Combating Racism – Solving Discrimination in Jury Selection

[The following recommendations are abridged from “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” by the Equal Justice Initiative.]

For the past two weeks, I have focused on illegal racial discrimination in jury selection and its consequences. Eliminating this racial discrimination will take considerable effort on the part of court officials, legislators, judges, prosecutors, defense attorneys, community and civil rights groups, and ordinary citizens. Below are some initial recommendations for solving the current inequities in jury selection.


Prosecutors who are found to have engaged in racially biased jury selection should be held accountable and should be disqualified from participating in the retrial of any person wrongly convicted as a result of discriminatory jury selection. Currently, in most cases where a court finds that a prosecutor intentionally discriminated in jury selection, that same attorney often represents the State at a retrial.

Prosecutors who repeatedly exclude people of color from jury service should be subjected to fines, penalties, suspension and other consequences.

Depending on the jurisdiction, district attorneys may be appointed by the chief executive (who is an elected position) or elected by local voters.  So every citizen has a stake in holding prosecutors accountable for their actions.


The Code of Laws of the United States (variously abbreviated to U.S. Code, U.S.C., or USC) is the official compilation and codification of the general and permanent federal statues of the United States. Title 18 of U.S.C. 243 reads:

No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.

This statue forbids the racially discriminatory exclusion of any person from a grand jury or a trial jury in any state or federal court by anyone “charged with any duty in the selection or summoning of jurors.” These provisions have existed in substantially the same form since they were enacted in 1875, but there have been few documented prosecutions under the statute.

The U.S. Department of Justice and U.S. Attorneys should enforce this statute against district attorney’s offices that deny citizens’ civil rights. Congress should increase the current penalty of $5,000 per violation, which has not been adjusted since 1875. Such prosecutions would send a message that no one is above the law and that recourse is available when the law is broken by those responsible for enforcing it.


While top-level commitment to diversity from legislatures, appellate courts, and high-level executive officials is needed, discrimination in individual courtrooms is a local problem for which local solutions can be highly effective. One factor enabling the continued cycle of exclusion in jury selection, especially in criminal trials, is the insularity of the setting. Community groups, civil and human rights organizations, and concerned citizens can shine a light on what transpires in local courtrooms by exercising their constitutional right and attending court proceedings and monitoring the conduct of local officials with regard to jury selection practices. Witnessing and documenting the conduct of local officials is a powerful step in holding those officials accountable and ultimately changing their behavior.


Local organizations and citizens should ask their district attorneys what steps are being taken to ensure non-discrimination and guarantee citizens full and equal access to jury service. Each of us has a right to expect from all public officials a commitment to transparency and enforcement of anti-discrimination laws, and we should demand from our officials regular documentation regarding prosecutorial use of peremptory strikes.


The Constitution mandates that a jury pool be fairly representative of the broader community. In those communities where the source for the jury pool is based solely on voter registration rolls, the probability that trial juries will represent a fair cross-section of the community is questionable.

In Dallas County, Texas, officials implemented new computer programs to address the “skewed” jury pool after recognizing in 2005 that Latino prospective jurors comprised only 11% of those reporting for jury duty in felony court but made up 26% of the adults in the county.

State and local communities would do well to mirror the process in Minnesota where juries are randomly drawn from a source list generated by compiling voter registration, driver’s license, and state identification lists, which more accurately reflect a cross-section of the community. Effective procedures and technologies can ensure that all citizens are included in jury pools. States should commit to ending underrepresentation in every country.

National and state bar associations, community leaders, non-profit organizations, and other interested parties should request that court officers in their jurisdictions monitor and report demographic information to track underrepresentation of minority groups on juries. Data on the racial, ethnic, and gender composition of each jury will enable policymakers to measure diversity ratings for individual cases and for each county, and hopefully ensure juries are representative of their community demographics.


Laws that protect against racially biased jury selection will most likely not be enforced without criminal defense attorneys aggressively challenging discriminatory jury selection. Many attorneys have not received adequate training and preparation to confront biased jury selection and need additional support and education. State and federal governments should reinforce the critical role they play in protecting the integrity of the criminal justice system by providing funding for training and assistance on this issue. Since defense lawyers frequently are the only witnesses to discriminatory jury selection, defender organizations should document and report bias in jurisdictions where the problem exists.


Two months after the historic 1986 decision in Batson v. Kentucky, the U.S. Supreme Court decided a lesser-known case, Allen v. Hardy, ruling that Batson would not apply retroactively. This means that Batson does not apply to defendants whose trials were final before 1986. Many of these defendants still sit in prisons or on death row across the country, even though indisputable evidence of racially-biased jury selection exists.


In the case of Thiel v. Southern Pacific Co., both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage. The jury commissioner said, “those men came into court and offered financial hardship as an excuse and the judge usually let them go.” This exclusion of all those who earn a daily wage cannot be justified by federal or state law. Certainly nothing in the federal statutes warrants such an exclusion.

The U.S. Supreme Court struck down the systematic exclusion of low-income wage earners from jury service, holding that such exclusion may “discriminate against persons of low economic and social status and breathe life into tendencies to establish the jury as the instrument of the economically and socially privileged.”

Solution: state and local justice systems should provide the assistance necessary to allow all citizens, including those earning a low wage, the opportunity to serve. By paying jurors an adequate daily wage, courts will increase the likelihood that low-income wage earners can serve on juries. Some states, like Connecticut, offer to reimburse eligible jurors for out-of-pocket expenses associated with jury service, such as child care, parking, and transportation costs. Eliminating economic barriers to jury service is essential to ensure that juries are representative and fair.


Citizens excluded from participation in civic life based on their race suffer humiliation and denigration which can cause lasting psychological harm. Illegally excluded jurors should have access to civil remedies. Making remedies available would engender respect for the system as a whole. At a minimum, potential jurors subject to discrimination are owed a public apology from the discriminating prosecutor.


In many places in this country, no people of color serve as prosecutors and few sit as trial judges, which leaves the jury as the singular decision-making role in which people of color can participate and shape the judicial process. It is time that the judiciary, prosecutor’s offices, the criminal defense bar and law enforcement become more diverse. Greater minority participation in these roles will reduce pressure on minority jurors, who should not be burdened with the impossible task of equalizing a system so unbalanced by the absence of people of color in decision-making roles.


The importance of equity in jury selection has been well-established. Nevertheless discrimination in jury selection has become the seed of White juror bias, a significant contributor to the inequitable incarceration and execution of greater numbers of Blacks than Whites.

How is White juror bias remedied? Some say the removal of peremptory strikes may help. Justice Thurgood Marshall, in the 1986 Batson v. Kentucky Supreme Court case said that the goal of ending racial discrimination that peremptory strikes inject into the jury selection process will be accomplished only by eliminating peremptory challenges entirely.

The Equal Justice Initiative has added other potential solutions. Until this part of our criminal justice system is addressed, for Black Americans “innocent until proven guilty” is not the standard.

For additional information on implementing these recommendations and for other ideas about ending jury discrimination, contact the Equal Justice Initiative:

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