Discrimination in Jury Selection

Racial dis­crim­i­na­tion in jury selec­tion is a wide­spread prob­lem in death-penal­ty cas­es. Qualified poten­tial jurors may be exclud­ed from juries through the use of ​“peremp­to­ry strikes.” Peremptory strikes can eas­i­ly be used to dis­crim­i­nate because par­ties do not need to pro­vide a rea­son or meet a spe­cif­ic stan­dard to exer­cise these strikes. Because par­ties usu­al­ly have more peremp­to­ry strikes in cap­i­tal cas­es and because ​“death qual­i­fi­ca­tion” of the jury already decreas­es jury diver­si­ty, the dis­crim­i­na­to­ry use of peremp­to­ry strikes can have a par­tic­u­lar­ly severe impact in death penalty trials.

In Batson v. Kentucky, the U.S. Supreme Court held that the pros­e­cu­tion may not use peremp­to­ry strikes to exclude a poten­tial juror based on race. If the defense believes the pros­e­cu­tion peremp­to­ri­ly struck a poten­tial juror for this rea­son, the defense must make an ini­tial show­ing of racial dis­crim­i­na­tion. Then, the pros­e­cu­tion must pro­vide a race-neu­tral rea­son for the strike. Finally, the court must decide whether the race neu­tral expla­na­tion was the true rea­son for the strike or only a pre­text. The prin­ci­ples under­ly­ing Batson were lat­er expand­ed to apply to strikes made by crim­i­nal defen­dants, strikes exer­cised in civ­il suits, and gen­der-based juror discrimination.

Prosecutors have been trained to pro­vide race neu­tral jus­ti­fi­ca­tions to strike jurors of col­or from their cas­es. In Philadelphia, a 1986 train­ing video told new pros­e­cu­tors, ​“When you do have a black juror, you ques­tion them at length. And on this lit­tle sheet that you have, mark some­thing down that you can artic­u­late lat­er… . You may want to ask more ques­tions of those peo­ple so it gives you more ammu­ni­tion to make an artic­u­la­ble rea­son as to why you are strik­ing them, not for race.” 

This issue is illus­trat­ed by the case of Russell William Tucker. Tucker has been on death row in North Carolina since 1996. At tri­al, the pros­e­cu­tors, David Spence and Robert Lang, relied on a doc­u­ment enti­tled, ​“Batson Justifications: Articulating Juror Negatives,” dis­trib­uted in a pros­e­cu­to­r­i­al train­ing ses­sion that pro­vid­ed race neu­tral jus­ti­fi­ca­tions to respond to Batson chal­lenges. The pros­e­cu­tors used lan­guage direct­ly from the train­ing doc­u­ment to jus­ti­fy their strikes in Tucker’s case, cit­ing jurors’ ​“mono­syl­lab­ic” replies, ​“body lan­guage,” or their opin­ion that the juror had ​“no stake in the com­mu­ni­ty.” All five poten­tial black jurors were struck from serv­ing on Tucker’s jury. In 2020, a Forsyth County Superior Court judge reject­ed Tucker’s Batson argu­ment and denied his appeal.

Empirical stud­ies demon­strate the per­sis­tence of racial dis­crim­i­na­tion in cap­i­tal jury selec­tion despite the Batson deci­sion. A 2017 study of South Carolina cap­i­tal jury selec­tion found that pros­e­cu­tors were more than twice as like­ly to use peremp­to­ry strikes against Black poten­tial jurors as com­pared to white poten­tial jurors. A Michigan State University study of North Carolina pros­e­cu­to­r­i­al jury strikes or accep­tances of more than 7,400 jurors from 173 cap­i­tal cas­es tried over a twen­ty-year peri­od showed that pros­e­cu­tors across the state con­sis­tent­ly struck Black jurors at approx­i­mate­ly twice the rate of oth­er jurors. Yet, a 2016 study of Batson chal­lenges in North Carolina found that, “[i]n the 114 cas­es decid­ed on the mer­its by North Carolina appel­late courts, the courts have nev­er found a sub­stan­tive Batson vio­la­tion where a pros­e­cu­tor has artic­u­lat­ed a rea­son for the peremp­to­ry chal­lenge of a minority juror.”

Curtis Flowers’ case gar­nered wide­spread atten­tion because of the extent of jury dis­crim­i­na­tion in his case. Flowers was tried six times in Mississippi for the same crime by the same pros­e­cu­tor, Doug Evans. Over the course of two decades and six tri­als, Evans sys­tem­at­i­cal­ly removed Black prospec­tive jurors from Flowers’ case, repeat­ed­ly try­ing Flowers, who is Black, before all-white or near­ly all-white juries. Flowers was con­vict­ed and sen­tenced to death four times, but each con­vic­tion was over­turned because of mis­con­duct by Evans. The two oth­er tri­als end­ed in hung juries, with every white juror vot­ing to con­vict and every Black juror vot­ing to acquit. On review of the sixth tri­al in 2019 by the United States Supreme Court, Justice Kavanaugh wrote that the prosecutor’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.”

Some states have made changes to their laws and pro­ce­dures regard­ing peremp­to­ry chal­lenges. In 2018, the Washington Supreme Court was the first in the nation to adopt a court rule seek­ing to elim­i­nate implic­it racial bias in jury selec­tion. The rule expands the pro­hi­bi­tion of inten­tion­al racial dis­crim­i­na­tion in jury selec­tion by also pro­hibit­ing chal­lenges based on ​“implic­it, insti­tu­tion­al, and uncon­scious” racial bias. California fol­lowed suit in 2020 with a sim­i­lar law. However, in 2021, the Arizona Supreme Court took this one step fur­ther and became the first in the nation to adopt a rule that bans the use of peremptory challenges.