Racial Bias in Jury Selection Is Under Supreme Court Scrutiny Again

By Ephrat Livni, Esq. on November 04, 2015 | Last updated on March 21, 2019

Justice may be blind. But prosecutors are not. This week, the Supreme Court is considering racial bias in jury selection in Foster v. Chatman. The case is being called "an egregious example" of a rampant problem, according to a former prosecutor writing in the New York Times.

Prosecutors continue to exclude black jurors from juries almost 40 years after a landmark case, Batson v. Kentucky, made clear that the practice is illegal. Only now prosecutors use allegedly race-neutral reasons to justify the exclusions from criminal trials. This practice is problematic for everyone, explains Larry Thompson, who penned the Times opinion piece.

Statistics on Selection

Racial bias in jury selection impacts the general quality of trials and the justice system, apart from leading to disproportionate conviction rates. It is an important issue because studies show that diverse juries make fewer factual errors, deliberate longer, and consider more perspectives than all-white juries. So, justice is better served when juries are diverse.

A study of eight districts in the south, conducted by the Equal Justice Initiative in 2010, found that exclusion of black jurors is still a serious problem. In Houston County, Alabama, for example, 80 percent of qualified black jurors were struck from death penalty cases over a five-year period.

The bias does not just impact death penalty cases, however, and justice demands a jury of our peers and a fair trial for all.

Foster Jury Selection Facts

About 30 years ago, Timothy Foster, a black man, was sentenced to death for the murder of an elderly white woman. Prosecutors struck all four potential black jurors. They singled out and ranked them "in case it comes down to having to pick one of the black jurors."

Foster's prosecutors were also inconsistent with their reasons for striking black jurors as opposed to white ones, evidence that they were reaching for race neutral reasons for exclusion rather than giving the true reasons. One black juror was struck for being a social worker, although she was a teacher's aide and white teacher's aides did remain on the jury, for example.

According to Thompson, "Mr. Foster's case offers a rare instance of extraordinary and well-documented misconduct. The prosecution's notes show purposeful racial discrimination in jury strikes."

Perspective Is Everything

Race matters in jury selection because race is one of many factors that influences perspective, or how a person sees the world. People with different backgrounds will interpret information differently, according to their experiences. We don't all share the same truths but all our truths are true.

The criminal justice system relies on a reasonable doubt standard, meaning that if even only one member of a jury thinks that there is reasonable doubt that the defendant committed a crime, there can be no conviction. If the jury and prosecution all share the same world view and experiences, a jury is less likely to find reasonable doubt, or more likely to convict, regardless of whether the accused actually did it.

But that is not justice. As Thompson says, "A judicial system that allows for obviously discriminatory jury selection is intolerable."

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