Private: The New York Times Is Right on Jury Selection

by Jennifer Taylor, staff attorney, Equal Justice Initiative

Racial discrimination in jury selection is a feature of American criminal justice with a deep-rooted history and persistent life span. Last week, The New York Times explored the practice’s contemporary legacies and the law’s apparent inability to eradicate it once and for all.

Before ratification of the Reconstruction Amendments that followed the end of the Civil War in 1865, black Americans were not legally considered American citizens and were routinely barred from serving on juries or testifying in court in many communities throughout the country – including in the South where the vast majority of them had been enslaved. After the grant of emancipation, citizenship, and legal rights, outright prohibitions on jury service evolved into thinly veiled qualification requirements that left selection up to the discretion of white officials or so-called random selection processes that enabled race-based exclusion. In practice, the result was the same: no black jurors allowed.

More than a century later, after legal victories and social movements, the problem remains most prominent today where it was most prominent then: the American South. Adam Liptak’s article highlights a recent report finding that in Caddo Parish, Louisiana, prosecutors are three times as likely to strike a black person from jury service as a white juror. The Equal Justice Initiative reported similarly disturbing results in its own study of prosecutors’ strikes in Houston County, Alabama, in 2011 and filed suit on behalf of those jurors. The problem is not getting better.

Importantly, discriminatory jury selection implicates not just the rights of the defendant facing trial, but also those of the excluded juror – black Americans who have the constitutional right to participate in the trial process but little recourse when that right is infringed upon. Recalling the experience of walking past a towering Confederate memorial to enter the Caddo Parish courthouse, 63-year-old Carl Stokes, a black man excluded from service on a death penalty case there in 2009, expressed dismay. “It dashes your hopes,” he told The New York Times. “It has its roots in the ideology of white supremacy.”

Mr. Stokes is right about both the memorial and the jury discrimination it oversees. Peremptory strikes, which may be used for any reason without justification, are today the main tool used to shield racially discriminatory jury selection from oversight and intervention. Under the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, prosecutors can be compelled to explain their peremptory strikes if a court finds that they may have been used to discriminate, but in practice even the most far-fetched and baseless “race neutral” reasons are regularly accepted as satisfactory. In his concurrence to Batson, Justice Marshall predicted “[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Time seems to have proven him right.

The New York Times’s piece also highlights Foster v. Chatman, a capital case out of Georgia that the nation’s highest court will hear this fall. Mr. Foster, a black man, was tried in 1987 by an all-white jury empaneled after the trial judge rejected defense counsel’s objection that the prosecution had excluded all the black potential jurors due to race. The court accepted the prosecutor’s multiple proffered “race neutral” reasons for each strike and accepted a jury that ultimately convicted Mr. Foster and sentenced him to death. Each reviewing court since has affirmed despite having the opportunity to review the trial prosecutor’s notes that circled, labeled, and highlighted each black potential juror, and even ranked them in order of preference in case “it comes down to having to pick one of the black jurors.”

Jury discrimination is a modern, current, and meaningful issue that diminishes the legitimacy of our already beleaguered criminal justice system and calls out for attention from those who fight for justice. The Supreme Court’s decision to hear the appeal in Foster presents the hopeful possibility that we will soon receive further guidance on how to apply Batson and stronger tools for enforcing the rights of both defendants and potential jurors.

But we should also find no comfort in the fact that nearly 30 years after Batson was decided, a case as egregious as Foster needs a cert grant from the Supreme Court to reach the right result after every lower court has seen fit to rubber stamp the defendant’s death sentence and condone the exclusion of every black potential juror called to serve in his case. Foster highlights how short the Court’s original remedy in Batson has fallen, and it should make us all wonder how many other cases and jurors have been left to fall through the gaping cracks.

Criminal Justice, Racial Justice