It seems like an intractable problem: How can we detect and prevent subtler forms of racial bias when it comes to jury selection?
In a criminal trial, both the prosecution and the defense get a certain number of “peremptory” strikes, vetoes that they can use against prospective jurors without citing a legal cause. The Supreme Court banned race-based peremptory challenges in 1986, in Batson v. Kentucky.
[W]e have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. The State cannot meet this burden on mere general assertions that its officials did not discriminate, or that they properly performed their official duties. Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result."
More than 30 years later, attorneys are still flouting that prohibition, usually by offering “race-neutral” reasons for exercising their strikes, or vetoing jurors.
Prosecutors have spent decades concocting reasons that are race-neutral enough to pass court muster. They even attend seminars and training sessions where they learn specific ways to cover up racial discrimination in the jury selection process, according to an amicus brief that a group of prosecutors filed with the Supreme Court in Foster v. Chatman. In North Carolina, for example, the North Carolina Conference of District Attorneys held a statewide training course in 1995 where it provided a list entitled “Batson Justifications: Articulating Juror Negatives.” Presumably, the list was full of justifications that prosecutors could use when striking jurors without fear of being accused of bias.
Lest anyone try to claim this is a South-specific phenomenon, consider Philadelphia’s history.
[I]n a now-infamous training video from 1987, former Philadelphia District Attorney Jack McMahon advised trainees that keeping Black, low-income, and educated citizens off juries is key to securing convictions.
As reported by the Los Angeles Times in 1997, McMahon’s advice to a group of trainees is so racist that it would be comical if it weren’t so dangerous:
“In selecting blacks, you don’t want the real educated ones. This goes across the board. All races. You don’t want smart people. If you’re sitting down and you’re going to take blacks, you want older black men and women, particularly men. Older black men are very good …. My experience, young black women are very bad. There’s an antagonism. I guess maybe because they’re downtrodden in two respects. They are women and they’re black … so they somehow want to take it out on somebody and you don’t want it to be you .… The blacks from the low-income areas are less likely to convict. I understand it. It’s an understandable proposition. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.”
The Washington Supreme Court has decided to tackle the issue. The state justices passed General Rule 37 in an attempt to eliminate opportunities to act on racial bias, conscious or unconscious, in jury selection.
A key provision of the rule addresses some of these biases outright and presumes that certain reasons that prosecutors have historically used to strike Black jurors are invalid. For example, if a prosecutor strikes a juror who has had prior contact with law enforcement, that strike is presumptively invalid. And with good reason: Considering the overpolicing of communities of color, it is no surprise that a lot of Black jurors would have had prior contact with the police.
In addition, having a close relationship with people who have been stopped, arrested, or convicted of a crime is a presumptively invalid reason to be stricken from a jury, as is living in a high-crime neighborhood, having a child outside of marriage, receiving state benefits, and not being a native English speaker
The court deserves kudos for taking this remarkable step to end this inherently unconstitutional practice—the use of “race-neutral” reasons to strike jurors of color—that has thrived in ambiguity.