A study by the Equal Justice Initiative, a non-profit legal organization based in Montgomery, Alabama, has found widespread discrimination in jury selection in the states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee. The discriminatory practices appear to be most prevalent in serious criminal cases, including capital cases.

The study, published in August 2010, “uncovered shocking evidence of racial discrimination in jury selection in every state. We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries. We found evidence that some prosecutors employed by state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias.”

The Civil Rights Act of 1875 outlawed race-based discrimination in jury selection, but the Equal Justice Initiative found that “135 years later illegal exclusion of racial minorities persists.” Although the U.S. Supreme Court limited the discriminatory use of peremptory juror strikes in Batson v. Kentucky, 476 U.S. 79 (1986), the court’s refusal to apply its ruling retroactively resulted in the execution of death row prisoners convicted by all-white juries where jurors were excluded on the basis of race. Other condemned prisoners still face capital punishment after being convicted and sentenced by juries that were arguably selected in a discriminatory manner.

According to the study, most “state appeals courts have reversed convictions where there is clear evidence of racially discriminatory jury selection. However, by frequently upholding convictions where dramatic evidence of racial bias has been presented, appellate courts have failed to consistently and effectively enforce anti-discrimination laws and adequately deter the practice of discriminatory jury selections.”

In all of the states studied except Tennessee, where the courts have never granted Batson relief in a criminal case, it is recognized that problems continue with racially-biased jury selection. The Mississippi Supreme Court concluded in 2007 that “racially profiling jurors and ... racially motivated jury selection [are] still prevalent twenty years after Batson was handed down.” The court threatened to change its system of peremptory juror challenges if the situation did not improve.

The Equal Justice Initiative wrote that “Florida has crafted unique provisions under its own state laws to protect jurors from racial discrimination, [and] is more protective than federal anti-discrimination laws in several respects.”

Recent cases such as Snyder v. Louisiana, 552 U.S. 472 (2008) indicate that racial bias still exists in many cases but that courts are becoming more attentive. In Georgia, however, the “courts’ willingness to uphold [juror] strikes based upon residence in a particular neighborhood, a perceived lack of education, or a perceived lack of employment history provides a shield for prosecutors to strike poor people [from juries] .... Arkansas courts have upheld strikes of African Americans based on a prosecutor’s descriptions of the jurors’ demeanor, body language, tone, or other amorphous characteristic which cannot be disproved by the record.”

According to the Equal Justice Initiative, progress in Alabama and South Carolina has been uneven. Neither state has uniformly granted judicial relief in cases where a prosecutor used all or almost all of his peremptory strikes to exclude minorities. In both states – and indeed in all of the states studied – the Batson decision is often poorly enforced, resulting in widespread injustice.

The study made various recommendations to reverse such discriminatory jury selection practices, including:

(1) Enforce all anti-discrimination laws to prevent racially-biased jury selection, especially in serious criminal cases and capital cases;

(2) Batson should be applied retroactively to death row prisoners and others with lengthy sentences whose convictions or death sentences were the product of racially-biased jury selection, but whose cases have not been reviewed because they predate 1986;

(3) Remove procedural bars and technical defaults that shield racially-biased conduct;

(4) Hold accountable prosecutors who have engaged in racially-discriminatory practices;

(5) The U.S. Justice Department should enforce 18 U.S.C. § 243, which prohibits racial discrimination in jury selection, and pursue actions against district attorneys and their offices when they have a history of racially-biased conduct;

(6) States should provide remedies to people called for jury service who are illegally excluded based on their race;

(7) The public should monitor court proceedings to help eliminate racially-biased jury selection;

(8) The public should question their local district attorneys about their jury selection policies;

(9) States should strengthen their policies and procedures to help eliminate racial profiling in the jury selection process;

(10) Reviewing courts should abandon the doctrine of “absolute disparity” as a measure of underrepresentation of minority groups and utilize more accurate measures, such as comparative disparity, to prevent underrepresentation of minorities on juries.

Finally, the courts, bar associations, criminal defense bar and state’s attorneys should be trained to recognize and eliminate the practice of discriminatory jury selection in the jurisdictions where that practice still occurs.

“We sincerely hope that everyone committed to the fair administration of law will join us in seeking an end to racially discriminatory jury selection,” stated Bryan A. Stevenson, executive director of the Equal Justice Initiative. “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 becomes a reality.”

Source: “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” Equal Justice Initiative (August 2010)

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