Last month, the Equal Justice Initiative (EJI) released a study, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which revealed a prevalence of racial bias in jury selection in the South. The report stands as the most comprehensive study of racial discrimination in jury selection since 1986, when the US Supreme Court sought to limit the practice in the landmark case Batson v. Kentucky.
Racial discrimination in jury selection first became illegal when Congress passed the Civil Rights Act of 1875. Despite federal legislation, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.
Evidence suggests the phenomenon persists through the use of peremptory challenges. A peremptory challenge essentially provides attorneys the ability to exclude a certain number of potential jurors without explanation of their removal.
Defense attorneys can challenge a prosecutor’s peremptory challenge, but according to the study, the likelihood that the defense will prevail is slim. Under the Batson test, a defendant may object to a peremptory challenge by presenting a prima facie case of racial discrimination. Once the defendant has met this burden, the prosecutor must then “come forward with a neutral explanation for challenging black jurors.” Yet, according to the EJI report, what trial judges accept as adequate race-neutral explanations is one of the core problems. The study found that African Americans were struck from jury service based on such explanations as the individual “appeared to have low intelligence,” wore eyeglasses, walked in a particular way, had dyed hair, and numerous other reasons.
A range of problems arise from racial bias in jury selection. The phenomenon has led to a number of wrongful convictions, including capital punishment cases. The EJI asserts that this illegal practice undermines the credibility of the criminal justice system and further alienates racial minorities from the legal process.
Although the study focused primarily on eight Southern states, Milwaukee was recognized in the report as one of several cities in the US where a “recent verdict by [an] all-white jur[y] triggered widespread unrest and outrage in poor and minority communities where serious concerns about the fairness and reliability of the justice system  emerged.”
Despite the prevalence of the phenomenon, there is a lot to be gained from racially diverse juries. Studies show that racially diverse juries deliberate longer, consider a wider variety of perspectives, and make fewer factual errors than all-white juries.
In light of these findings, the EJI has compiled a number of detailed recommendations which include:
- Dedicated and thorough enforcement of anti-discrimination laws designed to prevent racially biased jury selection must be undertaken by courts, judges and lawyers involved in criminal and civil trials, especially in serious criminal cases and capital cases.
- Prosecutors who repeatedly exclude people of color should be subject to fines, penalties, suspension, and other consequences to deter the practice. Community groups can hold their district attorneys accountable through court monitoring, requesting regular reporting on the use of peremptory strikes, and their voting power.
- The criminal defense bar should receive greater support, training and assistance in ensuring that state officials do not exclude people of color from serving on juries on the basis of race.
- States should strengthen policies and procedures to ensure that racial minorities are fully represented in jury pools. State and local governments should expand their jury lists and use computer models that weight groups appropriately.
- The rule banning racially discriminatory use of peremptory strikes announced in Batson v. Kentucky should be applied retroactively to death row prisoners and others with lengthy sentences whose convictions or death sentences are the product of illegal, racially biased jury selection but whose claims have not been reviewed because they were tried before 1986.
For more on the subject, the EJI has also put together the following videos: Illegal Racial Discrimination in Jury Selection, Bryan Stevenson Discusses Report on Problems of Racial Bias in Jury Selection, Illegal Racial Discrimination in Jury Selection, Dallas County, Alabama.