A Dallas County, Alabama, prosecutor struck Edith Ferguson and five other black prospective jurors because, he asserted, they were of "low intelligence." She is pictured with her son, Charles Morton, a veteran who served 27 years in the United States Army.

Illegal Racial Discrimination in Jury Selection: A Continuing Legacy

Nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases. In 2010, EJI released a report, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which is the most comprehensive study of racial bias in jury selection since the United States Supreme Court tried to limit the practice in Batson v. Kentucky in 1986.

“The underrepresentation and exclusion of people of color from juries has seriously undermined the credibility and reliability of the criminal justice system, and there is an urgent need to end this practice,” said Bryan Stevenson, EJI's Executive Director. “While courts sometimes have attempted to remedy the problem of discriminatory jury selection, in too many cases today we continue to see indifference to racial bias."

During two years of research in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), EJI interviewed over 100 African-American citizens who were excluded from jury service based on race and reviewed hundreds of court documents and records. EJI uncovered shocking, present-day evidence of racial discrimination in jury selection, including:

• Racially biased use of peremptory strikes and illegal racial discrimination in jury selection remains widespread, particularly in serious criminal cases and capital cases. Hundreds of people of color called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal.

• Prosecutors have struck African Americans from jury service because they appeared to have “low intelligence,” wore eyeglasses, walked in a certain way, dyed their hair, and countless other reasons that the courts have rubber-stamped as “race-neutral.”

• Some district attorney’s offices explicitly train prosecutors to exclude racial minorities from jury service and teach them how to mask racial bias to avoid a finding that anti-discrimination laws have been violated.

• In some communities, the exclusion of African Americans from juries is extreme. For example, in Houston County, Alabama, 8 out of 10 African Americans qualified for jury service have been struck by prosecutors from death penalty cases. In Jefferson Parish, Louisiana, there is no effective African American representation on the jury in 80 percent of criminal trials.

• Many defense lawyers fail to adequately challenge racially discriminatory jury selection because they are uncomfortable, unwilling, unprepared, or not trained to assert claims of racial bias.

• There is wide variation among states and counties concerning enforcement of anti-discrimination laws that protect racial minorities from illegal exclusion.

EJI offers detailed recommendations for ensuring full representation of people of color on juries throughout the United States within five years. These recommendations include:

• Dedicated and thorough enforcement of anti-discrimination laws designed to prevent racially biased jury selection must be undertaken by courts, judges and lawyers involved in criminal and civil trials, especially in serious criminal cases and capital cases.

• Prosecutors who repeatedly exclude people of color should be subject to fines, penalties, suspension, and other consequences to deter the practice. Community groups can hold their district attorneys accountable through court monitoring, requesting regular reporting on the use of peremptory strikes, and their voting power.

• The criminal defense bar should receive greater support, training and assistance in ensuring that state officials do not exclude people of color from serving on juries on the basis of race.

• States should strengthen policies and procedures to ensure that racial minorities are fully represented in jury pools. State and local governments should expand their jury lists and use computer models that weight groups appropriately.

• The rule banning racially discriminatory use of peremptory strikes announced in Batson v. Kentucky should be applied retroactively to death row prisoners and others with lengthy sentences whose convictions or death sentences are the product of illegal, racially biased jury selection but whose claims have not been reviewed because they were tried before 1986.