Stephen B. Bright teaches at the law schools at Yale, Georgetown and Georgia State universities.
The Supreme Court heard arguments last week in a Mississippi death penalty case in which the chief prosecutor engaged in spectacularly egregious discrimination throughout six trials of Curtis Giovanni Flowers in the murder of four people in 1996.
Over the course of the trials, the prosecutor had the opportunity to strike 43 black people from the jury pool, and he struck 41. In the sixth trial, he struck 83 percent of the black potential jurors, but only 5 percent of the whites. He asked almost no questions of white prospective jurors, but aggressively questioned blacks, searching for reasons to strike them. At the sixth trial, Flowers was tried by a jury of 11 whites and one black in a county that was 45 percent black.
Two of Flowers’s earlier trials resulted in hung juries with regard to guilt or innocence; but the sixth jury took only a half-hour to find him guilty.
Prosecutors around the country routinely strike prospective jurors on the basis of race in all kinds of cases, and studies show that they usually get away with it. As a result, all-white juries remain common in criminal trials, even in communities with substantial minority populations. It is way past time to end this discrimination, which remains an obstacle to the realization of the jury’s role as a democratic and a representative body.
This practice denies citizens the right to participate in trials as jurors because of their race. The lack of diversity diminishes the quality of decisions made by juries that lack different perspectives and life experiences. It deprives people accused of crimes of fair juries that represent their communities.
This discrimination persists because of peremptory strikes — strikes that allow each side to exclude prospective jurors simply because they do not want them. They have long been used to keep racial minorities off juries. The Supreme Court tried to put a stop to the practice by prohibiting strikes based on race in the 1986 case of Batson v. Kentucky. It ruled that, if there is a pattern of strikes that appear to be based on race, prosecutors may be required to give reasons for the strikes. Trial judges would then decide whether the strikes were, in fact, made for the reasons given.
But determining the reasons for strikes has proved impossible, and discrimination has continued. Justice Thurgood Marshall predicted when Batson was decided that the procedure would not work because “any prosecutor can easily assert facially neutral reasons for striking a juror,” and judges are unable to determine whether those reasons are true. He also observed that prosecutors and judges might not recognize the racial motivation for a strike because of unconscious biases.
It is even more difficult to identify discrimination because many prosecutors responded to the Supreme Court’s decision by finding ways to continue and conceal discrimination instead of eliminating it. A senior prosecutor in Philadelphia instructed new prosecutors at a training session: “When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later.”
Prosecutors have also developed lists of reasons to give when they do not have one. One used in Texas includes “chewing gum,” “didn’t speak,” “very vocal,” “inattentive,” “wore sunglasses” and “T-shirt.” Another used by prosecutors in North Carolina included “arms folded,” “obvious boredom” and “lack of eye contact.” (Yes, denial for such trivial reasons is allowed.)
It is impossible for judges to determine whether such reasons actually apply to the person struck. And most judges are reluctant to find that a prosecutor intentionally discriminated and lied about it, even if they suspect that to be the case. One study found that a prospective juror is more likely to be struck by lightning than to be seated as a result of a challenge to discrimination.
But people in communities who see members of their race being excluded from juries in case after case recognize it as discrimination even if the courts do not. They lose faith in the credibility and legitimacy of the courts.
So what can be done? Marshall said that discrimination would end only when peremptory challenges were eliminated. Other justices, judges, lawyers and commentators have also called for the elimination of peremptory strikes, but neither courts nor legislatures have been responsive.
Federal Judge Jon O. Newman proposed reducing the number of peremptory strikes to one or two per side. This would enable lawyers to remove jurors whom they had very strong reservations about, but not remove all people of color.
The Washington state Supreme Court has addressed the issue with the urgency it deserves . The court found that discrimination was “rampant” in jury selection and that “racism is often unintentional, institutional or unconscious.” It adopted a rule last year that prohibits a peremptory strike if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”
This does away with the impossible task of assessing a prosecutor’s motives for striking a juror. It is consistent with the adage that “justice must satisfy the appearance of justice.”
People will stop recognizing courts as fair, legitimate and credible if such discrimination continues. Ending it must be one of the highest priorities of criminal justice reform. No citizens should be denied their right to participate in our court system solely because of the color of their skin.