Updated: Jan 18
If racist institutions have proven anything throughout the history of the United States, it is that they are durable and exhibit an unnerving ability to shapeshift.
Slavery was made illegal, yet prison labor has been deemed a morally-acceptible exception.
Segregation was outlawed, yet banks and districts are allowed to practice it to an alarming extent.
Lynchings are discussed as relics of a distant past, yet Black people continue to sit on death row (largely under wrongful convictions) at a disproportionate rate.
Despite making up only 13% of the US population, Black people account for 41% of Americans on death row. Black defendants are also convicted at a rate that is 25% higher than that of white defendants, and are wrongfully convicted at much higher rates than their white counterparts. These disparities are just some of the many manifestations of the systemic racism that plagues this country. While the results of this systemic issue are evident, it is necessary to explore one of the mechanisms that brings these disparities into being: a racially-rigged jury selection process that leads to a white - and hostile - jury passing judgement on Black defendants.
First, let’s take a look at the origins of a trial by jury in the United States. According to the Constitution’s 6th Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” A jury is a group of people summoned to decide whether or not a defendant is "guilty" in criminal cases. They listen to evidence presented during a trial, decide what conclusions the evidence has established, and draw inferences from those facts to form the basis for their decision.
Despite the scripted call for an impartial jury, the federal government originally decided that only "men of recognized intelligence and probity" or "key men" of the community could serve on a jury. Applying the same ideology that keeps the electoral college in place, they believed that justice requires above average levels of intelligence, morality, and integrity - which apparently only rich, white men have ever exhibited. In 1968, Congress abandoned this system for federal courts under the Jury Selection and Service Act, declaring that “all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community.” By extending the ruling to state courts, the Supreme Court held that the constitutional guarantee of trial by an impartial jury required the jury pool to be a mirror image of the eligible community population. Unsurprisingly, the justice system has failed its constituents and ensured that this ideal of a “jury of your peers'' is rarely a reality. Our justice system has allowed all-white juries to prevail in many communities with a substantial Black population, including Houston County, Alabama, where 26 percent of residents are Black.
Let’s look at how the justice system supports this biased jury selection
Juror qualifications are discriminatory by nature When assembling a list of potential jurors, counties usually randomly select from a list of residents’ drivers licenses, IDs, or voter registration information. This selection process may seem harmless, but age-old disenfranchisement efforts (ID fees, voter purges, etc.) against Black Americans have made it so that, as of a 2006 report by the Brennon Center, 25% of Black Americans nation-wide do not have valid, government-issued photo IDs. Thus, before the jury selection has even begun, a large percentage of the Black population is excluded from participating in a jury.
Another factor that comes into play is availability. The first line of questioning involved in the jury selection process is done by the judge, in which they ask the prospective jurors questions to ensure that they are legally qualified to serve on a jury and that jury service would not cause them “undue hardship.” Now, if you are working a minimum wage job with a family to support, or an education to pay for, you simply don’t have the luxury of extra time spent on a jury, especially when jury compensation is usually only $50 a day. In 2018, 21% of Black people in the United States were living below the poverty line, compared to 8% percent of White people. As such, it is easy to see how the lack of decent jury compensation effectively excludes another significant portion of the Black population from serving on a jury.
Prosecutors racially rig juries in their favor A prosecutor is a federally employed lawyer who represents the State and is said to be working in the public’s interest. Despite the government’s pretense that the public interest and the federal government’s interests are the same, they are not. While it’s in the public’s interest to develop rehabilitation programs for drug addicts, it is in the government’s corporal interest to convict drug addicts and profit from the prison industrial complex. In Abbe Smith’s "Can You Be a Good Person and a Good Prosecutor?", Smith writes:
The government has devoted an arsenal of resources to a mean-spirited and misguided criminal justice policy that has literally stolen hope for the next generation from entire [poor, non-white] communities. It is the role of the prosecutor, the government's lawyer, to carry out these policies.
A prosecutor’s primary goal is to put who the law has deemed bad people into prisons. Unsurprisingly, this demographic is mostly made up of Black, Brown, Indigenous, disabled, and poor people, which makes obtaining a white jury beneficial to the prosecution. To understand how prosecutors can secure a white-biased jury, one must understand the jury selection process. So here’s how it goes:
First, through a somewhat random process, a group of potential jurors is summoned from a list of eligible prospects. Lawyers and judges select jurors by a process known as “voir dire,” which is Latin for “to speak the truth.” In voir dire, the judge and lawyers ask potential jurors questions to determine if they are competent and suitable to serve (under the court’s standards) in the case. The lawyers on each side question the potential jurors about their biases and backgrounds as well as any pre-existing knowledge they might have about the case. After they have completed questioning, the lawyers begin removing potential jurors from the group by making “challenges for cause” and “peremptory challenges.”
