By: Madelyn Hughes

Associate Editor Vol. 27

The Constitution establishes the right for those charged with a crime to have a trial by an impartial jury comprised of their peers.[i] As the United States reckons with the history of racism and discrimination that colors many of the systems and processes that exist today, the persistent issue of race in jury selection serves as a reminder that until the past is confronted directly, we will be unable to live up to our ideals.

Juries and Race: A History

When written, the Constitutional right to a criminal jury trial did not exist for everyone equally. Only white men could serve on juries until the Reconstruction Era.[ii] The Fourteenth Amendment, passed in 1868, and the Fifteenth Amendment, passed in 1870, gave Black men the right to vote and serve on juries, as well as providing legal protections against discrimination.[iii] The Civil Rights Act of 1875 outlawed race-based discrimination in jury selection. While these were significant actions, they could not alone prevent racial discrimination from entering the courtroom.[iv]

The goals of the Fourteenth and Fifteenth Amendments and the Civil Rights Act of 1875 remained only abstract ideas throughout the United States, especially in the Southern states. In 1949, seven young Black men in Virginia, also known as the Martinsville Seven, were falsely accused of raping and beating a white woman.[v] After being threatened into confessing to the crime, they were convicted by all-white juries and executed in 1951 in the largest mass execution for rape in American history.[vi] The Martinsville Seven were posthumously pardoned on August 31, 2021.[vii]

Racially motivated convictions by all-white juries like those of the Martinsville Seven were common throughout the South.[viii] These juries, referred to as Jim Crow juries[ix], used the court to further a racist agenda and acquitted white perpetrators of racially motivated violence.[x] In the years since Jim Crow juries, the Supreme Court has continued to wrestle with the issue of race in jury selection.

Juries and Race in the Courts

The role of race in jury trials has been addressed by the Supreme Court many times throughout history. One of the earliest cases is the 1880 case Strauder v. West Virginia, in which the Court found that it was a violation of the Equal Protection Clause to exclude Black people from jury service and struck down a West Virginia state statute banning Black people from serving as jurors.[xi] Later that year, the Supreme Court held that an all-white jury alone is not enough to constitute a violation of the Equal Protection Clause in Virginia v. Rives.[xii] This allowed Black people to serve as jurors in theory but did not require diversity in the judicial proceedings.

Norris v. Alabama is one of the most notable of the juror selection cases. This case involved the wrongful convictions of nine Black teenage boys accused of raping two white women.[xiii] The Court found that Black jurors had been systematically excluded from the jury pool in violation of the Equal Protection Clause.[xiv] Another significant case is Batson v. Kentucky, which banned prosecutors from using peremptory challenges to strike potential jurors based only on their race.[xv] This case gave rise to the Batson challenge, a three-part test through which a party can raise a claim that a potential juror was struck from the jury selection process because of their race.[xvi]

In 2020, the Supreme Court struck down state statutes in Oregon and Louisiana that allowed for nonunanimous jury verdicts to convict defendants of serious crimes in Ramos v. Louisiana.[xvii] These statutes were considered relics from the Jim Crow Era and it was celebrated by many criminal justice advocates when they were struck down.[xviii] However, the Court refused to apply Ramos retroactively, leaving defendants convicted by nonunanimous verdicts to serve their sentences.[xix]

Jury Selection and Race Today

Jury selection is often a focal point of media coverage of high-profile criminal cases. In cases involving race, such as the Ahmaud Arbery murder case, the racial composition of jurors comes into particular focus. Only one Black juror served in the Ahmaud Arbery case despite the fact that the area is 27% percent Black, and that racial motivations are a central part of the case.[xx] The judge, in this case, acknowledged there was intentional discrimination, but was unable to recall any of the dismissed jurors because the defense had provided race-neutral reasons for excluding them, which successfully defeated the Batson challenge.[xxi]

The racial composition of the jury was continually a topic of discussion as the case progressed, with many observers noting the lack of diversity in the jury,[xxii] indicating that the nearly all-white jury could acquit the men accused of murdering Ahmaud Arbery, an image that serves as a reminder of the all-white Jim Crow juries of the recent past.[xxiii]

The Dangers of All-White Juries

Given the disproportionate amount of people of color affected by the criminal legal system, having juries that are representative of the greater community is particularly important. All-white juries can perpetuate the criminal legal system’s disproportionate impact on people of color.[xxiv]

Research conducted by the Jury Sunshine Project shows prosecutors remove nonwhite jurors more often: “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.” [xxv]

