Equal Justice Initiative Releases Report on Racial Discrimination in Jury Selection

Racial bias in jury selec­tion is com­pro­mis­ing the ​“cred­i­bil­i­ty, reli­a­bil­i­ty, and integri­ty of the legal sys­tem,” and its effects are espe­cial­ly pro­nounced in death penal­ty cas­es, a new report from the Equal Justice Initiative (EJI) has found.

EJI’s report, Race and the Jury: Illegal Discrimination in Jury Selection, released online July 27, 2021, places the con­tin­u­ing ille­gal exclu­sion of jurors of col­or in its his­tor­i­cal con­text as ​“a con­tin­u­ing lega­cy of our his­to­ry of racial injus­tice,” doc­u­ment­ing the country’s ​“long his­to­ry of tol­er­at­ing racial bias in jury selec­tion and a con­tin­u­ing indif­fer­ence to cor­rect­ing wide­spread under­rep­re­sen­ta­tion of peo­ple of col­or on juries.” The report, a fol­low up to the organization’s 2010 report, Illegal Racial Discrimination in Jury Selection, details the numer­ous fac­tors that con­tribute to ongo­ing jury dis­crim­i­na­tion today, and what EJI describes as the ​“per­sis­tent and wide­spread” impact it con­tin­ues to have on the U.S. legal system. 

While racial dis­crim­i­na­tion in jury selec­tion is present through­out the crim­i­nal legal sys­tem, the report finds that it has espe­cial­ly per­ni­cious effects in cap­i­tal tri­als. ​“In cas­es where the death penal­ty is a pos­si­ble pun­ish­ment, the absence of mean­ing­ful rep­re­sen­ta­tion on juries shapes sen­tenc­ing out­comes, mak­ing them less reli­able and cred­i­ble,” the report explains. ​“The effect is great­est for non-white defen­dants, as stud­ies show that less rep­re­sen­ta­tive juries con­vict and sen­tence Black defen­dants to death at sig­nif­i­cant­ly high­er rates than white defen­dants. White jurors are also less like­ly to con­sid­er crit­i­cal mit­i­gat­ing evi­dence sup­port­ing a life sen­tence, rather than the death penal­ty, for Black defendants.” 

EJI says ille­gal jury dis­crim­i­na­tion ​“per­sists because those who per­pe­trate or tol­er­ate racial bias — includ­ing tri­al and appel­late courts, defense lawyers, law­mak­ers, and pros­e­cu­tors — act with impuni­ty. Courts that fail to cre­ate jury lists that fair­ly rep­re­sent their com­mu­ni­ties face no reper­cus­sions. Prosecutors who unlaw­ful­ly strike Black peo­ple from juries don’t get fined, sanc­tioned, or held accountable.” 

To redress the prob­lem, EJI rec­om­mends that courts and leg­is­la­tures remove pro­ce­dur­al bar­ri­ers to review­ing claims of jury dis­crim­i­na­tion, adopt poli­cies and prac­tices that com­mit to ful­ly rep­re­sen­ta­tive jury pools, hold account­able deci­sion mak­ers who engage in racial­ly dis­crim­i­na­to­ry jury selec­tion prac­tices, and strength­en the stan­dard of review of jury dis­crim­i­na­tion claims. However, EJI says, only a few states ​“have rec­og­nized the prob­lem and imple­ment­ed reforms or ini­ti­at­ed stud­ies” and “[m]ost states have done nothing.”

Jury Discrimination in Death Penalty Cases

The report exam­ines the U.S. Supreme Court’s his­tor­i­cal ​“indifferen[ce] to th[e] ram­pant and ille­gal exclu­sion of Black peo­ple from juries” in cas­es in which Black defen­dants were sen­tenced to death. The Court has ​“repeat­ed­ly deferred to state court deci­sions find­ing no dis­crim­i­na­tion and reject­ed com­plaints about racial­ly biased jury selec­tion” in these cas­es, EJI found. 

The Court’s tol­er­ance for bla­tant dis­crim­i­na­tion was evi­dent from its rul­ings in sev­er­al Texas death-penal­ty cas­es in the ear­ly 1900s, the report says. The report notes that ​“the Supreme Court found that no ille­gal racial dis­crim­i­na­tion had occurred” despite ​“the total exclu­sion of African Americans from jury ser­vice in mul­ti­ple cas­es where an all-white jury sen­tenced a Black man to death in a Texas coun­ty where African Americans com­prised 25% of the pop­u­la­tion” and “[e]ven though not one Black per­son appeared on a jury in any of these capital cases.”

