Onehundredandthirtyyearsafterthe
reconstruction Congress outlawed it,
racial discrimination in jury selection
is unfortunately alive and well in
certainpartsofthecountry,according
to a recent report by the Equal
Justice Initiative (EJI), a nonprofit law
organizationinMontgomery,Alabama.
Thereportstudiesracialdiscrimination
injuryselection,particularlysince1986,
whentheU.S.SupremeCourtissuedits
landmarkdecision,Batsonv.Kentucky,
prohibiting the use of racially based
peremptory strikes.
© istockphoto
Published in Litigation News, Volume 36, Number 1, Fall 2010. © 2010 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Jessie K. Liu, Washington, DC, a
subcommittee cochair of the Section
of Litigation’s Criminal Litigation
Committee and a former assistant U.S.
attorney, agrees. “My fellow prosecutors
and I were extremely conscientious about
ensuring that peremptory strikes were
exercised in a race-neutral manner.”
Batson Not Doing Its Job?
Brimming with anecdotal evidence and empirical findings, the report suggests that the
process for combating prosecutorial use of discriminatory peremptory jury strikes set
forth in Batson is not sufficient to combat a problem the report deems “widespread.”
The report also cautions that, without more stringent procedures for filtering out racism
in jury selection, minorities will continue to be significantly underrepresented.
In Batson, the U.S. Supreme Court held that, where circumstances appear to reflect
the discriminatory use of peremptory strikes, the striking prosecutor must offer a legitimate, nondiscriminatory basis for his or her decision. If the trial court concludes that
the decision to strike was motivated by a discriminatory intent, the excluded juror is
returned to the jury venire.
Although Batson has been law for more than 20 years, the EJI report views the decision as a paper tiger, pointing to the relatively small number of convictions reversed on
the basis of racially tainted jury selection.
Trial judges also have considerable discretion under Batson to determine whether
the circumstances underlying the prosecutor’s use of peremptory challenges creates a
prima facie case of discrimination.
According to the report, attorneys’ skill in enunciating race-neutral reasons for their
strikes, and judges’ hesitancy to call prosecutors liars, allows discrimination to survive,
especially in the southern states, where the EJI focused its study. Contributing to the
problem may be the failure of defense attorneys to object properly to prosecutors’
racially biased use of peremptory strikes.
The report notes that courts often accept attorneys’ benign proffers, even when they
correlate strongly with racial stereotypes. For example, courts in the South have allowed
prosecutors to strike prospective jurors because they live in high-crime areas, are unemployed, receive food stamps, and even because they “looked like a drug dealer,” or
because the prosecutor had a “hunch” a particular African American would be unfavorable to the state.
The demographic results can be shocking. In death penalty cases from 2005 to 2009
in one Alabama county, prosecutors used peremptory strikes to remove 80 percent of
the qualified African Americans in the jury venires, according to the report. As a consequence, in a county that is 27 percent African American, half of these capital juries were
all-white, and the remainder had only a single African American member.
Process, Not Results
Liu points out that Batson is concerned
only with the fairness of the jury selection process, and not with the ultimate
makeup of the jury. “It is entirely possible
that a fair and proper jury selection process could result in a non-diverse, but
legitimate, jury,” Liu notes.
The EJI report acknowledges this, but
bemoans the toll it takes on the reliability
of verdicts and the integrity of the judicial
system: “[r]esearch suggests that, compared to diverse juries, all-white juries
tend to spend less time deliberating,
make more errors, and consider fewer
perspectives.”
Stephen B. Bright, Atlanta, president
and senior counsel for the Southern
Center for Human Rights, recalls the tale
of a friend who served on a jury a few
decades ago and found himself deeply
suspicious of a defendant who “just happened” to have a knife on him when the
incident in question occurred. His fellow
jurors, however, were from different walks
of life, and when he shared his suspicions
with them, several reached down into
their socks to show him their own knives.
Without that jury’s diverse perspectives—
in this admittedly pre-9/11 anecdote—
Bright’s friend never would have learned
that, in some communities, “just happening” to have a knife on you is not unusual.
Rogue Actors or a Continuing Problem?
Josh Marquis, Astoria, OR, a member of the ABA’s Criminal Justice Section’s Leadership
Council and district attorney of Clapsop County, OR, takes issue with the suggestion
that discriminatory jury selection by prosecutors is common. Marquis agrees that the
“systemic discrimination in choosing juries that existed in the South was absolutely
wrong,” but he calls prosecutors who behave that way today “rogue actors.” “Almost
all prosecutors comply with the law and make jury selections based on legitimate
grounds,” he says.
Batson by the Numbers
Since 1986, the high courts of seven southern states have ordered new trials or have thrown out the convictions of criminal defendants
based on Batson. The eighth state, Tennessee, has not had a successful Batson challenge.
Alabama
Arkansas
80
10
33
Florida
South
Carolina
Louisiana
8
12
Georgia
10
2
Mississippi
Source: Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Aug. 2010).
Published in Litigation News, Volume 36, Number 1, Fall 2010. © 2010 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Time Line America’s Efforts to Combat Racial
1860
The Supreme Court decides Strauder v. West
Virginia, 100 U.S. 303 (1880), overturning a
state law limiting jury service in state criminal
trials to whites.
The Supreme Court decides Norris v. Alabama,
294 U.S. 587 (1935), reversing a conviction on
grounds of wholesale exclusion of African
Americans from jury service.
