“He Looks a Little Like the Defendant”: A Closer Look at the History of Racial Bias in Jury Selection

As clos­ing argu­ments of his tri­al began in Johnston County, North Carolina, Hasson Bacote watched as Assistant District Attorney Gregory Butler urged the jury to sen­tence him to death. Mr. Bacote, a Black man, had been con­vict­ed of fatal­ly shoot­ing 18-year-old Anthony Surles dur­ing a rob­bery when Mr. Bacote was just 21 years old. Mr. Bacote admit­ted he had fired a sin­gle shot out of a trail­er, but said he did not know that he hit any­one. ​“Hasson Bacote is a thug: cold-blood­ed and with­out remorse,” Mr. Butler told the jury, which con­sist­ed of 10 white peo­ple and 2 Black peo­ple. Mr. Butler had struck poten­tial Black jurors from Mr. Bacote’s tri­al at over three times the rate of white jurors. The jury vot­ed to sen­tence Mr. Bacote to death.

In 2009, the same year Mr. Bacote was sen­tenced, North Carolina leg­is­la­tors passed the Racial Justice Act (RJA), which gave death row pris­on­ers the oppor­tu­ni­ty to prove that racial bias was a fac­tor in their case — and win a life with­out parole sen­tence if suc­cess­ful. Mr. Bacote’s legal team quick­ly applied for RJA relief, but in 2013, the leg­is­la­ture repealed the RJA and attempt­ed to nul­li­fy the more than 130 claims that had already been filed. After years of lit­i­ga­tion, the North Carolina Supreme Court ruled in 2020 that the repeal of the RJA was not retroac­tive and the claims could move for­ward. Mr. Bacote’s claim was the first to pro­ceed to an evidentiary hearing. 

At the hear­ing in 2024, Mr. Bacote’s attor­neys pre­sent­ed sta­tis­ti­cal analy­sis show­ing that poten­tial Black jurors in Johnston County were four times more like­ly to be struck than white jurors — and ten times more like­ly to be struck if Mr. Butler was the pros­e­cu­tor. They also high­light­ed Mr. Butler’s clos­ing argu­ment in anoth­er tri­al, where Mr. Butler called the Black defen­dant and his code­fen­dants ​“wild dogs,” ​“hye­nas,” and ​“preda­tors of the African plain.” Mr. Butler, now retired, tes­ti­fied in the hear­ing that he ​“nev­er, ever struck a juror with­out hav­ing race-neutral reasons.”

But before the court issued its deci­sion on Mr. Bacote’s RJA claim, out­go­ing Governor Roy Cooper com­mut­ed the death sen­tences of fif­teen peo­ple to life with­out parole on December 31, 2024, his last day in office. Mr. Bacote was the first name on the list. Gov. Cooper did not spec­i­fy why he grant­ed clemen­cy in each indi­vid­ual case, but not­ed that the ​“poten­tial influ­ence of race, such as the race of the defen­dant and vic­tim, com­po­si­tion of the jury pool and the final jury, and evi­dence and tes­ti­mo­ny offered at tri­al” played a key role in his deci­sion. Thirteen of the fif­teen men who received clemen­cy from Governor Cooper are Black. 