It took until 1935, in the case of the Scottsboro Boys, for the Court to inter­vene. In that case, nine Black teenagers were false­ly charged with rap­ing two white women in Scottsboro, Alabama, and were tried and con­vict­ed by an all-white jury. “[N]o African American had served on a jury in Scottsboro in liv­ing mem­o­ry.” Yet in 2020, the Supreme Court faced a Mississippi case with strik­ing sim­i­lar­i­ties: Curtis Flowers, an inno­cent Black man charged with a quadru­ple mur­der in a white-owned store in which he had pre­vi­ous­ly been employed, was tried six times, with four death sen­tences and two mis­tri­als, by a pros­e­cu­tor whose office struck Black jurors at 4.5 times the rate that it struck white jurors. Justice Brett Kavanaugh wrote that District Attorney Doug Evans’ ​“relent­less, deter­mined effort to rid the jury of black indi­vid­u­als strong­ly sug­gests that the State want­ed to try Flowers before a jury with as few black jurors as pos­si­ble, and ide­al­ly before an all-white jury.”

The report also high­lights the cap­i­tal tri­als of Johnny Lee Gates and Glenn Ford, inno­cent Black men con­vict­ed and sen­tenced to death by all-white juries in Georgia and Louisiana in the 1970s. Gates was charged with rob­bing, rap­ing, and mur­der­ing a white woman. Evidence from sev­en cap­i­tal tri­als involv­ing Gates’ pros­e­cu­tors showed they care­ful­ly tracked the race of jurors, struck every Black juror they could, and repeat­ed­ly wrote deroga­to­ry com­ments about Black prospec­tive jurors. His all-white jury delib­er­at­ed for less than two hours before con­vict­ing him and took less than an hour to impose the death penal­ty, EJI said.

In 2018, DNA test­ing showed Gates was not the killer. After his con­vic­tion was over­turned, he entered a no-con­test plea in 2020 to secure his imme­di­ate release after 43 years in prison, 26 of which were spent on death row.

Ford was con­vict­ed and sen­tenced to death for the rob­bery and mur­der of a white man in Shreveport, Louisiana, despite the absence of any phys­i­cal evi­dence link­ing him to the crime. He was rep­re­sent­ed by a lawyer who had nev­er tried a case before a jury. His all-white jury delib­er­at­ed less than three hours before con­vict­ing him. Ford’s pros­e­cu­tor lat­er admit­ted to hav­ing inten­tion­al­ly struck all Black prospec­tive jurors in the case. Ford was exon­er­at­ed in 2014 after 29 years on death row.

The Need for Representative Juries

“When juries rep­re­sent a fair cross-sec­tion of the com­mu­ni­ty,” the EJI report says, ​“the reli­a­bil­i­ty and accu­ra­cy of crim­i­nal tri­als are improved and the integri­ty of the entire legal sys­tem is upheld.” Representative juries, the report explains, ​“are espe­cial­ly impor­tant because Black peo­ple are under­rep­re­sent­ed in pros­e­cu­tors’ offices and in the judi­cia­ry. More than 40% of Americans are peo­ple of col­or, but 95% of elect­ed pros­e­cu­tors are white. Similar dis­par­i­ties exist with­in the judiciary.” 

Ending the exclu­sion of Black jurors also helps bal­ance the view­points of the oth­er­wise over­whelm­ing­ly white deci­sion-mak­ers in a case. ​“The absence of Black rep­re­sen­ta­tion means that deci­sions about who to arrest, which crimes to pros­e­cute, and how to pun­ish peo­ple are made pri­mar­i­ly by indi­vid­u­als who have less expe­ri­ence con­tend­ing with racial bias,” the report notes. 

The his­tor­i­cal exclu­sion of Black jurors from ser­vice in crim­i­nal tri­al has per­pet­u­at­ed two par­al­lel fail­ures of the crim­i­nal legal sys­tem, EJI says: lit­tle or no pun­ish­ment for white defen­dants accused of crimes against Black vic­tims, and high con­vic­tion rates and harsh pun­ish­ments for Black defen­dants accused of crimes against white vic­tims. “[P]erpetrators of racial vio­lence, ter­ror­ism, and exploita­tion of dis­fa­vored groups have escaped account­abil­i­ty because their crim­i­nal behav­ior has been ignored by all-white juries,” the report states. Quoting a Louisiana news­pa­per from the late nine­teenth cen­tu­ry, the report high­lights a sec­ond impact of jury dis­crim­i­na­tion: all-white ​“juries … seem to think that it is their bound­en duty to ren­der a ver­dict of ​‘guilty as charged,’ because the accused has black skin.”