1991
1991
1986
1975
1965
1880
Congress passes the Civil Rights Act (18 U.S.C.
§ 243) outlawing racial discrimination in jury
service.
1935
The first African American juror serves on a
criminal case in Massachusetts.
1875
Discrimination in Jury Selection
A jury of one’s peers is an essential democratic
guarantee, and the Constitution requires
that the jury pool be representative of the
community. A number of courts in the southern
United States continue to struggle with racially
based jury selection. The lack of racial diversity
among juries could seriously compromise the
reliability and integrity of the criminal justice
system if jury selection procedures permit
racially based use of peremptory strikes.
From Reconstruction to Batson, the following
significant events have occurred:
The Supreme Court decides Swain v.
Alabama, 380 U.S. 202 (1965), recognizing that
the deliberate exclusion of African Americans
as jurors violated the Equal Protection Clause,
but further holding that a criminal defendant
had the burden to prove a systematic and
consistent striking of African American jurors
through the use of peremptory challenges
from petit jury venires.
The Supreme Court decides Taylor v. Louisiana,
419 U.S. 522 (1975), striking down a state law
that systematically precluded women from
serving as jurors.
The Supreme Court decides Batson v.
Kentucky, 476 U.S. 79 (1986), finding that the
Fourteenth Amendment’s Equal Protection
Clause prohibits race-based peremptory
strikes by prosecutors and overruling Swain.
However, the Supreme Court declines to
apply the decision retroactively to review the
convictions of defendants tried prior to the
decision. See, e.g., Allen v. Hardy, 478 U.S. 255
(1986) (Supreme Court refuses to apply Batson
to capital defendants whose appeals were
completed prior to issuance of the decision).
The Supreme Court decides Hernandez v.
New York, 500 U.S. 352 (1991), prohibiting the
use of peremptory strikes for the removal
of jurors based on ethnicity but upholding
a prosecutor’s challenges to two Spanishspeaking Hispanic jurors based on his doubts
that the jurors would defer to the official
translation of Spanish language testimony at
the trial.
The Supreme Court decides Edmonson v.
Leesville Concrete Co., 500 U.S. 614 (1991),
extending the holding in Batson and ruling
that peremptory challenges may not be used
to exclude jurors on the basis of race in civil
trials.
The EJI report also notes that “[c]ommunities of color across the country have rejected
and continue to reject criminal verdicts handed down by all- or predominantly-white juries.”
According to the report, “[s]ocial science research [shows that as] a general matter, people are
willing to accept the legitimacy of an authority and defer to the decisions made by that authority when they perceive the decision-making process as fair.”
“Conversely,” the report warns, “decisions seen as the result of an unfair—biased, dishonest, or inconsistent—process are more likely to be rejected.” The report then canvasses many
of the riots that have erupted recently after racially charged trials.
The Death of Peremptory Strikes?
So, is there a solution to the problem of discriminatory peremptory strikes? “The only real
answer,” says Bright, “is to do away with peremptory strikes entirely.” Interestingly, Liu agrees
that getting rid of peremptory strikes, at least in federal prosecutions, is not necessarily a bad
idea. “They may simply be more trouble than they’re worth,” she says.
Bright recognizes, however, that litigators are not likely to support a change that would
leave judges with the sole power to shape juries—especially elected judges—“so the next
best thing,” he says, “would be to greatly reduce the number of peremptory strikes.”
Indeed, such limitations might become reality in at least one state deeply concerned about
the discriminatory use of such challenges. In a 2007 decision, the Mississippi Supreme Court
found that a defendant’s capital murder trial was “riddled” with racial bias and voided his conviction after the prosecutor used all of his peremptory strikes to remove 15 African Americans
from the jury. In its opinion, the court warned prosecutors that their persistence in “racially
profiling jurors” could lead the court to abolish the current jury selection system.
Recommendations
In the meantime, the EJI report offers a series of recommendations for addressing the problem. These include stricter enforcement of Batson, retroactive application of Batson to pre1986 convictions, and waiving procedural bars to raising Batson challenges on appeal. For
example, the report highlights the fact that no criminal defendant has successfully raised a
Batson challenge in Tennessee and that no successful Batson challenge has occurred in South
Carolina since 1992.
The report also recommends that prosecutors be disqualified from any retrials if they are
found to have engaged in racially biased jury selection. And repeat offenders should be fined,
suspended, and subject to other penalties.
Marquis does not oppose this recommendation but says it should be applied equally
to criminal defense attorneys who employ their peremptory strikes for race-based reasons.
“Batson applies equally to defense attorneys, so you can’t just go after one side of the
equation.”
The report encourages community groups to monitor jury selections in their local courts
and question their district attorneys about jury selection policies and practices. In addition,
the judiciary, district attorneys’ offices, and court administrators are prodded to diversify their
ranks.
On this last point, Marquis says progress is being made. He travels often around the country, speaking to legal groups and has been pleasantly surprised with the growing diversity of
district attorneys’ offices, even in the South. “We’ve come a long way in the last few decades,”
says Marquis.
RESOURCES
Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Aug. 2010),
http://s3.amazonaws.com/nytdocs/docs/368/368.pdf.
Batson v. Kentucky, 476 U.S. 79 (1986).
Flowers v. State, 947 So. 2d 910 (Miss. 2007).
Published in Litigation News, Volume 36, Number 1, Fall 2010. © 2010 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.