Capital Jury Project Findings on Race
We approach this issue as scholars who study jury dynamics in capital cases and who serve as professional jury consultants who assist with jury selection in capital cases. Our academic expertise stems from having collected, analyzed, and published data from the Capital Jury Project (CJP). The CJP, funded by the National Science Foundation, brought together faculty of law and social sciences from across the country to conduct expansive interviews with over 1,000 former capital jurors. The findings from that initiative highlight a variety of ways jurors in death penalty cases behave, namely their failure to understand and by extension follow the law in ways that make a death sentence more likely. Bill Bowers and Wanda Foglia detail these problems in their 2003 article. Bill Bowers & Wanda Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51 (2003).
One key finding from the CJP, alongside countless other inquiries by scholars and state-commissioned reports, is that race and racism impact how jurors think and vote in these cases. In examining how the jury’s racial composition, along with the defendant’s and victim’s race, influenced sentencing outcomes, researchers found evidence of racial gaps in cases with a Black defendant and white victim. William J. Bowers, Benjamin D. Steiner & Marla Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 171 (2001). Two telling trends emerged, the first of which is dubbed the White Male Dominance Effect: In cases where the jury was composed of 0–3 white men, the jury issued a death sentence 35 percent of the time. In cases with 6 or more white men on the jury, however, that number more than doubles to 78 percent. Secondly, researchers identified a Black Male Presence effect, wherein juries with no Black men seated issued a death sentence 72 percent of the time, compared to 43 percent if just one Black man served on the jury. Who sits on the jury and what they “see” in these defendants clearly mapped onto race. Analyses showed that when it came to juror perceptions, white jurors perceived Black defendants as more dangerous, less remorseful, and less likeable.
Data also revealed that relative to Black jurors, white jurors were less empathetic towards Black defendants and their families. This finding was reflected in qualitative data in which Black jurors discussed their experience during deliberations. Black jurors detailed instances where they and their white counterparts saw the evidence quite differently: For example, one Black woman described that when the Black defendant’s family members testified during the punishment phase about their love for him (the defendant), she found it to be moving and genuine testimony, while her white counterparts “didn’t believe it was real; they believed it was putting on.” In another case, a Black man pinpointed the source of this racialized divide among the jurors and how it affected the jury’s sentencing decision. He and one Black woman were the only Black people on a jury he describes as wanting to “burn both of them [the Black defendants]. … I’m serious, that’s the impression I got. … [The other jurors] didn’t give a shit one way or the other. … [W]hat I’m saying is they had no respect for a Black male and they didn’t know how to really judge him.”
What this juror is describing is a phenomenon psychology and law scholar Craig Haney calls the “empathic divide.” Haney explains that most white jurors cannot see, feel, or appreciate “the accumulation of race-based obstacles, indignities, and criminogenic influences that characterizes [sic] the life histories of so many African American capital defendants.” Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide, 53 DePaul L. Rev. 1557 (2003). Given this explanation for racialized outcomes in capital cases, and other case types, how could judges and attorneys proceed in addressing this during jury selection?
Preparing for Jury Selection
Before we can get people talking about their attitudes on race and racism, we need to set proper conditions. What follows is some general advice on issues to consider in preparing for voir dire. Marla Sandys et al., Setting the Stage and Listening to What Jurors Have to Tell Us About Mitigation, in Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases 81 (James J. Clark & Edward C. Monahan eds., 2017). Venue matters. Racial demographics of the (potential) locales should align with the case’s dynamics. For example, change of venue requests in states with only a handful of racially diverse counties must be carefully considered. How the venire is drawn matters. Poor people and people of color have long been underrepresented on (capital) juries. Is there a better way to draw a diverse jury pool in the jurisdiction?
Use of an extensive pretrial questionnaire is highly advisable, and it should include questions about race and racism that jurors can respond to without the social pressure characterizing voir dire. That is, the questionnaires should be mailed to prospective jurors. This approach is more likely to generate honest and accurate information on issues sensitive to jurors. Include details on the racial dynamics of the case in the questionnaire. Develop both closed and open-ended questions that give jurors space to share their opinions. Draw from scientifically validated scales associated with the typologies of racism described below. This generates actionable information for all parties at voir dire.
Another strategy could include implicit bias training for prospective jurors during their initial orientation to jury service. Jurors in Washington state, for example, watch an instructional video on race and implicit bias wherein passers-by in a social “experiment” respond with much less skepticism to a white man in a park attempting to cut the chain of a bicycle than to a Black man doing the same thing.
In speaking with jurors at voir dire, individual sequestered questioning is best—social desirability and group conformity are more likely to affect responses if jurors are questioned in groups, even small groups. Let attorneys ask the questions, given how jurors respond to the judge’s presumed authority. Avoid limiting the scope of questions on race and allow for expanded oral voir dire. Barbara O’Brien & Catherine M. Grosso, Judges, Lawyers, and Willing Jurors: A Tale of Two Jury Selections, 98 Chi. Kent L. Rev. 107 (2023).
