NC should end race-based juror selection

From unconscious bias to outright racism, race has played a significant role in creating a justice system that too often results in unfair and unjust outcomes. The negative impact of race is nowhere more evident than in jury selection, with North Carolina providing a particularly illustrative — and troubling — case study.

Across North Carolina, prosecutors remove twice as many potential black jurors as white jurors during jury selection. And black people are four times more likely to be imprisoned than white people. The same trends exist in death penalty juries, resulting in black defendants being twice as likely as their white counterparts to be sentenced to death for identical crimes.

Whether these disparities are the product of implicit or explicit bias — it is a profound injustice and the cost is black lives. That’s why Fair and Just Prosecution and over a dozen other groups joined together to ask North Carolina’s Supreme Court to stand up against the entrenched practice of excluding people of color from juries.

The U.S. Supreme Court ruled in 1986 that it was illegal to exclude citizens from juries because of their race and set up a process for assessing these challenges, but the North Carolina appellate courts have yet to find race discrimination against a juror of color, and have routinely disregarded U.S. Supreme Court rules for addressing jury discrimination concerns. North Carolina is one of only a handful of states that has never enforced the ban on race-based jury selection.

Now, the N.C. Supreme Court has the chance to turn the corner and send a strong message that the era of excluding jurors of color with impunity is over. The court recently agreed to hear two cases where black jurors were excluded at disproportionate rates. In one case, the prosecution used eight of their twelve strikes to remove black jurors. In the other, the prosecutor said he removed a black juror because he’d been the victim of breaking and entering, while accepting six white jurors who were victims of the same crime. The court will also hear arguments in six separate cases next month presenting evidence that black citizens have been systematically excluded from death penalty juries.

We hope the fact that the court has agreed to hear these cases means they are finally ready to tackle this vitally important issue.

As current and former prosecutors, we understand prosecutors’ duty to seek justice and know that justice will never be administered fairly as long as it is driven by a “win at all costs mentality.” Elected prosecutors must commit to ending race discrimination in jury selection, while also using their voices to advocate for broader systemic changes to address practices dating back to segregation.

This is not just a matter of justice. It is a matter of public safety.

As studies have shown, when given the same set of facts, white jurors are more likely to find a black defendant guilty than a white defendant, suggesting that all-white juries may be an impediment to justice. On the other hand, diverse juries consider a wider range of information and deliberate more thoroughly and accurately.

If North Carolina’s highest court finds race discrimination, it will hardly be breaking news. Even the conservative members of the U.S. Supreme Court have spoken up against the racist exclusion of jurors. Most recently, the Supreme Court issued a decision(authored by Justice Kavanaugh) overturning the Mississippi death sentence of Curtis Flowers because of the prosecutor’s blatant pattern of removing black people from the jury.

In the Flowers decision, Justice Kavanaugh recognized that such discrimination is an American problem that began with slavery and continued through Jim Crow. It remains rampant today, Kavanaugh observed, and has serious consequences for the criminal justice system. “Other than voting,” he said, “serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.”

We couldn’t agree more.

It’s a new day in North Carolina, as people begin to wake up to the epidemic of mass incarceration and the impact of racially-disparate policing and prosecution. A new generation of prosecutors have been elected precisely because people want these trends to change. Across the political spectrum, including in North Carolina, there is now broad agreement that the criminal justice system must be reformed, and racial disparities must be rooted out.

We hope the North Carolina Supreme Court will play its part by acknowledging that race unfortunately still determines who sits in our jury boxes, that discriminatory jury selection is incompatible with justice — and that the lives of all defendants deserve equal protection under the law.

Satana DeBerry is the District Attorney for Durham County, North Carolina. Miriam Aroni Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution, a national network of elected prosecutors working towards common-sense, compassionate criminal justice reforms.