States’ Failure to Collect Juror Race Information Contributes to ​“Whitewashed” Jury Box, Berkeley Law Report Finds

A new report from Berkeley Law’s Death Penalty Clinic finds that just 19 states col­lect race and eth­nic­i­ty infor­ma­tion from prospec­tive jurors, mean­ing that a major­i­ty of states can­not ensure that their juries are a ​“rep­re­sen­ta­tive cross-sec­tion of the com­mu­ni­ty” as man­dat­ed by the Constitution. The report, Guess Who’s Coming to Jury Duty?, rec­om­mends that all states ​“adopt a uni­form ques­tion­naire” to obtain prospec­tive jurors’ race or eth­nic­i­ty and that state courts annu­al­ly pub­lish ​“aggre­gat­ed, anonymized race/​ethnicity data” for lit­i­gants and researchers inves­ti­gat­ing jury com­po­si­tion. The work builds on the Clinic’s 2020 report, Whitewashing the Jury Box, which found that California had failed to hold state pros­e­cu­tors account­able for dis­pro­por­tion­ate­ly strik­ing Black and Latine prospec­tive jurors. The California leg­is­la­ture passed a statute in 2020 to improve jury selec­tion based on that report’s recommendations.

The Constitution com­mands that a jury ​“be a body tru­ly rep­re­sen­ta­tive of the com­mu­ni­ty” in order to fair­ly assess the state’s case against the defen­dant. The Supreme Court held in Taylor v. Louisiana (1975) that the jury ​“guard[s] against the exer­cise of arbi­trary pow­er”; it uses ​“the com­mon sense judg­ment of the com­mu­ni­ty as a hedge against the overzeal­ous or mis­tak­en prosecutor…or per­haps over­con­di­tioned or biased response of a judge.” However, this ser­vice ​“is not pro­vid­ed if the jury pool is made up of only spe­cial seg­ments of the pop­u­lace or if large, dis­tinc­tive groups are exclud­ed from the pool.” 

In Batson v. Kentucky (1986), the Supreme Court rec­og­nized that pros­e­cu­tors across the coun­try sys­tem­at­i­cal­ly exclud­ed peo­ple of col­or, par­tic­u­lar­ly Black peo­ple, from juries. The Court held that race-based strikes were uncon­sti­tu­tion­al under the Sixth and Fourteenth Amendments, and cre­at­ed a three-step inquiry for tri­al courts to assess whether a strike car­ried racial bias. However, the Clinic’s 2020 report built on decades of research show­ing that rather than pre­vent­ing pros­e­cu­tors from strik­ing jurors of col­or, the Batson frame­work just incen­tivized pros­e­cu­tors to invent ​“neu­tral” rea­sons for their strikes. Trial courts often accept­ed these rea­sons whole­sale, and appel­late courts rarely grant­ed relief on Batson claims. 

The Clinic iden­ti­fied the lack of demo­graph­ic infor­ma­tion about jury pools as a key bar­ri­er to assess­ing Batson claims, and set out to doc­u­ment the land­scape of jury ques­tion­naires in the United States. Report authors Professor Elisabeth Semel, clin­ic para­le­gal Lauren Havey, and law stu­dents Willy Ramirez, Yara Slaton, and Casey Jang faced a bureau­crat­ic labyrinth in com­pil­ing data. They found no con­sis­tent approach to gath­er­ing demo­graph­ic infor­ma­tion about prospec­tive jurors. Some states asked for a person’s race when issu­ing a jury sum­mons, oth­ers asked when a per­son appeared in court for jury selec­tion, and oth­ers drew data from DMV records. Some states allowed peo­ple to write in their iden­ti­fi­ca­tion, while oth­ers used check­lists of vary­ing degrees of detail. The source of the prac­tice could be a statute, a court rule, or an infor­mal pol­i­cy; the researchers found that some loca­tions col­lect­ed race and eth­nic­i­ty data with no doc­u­ment­ed require­ment to do so. However, only 19 states, the District of Columbia, and the fed­er­al courts col­lect­ed the data at all, and only 16 states shared that data with the tri­al judge and defense coun­sel. Though states have trend­ed towards col­lect­ing data, ​“the long-term pace has been glacial.” 

The report finds that the fail­ure to col­lect race and eth­nic­i­ty infor­ma­tion from prospec­tive jurors com­pounds the prob­lems with Batson, as defense coun­sel and courts can­not assess whether a state’s juries are as diverse as its pop­u­la­tion, or even whether an indi­vid­ual prospec­tive juror is a per­son of col­or. The researchers argue that the 31 states that do not col­lect this infor­ma­tion ​“are will­ful­ly igno­rant of the com­po­si­tion of their venires, effec­tive­ly reject­ing their con­sti­tu­tion­al oblig­a­tion to ensure a fair cross-sec­tion and ham­string­ing defen­dants’ efforts to vin­di­cate their Sixth and Fourteenth Amendment rights.” The lack of iden­ti­fi­ca­tion also results in prob­lem­at­ic guess­work about a prospec­tive juror’s race based on phys­i­cal and social stereo­types. As a result, the report pro­pos­es that all states adopt a uni­form ques­tion­naire for prospec­tive jurors that con­forms to the U.S. Census race and eth­nic­i­ty cat­e­gories, and use that ques­tion­naire to gen­er­ate year­ly sta­tis­tics. Those sta­tis­tics will help the legal sys­tem iden­ti­fy and cor­rect unjust and racist pat­terns in jury selection. 

Racial dis­crim­i­na­tion in jury selec­tion has been a hall­mark of death penal­ty cas­es with Black defen­dants, with many Black pris­on­ers still on death row who were con­vict­ed by all-white juries. The issue gained renewed atten­tion world­wide in 2019 when the Supreme Court ruled in favor of Curtis Flowers, who had four death sen­tences reversed for pros­e­cu­to­r­i­al mis­con­duct before he was exon­er­at­ed. The pros­e­cu­tor, Doug Evans, had struck 41 of 42 prospec­tive Black jurors across six cap­i­tal tri­als. DPIC has iden­ti­fied at least 68 rever­sals in death penal­ty cas­es based on Batson. On February 28, a North Carolina tri­al court will hear death row pris­on­er Hasson Bacote’s claims that racial dis­crim­i­na­tion in jury selec­tion played a role in his cap­i­tal sen­tenc­ing. Mr. Bacote’s attor­neys will present evi­dence show­ing that North Carolina pros­e­cu­tors strike Black jurors at more than twice the rate of oth­er jurors, and that the pros­e­cu­tor in his case struck Black jurors at 10 times the rate of other jurors.