Rotate between the state and defense going first in initiating the conversation with each juror and minimize the level of adversarialness observable to jurors. Consider a smaller room for conducting individual questioning to reduce perceptions of formality. The goal of jury selection procedures for all parties is to select jurors who can be fair and impartial—that requires eliciting honest responses, and these steps help support that aim.
Defining Racism and Anti-racism
To meaningfully assess a prospective juror’s racial attitudes, we must first be clear about what constitutes racism, specifically anti-Black racism. As detailed by Levinson and colleagues in their recent article on “Challenging Jurors’ Racism,” key concepts related to racial attitudes as outlined by scholars include dominative racism, symbolic racism, aversive racism, internalized racism, passive bystanders, and racial justice allies. Ariana R. Levinson et al., Challenging Jurors’ Racism, 57 Gonz. L. Rev. 365 (2021). We describe each separately below, but these are not mutually exclusive attitudinal frameworks.
Dominative racism, or “old-fashioned racism,” is explicit, including slurs, threats, and brutality. People ascribing to these beliefs might support Jim Crow–era policies and racial segregation, oppose interracial marriage, and consider Black people to be less intelligent than white people. Joel Kovel, White Racism: A Psychohistory 54 (1970). This kind of racial bias is overt and blatant. Jurors who hold these beliefs are likely to rely on racial animus to interpret the facts and evidence or their perceptions of the defendant as a person and are those most likely to articulate doing so to other jurors. Jurors adopting these attitudes may be hostile to people of color and/or anti-racists (described below) on the jury.
Symbolic racism refers to “modern” forms of racism more typically articulated in “right-wing” political discourse. People ascribing to these beliefs embrace negative stereotypes of people of color, e.g., Black people lack work ethic, make excessive demands related to equal rights, and receive undeserved economic advantages. P. J. Henry & David O. Sears, The Symbolic Racism 2000 Scale, 23 Pol. Psych. 253 (2002). Jurors who interpret the case and defendant through this lens, which denies structural racism, are ill-equipped to push through the empathic divide. In addition, compared to the dominative racist, these jurors may be more reserved and less willing to disclose their attitudes given social desirability cues and/or the belief that such attitudes might be racist. See Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (2006).
Aversive racism denotes when there is espoused support for racial justice yet simultaneously held conflicting views of people of color, more typical of “left-wing racism.” Samuel L. Gaertner & John F. Dovidio, Understanding and Addressing Contemporary Racism: From Aversive Racism to the Common Ingroup Identity Model, 61 J. Soc. Issues 615 (2005). In other words, how people see and present themselves as committed to racial justice may not square with their more deeply held beliefs. This kind of racism may operate at an implicit or unconscious level, and thus may be difficult to recognize—both for the person harboring it, but also for judges and attorneys attempting to assess it. A person’s past behaviors in situations related to racial bias may thus be more telling than their expressed attitudes (this is discussed later). Jurors with this kind of cognitive tension may consciously disapprove of racist thinking yet utilize it nonetheless, especially if other jurors introduce and perpetuate it.
Internalized racism is used to describe how people of color come to hold negative attitudes toward people of their own racial group. Given the social messaging about race that people are exposed to from birth onward, it follows that people of color may also absorb racist beliefs about their own groups “leading to feelings of self-doubt, disgust, and disrespect for one’s race and/or oneself.” Karen D. Pyke, What Is Internalized Racial Oppression and Why Don’t We Study It? Acknowledging Racism’s Hidden Injuries, 53 Soc. Persps. 551 (2010). Jurors of color who adopt these attitudes may adopt racist thinking in their own decision-making and, further, in articulating those attitudes, may serve as a “token” to validate the racist thoughts and behavior of other jurors.
Passive bystanders are those who recognize instances of racial bias when they see or hear it but are unwilling to speak up or otherwise intervene. While not actively adopting racist beliefs or behavior themselves (non-racist), their inaction renders them ineffective in combatting racist thinking. Audrey J. Murrell, Why Someone Did Not Stop Them? Aversive Racism and the Responsibility of Bystanders, 40 Equal. Diversity Inclusion Int’l J. 60 (2020). Jurors who act this way may be able to avoid racial bias tainting their own decision-making in the case but are potentially depriving their fellow jurors of such self-awareness. This inertia serves to reinforce and give effect to problematic racial attitudes harbored by others.
Racial justice allies are people who recognize and respond to instances of racial bias. In contrast to passive bystanders, allies are actively anti-racist: They are willing to take social risks to speak out against racist thinking. Robert D. Reason et al., Toward a Model of Racial Justice Ally Development, 46 J. Coll. Stud. Dev. 530 (2005). Anti-racists are also engaged in continual (self)education and (self)reflection. See Ibram X. Kendi, How to Be an Antiracist (2019). Jurors who adopt this approach will question and openly challenge racist ideas that may emerge as they and other jurors think and talk about the case facts, evidence, and defendant.
