Prosecutors Still Using Race to Choose Juries in Death Penalty Cases, Despite Century of Supreme Court Rulings
Yesterday鈥檚 7-1 Supreme Court decision in Foster v. Chatman was a huge victory for Timothy Foster, a 49-year-old Black man who has been on Georgia鈥檚 death row for 29 years. The ruling also reflects a systemic problem with the death penalty: prosecutors鈥� repeated, deliberate use of race to choose jurors. This practice alone makes capital punishment so fundamentally unfair that we must end it.
In 1987, Foster had been convicted of murdering a white woman and was sentenced to death by an all-white jury. During jury selection, the prosecutors in his case deliberately eliminated potential Black jurors based on their race. Those prosecutors violated the Constitution when they excluded those jurors, and yesterday the Supreme Court held them to account. The justices struck down Foster鈥檚 conviction and death sentence and ordered a new trial because it鈥檚 unconstitutional to choose jurors according to race.
While this ruling may save Foster鈥檚 life, it doesn鈥檛 represent a big advance in the law. The court applied a legal doctrine that was already a settled principle: prosecutors may not use race as a basis to select鈥攐r exclude鈥攋urors. In fact, the Supreme Court has been condemning racial bias in jury selection in capital cases since 1880 when it outlawed the practice in Strauder v. West Virginia. But more than 100 years after the court鈥檚 first decision on this problem, and 40 years into our modern experiment with the death penalty, widespread racial bias continues in jury selection for capital cases. We continue to send people to die from trials tainted by racial bias.
In criminal cases, prosecutors and defense counsel are each granted 鈥減eremptory strikes,鈥� whereby each side is permitted to dismiss a set number of potential jurors. A handful of studies have undertaken systemic investigations of prosecutors鈥� use of peremptory strikes in capital cases. Each one has uncovered damning patterns of discrimination, showing disproportionate strikes of Black jurors by prosecutors.
Most recently, a 2015 study of prosecutor strikes in , found that prosecutors struck Black jurors at two to three times the rates of other jurors. An extensive study of strikes in capital cases in found prosecutors struck Black jurors at twice the rates as other jurors. Here in , researchers conducted the only state-wide study and found the same All across the state, city and country alike, discrimination against qualified Black jurors remains depressingly constant.
During jury selection, if the defense can point to some signs that prosecutors are using their strikes in a discriminatory manner, the prosecutors will be required to give explanations for their strike decisions. In Foster, the Supreme Court criticized the prosecutors鈥� 鈥渃oncerted effort鈥� to keep Black people off the jury in the Georgia case, as well as their 鈥渟hifting explanations鈥� and 鈥渕isrepresentations鈥� to the courts intended to camouflage those efforts. Foster involved the rare indisputable proof of discrimination: Prosecution notes showed a planned strategy to avoid selecting any Black jurors.
In North Carolina, we litigated extensively jury discrimination practices in four capital cases. (All four were recently sent back from the North Carolina court for new hearings on their claims alleging discrimination.) As in Foster, we found handwritten notes showing racially influenced jury selection in individual cases. Even worse, we uncovered evidence that several prosecutors were trained in how to provide canned explanations for why they removed Black jurors. A statewide prosecutor training handed out a cheat sheet with a list of the top 10 explanations for use in responding to allegations of racial bias. Prosecutors were instructed to complain of the juror鈥檚 鈥渁ge,鈥� or body language鈥攖wo of the very same explanations offered by the prosecutors in Foster to hide their discrimination.
With so much evidence of racial bias in jury selection for capital cases, we know the damage is too pervasive for our courts to rectify. After more than 100 years of racially biased jury selection, the inescapable truth is that capital punishment can鈥檛 be squared with the Constitution or any other commitment to equality. It鈥檚 time to shut it down.
