Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent stud­ies exam­in­ing the effects of Batson v. Kentucky found that, despite the Supreme Court’s ban on racial dis­crim­i­na­tion in jury selec­tion, Black jurors con­tin­ue to be dis­pro­por­tion­ate­ly removed from jury pools in North and South Carolina. 

Batson, the case that banned the prac­tice of strik­ing jurors on the basis of race, has gar­nered recent atten­tion because of a recent Supreme Court case, Foster v. Chatman. In Foster, the tri­al court denied a Black defen­dan­t’s chal­lenges to the pros­e­cu­tor’s removal of all Black jurors, say­ing the pros­e­cu­tion had offered race-neu­tral rea­sons for those strikes. Years lat­er, through an open records request, Foster’s lawyers obtained the pros­e­cu­tion’s jury selec­tion notes, which high­light­ed the names and race of all the prospec­tive Black jurors, put all of the Black jurors on a list of jurors to ​“def­i­nite­ly strike,” and the Black jurors against one anoth­er in case ​“it comes down to hav­ing to pick one of the black jurors.” 

A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that dis­crim­i­na­to­ry prac­tices sim­i­lar to those in Foster were wide­spread in North Carolina cap­i­tal cas­es, but repeat­ed­ly ignored by the state’s courts: ​“In 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.” The authors found that the North Carolina Supreme Court had been called upon to decide jury dis­crim­i­na­tion issues in 74 cas­es since Batson was decid­ed in 1986, and that ​“dur­ing that time, that court has nev­er once found a sub­stan­tive Batson vio­la­tion.” By con­trast, they said, every oth­er state appel­late court locat­ed in the Fourth Circuit had found at least one sub­stan­tive Batson vio­la­tion dur­ing that period. 

The authors argue, ​“Thirty years after Batson, North Carolina defen­dants chal­leng­ing racial­ly dis­crim­i­na­to­ry peremp­to­ry strikes still face a crip­pling bur­den of proof and pros­e­cu­tors’ peremp­to­ry chal­lenges are still effec­tive­ly immune from constitutional scrutiny.” 

A study of South Carolina cap­i­tal juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that pros­e­cu­tors exer­cised peremp­to­ry strikes against 35% of oth­er­wise eli­gi­ble Black prospec­tive jurors, near­ly triple the rate (12%) at which they struck oth­er­wise eli­gi­ble White prospective jurors. 

Eisenberg also exam­ined the death-qual­i­fi­ca­tion process, which excludes jurors who are opposed to cap­i­tal pun­ish­ment from serv­ing on death penal­ty juries. Eisenberg says death-qual­i­fi­ca­tion removes ​“approx­i­mate­ly one-third of the pop­u­la­tion, most of whom are women and African-Americans” from serv­ing on death penal­ty juries and ​“func­tioned as a sub­stan­tial imped­i­ment to jury ser­vice by African-Americans in this study.” Eisenberg con­clud­ed that ​“removal of jurors for their oppo­si­tion to the death penal­ty stands in ten­sion with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence.” 

The com­bined effects of peremp­to­ry strikes and the death-qual­i­fi­ca­tion process was even stark­er. Prior to these strikes, Blacks com­prised 21.5% of the prospec­tive jury pool. However, 47% of all Black jurors were removed by one or the oth­er of these strikes, as com­pared with only 16% of White jurors, reduc­ing the per­cent­age of African Americans in the jury pool to only 14.7%.