Yes, jury selection in NC is racist. We have proof.
Race, as a matter of constitutional principle, cannot factor into the selection of jurors for criminal trials. But in the American justice system, anyone with a bit of common sense and a view from the back of the courtroom knows the colorblind ideal isn’t true in practice.
Racial bias largely seeps in through what are 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.
Now, this informal knowledge has been empirically confirmed, and the case for change couldn’t be more compelling. My recently published research on juror removal in North Carolina conducted with colleagues at the Wake Forest School of Law proves — for the first time with statewide evidence — that peremptory challenges are indeed a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color.
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.
The data also show variety within the state: 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.
When the dust settles at the close of jury selection, defense attorneys’ actions in the last leg of the process do not cancel out the combined skewed actions from prosecutors and judges. The consistent result is African-Americans occupying a much smaller percentage of seats in the jury box than they did in the original jury pool.
It is not possible, even with this new data, to say exactly why a prosecutor, defense attorney or judge decides to remove any particular juror in a single case. But this racially skewed trend, played out across many cases, is persistent. And it has two especially pernicious effects on the quality of criminal justice.
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. Second, excluded parts of the community become more cynical about the justice system when they repeatedly see barriers to jury service.
To address the problem, state courts could adopt rules such as the one that the Washington Supreme Court approved last April. 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 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.
The status quo shows that a barely enforceable constitutional doctrine isn’t enough. It’s time to bring this vital process of justice from behind closed doors and into the sunlight.