Since Reconstruction, when Congress outlawed racial discrimination in jury service, 18 U.S.C. § 243, and the Supreme Court condemned the restriction of jury service to whites, Strauder v. West Virginia, 100 U.S. 303 (1880), in response to pressure for representative juries, the antidiscrimination struggle has shifted from challenging the total exclusion of minorities from the jury rolls to confronting racial bias in the jury selection process at trial, specifically the prosecution’s use of peremptory strikes to exclude jurors of color.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court ruled that jurors cannot be excluded on the basis of race and held that, where circumstances at trial support an inference of discrimination in the use of peremptory strikes, the prosecutor must explain why she excluded African Americans, and, if she fails to give a legitimate, nonracial reason for each strike, the trial court can conclude the prosecutor acted on the basis of race and put the struck jurors back on the jury venire. Id. at 100.
In the quarter century since Batson, its inadequacy to eradicate racial discrimination in jury selection has become readily apparent. As Justice Thurgood Marshall noted, “[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons.” Id. at 106.
People of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias. African Americans have been excluded because they appeared to have “low intelligence”; wore eyeglasses; were single, married, or separated; or were too old for jury service at age forty-three or too young at twenty-eight. They have been barred for having relatives who attended historically black colleges; for chewing gum; and, frequently, for living in predominantly black neighborhoods.
In a South Carolina case, the prosecutor said he struck a black potential juror because he “shucked and jived” as he walked. These “race-neutral” explanations and the tolerance of racial bias by court officials have made jury selection for people of color a hazardous venture, where the sting of exclusion often is accompanied by painful insults and injurious commentary.
Unvarnished racial bias drove higher reversal rates in the few years following Batson, but many offices responded by training prosecutors to mask their exclusion of minorities from juries. Prosecutors in Dallas County, Texas, maintained a decades-long policy of systematically excluding African Americans from jury service and codified it in a training manual. Miller-El v. Dretke, 545 U.S. 231, 264 (2005).
Similar efforts to avoid detection while excluding people on the basis of race have continued in many jurisdictions, resulting in the ongoing underrepresentation of people of color on juries. For example, from 2005–09, prosecutors in Houston County, Alabama (which is 27 percent black), used peremptory strikes to remove 80 percent of the African Americans qualified for jury service in capital trials.
The documented and continued exclusion of people of color from juries is evidence of an acceptance of racial bias in too many courts across the United States today. Prosecutors who illegally exclude people of color from juries face few, if any, consequences or even public scrutiny. Courts, bar associations, and legislatures should play a role in enforcing antidiscrimination laws and deterring misconduct; district attorneys should not tolerate violations of the law by their prosecutors; and the Justice Department and federal prosecutors should enforce 18 U.S.C. § 243 by pursuing actions against district attorney’s offices with a history of racially biased selection practices.
Full representation of all cognizable groups can be achieved during the next five years by implementing widely available procedures—including supplementing source lists for jury pools and utilizing computer models that weight groups appropriately—to ensure that racial minorities, women, and other groups are fully represented in jury pools.
Finally, discrimination in individual courtrooms is a local problem for which local solutions can be highly effective. Community groups should exercise their constitutional right to attend public criminal trial proceedings and document the exclusion of minorities from jury service. Especially in jurisdictions with a history of systematic exclusion, bearing witness to the conduct of local officials is a powerful and necessary step in holding them accountable and ultimately changing their behavior.
While courts sometimes have attempted to remedy the problem of discriminatory jury selection, in too many cases today there continues to be indifference to racial bias in jury selection. This problem has persisted for far too long, and respect for the law cannot be achieved until it is eliminated and equal justice for all is realized.