The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [73]
Notwithstanding Batson’s formal prohibition on race discrimination in jury selection, the Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection. