America’s History of Excluding Non-Whites From Juries

For centuries, African Americans and others of non-European descent in America have been struggling to secure for themselves the most basic rights and privileges of citizenship in our country, including the right to vote and the right to serve on juries.  Since the Civil War, arguably African Americans have had the Constitutional right to serve on juries.  Since the passage of the 13th, 14th, and 15th Amendments to the United States Constitution following the Civil War, we have seen states and local governments prevent African Americans from serving on juries by law, intimidation, and violence.  Today we still see prosecutors using peremptory strikes to systematically remove potential jurors who are non-white, despite rules set in place by the Supreme Court in an attempt to prevent it.

History of Suppression of Non-White Jurors

  • The Civil Rights Act of 1875 established that no person could be excluded from jury service on the basis of race or former status as a slave, and that any court officer who interfered would be subject to criminal penalties.
  • In 1880, the United States Supreme Court decided Strauder v. West Virginia, holding that it was a violation of Equal Protection for a state to exclude black persons from juries.  The decision discussed the “stacking of juries” with whites, and the holding was based on the defendant’s right to not have the state exclude persons of the defendant’s own race, as opposed to a black person’s right to serve on the jury.
  • In 1883, the Civil Rights Act was overturned by the United States Supreme Court in The Civil Rights Cases, 5 cases that were consolidated where African Americans had brought suit under the Civil Rights Act for being excluded from theater houses, railways, and inns.
  • Soon after the Civil Rights Cases, the U.S. Supreme Court decided Plessy v. Ferguson, holding that the Separate but Equal doctrine was constitutional and giving the states the green light to continue segregation as well as exclude African Americans from the polls and from juries.
  • In 1935, the U.S. Supreme Court again revisited jury stacking and decided Norris v. Alabama, holding again that it denies Equal Protection to systematically exclude non-whites from juries.  Norris was one of “the Scottsboro Boys,” 9 African Americans charged with rape in 1931 in Alabama.  8 were sentenced to death.  In Powell v. Alabama, the U.S. Supreme Court reversed and remanded the convictions and held that the defendants were entitled to attorneys to assist in their defense.  On retrial, the defense moved to quash the jury panel based on the exclusion of African Americans from jury service.  The Court denied the motion, resulting in Norris v. Alabama.

Batson v. Kentucky and Jury Selection Today

In 1986, the U.S. Supreme Court re-affirmed again in Batson v. Kentucky that a black defendant is denied equal protection when a state purposefully excludes black jurors.  Later decisions extend Batson to civil cases, apply Batson to other races (including “reverse Batson“), and clarify that the exclusion of non-white jurors violates the rights not only of the defendant, but also of the juror.

Batson‘s importance lies in the procedure that the Court set out for ensuring that non-whites are not excluded from jury service.  Each side gets a certain number of peremptory strikes that they can use to exclude jurors.  The number depends on the jurisdiction and the crime charged.  Each side can strike any juror for any reason that is race-neutral (and gender-neutral).  If either side challenges the strikes under Batson, the side making the challenge has the burden of demonstrating that the strikes were not race-neutral.

Once the jurors have been identified and the prosecutor has identified a race-neutral reason for removing each of the jurors, the burden is on the defendant (or challenging party) to show that the prosecutor’s race neutral reasons were only a pretext.  If the prosecutor has also seated white jurors who are similarly situated, for example the prosecutor says I dismissed Juror 151 (black) because she is a single mother but the prosecutor also seated Juror 322 (white) who is also a single mother, the race neutral reasons given are a pretext and the jury panel is dismissed.

Since Batson, we have seen an endless procession of appellate opinions from state and federal courts approving or rejecting a long list of race neutral reasons given for striking jurors.  The appellate opinions show the tip of the iceberg of what happens in the courtrooms during jury selection, and they also highlight why Batson is not enough.  Any prosecutor who can read who wants to exclude non-white jurors from a trial can easily do so simply by providing a race neutral reason for each juror struck and by making sure that they do not seat similarly situated white jurors.

What is the answer?  The only way to fix the problem is to do away with discretionary peremptory strikes.  That suggestion is unacceptable for most trial lawyers, but there it is.  If you want to take away a prosecutor’s discretion to exclude non-white jurors, you are going to have to take away their discretion.  What if we did away with peremptory strikes for both sides in all cases, and replaced it with a system where strikes are acceptable only in certain enumerated circumstances, such as when a juror is related to a party, lives in the same neighborhood as a party, has heard pre-trial publicity about a case, or otherwise has some connection to either party?

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