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.”