As calls to reform the American criminal justice system go unanswered at the federal level, some states are looking to use their own power to make changes to one key component: juries.
Several high-profile cases relied on mostly-white juries, including in the trials of Kyle Rittenhouse in Kenosha, Wisconsin and the three men who killed Ahmaud Arbery in Brunswick, Georgia. The judge in the latter case admitted that “intentional discrimination” had been used to strike Black jurors from being seated.
Earlier this month in Minnesota, a jury comprised of nine white people, two Asian people, and one Black person began hearing the case of Kim Potter, who’s on trial for the April 2021 killing of Daunte Wright. The trial is being held in Hennepin County, where more than a third of the residents are non-white.
Research shows that despite nearly 40 years after the Supreme Court effectively eliminated jury discrimination on the basis of race, it persists. It mostly happens during the pre-trial peremptory challenge where attorneys on both sides can strike a juror without citing a specific reason.
Lawyers get around SCOTUS’ rule by asking potential Black jurors questions like, “Have you ever had a bad experience with a police officer?” and strike the juror for being perceived as being bias against law enforcement.
According to The Washington Post, one study conducted in the South found that Black jurors were challenged and dismissed at double –– and sometimes triple –– the rates of other racial groups. Experts say it’s not a phenomenon restricted to the South and that similar rates are seen across the US.
The Post‘s report cited a study that found the more racially diverse a jury is, the more time they spend deliberating. These juries also make fewer mistakes and can result in fairer trials.
Voting Rights and Racially-Diverse Juries
Many states use voter registration and files from the DMV to create jury pools. This method of finding jurors creates a system where people who live at one address for a long period of time –– a group which tends to be more white compared to the whole population–– are more often selected.
Some jurisdictions also bar people with felony convictions from participating, a rule that disproportionately weeds out people of color.
The nature of jury duty also creates bias –– catering to those who can afford to miss work for days, sometimes weeks at a time.
The Advocates Fight Jury Discrimination
In the 1986 Batson v. Kentucky Supreme Court decision, the justices determined that peremptory challenges can’t be made solely on the basis of race. However Justice Thurgood Marshall predicted attorneys would use “race neutral” questioning to strike Black jurors from serving.
And in the time since that decision, the issue has been raised more than 40 times.
In 2017, Ausha Byng testified before the state of Washington’s Supreme Court on the rampant racial bias in jury selection. After listening for hours to legal experts on the issue, Byng told the state justices her experience being summoned to serve on a jury.
“Most people get the notices and they don’t want to do it,” Byng testified. “But me, I was excited,” she added, noting being a fan of Law & Order.
At the time, Byng was balancing college and a family, so when they day of her jury service came, she had to arrange childcare for her daughter. She also didn’t have a car, so she rode the bus to the courthouse and waited with the other potential jurors.
Byng was selected to hear a drug case against a young Black man. She recalled that the prosecutor asked most of the jurors the same questions, but called her out for one: if she trusted the police. She replied no, and was immediately dismissed.
The judge called the attorneys to speak in private and put all the jurors in a back room for more than 30 minutes while they talked.
“I was extremely embarrassed. And I felt really excluded because it was very obvious that I was the reason that we all needed to leave,” Byng told The Post. The judge eventually found Byng’s dismissal legal.
Washington still allows peremptory challenge, but a clause was added in 2018 after Byng testified that calls for a judge to consider if “an objective observer could view race or ethnicity as a factor in the peremptory challenge.”
Arizona eliminated peremptory challenges altogether. Lawmakers in Mississippi and Massachusetts have proposed legislation to do the same.
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