In the closing days of the United States Supreme Court’s most recent term, Justice Brett Kavanaugh revisited our nation’s long, ugly history of excluding African Americans from jury service. Black Americans were barred from serving on juries in the post-Civil War Reconstruction era and in the decades of Jim Crow segregation that followed, and discrimination remained widespread during the Civil Rights Era, leading to the Supreme Court’s seminal decision in 1986 (Batson v. Kentucky), an effort to inoculate jury selection procedures from the legacy of racial discrimination.
In overturning Curtis Flowers’ sixth murder conviction and death sentence at the hands of the same habitually offending white prosecutor, the Court proclaimed: “Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.” This power, however, is routinely denied to African Americans who are disproportionately removed from juries through the use of peremptory strikes, which allow prosecutors to remove jurors for almost any reason.
North Carolina is one of very few states where appeals courts have never acknowledged discrimination against a juror of color and have allowed prosecutors to offer reasons for striking black jurors that are vague, suspect, and difficult to verify: the juror didn’t make eye contact, had an unusual hairstyle, or said “yeah” instead of “yes.”
This week, North Carolina has a chance to confront a problem that has haunted the state for too long. The North Carolina Supreme Court will hear arguments on August 26 and 27 about the North Carolina Racial Justice Act (RJA). This groundbreaking law allowed people on death row to present evidence that racial bias played a role in their death sentences.
After the law’s passage in 2009, a study of capital trials found that prosecutors removed qualified black jurors at more than twice the rate of white jurors. Thus, nearly half of North Carolina’s death row prisoners were tried by all-white juries or juries with only one person of color. If you doubt that the racial makeup of juries matters, remember that all-white juries have sent dozens of innocent black men to death row, including some of my clients.
The RJA also allowed defendants to unearth handouts from training seminars for prosecutors with lists of “race-neutral” excuses to explain away strikes of black jurors and prosecutors’ handwritten notes. African Americans who were struck had notations like “blk wino,” while a prosecutor wanted to keep a white juror because she would “bring her own rope.”
With such comprehensive evidence emerging, North Carolina was poised to make real progress. But whenever we move forward in civil rights, resistance and obstruction to progress arises. After four death row prisoners won relief from a trial court and were resentenced to life without parole, politicians balked. A group of state legislators — the same ones who the federal courts found enacted racially-biased voting laws — repealed the RJA.
Now, the North Carolina Supreme Court has a chance to reject the legislature’s gambit and let the evidence come out. The gravity of this decision cannot be underestimated. If the seven justices rule in favor of the defendants, they will allow a much-needed systematic review of race discrimination in capital punishment. If they decide against the defendants, the justices will send a message that a mountain of evidence demonstrating racial injustice can be tossed aside and ignored.
Eradicating racial bias in our courtrooms requires a break from the past. It will take courage and sustained effort. And, yes, it will be difficult. But nothing less than the integrity of our courts and our commitment to true justice is at stake. At a time of much division and conflict, we should all be united in our support of the proposition that racial bias in jury selection is unacceptable in North Carolina.
Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, a human rights organization in Montgomery, Ala., and the author of the book “Just Mercy: A Story of Justice and Redemption,” an account of his work on behalf of the incarcerated, and the condemned.