The Washington PostDemocracy Dies in Darkness

What the Supreme Court just said — and what it didn’t — about all-white juries

(Andrew Harnik/AP)

There are series of powerful, awe-inspiring notions people in the United States like to believe. This is land of opportunity, where hard work produces big rewards, for example. Justice is blind and therefore equal, is another one.

In truth, there's ample evidence that many Americans never climb above the socioeconomic status of the families into which they were born. (Click here for an explainer video from the Pew Charitable Trusts.) And outcomes at every stage of the criminal justice process — from who is arrested and charged with the most serious crimes after the same behavior, what happens at trial and what sentence courts ultimately hand down — exhibit consistent disparities along racial lines.

American inequality is not only real and in some ways growing, but it's a system that quite effectively feeds itself. It is one that so expertly metabolizes notions of group suspicion, guilt, danger and threats that many Americans believe this not only to be a reasonable way to organize all sorts of life decisions — where to live, where to send one's children to school, whom to fear, whom to help, whom to dismiss and whom to believe — but they believe it is fact-based and totally rational. And as a result, many continue to believe that racially disparate social, economic and legal outcomes are totally and completely just, perhaps even a natural and unavoidable state of affairs, in no way shaped by bigotry.

But on Monday, the U.S. Supreme Court handed down a decision that will be difficult for those Americans to digest.

In a 7-to-1 decision, the court rebuked the efforts that Georgia prosecutors made to exclude black jurors and seat an all-white panel in a 1987 murder case. The case centered around an elderly white female victim, Queen Madge White, and a black male defendant, Timothy Tyrone Foster. Foster was 18 at the time of his arrest.

Read The Washington Post's summary of the case before the decision: Supreme Court to examine race in jury selection

The broader implications of the case, if any, aren't immediately clear. As our own Robert Barnes notes, the case was unusual because Foster's lawyers gained access to prosecutors' notes through Georgia's open-record laws. They found that prosecutors made special notes about the race of black prospective jurors and communicated among themselves about the desire to seat an all-white jury. They identified which of the black jurors they most wanted to exclude or could accept if their efforts to build a mono-racial jury failed.

View a PDF of some of the prosecutor's notes identifying and ranking black prospective jurrors

That kind of activity has been illegal for many decades. The 1875 Civil Rights Act explicitly barred race-based discrimination in jury service and therefore, selection. And in 1986, the U.S. Supreme Court reinforced this, with its ruling in a case known as Batson vs. Kentucky. In that case, it said jurors could not be excluded because of their race.

But the court's decision did not apply to cases previously decided, so there are people who remain on death row after being convicted by all-white juries that were carefully and intentionally formed. Still, this history and the prosecutor's notes clearly influence the way that the nation's conservative chief justice and all but one other member of the court — Justice Clarence Thomas, the lone dissenting vote — viewed the Georgia case.

There are a litany of not-at-all-uplifting reasons for that kind of broad agreement across the usual ideological divides on the court. There are also closely related reasons why prosecutors in the Georgia case worked so very hard to to seat an all-white jury. To wit:

  • A 2010 Equal Justice Initiative study found that, in counties across the country, prosecutors dismissed nearly 80 percent of African Americans qualified for jury service during the seating process. Some prosecutors have been trained to exclude potential jurors on the basis of race and taught how to conceal this activity. And all this produced multiple cases in which black defendants facing capital murder charges in majority-black counties were tried by all-white juries.
  • Prosecutors work so hard to seat all-white juries because they know what all-white juries mean for trial outcomes. A 2012 Duke University study of non-capital cases found that all-white juries convict black defendants 16 percent more often than white defendants. And, what's more, the same study found, when juries included just one black person, 71 percent of black defendants and 73 percent of white defendants were convicted. In other words, the conviction gap almost disappears. A full 40 percent of the juries the researchers studied over a 10-year period had no black members at all. Those that did often had just one or two black jurors.

In short, prosecutors — the public employees on whom Americans rely to seek justice — are aware of the way that all-white juries respond to black defendants and have apparently trained themselves to disguise their efforts to seat all-white juries. These activities increase the odds that black defendants will be convicted, which means that they will also, quite often, boost individual prosecutors' careers.

And as grim a picture as that paints of prosecutors, there's something even more disturbing here: None of this would be possible without the reliable way that white jurors — randomly selected members of the American public — appear to decide cases when alone in jury rooms.

The Supreme Court's Monday decision doesn't exonerate Foster; it sends the case back to Georgia where his lawyer says he is entitled to a new trial.

Beyond the Georgia case, though, this is an outcome that raises yet another avenue Thomas's future biographers will one day probe. Thomas, the court's lone black member, has proven a reliable vote against defendants seeking redress in civil rights matters. On Monday, his opinion remained true to form. In the short term, the court's 7-to-1 decision will probably give some additional inmates convicted by all-white juries reason to believe they could seek their own retrials.

For those who remain steadfastly convinced of the elegance and accuracy of the American judicial system, there's little reason to believe today that the guilty will soon be set free. For those who recognize that the criminal justice system is both damaged by various forms of bias and sometimes reproduces or creates new forms of inequality, perhaps there is a sliver of uplift in the court's decision Monday.