“Challenges for cause” are when lawyers dismiss jurors because of their inadequate responses to the voir dire; this means that the expelled jurors have been deemed not qualified, able, or fit to serve in a particular case. It’s important to note that lawyers generally have an unlimited number of “for cause” challenges available, though they must give defendable reasons for these challenges. Next come the peremptory challenges, and these are where things get blatantly and unapologetically racist.
Peremptory challenges allow lawyers on each side to dismiss jurors who are otherwise qualified, but “appear likely to favor the opposing party.” No reason is required for a lawyer to use a peremptory challenge to excuse a potential juror. The number of challenges allowed varies by state, but commonly 15 or more are permitted. While both peremptory challenges and “for cause” challenges “cannot be used to exclude jurors on the basis of race,” prosecutors have, time and time again, managed to do just that! Here are some key findings that have proven what has been colloquial knowledge in the legal field for a long time: prosecutors racially rig juries against Black defendants.
A recently published paper on juror removal in North Carolina conducted at the Wake Forest University School of Law proves that peremptory challenges are indeed a vehicle for veiled racial bias which results in juries that are less sympathetic towards defendants of color. The report indicates that prosecutors remove about 20 percent of African-Americans available in the jury pool, as opposed to 10 percent of whites. Additionally, prosecutors in urban areas, which tend to have larger minority populations, remove non-white jurors at a higher rate than prosecutors do in other parts of the state.
An analysis of eight Southern states found white-biased jury selection in several jurisdictions, including Houston County, Alabama, where 26 percent of residents are black. Between 2005 and 2009, half of Houston County juries were all-white, and the other half included only one black member. The analysis — conducted by the Equal Justice Initiative — also pointed to evidence that some district attorneys’ offices trained lawyers to stealthily exclude racial minorities from jury service.
Defense attorneys have uncovered trainings and manuals teaching prosecutors to invent plausible-sounding, “race-neutral” explanations for removing Black jurors such as “apparel,” “lifestyle concerns,” or living in a “high crime area.” This method of exclusion that prosecutors use is colloquially called the “postman gambit,” a reference to the dismissal of a Black woman from an all-white jury in the case of Herbert Smulls, a Black man executed in 2014. In Smulls’ case, the assistant prosecuting attorney successfully had the woman dismissed by the judge on the grounds that she was a postal worker, and the prosecutor “didn’t trust mail workers.”
Judges exhibit racial bias in the jury selection and sentencing processes. It is important to note that, when cases are tried before a jury, the judge still plays a major role in determining what the jury can consider as evidence. The jury is supposed to be the truth-finder, but is left to find the “truth” only from the legally admissible evidence. The judge instructs the jury on the legal principles, or rules, that must be followed in weighing the evidence. If the jury finds the accused guilty or liable, it is still up to the judge to sentence the defendant. The judge also determines the legitimacy of the “for cause” and peremptory challenges presented by both prosecutors and defendants. This means that, while prosecutors are the ones challenging the presence of Black jurors, the judges are the ones allowing these strikes and ruling them as valid.
The Wake Forest University paper also found that judges approve the removal of Black jurors “for cause” about 20 percent more often than they do white jurors. As such, when the dust settles at the close of jury selection, the defense attorneys’ attempts to balance the scales with their own challenges (which come after the prosecutors’) do not cancel out the combined skewed actions from prosecutors and judges. The consistent result is a jury box where Black people occupy a much smaller percentage of seats than they did in the original jury pool.
According to a report conducted by the United States Sentencing Commission (USSC), Black men who commit the same crimes as white men receive federal prison sentences that are, on average, 20 percent longer.
This disparity was present even after a wide variety of sentencing factors were controlled for, including age, education, citizenship, weapon possession and prior criminal history. Nearly half of the 206,000 people serving life and “virtual life” prison sentences in the US are Black. According to a 2016 Herald-Tribune investigation, Black people are also more likely to have their civil rights revoked as part of their sentence, preventing them from voting and making it harder to find jobs and housing. This racial disparity in Black/white sentencing has increased in recent years, particularly following the Supreme Court's decision in United States v. Booker in 2005. Booker gave federal judges significantly more discretion on sentencing by making it easier to impose harsher or more lenient sentences than the USSC's sentencing guidelines advised. Before that decision, federal judges were generally required by law to abide by those sentencing guidelines. According to the USSC's report, the Black/white sentencing disparities are being driven in large part by “non-government sponsored departures and variances,” or sentencing choices made by judges at their own discretion. The same report also found that judges are less likely to voluntarily revise sentences downward for Black offenders than for white ones. When judges do reduce Black offenders' sentences, they do so by smaller amounts than those of white offenders way.