Starting the Conversation
How do you get jurors talking about their racial attitudes during voir dire? Where do you start and how do you develop that conversation?
First, acknowledge the potential discomfort but also the necessity of this conversation. Express your concern related to issues of fairness, impartiality, and due process. Make clear how you anticipate race will come up in this case as it relates to the facts and evidence: Do jurors now understand your concern? Do they recognize that racism could impact the way they or other jurors think and talk about the case, and even the decision they reach? For jurors who push back on your assertion that this conversation is necessary, this is a problematic signal. For jurors who recognize and validate your concern, the questioning now turns to whether they will be self-reflective throughout deliberations and willing to intervene if others engage in such behavior, either explicitly or implicitly.
Recall that aversive racism is characterized by a disconnect between one’s stated attitudes on race and their inward, potentially unconscious beliefs—and in this case, asking about their past behavior may be the more informative route. One way to approach this is to share one of your firsthand experiences with an incident of racial bias, then ask if they have seen or heard something like that before and, if so, how they reacted. If the juror cannot give an example, this suggests a lack of exposure or awareness. If the juror can, was any anti-racist action taken in response? These inquiries could help distinguish between aversive racism, passive bystanders, and racial justice allies.
If asking prospective jurors to engage with a specific example is unfruitful, consider moving on to abstract issues and current “hot topics.” This could include the juror’s views on whether the protests in response to the killing of George Floyd and other Black Americans were justified, whether affirmative action is good policy, or their understanding of and attitudes toward concepts like critical race theory or white privilege. Regarding the protests: What reasons does the juror believe led people to take to the streets, and do they sympathize with those who did? Did they themselves take any direct action? Conversely, are they primarily concerned with the property damaged or disruptive effects for law enforcement officers or the public? Do they embrace or reject phrases like Black Lives Matter and/or Blue Lives Matter, and on what basis? Or on the topic of White Privilege, for example: Is the juror familiar with this concept? Do they believe it exists? Do they take any steps personally to address it and, if so, can they name them?
These inquiries can help delineate prospective jurors as ascribing to the typologies of racism and anti-racism outlined above, but only if you know how to interpret those responses. A visualized continuum with key language cues may be a helpful aid for people newer to these discussions (for example, racismscale.weebly.com).
Additional considerations for how you approach this conversation include accounting for your own racial identity and literacy. How might aspects of your identity, along with your role in the court proceedings, affect how you should (dis)engage in the conversation? How would that impact juror responses? Keep in mind white people have a particularly hard time talking about race—this is true for jurors just as much as it is judges, prosecutors, and defense attorneys, etc. Robin DiAngelo, White Fragility: Why It’s So Hard for White People to Talk About Racism (2018). You should also assess yourself in terms of racial literacy: How familiar are you with the typologies of racism and anti-racism described above? How aware are you of your own potential racial biases? In what ways are you positioned to recognize and/or respond to their deployment, and how will that affect jury selection and specifically your role in it?
Moving Forward
Having real conversations about race and racism with jurors is challenging work—but it is crucial work for those committed to upholding our constitutional right to a fair trial. Officers of the court are bound by an ethical obligation to seek justice. While the American Bar Association explicitly calls upon prosecutors to be “proactive in efforts to detect, investigate, and eliminate improper biases, with particular attention to historically persistent biases like race, in all of its work” (Crim. Just. Standards for the Prosecution Function stand. 3-1.6(b) (4th ed. 2017)), this should be something all persons affiliated with the court strive toward.
Increasingly, officers of the court will be asked to consider the nuanced ways race and racism impact juries. As psychological and sociological understandings of race and racism evolve, so too do public sentiment and our expectations of the courts. For example, this February the Colorado State Supreme Court considered a change to Criminal Rule 24 that would expand the list of improper peremptory strike rationales to include prior contact with or expressed distrust of law enforcement, among other factors argued by proponents to serve as proxies for race. Michael Karlik, Racial Bias Proposal for Jury Selection Remains Stalled in State Supreme Court, Colo. Pol. (Aug. 30, 2023). Arizona eliminated peremptory challenges altogether, based in part on a recognition of their contribution to (racial) bias in jury decision-making. Ariz. Sup. Ct. Statewide Jury Selection Workgroup, Report and Recommendations (Nov. 1, 2021). And California’s recently passed Racial Justice Act creates legal pathways for defendants to mount a challenge when “the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror” spoke or acted in a biased or racist way either in or outside of the courtroom, extending far beyond the scope of predecessors. Cal. Penal Code § 2-2-745.
Research tells us, and the courts agree, that “[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.” Turner v. Murray, 476 U.S. 28, 35 (1986). We also know that “[g]eneric questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017). It is only with detailed questionnaires that address issues of race and racism, followed up with thorough, expansive, and individualized questioning by people familiar with how these logics operate, that we can begin to exclude such insidious and inadmissible influences on (capital) jury decision-making.
