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African-Americans routinely blocked from juries in the South

Shocking, just shocking.

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.

An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.

In North Carolina, at least 26 current death row defendants were sentenced by all-white juries. In South Carolina, a prosecutor said he struck a black potential juror because he “shucked and jived” when he walked.

Studies have shown that racially diverse juries deliberate longer, consider a wider variety of perspectives and make fewer factual errors than all-white juries, and that predominantly black juries are less likely to impose the death penalty.


21 thoughts on African-Americans routinely blocked from juries in the South

  1. Under Batson, judges have a responsibility to call bullshit on pretextual excuses. They are not doing that. The way this works is not clear from the article to a reader who doesn’t already know. The peremptory challenges can be used on anyone for any reason or no reason, but not a discriminatory reason (that’s not uncommon in the law and applies to many housing and employment circumstances, too.) If called on it, the prosecutor has to give the non-discriminatory reason, and the Times says these reasons are bullshit. Here’s the important part. The judge does not have to accept the bullshit. The judge can make a finding that the reason is a pretext to exclude a person for discriminatory reasons. Judges should be overruling these juror challenges and finding the stated reasons pretextual all over the place, and they’re not doing it.

    Further, the appellate courts are supposed to hold thejudges to that duty by reversing when judges are letting the prosecutors get away with bullshit answers. They are not doing that.

    This is a judge problem.

  2. Yeah, that’s a problem.

    Unfortunately it’s hard to know whether they’re being blocked because “we don’t like blacks down here,” or whether they’re being blocked because “we want the death penalty for this defendant*, and studies have shown that predominantly black juries are less likely to impose the death penalty.” It’s probably a mix of both.

    In either case, dismissing jurors based on race is fortunately unconstitutional, though it is unfortunately very difficult to prove. For anyone who’s curious about the law on this issue, read this: http://en.wikipedia.org/wiki/Batson_v._Kentucky or google “batson challenge.”

    The problem is that you can’t dismiss jurors for being black, but you CAN dismiss someone for holding a particular viewpoint, even if that means that you’re dismissing all the black jurors. Batson isn’t especially helpful to fight that part of the problem.

    *In itself a very problematic issue, but that’s for another thread.

    1. Unfortunately it’s hard to know whether they’re being blocked because “we don’t like blacks down here,” or whether they’re being blocked because “we want the death penalty for this defendant*, and studies have shown that predominantly black juries are less likely to impose the death penalty.” It’s probably a mix of both.

      Does it matter, though? I mean, even if the prosecutor is thinking “Juries with black people on them are less likely to impose the death penalty,” he still can’t strike jurors because of their race. It doesn’t matter if the motivation is “I don’t like black people” or “black people are more likely to think X;” it’s illegal to base preemptive strikes on race. And yet it happens all the time, prosecutors just put forward a non-racial reason for striking whoever they struck.

      The problem is that you can’t dismiss jurors for being black, but you CAN dismiss someone for holding a particular viewpoint, even if that means that you’re dismissing all the black jurors. Batson isn’t especially helpful to fight that part of the problem.

      Yes. But you cannot strike people because they are a certain race and people of that race are more likely to believe a certain thing. You can straight-up ask them “Do you think the death penalty is morally wrong?” and, unfortunately, you are allowed to strike them if they say yes. But you cannot look at a person and assume that because they are black they are against the death penalty and strike them on those grounds.

      If you read the article, you’ll see that this is kind of a side issue. African-Americans are not being struck from jury pools in large numbers because they profess their opposition to the death penalty. Rather, prosecutors are striking them for reasons like “They aren’t sophisticated” or “they’re single parents” or “they are training to be ministers,” and then allowing white jurors onto the jury who have similar or even identical credentials and backgrounds.

  3. As a lawyer practicing in the South, I have a slightly complex initial reaction to this. (Warning: I have not read the linked article yet. I apologize if what I say has no relevance in light of what the article actually says).

