30 Years After Landmark Case, Exclusion of Black Jurors Continues to Plague Death Penalty

Thirty years after the U.S. Supreme Court’s 1986 deci­sion in Batson v. Kentucky pro­hib­it­ed the inten­tion­al exclu­sion of prospec­tive jurors on the basis of race, dis­crim­i­na­tion in cap­i­tal jury selec­tion con­tin­ues to plague the admin­is­tra­tion of the death penal­ty across the country. 

In arti­cles for The Huffington Post and Slate, Angel S. Harris, assis­tant coun­sel at the NAACP Legal Defense and Educational Fund, and Robert Smith, a senior fel­low at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, link the con­tin­u­ing exclu­sion of black jurors in death penal­ty cas­es to the lega­cy of lynch­ing in America. ​“While Black men are no longer lynched before all-white crowds gath­ered on the cour­t­house lawn,” as was one of Harris’ rel­a­tives in Florida, ​“Black men are all-too-often con­demned to death by all-white juries that are pro­duced by pros­e­cu­tors’ delib­er­ate exclu­sion of peo­ple of col­or, par­tic­u­lar­ly Black peo­ple, from jury ser­vice,” she wrote. 

In his Slate arti­cle, Smith describes the per­sis­tence of race-based use of dis­cre­tionary strikes by pros­e­cu­tors in numer­ous juris­dic­tions, and notes that “[t]he mix of pros­e­cu­to­r­i­al impro­pri­ety and the exclu­sion of black jurors has always been a potent com­bi­na­tion for inject­ing racial bias into death penal­ty cas­es.” He and Harris point to stud­ies in Caddo Parish, Louisiana, and Houston County, Alabama show­ing sys­tem­i­cal­ly dis­crim­i­na­to­ry use of dis­cre­tionary strikes to remove black jurors from ser­vice in death penal­ty cas­es, recent cas­es in which the Nevada Supreme Court found racial­ly dis­crim­i­na­to­ry jury selec­tion in Clark County, as well as race-based jury selec­tion prac­tices in such cities as Dallas and Philadelphia. These prac­tices, Smith says, expose ​“the inex­tri­ca­ble ties between race and the death penalty.” 

The suc­cess­ful exclu­sion of jurors of col­or also pro­duces less reli­able ver­dicts, Harris says, point­ing to stud­ies show­ing that because, ​“com­pared to diverse juries, all-white juries spend less time delib­er­at­ing, make more errors, rely on implic­it bias­es and con­sid­er few­er alternative perspectives.” 

The U.S. Supreme Court is cur­rent­ly con­sid­er­ing Foster v. Chatman (defen­dant Timothy Foster is pic­tured), a Georgia death penal­ty case in which pros­e­cu­tors struck all the black jurors after high­light­ing and mark­ing their names on the jury list and rank­ing them against each oth­er in case ​“it comes down to hav­ing to pick one of the black jurors.” Prosecutors then argued to the all-white jury to sen­tence Foster to death to ​“deter oth­er peo­ple out there in the projects.”