Various players, during last weekend’s slew of NFL games, reignited the protest efforts against racial injustice. Seattle Seahawks defensive end Michael Bennett, for instance, sat on the bench during the national anthem and raised his black-gloved fist after sacking San Francisco 49ers quarterback Brian Hoyer. Before the game, his brother Reshaud led a Black Lives Matter rally through the streets of Seattle’s International District, chanting, “Black lives are under attack, what do we do? Stand up, fight back.”
Now close your eyes and imagine what they demonstrated against. What scenes invade your mind? Most will picture episodes like what Bennett described as happening to him in Las Vegas — an officer forcing him to the ground, his nose smelling pavement, his ears filled with threats and a handgun aimed at his head — a scared and innocent black man fearing death was looming.
We generally finger cops and incidents like Bennett’s as the reason many people of color distrust the criminal justice system while ignoring a potentially far guiltier culprit — the prosecutor. With considerable authority in the legal system, many prosecutors have the ability to trample upon the constitutional rights of black criminal defendants. This malfeasance can reveal itself in a variety of ways, but one is when prosecutors deliberately make juries as white as possible.
Just last July, Washington state’s Supreme Court overturned the conviction of a black criminal defendant after the prosecutor prevented the only potential black juror from serving on the jury. California’s Supreme Court in June overturned the convictions of three Latino criminal defendants, ruling that the prosecutor discriminated against prospective Latino jurors.
When players protest the national anthem, also envision this: Right now, at least one person of color, almost certainly many, in fact, is seated in the criminal defendant’s chair in a courtroom somewhere in America. That person will gaze over at the jury box and spot few if any nonwhite faces because the prosecutor wanted it that way.
Batson v. Kentucky
The prosecutor and defense attorney have “peremptory challenges,” the right to strike a potential juror from serving on a criminal jury without giving a reason. Each side winnows down the jury pool through these challenges until, in most jurisdictions, 12 jurors and four alternates are seated. Many prosecutors habitually exploit this tool by striking people of color based on race, resulting in disproportionately white juries.
This happened in the early 1980s, when James Kirkland Batson of Louisville, Kentucky, stood accused of second-degree burglary and receiving stolen goods. During jury selection, the prosecutor struck all four black potential jurors and all-white jury convicted Batson.
In 1986, the Supreme Court overturned his conviction. This decision barred prosecutors from considering race when striking jurors, declaring unconstitutional a practice that had lasted more than a century.
Defense attorneys can now initiate a “Batson challenge.” This process generally begins after a prosecutor strikes two or more nonwhite people, often raising the eyebrows of defense attorneys, who can then argue they notice a racial pattern and tender supporting reasons. The judge, if convinced the defense has advanced a substantive initial case, will ask the prosecutor for race-neutral reasons for each reason to strike. If the prosecutor fails to convince the judge that race played no role, the judge will find a Batson violation.
The viability for the Batson decision to curtail this scourge hinged on whether discriminating prosecutors would be impeded by the requirement to proffer race-neutral explanations. Justice Thurgood Marshall in the Batson decision argued they could easily concoct reasons that courts would be “ill-equipped to second-guess. …” The Batson challenge, to Marshall, would falter because it “cannot prevent clever lawyers from using peremptory challenges to strike potential jurors based upon impermissible rationales as long as they pretend to use other, permissible bases.” This would mean that only “flagrant” abuses would be punished. Marshall concluded that “only by banning preemptories entirely can such discrimination be ended.”
Widespread Prosecutorial Jury Discrimination
A report from the Equal Justice Initiative, a racial justice organization in Montgomery, Alabama, exposes how prosecutors freely articulate discriminatory statements in open court. In a Louisiana case, for example, a prosecutor disclosed that he struck a juror for being a “single black male with no children.” One Alabama prosecutor struck black prospective jurors “because he wanted to avoid an all-black jury and asserted in other cases that he struck African-Americans because he wanted to ensure other jurors, who happened to be white, served on the jury.” A Georgia prosecutor challenged a juror “because he was black and had a son in an interracial marriage.”
Courts, in these cases, sided with the defendant. These are the blatant occurrences that Marshall figured courts could prevent. When prosecutors behave more cleverly, judges, as Marshall predicted, poorly guard black rights.
Zooming out from these details reveals a dispiriting tableau — rampant prosecutorial jury discrimination.
Barbara O’Brien and Catherine M. Grosso, two Michigan State law professors, examined at least one jury trial for each inmate on North Carolina’s death row as of July 1, 2010. Their study examined “strike decisions” for more than 7,400 potential jurors in 173 proceedings to discover how prosecutors used peremptory challenges in capital cases. Their data was clear — prosecutors were far more likely to strike potential black jurors.
Across all the proceedings, “prosecutors struck 52.6 percent of eligible black venire members, compared to only 25.7 percent of all other eligible venire members.” These disparities worsened in cases with black defendants. There, prosecutors struck 60 percent of black potential jurors versus 23.1 percent for all other races. “In every analysis that we performed,” O’Brien and Grosso recapped, “race was a significant factor in prosecutorial decisions to exercise peremptory challenges in jury selection in these capital proceedings.”
When asked what their research reveals about America writ large, O’Brien and Grosso responded by email, “from all the evidence we have seen — both experimental work and analysis of strike decisions in real-life trials — there’s nothing unique about North Carolina: Race is a huge factor in the decision to exercise peremptory strikes everywhere.”
Take the Peremptory Challenge Away from Prosecutors
The true number of defendants who have languished in prisons or died there after being convicted by a discriminatorily composed jury would likely startle even the most well-informed, although the exact total will forever elude us.
Society can best address this by pursuing the prophetic wisdom of Marshall: Strip the peremptory challenge from prosecutors, a power they persistently mishandle.
Take the former Montgomery County, Alabama, district attorney, for example. Her office had at least 13 of its convictions reversed for Batson abuses. She, nonetheless, held her job 21 years before stepping down in 2014. She kept enjoying re-election, and voters likely did not know or care she was habitually violating the rights of black criminal defendants.
Her victims, like that of any prosecutor who denied defendants their constitutional right to an impartially selected jury, suffered no police abuse that an onlooker recorded and posted online for the world to witness. But when black athletes conduct their national anthem protests, we should also keep in mind the image of the purposefully constructed all-white jury that could determine their guilt or innocence.