    First of all, I am not denying the sociological research that shows mixed juries get facts right more often. I am only addressing the motives of prosecutors and defense attorneys in striking potential jurors from jury pools.

    In my state, and I assume other states as well, there are a certain number of peremptory juror strikes, and an unlimited of “for cause” strikes during voir dire. It is of course unconstitutional under Batson to use a peremptory challenge on the basis of race, and I have no doubt in my mind that jurors (both black and white, incidentally) are routinely and unconstitutionally struck because of their race, by both defense counsel and prosecutors.

    One reason for “for cause” strikes are that the potential juror is a convicted felon. It is a statistical fact that a higher percentage of blacks are convicted felons than the population at large. It is probable that much of this is due to racism. However, I think that may partially explain why prosecutors might be striking “for cause” blacks at a higher rate.

    Now, I will actually read the article you linked to. I am sure it addresses a lot of my initial reaction above.

  4. Much of this would go away if we could knock the number of peremptory challenges way down. There are proposals to do away with it altogether, but it might be good is each side has, say, three to deal with potential jurors that couldn’t be excluded for cause but pretty clearly had prejudged the case.

  5. The article did not deal with “for cause” strikes, however, but with peremptory strikes – a very big distinction, as you noted.

  6. It’s hard to know whether they’re being blocked because “we don’t like blacks down here,” or whether they’re being blocked because “we want the death penalty for this defendant*

    It’s hard for me to see the distinction here. I think you’ve left out a couple of important words here: “we want the death penalty for this ( very often black) defendant.” There’s an enormous racial disparity in American use of capital punishment. To argue that there’s a difference between not liking blacks and the desire to attain a capital punishment conviction would be to put that data aside.

  7. Ok, this obviously was not clear: I do not think it’s a good thing to try to strike black defendants. I was only discussing some of the mechanisms by which it can happen illegally and legally, in the hopes of providing additional information. Given the responses to my comment, I apparently didn’t do a good job.

  8. This is why JFK and LBJ fought to effectively kill Ike’s long-forgotten 1957 civil right act by inserting a jury-trial provision…that is when they weren’t busy trying to kill the bill outright by sending it to segregationist James Eastland (Democrat from Mississippi and early supporters of Kennedy’s presidential campaign) notorious Senate Judiciary Committee where they hoped it would die. Republicans tried to use a parliamentary procedure to bypass the racist committee and save the bill from death but LBJ and JFK were having none of it.

    Once in committee the jury trial amendment appeared. Ike wanted judges to be able to issue a contempt citation when whites, after being found guilty of violating voting rights (of black and republicans usually), violated a court injunction to stop. But knowing damn well all-white juries would never convict a white for refusing to allow blacks to register to vote, democrats, including 2 future presidents, inserted this amendment.

    LBJ went even furhter, removing the core of Ike’s bill: titile III. That provision would’ve given the Justice Department authority to file civil suits on behalf of persons whose civil rights had been violated.

  9. It’s a prosecutors job to get someone convicted. Of course they are going to strike potential jurors who are less likely to convict. This is not a surprise.

    1. It’s a prosecutors job to get someone convicted. Of course they are going to strike potential jurors who are less likely to convict. This is not a surprise.

      It’s not a surprise that prosecutors use strikes in racist ways; the line “shocking, just shocking” was sarcasm (I thought clearly). However, it IS illegal, so your point that it’s a prosecutor’s job to convict of “of course” they’ll strike certain jurors is ridiculous.

  10. This reminds me of a case in Australia recently where a coworker was called in as a juror on a case involving violent abuse of a small child. There was, apparently, considerable evidence from multiple parties of a distressing nature. He, and every other father, was struck from the Jury. A certain number of challenges in our legal system do not need to be justified – these were used to remove any father that could not be ‘justifiably’ removed by other means. So fathers who worked for the government, etc, who the judge would challenge the striking of, were struck in the first sweep.

    Others with ‘easier’ marks against them were struck in the second. The Jury also contained no women.

