USA: Yes, Jury Selection Is As Racist As You Think. Now We Have Proof

Similar to the concerns raised over the jury selection process in the trial of Gerald Stanley for the murder of Colten Boushie (Government proposes changes to jury-selection process after the …):

Race, as a matter of constitutional principle, cannot factor into the selection of jurors for criminal trials. But in the American justice system, anyone with a bit of common sense and a view from the back of the courtroom knows the colorblind ideal isn’t true in practice.

Racial bias largely seeps in through what’s called “peremptory” challenges: the ability of a prosecutor — and then a defense attorney — to block a certain number of potential jurors without needing to give the court any reason for the exclusion.

The number of challenges allowed varies by state, but commonly 15 or more are permitted. Folk wisdom, among those familiar with the song and dance, is that prosecutors use these challenges to remove nonwhite jurors, who are statistically more likely to acquit, while defense attorneys — who can step in only after the pool has been narrowed by prosecutors — typically counteract by removing more white jurors.

For a long time, the opacity of court records rendered the dynamic as only that — folk wisdom — which has made it difficult to articulate the urgent need to reform this understudied aspect of our system. But now, this informal knowledge has been empirically confirmed, and the case for change couldn’t be more compelling.

My recently published research on juror removal in North Carolina conducted with colleagues at the Wake Forest University School of Law proves — for the first time with statewide evidence — that peremptory challenges are indeed a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color.

Based on statewide jury selection records, our Jury Sunshine Projectdiscovered that prosecutors remove about 20 percent of African-Americans available in the jury pool, compared with about 10 percent of whites. Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool.

The data also show variety within the state: Prosecutors in urban areas, which tend to have larger minority populations, remove nonwhite jurors at a higher rate than prosecutors do in other parts of the state. Finally, we discovered, to our surprise, that judges also remove black jurors “for cause” about 20 percent more often than they remove available white jurors.

When the dust settles at the close of jury selection, defense attorneys’ actions in the last leg of the process do not cancel out the combined skewed actions from prosecutors and judges. The consistent result is African-Americans occupying a much smaller percentage of seats in the jury box than they did in the original jury pool.

This winnowing of nonwhite jurors is not a quirk of just one state. Earlier this year, investigative journalists in Mississippi and Louisiana collected and published jury data from public records that confirmed similar practices in some areas within those states. And given the parallel results identified in county-level studies and in death penalty cases, the pattern probably holds true for jury selection in most states.

It is not possible, even with this new data, to say exactly why a prosecutor, defense attorney or judge decides to remove any particular juror in a single case. But this racially skewed trend, played out across many cases, is persistent. And it has two especially pernicious effects on the quality of criminal justice.

First, the defendant is not judged by a jury that reflects a cross-section of his or her community — a violation of the courts’ interpretation of the Sixth Amendment. In a system that already disproportionately prosecutes people of color, hedging the constitutional rights of defendants can be particularly harmful.

Second, excluded parts of the community become more cynical about the justice system when they repeatedly see barriers to jury service. If people from certain similar neighborhoods are constantly getting booted from juries, then it’s tempting for residents there to view the police — and prosecutors — as hostile occupiers rather than partners in public safety.

In theory, the Equal Protection Clause of the Constitution, as interpreted in Batson v. Kentucky, prevents attorneys from removing jurors on the basis of race. But “Batson claims” rarely succeed because they require the judge to declare the proposed stated reason for removal was only a pretext hiding discriminatory intent — a notoriously steep standard.

To address the problem, state courts could adopt rules such as the one that the Washington Supreme Court approved last April. The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like “prior contact with law enforcement” or “living in a high-crime neighborhood.”

There are now over half a dozen states completely controlled by Democrats, whose ascendant progressive wing would presumably support such nondiscrimination protections.

Another answer — which could gain support in even the toughest of “tough on crime” red states — is simply to publish more information on jury selection. The details of judge and attorney removals of jurors is already public record, but those details usually remain buried in the hard-copy files of court clerks across the country.

While this year’s successful research shows how journalists and scholars can collect these far-flung records into a useful database, the process can take months or years of driving from courthouse to courthouse, digging out the files of cases that went to trial, recording the clerk’s notations from those files and turning to online resources for background information on judges and lawyers.

States could instead — without much work — just plainly make all jury selection information available online and keyword searchable, easing access for journalists and voters alike.

