Juries and jury selection

Though the Supreme Court made it illegal for prosecutors to exclude prospective jurors because of race in the 1986 case Batson v. Kentucky, that ruling has largely gone unenforced. The New Yorker reported in 2015 that in the approximately 30 years since the ruling, courts have accepted the flimsiest excuses for striking black jurors and that prosecutors have in turn trained subordinates how to strike black jurors without a judicial rebuke. A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”

There are no comprehensive national data on the rate at which prosecutors strike black jurors, but there have been quite a few regional studies.

A study of criminal cases from 1983 and 1993 found that prosecutors in Philadelphia removed 52 percent of potential black jurors vs. only 23 percent of nonblack jurors.

Between 2003 and 2012, prosecutors in Caddo Parish, La. — one of the most aggressive death penalty counties in the country — struck 46 percent of prospective black jurors with preemptory challenges, vs. 15 percent of nonblacks.

Between 1994 and 2002, Jefferson Parish prosecutors struck 55 percent of blacks, but just 16 percent of whites. Although blacks make up 23 percentof the population, 80 percent of criminal trials had no more than two black jurors in a state where it takes only 10 of 12 juror votes to convict.

A 2011 study from Michigan State University College of Law found that between 1990 and 2010, state prosecutors struck about 53 percent of black people eligible for juries in criminal cases, vs. about 26 percent of white people. The study’s authors concluded that the chance of this occurring in a race-neutral process was less than 1 in 10 trillion. Even after adjusting for excuses given by prosecutors that tend to correlate with race, the 2-to-1 discrepancy remained. The state legislature had previously passed a law stating that death penalty defendants who could demonstrate racial bias in jury selection could have their sentences changed to life without parole. The legislature later repealed that law.

Most recently, American Public Media’s “In the Dark” podcast did painstaking research on the 26-year career of Mississippi District Attorney Doug Evans and found that over the course of his career, Evans’s office struck 50 percent of prospective black jurors, vs. just 11 percent of whites.

In the 32 years since Batson, the U.S Court of Appeals for the 5th Circuit — which includes Mississippi, Texas and Louisiana — has upheld a Batson challenge only twice. That is out of hundreds of challenges.
A survey of seven death penalty cases in Columbus, Ga., going back to the 1970s found that prosecutors struck 41 of 44 prospective black jurors. Six of the seven trials featured all-white juries.

In a 2010 study, “mock jurors” were given the same evidence from a fictional robbery case but then shown alternate security camera footage depicting either a light-skinned or dark-skinned suspect. Jurors were more likely to evaluate ambiguous, race-neutral evidence against the dark-skinned suspect as incriminating and more likely to find the dark-skinned suspect guilty.