Racial bias largely seeps in through what’s called “peremptory” challenges: the ability of a prosecutor — and then a defense attorney — to block a certain number of potential jurors without needing to give the court any reason for the exclusion.
The number of challenges allowed varies by state, but commonly 15 or more are permitted. Folk wisdom, among those familiar with the song and dance, is that prosecutors use these challenges to remove nonwhite jurors, who are statistically more likely to acquit, while defense attorneys — who can step in only after the pool has been narrowed by prosecutors — typically counteract by removing more white jurors.
Based on statewide jury selection records, our Jury Sunshine Project discovered that prosecutors remove about 20 percent of African-Americans available in the jury pool, compared with about 10 percent of whites. Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool.
Prosecutors in urban areas, which tend to have larger minority populations, remove nonwhite jurors at a higher rate than prosecutors do in other parts of the state. Finally, we discovered, to our surprise, that judges also remove black jurors “for cause” about 20 percent more often than they remove available white jurors.
.. First, the defendant is not judged by a jury that reflects a cross-section of his or her community — a violation of the courts’ interpretation of the Sixth Amendment. In a system that already disproportionately prosecutes people of color, hedging the constitutional rights of defendants can be particularly harmful.
Second, excluded parts of the community become more cynical about the justice system when they repeatedly see barriers to jury service. If people from certain similar neighborhoods are constantly getting booted from juries, then it’s tempting for residents there to view the police — and prosecutors — as hostile occupiers rather than partners in public safety.
.. In theory, the Equal Protection Clause of the Constitution, as interpreted in Batson v. Kentucky, prevents attorneys from removing jurors on the basis of race. But “Batson claims” rarely succeed because they require the judge to declare the proposed stated reason for removal was only a pretext hiding discriminatory intent — a notoriously steep standard.
.. The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like “prior contact with law enforcement” or “living in a high-crime neighborhood.”
Another answer — which could gain support in even the toughest of “tough on crime” red states — is simply to publish more information on jury selection. The details of judge and attorney removals of jurors is already public record, but those details usually remain buried in the hard-copy files of court clerks across the country.
While this year’s successful research shows how journalists and scholars can collect these far-flung records into a useful database, the process can take months or years of driving from courthouse to courthouse, digging out the files of cases that went to trial, recording the clerk’s notations from those files and turning to online resources for background information on judges and lawyers.
States could instead — without much work — just plainly make all jury selection information available online and keyword searchable, easing access for journalists and voters alike.
In most states, voters choose their prosecutors and their judges; and with journalists on hand to swiftly analyze digitized public records of the jury selection habits of prosecutors and judges, citizens could evaluate incumbents’ tendencies as a measure of success or failure.