DPI’s “What to Know” series examines capital punishment from multiple angles, one topic at a time. Each installment provides essential facts and data on specific aspects of the death penalty.
Please visit DPI’s Discrimination in Jury Selection page for a deeper dive into the issue.
Why it matters: Nearly four decades after the U.S. Supreme Court barred race-based juror strikes in Batson v. Kentucky (1986), studies have found that prosecutors in North Carolina capital cases still exclude qualified Black jurors at roughly twice the rate of other jurors, and across the country, courts have vacated nearly 70 capital convictions or death sentences because of jury discrimination.
Key Facts
Two filters shape capital juries: death qualification and peremptory strikes. To sit on a capital jury, a prospective juror must first clear “death qualification,” a process that excludes anyone whose opposition to capital punishment would prevent them from imposing a death sentence or who would automatically impose a death sentence without regard for mitigating factors. In Lockhart v. McCree (1986), the Supreme Court upheld the practice as constitutional even after defendants presented evidence that death-qualified juries are more prone to convict. Prosecutors may also use a limited number of peremptory strikes to remove jurors without having to state a reason for their removal. Both filters operate before the trial begins, and both have been shown to disproportionately exclude Black people, women, and religious jurors.
Batson’s three-step test has been systematically evaded. In Batson v. Kentucky, the Supreme Court barred race-based peremptory strikes and required prosecutors to offer a race-neutral reason when challenged over removing a person of color. In practice, prosecutors were trained to produce such reasons on demand. A 1986 training video from Philadelphia District Attorney Jack McMahon instructed new prosecutors to question Black jurors at length so they would generate “articulable” reasons for striking them. In North Carolina, prosecutors used a document titled “Batson Justifications: Articulating Juror Negatives,” which supplied stock explanations such as “monosyllabic” replies and “no stake in the community.” Similar training materials have surfaced in Louisiana, Texas, and California. A 2016 study of North Carolina appellate rulings found that in 114 Batson cases decided on the merits, state courts had never once found a substantive violation when a prosecutor articulated a reason for striking a juror of color.
Death qualification falls hardest on Black women and people of faith. In a 2022 study of 11 capital jury selection proceedings in Wake County, North Carolina, law professors Barbara O’Brien and Catherine Grosso found that death qualification removed 27% of Black prospective jurors but only 12% of white prospective jurors. In a 2025 follow-up analyzing the same data, the researchers found that 36% of Black women were excluded through death qualification alone — the highest rate of any race-gender combination — and that combining death qualification with peremptory strikes, prosecutors removed half of all Black women from the pool compared to 22% of all other potential jurors. A 2022 analysis of the same data found that 20% of religious prospective jurors were removed through death qualification compared to 12% of non-religious jurors, and 27% of Catholic prospective jurors were removed, nearly double the 14% average rate.
Relevant Cases
Hasson Bacote, North Carolina. On February 7, 2025, Johnston County Superior Court Judge Wayland Sermons Jr. issued a 120-page ruling finding that race played an impermissible role in jury selection in Mr. Bacote’s capital trial and in other death penalty cases across the state. Evidence presented over two weeks showed that prosecutors in Mr. Bacote’s case struck Black jurors at three times the rate of white jurors, and that the prosecutor, Greg Butler, had referred to Black defendants in other cases as “thug,” “piece of trash,” and “predators of the African plain.” In Johnston County, every Black defendant tried capitally since 1990 had received a death sentence. Governor Roy Cooper commuted Mr. Bacote’s sentence to life without parole on December 31, 2024, but the court issued its ruling anyway because of its implications for more than 100 pending Racial Justice Act claims. The North Carolina Attorney General’s Office has appealed to the North Carolina Supreme Court.
Terry Pitchford, Mississippi. The U.S. Supreme Court granted review in Mr. Pitchford’s case on December 15, 2025, and heard oral arguments in April 2026. Mr. Pitchford was sentenced to death in 2006 by a jury of 13 white jurors and one Black juror (including alternates) after prosecutors struck four of the five remaining Black prospective jurors. The prosecutor was Doug Evans, the same district attorney whose conduct in Curtis Flowers’ six trials was condemned by the Supreme Court in Flowers v. Mississippi (2019) for a “relentless, determined effort” to remove Black jurors. The same trial judge, Joseph Loper, also presided over both cases. The question before the Court is narrow but consequential: whether the Mississippi Supreme Court, under the Antiterrorism and Effective Death Penalty Act (AEDPA), unreasonably determined that Mr. Pitchford waived his right to rebut the prosecutor’s asserted race-neutral reasons. A decision is expected by the end of the Court’s 2025 – 26 term.
Michael Sockwell, Alabama. On March 2, 2026, the U.S. Supreme Court declined to review Alabama’s appeal of an 11th Circuit ruling that the trial prosecutor violated Mr. Sockwell’s constitutional rights by intentionally removing Black jurors. At Mr. Sockwell’s 1990 trial, then-Assistant District Attorney Ellen Brooks struck 8 of 10 qualified Black prospective jurors, including one Black man whom she admitted she struck because he was the “same race, sex, and age” as the defendant, Mr. Sockwell. The jury voted 7 – 5 to impose life without parole; the trial judge overrode that verdict and sentenced Mr. Sockwell to death under Alabama’s now-abolished judicial override rule. Alabama’s appellate courts and a federal district court denied relief for three decades before the 11th Circuit reversed in 2025.
State Reform
Three states have moved to limit or eliminate the peremptory strike itself. Washington’s General Rule 37 (2018) and California’s Assembly Bill 3070 (2020) permit courts to reject peremptory strikes when an objective observer could view race, ethnicity, or other protected characteristics as a factor, without requiring proof of purposeful discrimination. In 2021, the Arizona Supreme Court went further and became the first state to eliminate peremptory strikes entirely in all criminal and civil trials, effective January 1, 2022.
The United States remains one of the few common-law democracies that continues to permit peremptory strikes in capital trials. The United Kingdom abolished them in 1988 and Canada followed in 2019. Arizona became the first U.S. jurisdiction to match this standard in 2022.
