Too flawed to fix? Black juror exclusion and the death penalty

The jury of six at Louis Riel’s trial, 1885. Source: Flickr.

When Timothy Tyrone Foster was sentenced to death for the murder of an elderly white woman in 1987, he was the only black person on the stand. The jury that sentenced him was all-white, after the prosecution had excluded all four of the eligible black jurors from the jury pool. When prompted by the judge, the prosecution gave non-race related reasons for their exclusions, and the judge found them satisfactory. But when Foster’s lawyer gained access to the prosecution’s notes from the jury selection, years later, he found that all four of the black members of the jury pool were highlighted and marked with “B#1”, “B#2”, and so on. Now, almost 30 years later, Foster v. Humphrey has just been heard at the Supreme Court, in a step towards putting an end to racial discrimination in jury selection.

When a jury is selected for a trial, the first step is a random selection of potential jurors. The selection methods vary between states, but names are randomly picked from some kind of records kept by the state. It might be a list of registered voters, or of everyone who holds a driver’s license in the state. These people come in for the first day of jury duty, where the herd is culled a bit more in the second stage of jury selection, known as “voir dire” (“to speak the truth”). In order to narrow it down to the twelve people customary for a capital trial, both the defense and the prosecution can object to jurors for two different reasons: challenges for a cause, and peremptory challenges. Challenges for a cause are based on the potential jurors’ responses in interviews, and are used when something about the candidate might bias them or make them unfit to serve on the jury. This might be, for instance, if a juror is too closely related to the person on trial. Challenges for a cause have to be approved by the judge, but each side can use an unlimited amount of those objections.

The other type of objection is where the court system traditionally runs into trouble. Peremptory challenges can be used without explanation or qualification, but each side only gets a limited number of them, a number that varies between states. In its original incantation, these challenges were not questioned at all, and the objectors would never have to explain their choices. Unfortunately, though, as has often been the case throughout American history, the system found a way to use this in a discriminatory way.

This system of rampantly racist peremptory challenges was addressed in the 1986 Supreme Court case Batson v. Kentucky, where the court ruled to implement an exemption to the peremptory challenges: No exclusions based on race allowed. Now, if there is suspicion that some objections are based on race alone, the lawyers responsible for the objection have to stand for a Batson challenge, where they need to come up with a race neutral explanation for the choices they made. This reason has to be accepted by the judge. The problem here is, of course, that though they might try, the Supreme Court can’t really rule on people’s intentions. Just because an explanation is required, doesn’t mean that the explanation has to be good. Exclusions of black jurors have been excused by, among other things, that the juror was too old, at 47 years old, and too young, at 28, and that they didn’t maintain eye contact. Coming up with halfbaked explanations is not that hard, with the effect that Batson didn’t make as much of a difference as might have been the hope from the beginning. The success rate of Batson challenges to jury selections is only at about 17%, even though black jurors are excluded using peremptory challenges three times as often as white jurors.

The reasoning behind black juror exclusion is not usually overtly racist, but that helps very little when the outcomes are in effect discriminatory. Basically, the prosecutor is in a profession where careers are made and broken based on their ratio of won cases, which means that they will try to win at all costs. And when it comes to cases where the death penalty is on the table, the way to do that is to exclude black jurors. While 71 % of white people are in favor of the death penalty, that number is only 44 % for African-Americans.

The all-white juries really start to matter when it comes to black-on-white crimes. Historically, black men sentenced to death for the purported rape of white women was a large part of the amount of death sentences applied. Since capital punishment for rape has been outlawed, black men are still disproportionately sentenced to death. Right now, 42% of the people on death row are black, despite the fact that African-Americans only make up just under 14% of the population as a whole. The victim is white in roughly half of all murder cases; yet white victims are about 80% of the cases resulting in the death penalty.

Various studies on the subject have shown that the risk of receiving the death penalty in a murder trial is three to four times higher if the defendant is black. There are a lot more numbers like these, but what it all adds up to is a justice system where it’s hard to argue that all lives are valued the same. The very common all-white juries (or at least heavy majority white), combined with the fact that in states that still have the death penalty, 94,5% of elected prosecutors are white, might have something to do with it.

The outcome of Foster v. Chatman has yet to be announced, but in the best-case scenario, we could be looking at a new standard for determining discriminatory intent in jury selection. On the other hand, the Supreme Court has a long history of ignoring evidence of systemic racism in the legal system as a whole, and it’s still unclear just how much of a difference this case might make. After all, it could be argued that the real lesson of Foster v. Chatman is simply “If you’re going to be racist, just don’t write it down”. And if there’s one thing we know about racism in 2015, it’s that people don’t tend to write it down anymore.

Klara Fredriksson

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