According to a 1986 U.S. Supreme Court decision called Batson v. Kentucky, it violates the Equal Protection Clause for prosecutors to intentionally exclude potential jury members because of race. When the defense suspects the prosecutor is excluding jurors based on race, they can issue what is called a “Batson challenge.”
Basically, the defense points out that multiple jurors, who otherwise seem qualified, have been excluded from the jury using “preemptory strikes,” meaning that they have been excluded for no cause. Each side gets a limited number of preemptory strikes, but the prosecution can’t use them simply to limit the number of black people on the jury.
In a Batson challenge, the defense argues that the prosecution has apparently used their preemptory strikes in a race-based fashion. The prosecution could admit that it has done so, but it more usually argues that there is a race-neutral reason for the preemptory strikes. Then, the judge decides if there was a race-neutral reason.
Over time, the courts have ruled that the race-neutral reason doesn’t even have to make sense. It simply has to be race-neutral.
Judges may be reluctant to accuse prosecutors of racism, especially since they work with those same prosecutors on a regular basis. In any case, the North Carolina Supreme Court, for example, has never once found a Batson violation.
Implicit bias can be just as damaging as intentional racism
Although there are undoubtedly cases in which intentional racism has been used to exclude jurors of color, in many cases it is just as likely that the prosecutor was acting on implicit bias, not overt racism.
We mentioned North Carolina in part because it recently handed down rulings in two Batson cases. It still hasn’t found any evidence of racial intent, but in one case it did say that the judge had not considered all the evidence of bias.
North Carolina isn’t the only state struggling with Batson. Washington, California and Connecticut have also been considering the issues. Their high courts have called for an examination of whether implicit, institutional or unconscious racism could be denying defendants of color the opportunity to be heard by a jury of their peers.
Over time, researchers have found strong evidence that black people are more likely than their white peers to be arrested, charged and denied bail. They are more often shot by police officers. They are excluded from juries at approximately twice the rate of whites.
Much of this has to do with the perpetuation of stereotypes, which many people do unconsciously. But it isn’t legal, and it isn’t right.
When will we find a way to ensure juries are more or less reflective of the defendant’s community?