A Continuing Legacy, Case Study Example

“Illegal Racial Discrimination in Jury Selection:A Continuing Legacy”

The first barrier (total exclusion) dates back to the days of the First Reconstruction period following the end of the Civil War. Even with the passage of several federally-based laws, such as the Civil Rights Act of 1875 which outlawed race-based discrimination in jury service, African-Americans were still considered as second-class citizens without any rights whatsoever. This was especially true in the Deep South where by 1880 Jim Crow laws were in effect, based on white supremacy, state terrorism (the Ku Klux Klan), and apartheid or the complete segregation of blacks from white Southern society (Illegal Racial Discrimination in Jury Selection, 2010, p. 9).

However, at about the same time as the Jim Crow laws, the US Supreme Court case of Strauder v. West Virginia overturned a West Virginia statute “that restricted jury service to whites” which the Supreme Court saw as a blatant violation of equal protection under the laws “guaranteed to black citizens by the newly-adopted Fourteenth Amendment” to the US Constitution (Illegal Racial Discrimination in Jury Selection, 2010, p. 9). Unfortunately, total exclusion is still practiced and tolerated in many Southern states despite great advances in civil rights since the late 1950’s and 1960’s.

The second barrier (discriminatory selection) is based on the process of jury selection which includes selecting a jury panel or “venire” from which trial lawyers (defense and prosecution lawyers) choose potential jurors via questions in order to determine if potential jurors are biased against the defendant. After making their selections, the lawyers then use peremptory strikes “to remove additional jurors for any reason” (Illegal Racial Discrimination in Jury Selection, 2010, p. 12).

This second barrier was then addressed by the US Supreme Court in 1965 via Swain v. Alabama but decided in favor of the state of Alabama. In 1986, another Supreme Court case, Batson v. Kentucky, overruled the 1965 case via the decision that prosecutors “cannot use peremptory strikes to exclude a potential juror because of his/her race” (Illegal Racial Discrimination in Jury Selection, 2010, p. 12). However, like total exclusion, this barrier still exists, due to discrimination on the part of prosecutors in the South where all-white juries continue to be the rule rather than the exception.

According to V.D. Amar, ensuring jury diversity via having the jury for a trial made up of an equal number of individuals from different racial and cultural backgrounds, “is of prime importance when it comes to guaranteeing that a defendant will be treated fairly by a jury of his/her peers” (2000, p. 54). Otherwise, if a trial jury is made up of only whites or individuals that do not share or understand the racial and/or cultural background of the defendant, then the credibility of the jury will be in question and as in many case examples from the past, may result in an unfair conviction of the defendant.

Out of the fourteen recommendations, number two should be implemented in every state in the country, due to banning the use of racially discriminating peremptory strikes. As pointed out in this recommendation, this would greatly assist death row prisoners whose trials were “the product of illegal, racially biased jury selection” prior to 1986 (Illegal Racial Discrimination in Jury Selection, 2010, p. 44). As R.S. Kahn reminds us, the retroactive enforcement of new laws based on eliminating racially discriminatory peremptory strikes by trial lawyers, especially state and county prosecutors, “holds the potential to allow death row prisoners a new lease on life through a new trial with a jury composed of his/her peers” (2005, p. 126), thus making the legal process fair and equal.

References

Amar, V.D. (2000). Jury discrimination. New York: Macmillan Reference.

Illegal racial discrimination in jury selection: A continuing legacy. (2010).

Montgomery, AL: Equal Justice Initiative.Kahn, R.S. (2005). Jury discrimination: The next phase. Berkeley: University of Southern California Law Center.