    The Law Reform Committee studied the representation of Aboriginals in Victorian courts (amongst other groups, they also noted the underrepresentation of women) and stated:

    The Australian legal system has a history of treating Aboriginal people with prejudice, hostility and contempt. As a consequence, Aboriginal people are disproportionately represented as defendants in the criminal justice system. However, Aboriginal
    people are under-represented as participants in the administration of the law.

  11. Really, Erin? For one, I wouldn’t make assumptions about what’s news to anyone. Secondly, I thought it was a D.A.’s responsibility to uphold the law. Would you like to read me where it’s written that the job of a D.A. is to attain a conviction above all else? Because that would be news…

  12. So what are the comparable stats for non-Southern states?
    Or are there none? Cause “routinely blocked from juries in the South” seems to imply it’s a problem solely in the South.

    Which I somehow doubt.

  13. I don’t recall time moving backwards, maybe it happened while I was sleeping. I don’t know, but this story makes me feel a bit like I should be expecting Rod Serling to go into a narration about how I stepped into the Twilight Zone.

  14. I went to law school in the south a few years back. When my Crim Pro class was covering Batson challenges, it was explicitly stated that Batson only begins applying to the -second- strike of a black juror because you have to show a “pattern” and that you “can” strike someone a single time without “having to” be faced with a Batson challenge. Much of the class discussion revolved around the various ways you can strike multiple prospective jurors for racial reasons and still pass a Batson challenge. It was emphasized how hard it can be to “prove” that the reason was pretext if the reason is “carefully worded”, and how in many states a conviction will only be overturned if there was actual prejudice to a party (as opposed to it having been a “harmless error”). The professor, who was not originally from the area, may have thought the discussion was demonstrating how the Batson process doesn’t fix a lot of the problems, but some of these students were the same blokes who’d show off KKK hand-signs in class or would refer to the segregated (middle-class) areas of town as “the ghetto”. The effect of the discussion was that everyone in that class knew how to rig a jury and still get away with it on appeal.

    So, no, this doesn’t surprise me whatsoever.

  15. Not to be the turd in the punchbowl or anything, but isn’t this essentially (you know, when you strip away all the justifications and nudge-nudge-wink-wink arguments) the purpose of peremptory challenges in specific and jury selection in general? Both sides try to find ways, using whatever excuses they can muster, to stack juries in such a way that their side wins. People who are members of NORML get stricken from drug cases for fear they’ll nullify, people with graduate degrees (especially lawyers) get stricken for fear that they won’t follow instructions or will think too much, people opposed to the death penalty are stricken from cases where its an option. Theres a strong argument to be made that the process as a whole undermines the concept of a trial by jury.

    Sure, its disturbing that black people are dismissed from juries in higher numbers, but I think the real question we ought to be asking is why we dismiss people from juries in the first place. I’ve yet to hear a reason to allow peremptory challenges at all that doesn’t seem to fly in the face of the fundamental concepts of liberty. As long as we allow challenges that aren’t for cause prosecutors are going to see what they can get away with. Black people will continue to be excluded from juries so long as we both exclude minorities from society and give prosecutors the power to exclude people from juries. One leads directly to the other. Fixing the society is something that takes generations, fixing the selection process is a less difficult task.

  16. Since Batson is the main line of cases for racial discrimination of juries why did this study not include Kentucky, where Batson came from?

  17. A few years ago, I got called for jury duty, and it turned out to be a death penalty case. I told the judge that of course I would let emotion sway my judgment, since that’s the whole idea of the penalty phase, weighing aggravating vs. mitigating factors.

    I got struck.

    (Perhaps a factor was that I knew or had practiced with half of the lawyers in the case. Oh, and that everyone there knew that I had represented someone for about five years, up until about 12:14 a.m. one winter night, when the only thing left for me to do was go home and cry.)

  18. So THATS the reason I’d never been called for jury duty after 8 years in my sleepy college town in North Carolina. I was beginning to take it personally.

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