Jury service is one of the most important ways in which ordinary citizens participate in our criminal justice system. Throughout our history, however, that system has denied African-Americans full participation in this form of self-government; like Confederate monuments, this occurs in plain sight and often is ignored.
I began paying attention to the exclusion of African-Americans from jury service in 1983 when, as a private lawyer, I undertook the representation of a black inmate on Florida’s death row. At his sentencing, the prosecutor argued explicitly that my client should be executed because the victim was white. In my current work, my clients include black men I believe are innocent who were convicted by all-white or nearly all-white juries.
Enforcement of the right of African-Americans to serve on juries is one of the primary protections against these kinds of injustices. Regrettably, North Carolina courts stand out nationally for their failure to protect this fundamental right. When qualified African-Americans are called for jury service today, they still are far more likely to be rejected than their white counterparts.
Prosecutors justify such exclusions on numerous discriminatory grounds. They exclude some individuals because they attended a historically black college or university; some because they are the same age as the defendant; and others because their employment contacts with black people make them more likely to be sympathetic to a black defendant. These are thinly veiled pretexts for discrimination.
Courts have a duty to prevent this kind of discriminatory behavior, and they have a tool to do so. It is unconstitutional to exclude citizens from jury service because of race. The U.S. Supreme Court established this principle more than 30 years ago, in a case known as Batson v. Kentucky.
Yet, in North Carolina, the state Supreme Court and Court of Appeals have never enforced the principle, as least as it applies to African-Americans. According to a recent study published in the North Carolina Law Review and an analysis that I co-authored in The NC State Bar Journal, the state appellate courts have never acknowledged a single instance of discrimination against a minority juror. Not once in three decades.
Among appellate courts in the South, our courts alone are the only ones that have never reversed a conviction because of jury discrimination against a minority citizen. By all meaningful measures and against clear evidence, our state’s highest courts have simply refused to recognize that discrimination against people of color plays any role in jury selection.
This dismal record is not evidence that such discrimination does not exist. Study after study has shown that North Carolina prosecutors exclude qualified African-Americans from juries at twice to three times the rate they exclude white citizens. Prosecutors’ notes sometimes reflect their distrust of black jurors. In one case, for example, a prosecutor tagged African-American jurors with notations such as “blk wino,” and “blk/high drug area.” This is not an isolated occurrence.
My point is not that North Carolina prosecutors are racists or bigots; most likely intend to follow the law. But we now accept as fact that implicit bias affects human decisions, regardless of our legal training or good intentions. However, in a world in which the practice of excluding African-Americans from jury service is longstanding and tacitly accepted by our courts, such bias is persistent.
A prosecutor’s job is to make decisions about individual jurors with an eye toward obtaining a conviction. Appellate courts have a very different job. They must look at the big picture and ensure that a prosecutor’s individual decisions do not result in the unfair systemic exclusion of qualified African-Americans from jury service. For the last three decades, our appellate courts have failed in that role.
Today, when Confederate monuments ironically may provide an unprecedented opportunity to discuss the truth about race, African-American citizens called for jury duty continue to enter the courthouse in the shadow of these monuments with a strike against them. It is distressing that our state’s highest courts have failed to do anything about this. Removing Confederate monuments alone is not enough.
James Coleman is a law professor and the director of the Center for Criminal Justice and Professional Responsibility at Duke University School of Law. He was a member of the Criminal Investigation and Adjudication Committee of the Chief Justice’s Commission on the Administration of Law and Justice.