Unconscious Racism in Jury Selection
Indifference and the legitimization of racial discrimination within our jury system date back to as early as the 1900s when the Supreme Court found no illegal racial discrimination despite the total exclusion of Black citizens. As the United States has evolved, starting in 1935 with the Scottsboro Boys, the Court began to recognize and address the issue of racial bias in our jury system. And now, despite efforts to create an impartial jury system, the issue of racial discrimination continues to permeate our criminal justice system. More specifically, institutional, and unconscious biases within our jury selection process have been exacerbated by evolving practices in the courtroom. Particularly peremptory strikes. Although jury selection is arguably a random process, peremptory strikes call the fairness and justice of a trial into question.
Although Batson v. Kentucky held that lawyers may not use race as a basis for a preemptory strike -- recent court cases have illustrated that trial by jury continues to inflict serious harm on marginalized communities because of the racial discrimination that exists. Justice Thurgood Marshall was especially wary and foresaw the issues that Batson would undoubtedly pose in jury selection. Under Batson, an attorney who identifies a non-racial reason for striking a jury is generally protected. This seems reasonable at first glance, but it perpetuates a racially biased criminal justice system in implementation.
Jury representation continues to be a serious issue today. In 2020, the Supreme Court reversed the conviction of Curtis Flowers, an innocent Black man who was tried six times for the quadruple murder in a white-owned store. In this particular Mississippi County, it was found that the prosecutor's office struck Black jurors at 4.5 times the rate that it struck white jurors. In Harris County, a study found that predominantly white and wealthy individuals are substantially over-represented on juries, leading to erroneous convictions, excessive sentencing, and a heightened probability of receiving a life sentence. Racial bias exists in our system, and practices like peremptory strikes exacerbate this inequity.
Impact of Racial Discrimination in Jury Selection
A recent report published by Equal Justice Initiative in July 2021 calls attention to the dire consequences that racial discrimination poses when juries are not more representative. This report supports the premise that less representative juries are more likely to disregard evidence and convict minority defendants, which is a significant due process violation.
Additionally, a study on the unequal representation of juries in Harris County estimates that equal representation within a jury could reduce a Black defendants' median sentence by fifty percent and the likelihood of receiving a life sentence by sixty-seven percent. Although this study is limited to a single jurisdiction, lack of representation in juries remains a widespread issue. It illustrates the life-long consequences that racial bias has on minority communities.
A Call for Accountability and Transparency
The United States should implement a uniform database where all jurisdictions must input jury selection data to ensure transparency and accountability. There is a need for transparency because marginalized communities justifiably place great distrust in a system that continues to legitimize inherently racist practices.
But more importantly, the Batson test needs to be modified, and courts need to properly effectuate the purpose of the Batson ruling. Many judges continue to uphold an attorney's allegedly race-neutral reason to strike a juror on various frivolous reasons (failed to make eye contact, crossing your arms, or a bad feeling.) These practices have to stop, and it begins with eliminating or drastically modifying practices like peremptory challenges that effectuate racially charged decisions.
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