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Race and Racism in Jury Selection

Categories: Drew Whitcup, ZiR

images (2)Slate columnist Dahlia Lithwick published an excerpt of her interview with Stephen Bright, president of the Southern Center for Human Rights, during which they discussed race as a factor in criminal court jury selection. Bright is lead counsel for Timothy Tyrone Foster, a convicted murderer whose appeal has reached the Supreme Court. At issue in his case— Foster v. Chatman— is whether prosecutors illegally used race as a factor when dismissing some of the potential jurors.

Lithwick quotes from Bright’s explanation:

‘I think in this case, the prosecutors wanted the death penalty. They argued to the jury to give the death penalty, to deter people in the projects, which were 90 percent African-American. It is less likely—at least the prosecutors figured—if they had African-Americans on the jury. Now I think what Batson [a 30-year-old Supreme Court decision banning the consideration of race in jury selection] teaches is that you just have to accept people, without regard to race. If the jury decides not to impose the death penalty, you have to accept that. But I think when you’ve got young, ambitious prosecutors—as both these prosecutors were—they want to win at any cost. And if the cost is to strike all the blacks so that you have an all-white jury that’s more likely to impose the death penalty, that’s what they’re going to do.’

Full disclosure: I am a defense attorney and I have had to challenge prosecutors’ racial profiling in jury selection myself, so this analysis did not surprise me. Nor did Bright’s connection of this discrete issue to the broader inequity of the criminal justice system:

What there’s been too little attention to, in my opinion, is, what happens to those people once they get in the criminal justice system—whether they’re accused of a minor crime, or whether accused of a crime that carries the death penalty? There are all these discretionary decisions, from whether to grant bail, what to charge, what plea offer to make—if there’s plea bargaining in the case—and 95 percent of all cases are resolved with plea bargains and the striking of the jury. You have to remember, 95 percent of all prosecutors in this country—the chief prosecutors—are white. So, the criminal justice system does not reflect the society, and the decisions in these cases that have a tremendous effect on communities of color and are really destroying people, families, and communities. These decisions are mostly being made by white people and mostly white men.

This analysis resonates with me, because irrespective of the Supreme Court’s decision in Foster, racism in jury selection is only a symptom. The disease— systemic racism that pervades all aspects of a defendant’s experience from arrest to trial— cannot be effectively treated piecemeal.

—Drew Whitcup, Zeteo Contributing Writer

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