“This country’s commitment to the jury system, enshrined in
founding documents like the Declaration of Independence
and Bill of Rights, is rooted in the ideal that the people
should play a central role in the enforcement of societal
standards. In reality, however, racial discrimination in the
selection of juries is a longstanding and enduring feature of
American criminal justice.” --- Jennifer Taylor, Staff Attorney, Equal Justice Initiative
Prior to the Civil War, laws and customs rooted in white supremacy largely restricted jury
service to white men. During the Reconstruction era that followed the war and the abolition
of slavery, the 14th Amendment declared all natural-born Americans – including African
Americans – citizens with all associated rights and privileges. The Civil Rights Act of 1875
included a provision outlawing race-based discrimination in jury service. And in 1880, the
U.S. Supreme Court in Strauder v. West Virginia struck down a statute restricting jury
service to whites. This progress was short lived.
Southern lawmakers soon stopped passing explicitly discriminatory jury service laws but
continued empaneling all-white juries during the late 19th and early 20th Centuries using
highly discretionary practices controlled by white officials. In an era of racial terror –
characterized by widespread lynching of African Americans – discrimination in jury selection
allowed all-white juries to remain a standard feature even in largely black counties,
empowered lynchers to exact brutal racial violence with impunity and no fear of prosecution
or conviction, and rendered the Constitution’s promise of full citizenship a hollow
guarantee.
Judicial intervention was slow and inconsistent. In 1935, the Supreme Court overturned
the death sentences of the Scottsboro Boys in Norris v. Alabama because black people
had been excluded from serving on the trial jury, but then in 1945 the Court upheld a Texas
county’s token policy of including exactly one black person on each grand jury. By the
1960s and 1970s, the Court adopted and consistently enforced a rule that jury lists and
venires must represent a “fair cross-section” of the community. In response, the method of
discrimination soon shifted from the composition of the jury pool to the selection of the final
jury.
During jury selection, counsel for both prosecution and defense may use an unlimited
amount of “strikes for cause” against potential jurors who are demonstrably unfit for service
because they don’t meet minimum legal criteria or because they are biased. Next, counsel
whittle the remaining prospective jurors down to a final jury using a set allowance of
peremptory strikes.