In February 2025, the RJA court ruled in Mr. Bacote’s favor, find­ing that racial bias per­vad­ed his and oth­er death sen­tences in North Carolina, a state with a long his­to­ry of racial vio­lence and ter­ror. ​“In Johnston County, Black defen­dants like Mr. Bacote have faced a 100 per­cent chance of receiv­ing a death sen­tence, while white defen­dants have a bet­ter than even chance of receiv­ing a life sen­tence,” the court wrote. The court fur­ther rec­og­nized Mr. Butler’s ​“his­to­ry of den­i­grat­ing Black defen­dants in thin­ly veiled racist terms.” The court found sta­tis­ti­cal dis­par­i­ties in the entire pros­e­cu­to­r­i­al dis­trict encom­pass­ing Mr. Bacote’s case; pros­e­cu­tors there struck Black jurors at near­ly twice the rate of all oth­er jurors. The court also not­ed exam­ples from 18 oth­er coun­ties¹ where pros­e­cu­tors had ​“intro­duced offen­sive stereo­types and char­ac­ter­i­za­tions, com­ment­ed on skin shade and body types, den­i­grat­ed women, and/​or used ani­mal imagery” to describe jurors; used ​“prox­ies” for race to mark jurors, such as neigh­bor­hood, group mem­ber­ship, atten­dance at a his­tor­i­cal­ly Black col­lege, or fol­low­ing Black-owned media; offered dis­parate or out­right false rea­sons for strik­ing Black jurors; or oth­er­wise inject­ed racial bias into voir dire pro­ceed­ings. This rul­ing impli­cates over 100 pend­ing RJA claims in North Carolina and speaks to the per­va­sive nature of cap­i­tal jury dis­crim­i­na­tion through­out American history. 

The Long History of Racial Bias in Jury Selection 

Racial bias in jury selec­tion has been a fea­ture of cap­i­tal pun­ish­ment through­out American his­to­ry. Only white men were legal­ly per­mit­ted to serve on juries for the first eighty-odd years of the repub­lic. Following the Civil War, new legal pro­tec­tions, includ­ing the Fourteenth Amendment and the Civil Rights Act of 1875, affirmed the legal right of Black men to serve on juries. In Strauder v. West Virginia (1880), the United States Supreme Court held that racial dis­crim­i­na­tion against jurors of col­or cre­ates ​“a brand upon them, affixed by law; an asser­tion of their infe­ri­or­i­ty, and a stim­u­lant to that race prej­u­dice which is an imped­i­ment to secur­ing to indi­vid­u­als of the race that equal jus­tice which the law aims to secure to all others.” 

But in prac­tice, juries remained vir­tu­al­ly entire­ly white and male for anoth­er cen­tu­ry, espe­cial­ly in the South. Prosecutors rou­tine­ly struck every Black juror dur­ing the Jim Crow era, while the Supreme Court con­sis­tent­ly reject­ed the appeals of Black peo­ple sen­tenced to death by all-white juries. One excep­tion was the high-pro­file ​“Scottsboro Boys” case, where nine Black youth were wrong­ful­ly con­vict­ed and sen­tenced to death by an all-white jury for the rape of two white women. According to the Equal Justice Initiative, at that time no Black per­son ​“had served on a jury in Scottsboro in liv­ing mem­o­ry.” After the Court over­turned the Scottsboro Boys’ death sen­tences, Alabama tried them a sec­ond time, and in 1935 the Court reversed the death sen­tence of defen­dant Clarence Norris because of racial dis­crim­i­na­tion in the selec­tion of his jury. The Court held for the first time that the sys­temic exclu­sion of Black peo­ple from juries was uncon­sti­tu­tion­al as a vio­la­tion of the Equal Protection Clause. But ram­pant jury dis­crim­i­na­tion con­tin­ued; all-white or most­ly-white juries enabled pros­e­cu­tors to eas­i­ly secure death sen­tences against Black defen­dants, espe­cial­ly in cas­es involv­ing white female victims.

In Swain v. Alabama (1965), the Court again heard the case of a Black man sen­tenced to death for rape by an all-white jury, in a coun­ty where no Black per­son had served on a jury in over a decade. The Court held that the exclu­sion of poten­tial Black jurors was not evi­dence enough, on its own, to prove a vio­la­tion of equal pro­tec­tion; a defen­dant was also required to show that pros­e­cu­tors had pur­pose­ful­ly dis­crim­i­nat­ed against Black jurors in his own case and sys­tem­at­i­cal­ly dis­crim­i­nat­ed against Black jurors in oth­er cas­es. However, it soon became appar­ent that the Swain test cre­at­ed an all-but-impos­si­ble bur­den for defen­dants to meet. Not a sin­gle defen­dant pre­vailed on a claim of race dis­crim­i­na­tion in jury selec­tion under the Swain test for the next twenty years. 

