The use of invidious discrimination to prevent African Americans from serving on juries goes as far back as the end of slavery and has been a persistent presence in American jurisprudence. After the Fourteenth Amendment ensured citizenship, and all the rights and immunities that attend that, African Americans fought to be represented on juries to ensure fairness. In 1875 Congress passed its second Civil Rights Act, which had a particular provision prohibiting race-based discrimination in jury service, thereby outlawing many Southern state statutes. See 18 U.S.C. §243; EJI Report.
Despite the dictates of the Fourteenth Amendment and the Civil Rights Act of 1875, states continued to engage in race-base discrimination in jury service. The issue eventually reached the United States Supreme Court in 1880 in Strauder v. State of West Virginia, 100 U.S. 303 (1880). In that case, the state of West Virginia prohibited all black men from serving on the jury. The court issued a scathing rebuke of West Virginia’s statute and held that race-based discrimination in the selection of juries was a violation of the Equal Protection clause.
The court also noted the importance of diversity in the selection of juries to ensure fairness:
It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Id. at 309.
Although Strauder outlawed race-based discrimination in the selection of juries, it did not prohibit states from developing other criteria for jury service. Additionally, the court explicitly stated that the 14th Amendment provided no bar to states that wished to confine jury service “to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.”
As a result, states either continued to ignore the law, or began to couch their race-based discrimination within ostensibly race-neutral criteria, which led to the persistent exclusion of African Americans from juries. The issue again reached the United States Supreme Court during the infamous Scottsboro Boys incident in Norris v. Alabama, 294 U.S. 587 (1935). This is the same case that would inspire Harper Lee to write her beloved novel To Kill a Mockingbird.
The case involved two white women who falsely accused nine black men of rape 1931. Not surprisingly, they were convicted by an all white male jury. While this case was riddled with many injustices, one particular point was the jury selection process. The state created non-race based requirements for jury service, such as intelligence and moral integrity, which the Defendant argued caused systematic exclusion of all African Americans from jury service. Despite Alabama’s law appearing to be racially neutral on its face, no black person had served on a jury.
According to a witness for the state of Alabama, the reason for the exclusion of blacks was because:
I do not know of any negro…who is generally reputed to be honest and intelligent and who is esteemed in the community for his integrity, good character and sound judgment, who is not an habitual drunkard, who isn’t afflicted with a permanent disease or physical weakness which would render him unfit to discharge the duties of a juror, and who can read English, and who has never been convicted of a crime involving moral turpitude. Norris, 294 U.S. at 598-99.
In rejecting the state’s argument, the court held that the total exclusion of African Americans, even in the face of seemingly race-neutral criteria, would not be tolerated. Having neutral requirements for service alone was not sufficient to demonstrate compliance with the law. In other words, the court recognized even in the face of race-neutral laws, discrimination can still be present.
While the court’s ruling was meant to prevent race-based discrimination in jury selection, discrimination persisted. For those determined to exclude African Americans, the court’s rulings served as guidelines on how to avoid detection, not as a prohibition. Resultantly, the court continued to address the matter, eventually ruling on the seminal case Batson v. Kentucky, 476 U.S. 79, (1986), over one hundred years after Strauder.
In Batson the court created a three-step process for addressing concerns that a juror has been removed due to his or her race. Ultimately, the purpose of the inquiry is to produce actual answers to suspicions that peremptory challenges are racially motivated. As the court noted in Johnson v. California, 545 U.S. 162 (2005),“[t]he inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” The court declined to articulate a particular procedure to follow, but instead left that up to the particular states.
In 2019 the U.S. Supreme Court once more found itself addressing the issue of racial discrimination in the jury selection process in Flowers v. Mississippi. There the defendant, Curtis Flowers, had been tried six times for the same crime. His trials either ended in a hung jury, or his convictions were reversed due to prosecutorial misconduct. Each trial was prosecuted by the state attorney Doug Evans; and he was repeatedly found to have excluded blacks from the jury based on their race, a claim he denied. The podcast In the Dark: Season 2 does a wonderful exposé on this case.
The Supreme Court found that Evans again violated Flowers’ constitutional rights by intentionally removing blacks from the jury. The state of Mississippi attempted to argue that the broader context of Evans’ history of removing black people from the previous juries in Flowers’ case was not relevant. The issue, they contended, was whether there existed a race-neutral reason for the removal of each particular black person. The Court disagreed, especially since it was the same prosecutor each time prosecuting the same case. The court refused to turn a blind eye to the very compelling context of this case that pointed towards intentional discrimination.
Given the specificity of the Court’s holding, the reach of its decision remains to be seen. However, what it tells us is that this country’s history of wanting to exclude blacks from juries is long and never ending. Therefore, as minorities, we must take the knowledge of this history with us when called upon to serve on juries. We cannot and should not try to avoid our duty because to do so would be a slap in the face to all those who fought hard to make sure we have a seat on the jury.
More importantly, to shirk this duty is to become a tool in the hands of those who wish to oppress us and suppress our voice. Stated differently, to avoid jury duty is to willfully participate in your oppression.
–Until Next Time–
Palooke
(most of this article consist of an excerpt from one of my Appellate briefs written in 2016 )
