How Racism Shapes Jury Selection
Eliminating jurors solely based on race is illegal. However, every day in courtrooms throughout America, black people are still excluded from serving on juries. This racist practice is a travesty.
The principles this Country are founded on have always been loftier than their actual application. Our founders dreamt of a country different from the monarchies that governed Europe – one in which the people chose their leaders, constitutional rights were protected, and a group of their peers decided whether the government could take their liberty. Again, these have been lofty goals, but they were meant to only apply to the majority. Minorities have had to fight for inclusion in those aspirations. The fight continues.
Notably, the right to trial by jury has been a pillar of the foundation of our justice system – brought over from ancient Europe to the new land of America – the idea that a government cannot accuse you of a crime and throw you in jail on its whim. This right is fundamental to our society. It was not meant for certain segments of the population.
“racial discrimination…during jury selection…undermines public confidence in the fairness of our system of justice.”
During the civil rights era and earlier, jury service was almost infamously, universally and notoriously limited to white men. The jury’s history to limit the overreach of government has been darkened with racism and exclusion.
Article III of the U.S. Constitution states in part, “The Trial of all Crimes…shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” The right was expanded with the Sixth Amendment of the U.S. Constitution, which states in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” Both provisions were made applicable to the states through the Fourteenth Amendment.
It wasn’t until the landmark 1986 Batson case when the United States Supreme Court finally made it illegal to strike a person from serving on a jury based on skin color. In this pivotal case, a black man, Mr. Batson, was accused of burglary. During jury selection, the prosecutor asked the court to dismiss all black people in the jury pool, and a jury composed only of white persons was selected. After Mr. Batson appealed, the U.S. Supreme Court finally acknowledged that a “State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposely excluded.” It said that racial discrimination deprives the accused not only of important rights during trial but is devastating to the community at large because it “undermines public confidence in the fairness of our system of justice.” Because of Batson, now, both the Prosecution and Defense must provide constitutionally accepted reasons to strike a potential juror. This safeguard was not required before.
However, even after this historic decision, prosecutors still keep black people off juries, especially if the Defendant is black and the crime carries more weight. For instance, prosecutors now give non-racial reasons for eliminating black people from juries if the defense raises the issue.
Why Does it Matter if Racism Shapes Jury Selection?
Let me briefly explain the jury selection process. Every person accused of a crime may plead not guilty, make the government prove its case against them beyond a reasonable doubt, and have a trial in front of a jury. The first part of a jury trial is voir dire or a fancy term for selecting the jury. The citizens summoned to court from the community will be asked questions by the prosecutor, defense attorney, and sometimes the judge. Each side can then ask the Judge to eliminate people bad for their case. This process is supposed to weed out bias for or against the defendant or government, bias against a particular law, and promote honesty about specific topics that would prevent the defendant from getting a fair and impartial jury.
The problem is there has been colossal racism injected into this selection process. Let me explain. Take law enforcement. Research has clearly shown most white people believe police in their community treat different races the same. Only a small percentage of black people agree. Prosecutors know this. So, they purposefully ask the jury pool about their views on the police. And in asking, they specifically pick a black person to give their opinion. If that black person expresses any doubt or concern about police officers, the prosecutor would most likely strike him or her from the jury. It sounds innocent enough. It is not fair to have a juror judge the evidence in a case if he or she is inherently biased against the government, and by extension police officers who enforce laws on behalf of the government. That’s a fair concern.
However, prosecutors know that statistically black people will complain about the police. So, if they purposely ask for the black juror’s opinion, especially on a high-profile case, they are likely trying to strike that person from the jury. It sounds ludicrous this would be happening in 2019. However, it still does in every state in America.
Death Penalty Cases
This racism during jury selection occurs at an even higher rate during capital murder and death penalty cases. This dilemma is very troubling for obvious reasons. In Miller-El v. Dretke, another critical case involving jury selection, SCOTUS found it unconstitional that a black man was sentenced to death after 10 out of the 11 prospective black jurors were struck during voir dire. His attorneys presented evidence that the Dallas “District Attorney’s Office had adopted a formal policy to exclude minorities from jury service.”
The evidence in the Miller El case showed that a manual entitled “Jury Selection in a Criminal Case” was distributed to prosecutors. A former prosecutor who became a judge wrote reasons for eliminating blacks from juries. He wrote the manual under the direction and supervision of his superiors in the Dallas district attorney offices. The manual was available to one of the prosecutors in the Miller El case. The same practices the Dallas DA’s office used to discriminate against potential black jurors in the Miller El case still occur. Be aware, so change can happen.
The above discrimination continues to exclude blacks and other minorities from participating in the “justice” process. What we have is the criminal injustice system. How can a black defendant assert his or her right to a fair and impartial trial when the jury does not represent him or his community? Until, minorities are routinely serving as jurors, our criminal courts will never be a “justice” system, especially for African Americans.