Batson v. Kentucky Declares Race-Based Juror Strikes an Equal Protection Violation and Creates New Test

In its land­mark deci­sion Batson v. Kentucky (1986), the Court held that race-based juror strikes were uncon­sti­tu­tion­al under the Equal Protection Clause of the Fourteenth Amendment and cre­at­ed a new three-part test for prov­ing dis­crim­i­na­tion. First, the defen­dant must make a case of first impres­sion by show­ing that the pros­e­cu­tor exclud­ed peo­ple of col­or. The bur­den then shifts to the pros­e­cu­tor to pro­vide a race-neu­tral rea­son for strik­ing the chal­lenged jurors. At the third step, the tri­al court con­sid­ers whether there is evi­dence that the race-neu­tral expla­na­tion is a pre­text for dis­crim­i­na­tion. ​“By requir­ing tri­al courts to be sen­si­tive to the racial­ly dis­crim­i­na­to­ry use of peremp­to­ry chal­lenges, our deci­sion enforces the man­date of equal pro­tec­tion and fur­thers the ends of jus­tice,” the Court wrote.

The new Batson test was ini­tial­ly promis­ing. A few courts over­turned con­vic­tions and death sen­tences based on Batson chal­lenges when pros­e­cu­tors admit­ted that they had struck a juror based on race. For exam­ple, in the case of Willie Gamble Jr., sen­tenced to death in Georgia in 1986, the pros­e­cu­tor admit­ted he struck a Black prospec­tive juror because ​“he looks a lit­tle like the defen­dant,” who was also a Black male. In the case of Charles Owens, sen­tenced in 1985 in Alabama, the pros­e­cu­tor explained that one prospec­tive juror was struck because ​“the fact that he was the same race as the defen­dant was a fac­tor.” Mr. Gamble won relief in 1987 and Mr. Owens in 1988. 

But pros­e­cu­tors soon learned how to suc­cess­ful­ly defend race-based chal­lenges, and courts gen­er­al­ly accept­ed even the flim­si­est excus­es. Prosecutors point­ed to the jurors’ cloth­ing and hair­styles, or argued that jurors were struck because they lived in a ​“high crime area” — code for a Black neigh­bor­hood. By accept­ing these rea­sons and deny­ing relief, many courts sig­naled that the sec­ond step of the Batson test required only a race-neu­tral rea­son, not that the rea­son itself be sen­si­ble or plau­si­ble. The cas­es in which defen­dants won Batson relief were dwarfed by the num­ber of cas­es in which relief was not grant­ed despite pow­er­ful evi­dence of racial bias. ​“A pros­e­cu­tor can eas­i­ly find a dis­tin­guish­ing fea­ture (such as a gold ear­ring) or some objec­tive per­son­al­i­ty eval­u­a­tion (such as…uncommunicativeness) that will eas­i­ly with­stand review by the tri­al judge,” attor­ney Jonathan B. Mintz observed just one year after the deci­sion.

Some pros­e­cu­tors were sys­tem­at­i­cal­ly trained to use var­i­ous excus­es to evade detec­tion. During the appeal of William Basemore, a Black man sen­tenced to death in 1988 in Pennsylvania, an instruc­tion­al video emerged show­ing Pennsylvania District Attorney Jack McMahon teach­ing pros­e­cu­tors how to exclude Black jurors and then defend against any Batson chal­lenge. DA McMahon instruct­ed pros­e­cu­tors to ques­tion Black jurors for longer than oth­er non-Black jurors to search for excus­es to strike them if chal­lenged, com­par­ing the method to ​“teach­ing black­jack,” and stat­ing that, ​“in my expe­ri­ence, black women, young black women, are very bad.” Prosecutors had used 19 strikes to remove prospec­tive Black jurors from Mr. Basemore’s tri­al; he received Batson relief and was ulti­mate­ly resen­tenced to life without parole.

