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Racism In Jury Selection

Serving on a jury is one of the ways that citizens have the opportunity to participate in the democratic process. States vary on how juries are selected, but most follow a rather general procedure:  1) A group of citizens are randomly summoned to the local courthouse for potential service; 2) a subgroup of those citizens are called to a particular courtroom for a particular case, and; 3) prosecutors and defense lawyers can challenge prospective jurors for cause (conflict/inability to be impartial), or exercise peremptory challenges (for whatever non-discriminatory reason). This article focuses on the use of peremptory challenges that appear to be based on the race of a particular juror.

In  1875, Congress passed the Civil Rights Act of 1875 , which made it a criminal offense for state officials to exclude people from jury service based on race.  In 1880, the United States Supreme Court found unconstitutional a West Virginia law that allowed only white citizens to serve as jurors (Strauder v. West Virginia).  In 1954, that same court ruled that the Fourteenth Amendment prohibits all state-imposed discriminations against black citizens, including jury service (Brown v. Board of Education). Despite widespread rulings that found discrimination in jury selection based on race, the use of peremptory challenges had the effect of perpetuating that unlawful discrimination.  In fact, it was a routine practice, especially in southern states, for prosecutors to exercise peremptory challenges to strike all black prospective jurors to ensure an all white jury.

In 1965, a black defendant  was charged with a capital offense in Alabama.  The prosecutor in that case struck all qualified black prospective jurors, and an all white jury convicted the defendant.  The defendant appealed to the United States Supreme Court, arguing that the state impermissibly struck all black jurors due to their race, and that the state routinely employed this practice to the extent that no blacks had served on a jury in that jurisdiction for over a decade.  The Court ruled that a defendant could not object to the use of peremptory challenges in an individual case and, in fact, a prosecutor had the right to exclude prospective jurors on the basis of group affiliation (i.e. being black).  It opined that it was right to assume that a black juror,  because of his race, would always be favorable to a black defendant.  Thus, striking those jurors was constitutional.  The Court did rule, however, that if a defendant can demonstrate a pattern of racial discrimination in jury selection over time, the result may be different (Swain v Alabama).

In 1986, the United States Supreme Court reversed course.  In Batson v  Kentucky, the United States Supreme Court noted that the Swain decision left peremptory challenges of potential black jurors by prosecutors largely immune from scrutiny.  Therefore, under Batson, once a case of discrimination has been shown by a defendant, the prosecution must provide race-based reasons for its peremptory strikes.  No longer was a defendant required to demonstrate a history of racially discriminatory strikes.  Moreover, a prosecutor could no longer strike a black juror based on the assumption that the black juror would favor a black defendant.

The United States Supreme Court recently overturned the conviction of a black man in Mississippi due to discrimination by the prosecutor in striking black jurors.  In Flowers v. Mississippi, the defendant was tried 6 times for murder. No black jurors were seated on any of the juries.  The Supreme Court finally weighed in and, after the sixth trial and subsequent conviction, found that the State of Mississippi violated the defendants constitutional rights.