Posted on December 30, 2021

Many Juries in America Remain Mostly White

Emmanuel Felton, Washington Post, December 23, 2021

As efforts to reform the criminal justice system at the federal level have largely stalled, state policymakers are opening a new front in the fight to reduce bias in the system by aiming to eliminate racial discrimination in jury selection.

Some high-profile trials with nearly all-White juries, including those of Kyle Rittenhouse in Kenosha, Wis., and the three men who chased down and killed Ahmaud Arbery last year in Glynn County, Ga., where the judge had acknowledged that there appeared to be “intentional discrimination” in jury selection, have brought renewed attention to how America’s juries often do not reflect their communities.


Nearly four decades after the Supreme Court established a precedent meant to eliminate racial discrimination in jury selection, the problem remains widespread, research shows. Most often the practice occurs through a legal tactic called a peremptory challenge, which allows an attorney to strike a potential juror without having to state a reason.

But critics say lawyers have found ways to get around the Supreme Court’s prohibition against discrimination in jury selection by asking potential Black jurors such questions as, “Have you ever had a bad encounter with the police?” If the potential juror says yes, they could be dismissed for perceived bias against police. One study in the Deep South found that Black jurors were being challenged and dismissed at double or triple the rates of other people.


The push by states to eliminate racial discrimination in the selection process gained momentum three years ago with action by the Washington Supreme Court and most recently by the Arizona Supreme Court. In 2018, the Washington high court adopted a rule that made it easier for opposing lawyers to challenge a peremptory strike without having to prove intentional discrimination, as is the case under the United States Supreme Court precedent. In 2020, California passed legislation that codified much of Washington’s rule into California law. In September, the Arizona high court abolished peremptory challenges altogether. Meanwhile, the courts in Connecticut and New Jersey are studying the issue.

Research shows that racially diverse juries spend more time deliberating, make fewer errors and can result in fairer trials. But African Americans have been fighting for access to jury boxes for more than 150 years, since the 14th Amendment enshrined Black people’s right to full political participation. A generation later, Congress passed the Civil Rights Act of 1875, which included provisions explicitly outlawing racial discrimination in jury selection. In 1986, the Supreme Court found that discrimination remained pervasive in jury selection.

The reasons behind America’s overwhelmingly white juries are many. The problem begins with the way people are summoned for jury duty, said William Snowden, who founded a nonprofit called the Juror Project after witnessing a lack of jury diversity — in race, ideology, and life experience — as a public defender in New Orleans.

Many places use voter registration files and DMV records to find potential jurors, skewing the jury pool toward people who remain at one address for a long period of time, a group that tends to be more White than the population as a whole. Some jurisdictions also make those with felony convictions ineligible, disproportionately excluding people of color. {snip}

Potential jurors of color are often eliminated during voir dire, the preliminary examination of jurors by the judge and attorneys to winnow the pool. One of the most typical questions asked of potential jurors in a criminal case where police will testify, for instance, is whether they have ever had a bad experience with police. An honest answer from a Black person is likely to result in dismissal, as research shows African Americans tend to experience negative encounters with law enforcement at a far higher rate than other Americans.


Ausha Byng testified before the Washington Supreme Court in 2017, during a symposium on racial bias in jury selection. {snip}

Byng, who is biracial, recalled for the justices how excited she was when she received her summons in the mail. {snip}


{snip}After lunch, Byng was selected as a potential juror for a drug case against a young Black man.

She said she remembers the prosecutor asked most of his questions to the entire panel of potential jurors but singled her out for one question. He asked her if she trusted the police. Byng, the only person of color in the jury pool, said no. And with that answer, the prosecutor pronounced, “The state would like to thank and excuse juror number five.”


When the deliberations concluded, the judge ruled that Byng’s dismissal was legal. Lila Silverstein, an appellate public defender at the Washington Appellate Project, said Byng’s experience isn’t uncommon. {snip}


The prosecutor used a peremptory challenge to dismiss Byng. In 1986, the Supreme Court ruled in the case of Batson v. Kentucky that the opposing attorney can object to a peremptory strike but has to show that the dismissal was an act of intentional racial discrimination. Advocates for increasing jury diversity say that bar has proven to be nearly impossible to clear. But in 2018, thanks to Byng and Silverstein’s advocacy, Washington became the first state to adopt rules aimed at eliminating not just intentional, but also implicit, bias in jury selection.

Peremptory strikes are still allowed in Washington but, instead of forcing the objecting attorney to prove that the dismissal was racially motivated, the 2018 change directs judges to ask themselves if they think “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”

The rule goes on to define an objective observer as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state.” If the judge thinks an objective observer could see race as a factor, they must deny the peremptory strike.


In August this year, the Arizona Supreme Court eliminated peremptory strikes altogether, and lawmakers have introduced bills like Semel’s in several states across the country, including Massachusetts and Mississippi.