In Jimmy Lee Horton​’s case, evi­dence emerged that over a peri­od of sev­en years his Louisiana pros­e­cu­tor used 1,095 of 1,580 strikes (69%) to remove prospec­tive Black jurors from cap­i­tal tri­als. The pros­e­cu­tor had draft­ed a memo describ­ing how to min­i­mize the num­ber of Blacks, women, and younger indi­vid­u­als serv­ing on cap­i­tal juries in a Louisiana parish. Similar train­ing mate­ri­als have been dis­cov­ered in North Carolina, Texas, and California. 

In the 2000s, the Supreme Court expand­ed legal pro­tec­tions against jury dis­crim­i­na­tion in a series of cas­es. The Swain stan­dard ​“turned out to be dif­fi­cult to the point of unwork­able,” and ​“Batson​’s indi­vid­u­al­ized focus came with a weak­ness of its own owing to its very empha­sis on the par­tic­u­lar rea­sons a pros­e­cu­tor might give,” the Court wrote in Miller-El v. Dretke (2005). ​“If any facial­ly neu­tral rea­son suf­ficed to answer a Batson chal­lenge, then Batson would not amount to much more than Swain.”

The Court twice heard the case of Thomas Miller-El, who had been sen­tenced to death by a jury of 11 white peo­ple and one Black per­son, after the pros­e­cu­tion struck 10 of 11 prospec­tive Black jurors in the pool. Lower courts had accept­ed the state’s argu­ment that the exclud­ed Black jurors indi­cat­ed hes­i­ta­tion about impos­ing the death penal­ty, even though white jurors who served on the jury had expressed sim­i­lar views. The Court held that such ​“side-by-side com­par­isons” of exclud­ed and retained jurors could help show racial bias in the prosecution’s strikes. Additionally, defen­dants could iden­ti­fy poli­cies or his­toric prac­tices of the dis­trict attorney’s office, ​“dis­parate ques­tion­ing” of jurors of dif­fer­ent races, and oth­er con­tex­tu­al evi­dence to estab­lish dis­crim­i­na­tion. In Snyder v. Louisiana (2008), the Court con­firmed that ​“the Constitution for­bids strik­ing even a sin­gle prospec­tive juror for a discriminatory purpose.”

These rul­ings gave death-sen­tenced pris­on­ers stronger tools to win relief in the face of pros­e­cu­tors’ dubi­ous jus­ti­fi­ca­tions for strik­ing jurors of col­or, includ­ing that prospec­tive jurors had ​“crazy red hair” or ​“low intel­li­gence.” In the case of Victor Stephens, sen­tenced in 1989 in Alabama, the pros­e­cu­tion used 21 of its 23 strikes, or 91% of strikes, to remove prospec­tive Black jurors from a tri­al involv­ing a Black defen­dant. Among the rea­sons pros­e­cu­tors gave for exclud­ing Black jurors was that one of them was wear­ing sun­glass­es. Mr. Stephens won relief in 2011. In the case of Stephen Louis Mitcham, sen­tenced in 1984 in California, the pros­e­cu­tor struck all eight prospec­tive Black jurors from a tri­al involv­ing a Black defen­dant accused of killing two white vic­tims. The pros­e­cu­tor marked the race of the Black jurors on his notes by indi­cat­ing ​“B” but did not note the races of non-Black jurors. Mr. Mitcham won relief in 2015.

