EJI Launches Project to Challenge Racial Bias in Jury Selection


The Equal Justice Initiative has recently undertaken a major effort to challenge racial bias in jury selection throughout the United States. In communities across America, racial minorities are significantly underrepresented on criminal trial juries as a result of jury selection procedures that are racially biased and discriminatory. Although federal law in this area is well-established, because of the inherently difficult task of proving exclusion of racial minorities from jury service, there is still much progress to be made in this area.(1)

Challenging racial bias in jury selection requires complex data gathering and skillful litigation that improves the local administration of criminal justice. The most successful litigation in this area has been accomplished when community groups and leaders are invited to participate and play a role in advocating for fully representative juries that respect the interests of racial minorities and other cognizable groups who have been historically underrepresented as decisionmakers in the criminal justice system but are frequently overrepresented in jails and prisons.(2)

Diverse and representative juries that include racial minorities have been shown to be critical in ensuring fair trials in criminal proceedings. The absence of representative(3) and diverse juries in criminal cases has serious consequences for the poor and people of color who must frequently overcome presumptions of guilt in communities where African Americans, Latinos, and other racial minorities are disfavored, stereotyped, and often demonized. Young Black men are especially vulnerable to negative stereotypes that(4) undermine their right to a fair trial. The underrepresentation of racial minorities from jury pools as the result of discriminatory selection procedures is a serious threat to fair, reliable, and accurate criminal justice administration.

EJI’s campaign will combine litigation, education, and reform advocacy to improve the racial diversity and representativeness of criminal trial juries.

(1) Underrepresentation of cognizable groups in the jury selection process offends the Fourteenth Amendment’s Equal Protection Clause and may also violate the Sixth Amendment. Castaneda v. Partida, 430 U.S. 482 (1977). In Taylor v. Louisiana, the United States Supreme Court explained that “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community.” 419 U.S. 522, 530 (1975). Noting that the effect of excluding “any large and identifiable segment of the community . . . is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,” id. at 532 n.12 (quoting Peters v. Kiff, 407 U.S. 493, 503 (1972)), the Court recognized the fair-cross section requirement as fundamental to the Sixth Amendment’s guarantee of a fair trial. Id. at 540.

(2) Courts have recognized that the harm from discriminatory jury selection practices extends “beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Batson v. Kentucky, 476 U.S. 79, 87 (1986). Selection procedures that purposefully exclude minority groups from participation in jury service “undermine public confidence in the fairness of our system of justice.” Id. (citations omitted). Such discrimination is most pernicious because it “is a stimulant to that race prejudice which is an impediment to securing to all [Black citizens] that equal justice which the law aims to secure to all others.” Id. (citation omitted); see also Rose v Mitchell, 443 U.S. 545, 556 (1979) (exclusion of racial groups from selection of grand jury foreperson “strikes at fundamental values of our judicial system and our society.”); In re Murchison, 349 U.S. 133, 136 (1955) (“[o]ur system of law has always endeavored to prevent even the probability of unfairness.”).

(3) See David Baldus, et. al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 84 (2001) (finding that jury racial composition influences sentencing outcomes of Philadelphia capital trials in years 1984-1994; specifically, that death sentences are less likely when Black jurors are more numerous); David Baldus, et. al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1725 (1998) (“The risk of both race-of-defendant and race-of-victim discrimination is also enhanced when the jury selection process results in the serious underrepresentation of Blacks on criminal trial juries.”); see also William Bowers, et. al., Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 1, 187 (2001) (citing statistical analysis of Indianapolis juror interview data which revealed that “the confidence of both Black and white jurors about the guilt of a defendant decreased as the number of Blacks on the jury increased, regardless of the strength of the evidence.”) (citation omitted).

(4) Benjamin Fleury-Steiner, Jurors’ Stories of Death (Michigan Press 2004); Scott Sundby, A Life and Death Decision, A Jury Weighs the Death Penalty (MacMillian 2005).