial courts and sometimes also on appeal.

(2)  Prosecutors face little disincentive to continue this discrimination.  Even when courts find Batson violations and overturn convictions, the implicated prosecutors are not held accountable for committing illegal discrimination in the courts or by the state bar and instead occupy the politically rewarding public position of retrying a high-profile case.

(3)  Though racial discrimination harms the illegally excluded citizen as well as the defendant, individuals barred from juries due to their race face obstacles in pursuing remedial action to prevent further discrimination.  When a group of black plaintiffs illegally excluded from jury selection in Alabama’s Houston and Henry counties filed suit in 2011 against the local prosecutor’s office, their claim seeking injunction and declaratory relief was dismissed on the dubious grounds that, even in the face of unconstitutional racial discrimination, the nation’s federal courts lack the authority to interfere in state criminal proceedings.

The long history of racial discrimination in jury selection remains an obstacle on the path toward full realization of the Constitution’s ideals and protections.

Equality and Liberty, Racial Justice