The Death Penalty Information Center has iden­ti­fied near­ly 70 cap­i­tal cas­es in 16 states in which a court vacat­ed a con­vic­tion or death sen­tence based on jury dis­crim­i­na­tion. DPI’s data­base illus­trates geo­graph­i­cal dis­par­i­ties in Batsonrelief. Alabama alone accounts for 23 jury dis­crim­i­na­tion rever­sals (35%, or more than one-third); courts have grant­ed relief based on jury dis­crim­i­na­tion in 16 Alabama coun­ties, illus­trat­ing the sys­temic nature of pros­e­cu­to­r­i­al mis­con­duct in cap­i­tal cas­es in the state. Philadelphia County, where DA McMahon’s video con­firmed that pros­e­cu­tors had been trained to con­duct ille­gal strikes, has the sec­ond-high­est rate of Batson rever­sals, at five. But Texas and Florida, the two states with the high­est num­ber of death sen­tences in the mod­ern era, have col­lec­tive­ly had few­er than five Batson rever­sals. Many states with high rates of death sen­tences — includ­ing North Carolina — have not seen a sin­gle death-sen­tenced per­son win Batson relief based on jury discrimination.

Recent Cases Demonstrate Continued Concerns about Racial Bias in Jury Selection

Recent cas­es illus­trate con­tin­u­ing per­ni­cious dis­crim­i­na­tion in some pros­e­cu­tor offices — and incon­sis­tent enforce­ment of Batson vio­la­tions by the Supreme Court. In 2019, the Court over­turned Curtis Flowers’ con­vic­tion after he was sen­tenced to death for the 1996 quadru­ple mur­der of white vic­tims in Winona, Mississippi. Mr. Flowers, who is Black, was tried six times by the same white pros­e­cu­tor, who struck 41 out of 42 prospec­tive Black jurors across the tri­als. In the most recent tri­al, the pros­e­cu­tor asked 5 Black prospec­tive jurors 145 ques­tions but only asked the 11 seat­ed white jurors a total of 12 ques­tions. ​“The num­bers speak loud­ly,” the Court wrote; ​“The state’s 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.” Mr. Flowers was later exonerated. 

But in 2024, the Supreme Court denied review of Warren King​’s Batson claim, even after the evi­dence showed that the pros­e­cu­tor struck 87.5% of Black poten­tial jurors but only 8.8% of white poten­tial jurors. When asked to explain one of the strikes, the pros­e­cu­tor respond­ed that ​“this lady is a black female” — by all appear­ances a straight­for­ward Batson vio­la­tion. The pros­e­cu­tor also went on a ​“tirade” of ​“repeat­ed, indig­nant dia­tribes against Batson.” Justice Ketanji Brown Jackson dis­sent­ed from the denial of review, joined by Justice Sonia Sotomayor, point­ing to the ​“fla­grant nature” of the jury dis­crim­i­na­tion and the ​“appar­ent trend of dis­turbing­ly lax Batson enforce­ment” in low­er courts. Similarly, the Court denied Tony Clark​’s Batson claim in 2023 despite evi­dence of egre­gious offi­cial mis­con­duct, includ­ing the prosecutor’s con­tention that the strikes of some Black jurors were jus­ti­fied because they shared last names with local con­vict­ed felons, despite fail­ing to ask whether the jurors were relat­ed to the felons. Justice Sotomayor dis­sent­ed, say­ing the Court’s fail­ure to rule for Mr. Clark sig­ni­fied ​“that this Court is unwill­ing to do what is nec­es­sary to defend its own precedent.” 

Mississippi’s approach to Batson claims has con­tin­ued to raise con­cerns. On March 11, 2025, the Mississippi Supreme Court denied Batson review to Stephen Powers, despite the tri­al judge in his case say­ing that he was ​“shocked and appalled” at the prosecution’s appar­ent race-based strikes and the defense attorney’s fail­ure to object. Justice Leslie King dis­sent­ed, express­ing her ​“con­tin­u­ing con­cerns regard­ing how this Court applies, or refus­es to apply, Batson.” She argued that ​“this Court blocks Powers’s Batson claims at every juncture…consistent with this Court’s demon­strat­ed hos­til­i­ty to uphold­ing Batson pro­tec­tions with regard to Black jurors.” She went on to say that Mr. Powers ​“can­not receive a fair hear­ing on his Batson claims in the state of Mississippi.” 

