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How can we prevent race discrimination in jury selection?

by | Nov 7, 2022 | Criminal Defense

Among the many pressing problems in our criminal justice system is the reality that prosecutors sometimes try to prevent people of color from serving on juries. The reasoning must be that people of color are more likely to be anti-police or pro-defense than white people. But race bias in jury selection is unconstitutional, according to the U.S. Supreme Court.

Beyond any individual prosecutor, there are also systemic factors that keep people of color, and especially African-Americans, off of America’s juries.

According to the nonprofit Equal Justice Initiative, Black people are excluded at every level of the jury selection process:

  1. The list of potential jurors identified by the court system
  2. How potential jurors are notified about coming to court
  3. When judges rule on which jurors are qualified to serve
  4. When prosecutors use “preemptory strikes” to exclude specific jurors

When people of color are excluded from juries, defendants of color are denied their right to have a jury of their peers. Jurors of color may or may not be anti-police or pro-defense. However, they almost certainly have more similar life experiences to defendants of color, and that could be important to understanding the circumstances of the case.

New York, New Jersey recommend changes to increase diversity on juries

Earlier this year, a New York state task force issued recommendations aimed at reducing illegal race discrimination during jury selection. It engaged in a comprehensive look at racial disparities in the criminal justice system and issued a variety of recommendations.

When the Supreme Court outlawed race discrimination in jury selection nearly 150 years ago, it set up a three-step process for enforcement. However, most experts acknowledged that that formula isn’t working to prevent prosecutors from eliminating people of color from juror using preemptory strikes.

New York’s task force unanimously recommended a change in how courts decide if a prosecutor’s preemptory strike reflects implicit bias or unconscious racism. The new rule will be that a preemptory strike will not be allowed if, in the view of a reasonable person, a juror’s race was a factor in its exercise.

The State of New Jersey is also working to enhance the fairness of jury selection. For example, instead of gleaning lists of potential jurors from voter registration lists, it will use state labor records, which are more representative. White people are more likely than people of color to register to vote.

New Jersey’s task force also recommended allowing people convicted of certain crimes to serve on juries, along with increasing juror compensation.

Here in Wisconsin, we need to do more to eliminate race bias in jury selection. We need to hold prosecutors, appellate courts and the system accountable when juries are overwhelmingly white.

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