In 1986, the United States Supreme Court issued a groundbreaking decision, ruling that race could not be used as a factor in deciding who could be a juror in a criminal case.
In 1987, Timothy Foster was tried for capital murder, convicted by an all-white jury and sentenced to death.
In 2006, Foster’s lawyers make an Open Records request, asking for the prosecutors’ files. This is what they found:
If you can’t tell – or haven’t read any other stories about this – the prosecutors put a B next to each African-American and highlighted them in green.
Today, the United States Supreme Court, by a vote of 7-1, reversed Foster’s conviction, holding that the prosecutors’ tactics violated Batson. For a terrific breakdown of the lone dissenting vote and the increasingly passive-aggressive nature of SCOTUS, read this by Garrett Epps.
The decision is a condemnation of racial bias in jury selection – a practice that continues today – and perhaps a hint that some conservative members of the Court have dropped the pretense that racial bias in the criminal justice system is non-existent.
But while this decision points out all that is wrong with racial bias and tells us that it is unacceptable, it does nothing to provide any guidance how.
Many, including the inimitible Stephen Bright who represented Foster, have seized this opportunity to suggest one way to eliminate racial discrimination in jury selection:
“The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”
The idea behind Justice Marshall and Bright’s suggestion is that if there is no way for prosecutors to arbitrarily excuse people from jury service, then they can’t use that mechanism to arbitrarily excuse black people.
The idea has superficial appeal, but much like some other ideas for reforming the justice system, are counterproductive and downright dangerous when probed further.
As a practicing lawyer, peremptory challenges are a valuable if imperfect tool to weed out biased jurors who are smart enough to not divulge their biases. It allows both sides to decide that a particular individual, while giving the right answers, may not be sympathetic to their side and thus exercise a “challenge” to their suitability to be a juror.
Peremptories: imperfect but necessary
Obviously, nefarious and ill-meaning prosecutors have used this power to eliminate minorities and that is unacceptable. But prosecutors are also far more likely to be okay with picking the first 12 people that walk through the door. That’s because, as a society, we are far more deferential to the prosecution than the “criminals” who are accused of crimes. People are far more likely to be supportive of police and automatic believers in their veracity. People are far more likely to view defendants from urban settings more negatively.
People are also very unlikely to openly admit their biases in front of complete strangers. Jury selection – as it is permitted in most of the country – is extremely poorly equipped to uncover these biases. So lawyers are limited to several basic questions which are all poor clones of “can you be fair?” When a juror answers yes, despite every other fiber of their being giving off a signal that they absolutely will not be, there is nothing a lawyer can do but exercise that peremptory challenge and excuse them.
As any experienced trial lawyer will aver, even jurors who candidly admit their biases are routinely rehabilitated by the prosecutor or the judge and most are smart enough to take the obvious hints and bring their opinions back to the neutral middle. Without peremptories, a defendant would be stuck with an obviously biased juror who had the werewithal to follow the judge’s coaching that he would follow the judge’s coaching.
Fixing the problem of racial bias
Surprise, there’s no one paragraph solution to this problem. But the problem of racial bias is not limited to jury selection and any solution shouldn’t focus only on that. Prosecutors who engage in discriminatory selection don’t suddenly play fair during trial or during plea bargaining or during the signing of warrants. Bias during selection is indicative of bias throughout the process.
We need to tackle that – it’s a shift in mindset that is required in America. If we want to reduce bias, we need to hold prosecutors and judges accountable; appellate courts must make it less insurmountable for petitioners to prove bias and get relief; defense lawyers must not be afraid to challenge prosecutors and question their decisions; there must be greater diversity in the justice system, in prosecutor offices, public defender offices and on the bench.
We need our stewards of justice to realize that justice doesn’t mean winning – it means doing the right thing.