California also faces a reck­on­ing regard­ing racial dis­crim­i­na­tion in cap­i­tal tri­als. In April 2024, Alameda County District Attorney Pamela Price announced that her office would con­duct a review of 35 death penal­ty con­vic­tions after evi­dence emerged that sev­er­al pros­e­cu­tors inten­tion­al­ly exclud­ed Black and Jewish jurors. District Court Judge Vince Chhabria ordered that the prosecutor’s notes in the cas­es be made pub­lic and con­clud­ed that the California DA’s office had ​“engaged in a pat­tern of seri­ous mis­con­duct.” In the notes, one pros­e­cu­tor described a Black female juror as a ​“short, fat, troll,” and wrote ​“Banker. Jew?” next to anoth­er juror’s name. In a speech at a statewide pros­e­cu­tor con­ven­tion, a pros­e­cu­tor on the county’s so-called ​“Death Team” told atten­dees to ​“nev­er, ever leave a Jewish per­son on a cap­i­tal jury.” In the past year, sev­er­al death-sen­tenced pris­on­ers from Alameda County have had their sen­tences over­turned after DA Price con­fessed error, includ­ing Ernest Dykes, Keith Thomas, and Curtis Ervin. A coali­tion of advo­ca­cy groups filed a peti­tion last year at the California Supreme Court con­tend­ing that the state’s death penal­ty sys­tem is uncon­sti­tu­tion­al due to entrenched racial bias. 

The fall 2024 exe­cu­tions of Marcellus Williams and Richard Moore, both Black men, drew nation­al atten­tion once again to the issue of jury dis­crim­i­na­tion. Marcellus Williams was exe­cut­ed in Missouri on September 24, 2024 despite strong evi­dence of his inno­cence and the sup­port of the sit­ting coun­ty pros­e­cu­tor. The tri­al pros­e­cu­tor, who struck six out of sev­en Black poten­tial jurors, said that he exclud­ed one of the Black poten­tial jurors because he ​“looked like [Mr. Williams’] broth­er.” Richard Moore was exe­cut­ed in South Carolina on November 1, 2024, after being sen­tenced to death for the mur­der of a store clerk in 1999. His exe­cu­tion was also car­ried out despite the fact that pros­e­cu­tors struck all prospec­tive Black jurors, leav­ing Mr. Moore with an all-white jury. In a scathing dis­sent from a 2022 rul­ing, South Carolina Supreme Court Justice Kaye Hearn wrote that Mr. Moore’s ​“death sen­tence is a rel­ic of a bygone era,” and ​“the foun­da­tion of our cap­i­tal pun­ish­ment scheme is deeply root­ed in racial disparity.”

“The evi­dence that race dri­ves jury selec­tion and jury sen­tenc­ing deci­sions in cap­i­tal cas­es is repug­nant and cries out for a rem­e­dy,” the RJA court wrote in rul­ing in favor of Mr. Bacote. North Carolina courts had denied every sin­gle Batson claim in a cap­i­tal case (and in every crim­i­nal case until 2022) — mean­ing no death-sen­tenced pris­on­er won relief on jury dis­crim­i­na­tion in the state until the RJA. As law pro­fes­sor Elisabeth Semel, a jury dis­crim­i­na­tion expert, told DPI last year, ​“I would…grad[e] Batson v. Kentucky with an F, also with the word fail­ure.” Said Gretchen Engel of the Center for Death Penalty Litigation upon Mr. Bacote’s his­toric win, ​“This deci­sion is a damn­ing indict­ment of the death penal­ty, and should serve as a call for every North Carolina death sen­tence to be reexamined.”