The Persistence of Jury Discrimination.

Shaila Dewan's article about the persistence of jury discrimination in the Deep South is essential, chilling reading. Racial discrimination in jury selection is an excellent case study in precedents -- it is not so much whether they are upheld, as how they're applied. Federal and state courts have generally failed to take seriously formal requirements that juries not be selected in a racially discriminatory manner:

In a 1986 case, Batson v. Kentucky, the Supreme Court ruled that if a pattern of discrimination emerged during peremptory strikes, lawyers must provide nonracial reasons for their strikes. The reason does not have to be “persuasive, or even plausible,” the Supreme Court ruled in a later case in which a prosecutor said he dismissed one black juror because he had long hair, and another because he had a goatee, saying, “I don’t like the way they looked.” It is up to the judge to decide if there was deliberate discrimination.

That is a high bar, defense lawyers say — so high that in Tennessee and North Carolina, there has never been a successful reversal based on Batson.

The Supreme Court did, in 2005, manage to find one case in which the discrimination in jury selection was so obvious that it was unconstitutional. This precedent, however, doesn't seem to have had much effect on Southern state courts, which was sadly predictable.

I agree, first of all, with Stephen Breyer and Thurgood Marshall that the entire idea of peremptory challenges -- which allow prosecutors and defense lawyers to strike jurors without citing a cause -- are inconsistent with the 14th Amendment and should be done away with. And yet, given how difficult both the Supreme Court and lower courts have made it to prove racial discrimination, I'm not sure that eliminating the peremptory challenge will make much difference. Courts in most cases are likely to simply accept neutral justifications for racially cleansing juries, no matter how farcical the explanations.

Which brings us to a final point illustrated by Miller-El: the nature of contemporary conservatism. Antonin Scalia, William Rehnquist, and Clarence Thomas -- all of whom tout being "color blind" when it comes to state policies that may disadvantage individual white people, were unable to find racial discrimination in a case in which 10 of 11 black jurors were peremptorily struck by prosecutors, although the "race neutral" justifications cited by the prosecution applied to several prospective white jurors the prosecution accepted. As long as these kinds of Republican appointments dominate the federal and Southern state courts, racial discrimination in jury selection isn't going to get any better.

--Scott Lemieux

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