There are mechanisms in place that allow defense attorneys to remove jurors after prosecutors do, but it is often not enough to combat the effect of removing the Black jurors from the jury pool.[xxvi]Batson challenges, for example, allow attorneys to attempt to maintain a racially diverse jury. However, as the Ahmaud Arbery case demonstrates, the Batson standard is very difficult to meet.[xxvii]

Diverse juries are necessary to ensure a fair criminal trial as stated in the Constitution. A study led by Duke University found that all-white jury pools convicted Black defendants 16% more often than white defendants, however when one Black person was added to the jury pool, this gap decreased significantly.[xxviii] Furthermore, racially mixed mock juries have been found to discuss case facts more in-depth, ask more questions and discuss race issues during deliberations when compared to all-white juries.[xxix]

Proposed Solutions

Although there is no constitutional right to a racially diverse jury, some states have taken action to attempt to increase diversity in jury selection. The Washington Supreme Court, for example, adopted a new rule that prohibits peremptory challenges defended with explanations that are highly correlated with race, such as “living in a high crime neighborhood,” in order to stop removals rooted in implicit bias.[xxx] Arizona has taken a different approach, removing peremptory challenges altogether in order to promote racial diversity beginning January 1, 2022. [xxxi] This approach, championed by Justice Thurgood Marshall, adds a level of uncertainty to criminal proceedings, but has the potential to be the most effective measure against discriminatory jury selection. [xxxii]

It is clear that lack of racial diversity in juries is a barrier to a fair criminal trial process, and that this issue will continue to resurface without further changes in the jury selection process. Despite the potential uncertainties, Arizona’s new rule eliminating peremptory challenges presents an opportunity to directly combat racial inequities in the criminal legal system. If widely adopted, this rule would result in a fairer criminal trial process.

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[i] U.S. Const. amend. VI.

[ii] Equal Justice Initiative, Race and the Jury: Illegal Discrimination in Jury Selection (2021).

[iii] Id.

[iv] Id.

[v] Death Penalty Information Center, Posthumous Pardons, https://deathpenaltyinfo.org/policy-issues/innocence/posthumous-pardons (last visited Nov. 26, 2021).

[vi] Id.

[vii] Id.

[viii] Supra note ii

[ix] Thomas W. Frampton, The Jim Crow Jury, 71 Vanderbilt L. Rev. 1593 (2019).

[x] Supra note ii

[xi] Strauder v. West Virginia 100 U.S. 303 (1879).

[xii] Id.  

[xiii] Virginia v. Rives 100 U.S. 313 (1880).

[xiv] Norris v. Alabama 294 U.S. 587 (1935).

[xv] Batson v. Kentucky 46 U.S. 79 (1986).

[xvi] Id.

[xvii] Ramos v. Louisiana 590 U.S. __ (2020).

[xviii] Erik Ortiz, Supreme Court rules ban on Jim Crow-era split juries can’t be applied retroactively, NBC News (May 17, 2021, 12:23 PM), https://www.nbcnews.com/news/us-news/supreme-court-rules-ban-jim-crow-era-split-juries-can-n1267589.

[xix] Id.

[xx] Joe Hernandez, How the jury in the Ahmaud Arbery case ended up nearly all white — and why it matters, NPR (Nov. 5, 2021, 7:00 AM), https://www.npr.org/2021/11/05/1052435205/ahmaud-arbery-jury.

[xxi] Id.

[xxii] Natalie Colarossi, Karen Bass Says Ahmaud Arbery Trial Off to a ‘Bad Start’ Because the Jury Is Nearly All White, Newsweek (Nov. 14, 2021 2:33 PM), https://www.newsweek.com/karen-bass-says-ahmaud-arbery-trial-off-bad-start-because-jury-nearly-all-white-1649096

[xxiii] Id.

[xxiv] Ronald Wright, Opinion, Yes, Jury Selection Is as Racist as You Think. Now We Have Proof,N.Y. Times (Dec. 4, 2018), https://www.nytimes.com/2018/12/04/opinion/juries-racism-discrimination-prosecutors.html.

[xxv] Id.

[xxvi] Id.

[xxvii] Supra note xx.

[xxviii] Id.

[xxix] Shamena Anwar, Patrick Bayer, and Randi Hjalmarsson, The Impact of Jury Race on Criminal Trials, 127 Q. J. of Econ. 1017 (2012).

[xxx] Supra note xx.

[xxxi] Ian Millheiser, Arizona launches a bold new experiment to limit racist convictions,Vox(Aug. 31, 2021, 8:00 AM), https://www.vox.com/22648651/arizona-jury-race-batson-kentucky-peremptory-strikes-challenges-thurgood-marshall.

[xxxii] Id.