Almost 135 years ago, the U.S. Congress passed the Civil Rights Act of 1875 (proposed, ironically, at least in the current context, by Republicans) to eliminate racial discrimination in jury selection. Despite this, people of color continue to be excluded from jury service because of race, especially in serious criminal trials and death penalty cases.
This important study, just out today, highlights the prevailing assumption that at a de facto level, Jim Crow is alive and well in the South. The findings are that African Americans, in particular, regularly do not get fair trials by juries of their peers, given the systematic, deliberate exclusion of black jurors in criminal cases. Needless to say, this goes far to help explain the inordinate conviction rates and sentences handed down by Southern juries for people of color. And for capital murder cases, it also speaks to the higher average rates per case of death penalty sentences handed down -- not just in the South, but across the country.
The report, by the Equal Justice Initiative, entitled "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy," confirms what is largely already know by scholars of the criminal justice system. Although excluding jurors for racial reasons has been illegal since 1875, even after Reconstruction, and to the present day, all-white juries have been and are the reality in most of the South.
As EJI sums up the problem:
In communities across America, racial minorities are significantly underrepresented on criminal trial juries as a result of jury selection procedures that are racially biased and discriminatory. Although federal law prohibits excluding minorities from jury service, the law is difficult to enforce and leaves much to be done to confront this problem.
The statistics are familiar, if appalling, and no more so than in the American South -- exemplified by Alabama, where the Equal Justice Initiative is located.
Each year in Alabama nearly 65% of all murders involve black victims, yet 80% of the people currently awaiting execution in Alabama were convicted of crimes in which the victims were white. Only 6% of all murders in Alabama involve black defendants and white victims, but over 60% of black death row prisoners have been sentenced for killing someone white.
Nationally, over 50% of the more than 3300 people on death row are people of color -- primarily black and Latino/Hispanic. Over 40% of death row inmates are African American. Time and again, research has demonstrated that a capital defendant is "more likely to get the death penalty if the victim is white than if the victim is black."
And, as EJI emphasizes, the primary reasons for these disparities is that "the key decision makers in death penalty cases across the country are almost exclusively white. Despite decades of evidence showing that the administration of the death penalty is permeated with racial bias, courts and legislatures’ refusal to address race in any comprehensive way reveals a fundamental flaw in America’s justice system."
One Recent Example of How This Illegal Jury Bias Occurs
In one Mississippi case, a black man, Curtis Flowers, was sentenced to death in 2004 for killing four furniture store employees. The jury was made up of 11 whites and one black after prosecutors used all 15 of their peremptory strikes on black jurors. Montgomery County, where the crime occurred, is 45 percent black. The Mississippi Supreme Court reversed the case, noting that "racially motivated jury selection is still prevalent 20 years after Batson."
At a retrial, in which prosecutors did not seek the death penalty, the jury of seven whites and five blacks was split along racial lines, resulting in a hung jury. At the second retrial, prosecutors sought the death penalty, which eliminated more blacks from the pool of qualified jurors. The jury, nine whites and three blacks, hung again when one black member declined to convict, said Andre De Gruy, the director of the state’s Office of Capital Defense Counsel.
The Equal Justice Initiative study argues that jury diversity "is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white." In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.
Study Finds Blacks Blocked From Southern Juries
Bill Moyers' Journal discussed these issues with EJI back in April, on the 42nd anniversary of Martin Luther King's assassination. With him were EJI's founder and attorney, Bryan Stevenson, winner of a MacArthur "genius" award for his efforts to end the death penalty; and Michelle Alexander, civil rights advocacy and litigation expert and law professor at Ohio State University, who is author of, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness." Well worth the time to view this important discussion.
Video link to EJI Moyers interview
Other salient points in the NYTimes article today:
"It really made lynching and the Ku Klux Klan possible," said Christopher Waldrep, a historian at San Francisco State University and the author of a forthcoming book about a lawyer who was able, in a rare case, to prove jury discrimination in Mississippi in 1906. "If you’d had a lot of black grand jurors investigating crimes, it would have made lynching impossible."
Back then, judges and prosecutors often argued that blacks lacked the intelligence or education to serve. That such claims persist is evidence, said Bryan A. Stevenson, the executive director of the Equal Justice Initiative, that jury selection remains largely unscrutinized.
"There’s just this tolerance, there’s indifference to excluding people on the basis of race, and prosecutors are doing it with impunity," Mr. Stevenson said. "Unless you’re in the courtroom, unless you’re a lawyer working on these issues, you’re not going to know whether your local prosecutor consistently bars people of color."
It goes without saying that the "best judicial system in the world" (as some claim) still has a hell of a long way to go before the justice it doles out is blind. There are good reasons that states like Illinois and others have either enacted or toyed with the idea of death penalty moratoria. The disparities in that issue alone cry out for systemic reform of the trial by jury system, to help reduce, and hopefully someday eliminate, the illegal racial discrimination that still occurs.