How bad can all-white/white-biased juries really be for Black defendants? How big of a difference does a white-biased jury really make?
A Duke University study found that juries formed from all-white jury pools convict Black defendants 16 percent more often than white defendants, and that this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. Not only are Black defendants more likely to be convicted when facing all-white juries, they also face harsher punishments than white defendants would. One of the most documented examples of this harsh treatment is juries’ increased likelihood of imposing the death penalty on Black defendants. While the judge is usually the one who passes the sentence in a criminal trial, in cases involving the death penalty, the jury is often consulted. Even with jury consultation, Black defendants are so disproportionately sentenced to the death penalty that they make up 41% of people on death row, despite representing only 13% of the US population.
According to a study conducted at Tufts University, heterogeneous juries outperformed homogeneous groups in every deliberation measure examined in their research. Diverse juries had longer deliberations, discussed more case facts, made fewer inaccurate statements, and were more likely to correct inaccurate statements.
Unfortunately, there is relatively little data collected about the effect of the racial composition of juries on trial outcomes, though the studies that have been conducted have highlighted the fact that all-white juries are more hostile towards Black defendants than their white counterparts.
This isn’t about personal biases; it’s about a racist system
Professor Eduardo Bonilla-Silva, a Duke University sociologist who studies racism, explains that
“systemic racism is a distinctly structural phenomenon, meaning the practices and behaviors that perpetuate racism within a system are baked into the system itself.”
Put in simpler terms, even if there was not a single racist individual working within our justice system (the jurors, prosecutors, and judges weren’t “racist”), just by working within our justice system, they would be disproportionately incarcerating and brutalizing Black Americans. This means that, when the prosecutors single out the Black jurors, and the judges get them dimissed, and the jury rules in favor of the death penalty for more Black defendents, they are simply doing what our racist justice system requires of them in order for the system to maintain itself. As such, the only real solution is a systemic one: abolishing our incarceration system, divesting from all of its subgroups, and investing in our communities instead. There are plenty of writings and academic papers on the subject written by Black radical thinkers who are much more detailed (not to mention more qualified) than I am in writing this essay. Assata Shakur, Audre Lorde, and Angela Davis are some very well-known examples; check their work out.
Through exclusionary juror qualifications as well as a racially hostile prosecution and judge, juries are often racially rigged against Black defendants. This discrimination then leads to higher conviction rates for Black Americans, which then leads to judges passing harsher sentences on Black defendants, effectively fueling the generational poverty that a large percentage of the Black community is plagued with. In these ways, Black defendants’ constitutionally protected right to an impartial jury is not only ignored, but vehemently used against them to ensure that they feed into a prison system that has historically been used to minimize and brutalize the Black community.
This problem of blatant manipulation of jury selection against Black defendents is just one example of all that is fundamentally and systemically wrong with our justice system. That being said, there are steps we can take as individuals to help change that. While no wide-scale improvement is imminent without governmental and systemic upheaval, there are plenty of organisations that combat our discriminatory incarceration system that you can choose to donate to, volunteer with, or simply learn from. Those include The Marshall Project, a nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system; the NAACP, the largest and most pre-eminent civil rights organization in the nation; and Power Inside, a holistic harm reduction program for women in Baltimore.
Aside from donating, volunteering, and educating ourselves, we can also use our vote for those who can’t. In most states, voters choose their prosecutors and their judges. Visit Vote411 and read up on your upcoming local judicial elections, vote on election day, and encourage all your friends and family to do the same. Aside from voting, you can help hold these government officials accountable in different ways. Call, email, and write to your legal representatives and express concern over any potential rulings or a lack of transparency in proceedings. You can also get involved in prison pen pal programs that aim to extend some humanity to prisoners who are legally deprived of said humanity via our justice system. Most importantly, support (or start!) local grassroots efforts that aid your community against our incarceration system. Communal strength is how we beat corporal interests in favor of human lives.
This article was originally published on Detester Magazine
Detester Magazine, founded in 2019, is a youth-led platform dedicated to amplifying BIPOC youth activism and socio-political issues. We truly believe that art and writing are powerful mediums for change. We want to advocate issues that affect BIPOC communities, whether it concerns politics, society, culture, mental health, environment, and etc. We aim to push past the endless single stories to deliver a picture that expresses distilled human emotions and diverse perspectives. *The name Detester Magazine reflects our goal to combat the hate and bigotry that stem from ignorance.