In most states, voters choose their prosecutors and their judges; and with journalists on hand to swiftly analyze digitized public records of the jury selection habits of prosecutors and judges, citizens could evaluate incumbents’ tendencies as a measure of success or failure.

These two reforms alone would greatly aid efforts to hold prosecutors and judges accountable as well as shore up public trust in the criminal justice system.

The status quo shows that a barely enforceable constitutional doctrine isn’t enough. It’s time to bring this vital process of justice from behind closed doors and into the sunlight. It’s the only way to ensure that defendants are judged by a representative cross section of their community, not the filtered few that litigants want to see in the jury box.

Source: Yes, Jury Selection Is As Racist As You Think. Now We Have Proof

The Difference Between Racial Bias and White Supremacy | TIME

Always find John McWhorter’s pieces interesting and relevant, and his valid point that the left has to guard itself against the very same criticisms it makes of the right:

Among too many these days, the term “white supremacy” has become, of all things, a kind of hate speech.

Of course, the meaning of words and terms always changes and always has. “Audition” once referred to hearing and only gradually came to refer to hearing someone try out for a singing part on stage, upon which the term was extended to any kind of tryout at all. Like “white supremacy” has, terms have a way of coming to refer to less extreme manifestations of what they first referred to—”terrible” once meant truly horrific and now can be used about getting stuck in traffic.

But words can be more than words. The N-word, the F-word referring to gay men and the C-word referring to an anatomical part are slurs, tools for injury, not just dictionary terms. We also all understand that a word or term or reference can be a dogwhistle. “Law and order” can have a racialized meaning, for example.

The term “dogwhistle” is even an example, in that we typically use it in reference to the right wing. However, white supremacy is now a dogwhistle itself. A leftist contingent is now charging any white person who seriously questions a position associated with people of color as a white supremacist. The idea is that if you go against a certain orthodoxy, then it isn’t only that you disagree, but that you also wish white people were still in charge, that you want people of color to sit down and shut up.

This is hasty and unfair. David Duke is, indeed, a white supremacist. The alt-right is, indeed, white supremacist. For one, they openly say so. Are there some whites who are more codedly white supremacist, even if they don’t quite know it? One assumes so—but the rhetorical brush is being applied much too broadly. After all, if whites accept anything a person of color states, is this not a new form of condescension? These days, the term “white supremacy” is being used not as an argument but as a weapon.

“White supremacist” is a new way of saying “racist” while stepping around the steadily increasing awareness that that word, too, is being wielded in sloppy ways. Writing “white supremacist” is a way of making the reader jump, in the way that “prejudiced” and “racist” once were. What handier way of driving your critique home than implying that your target would have broken bread with the Confederacy, stood at the school doors at the behest of Orville Faubus, or today would be happy to sip coffee at conferences with well-spoken alt-righters?

Of course, no one means precisely that—but educated people cannot lecture the world on how words must be used carefully, that we must understand words’ larger resonances, while casually throwing around a term that calls to mind black men hanging from trees. Never mind that it’s mean.

More to the point, the left sinks to the level of the right with its own dogwhistles, intolerance and exaggerations. This is not a call for the left to suppress their anger or lie down with the right as the lamb to their lion. Criticism is vital, and not always in emotionless tones. However, we must avoid the mores of the sandbox. Nietzsche’s point, that too often punishment is rooted in a desire for revenge rather than correction, is relevant.

If you make a claim that someone desires that white people be in charge and muzzle the opinions and opportunities of people of color, you should be able to prove it. No, the fact that psychological tests reveal subtle racial biases in whites does not justify calling any white person’s questioning of the views of a person of color a white supremacist. That’s an athletic jump from the subtle to the stark, from the subliminal to the egregious.

It is tragic how ordinary that jump is becoming—it isn’t only the famous being paintballed this way. My Columbia colleague Mark Lilla has presented an argument that the extremes of identity politics should be pruned in favor of a class-based politics in order to further the goals of liberals and the left. Katherine Franke of the Columbia University law school has tarred him for this as, well, you can guess. This is the quintessence of linguistic violence.

To use “white supremacy” as a battering ram is, in the end, as uncivilized as anything offensive to liberals scrawled on a wall or spewed into a comments section. Criticism? Of course. Recreational abuse? One is to rise above it.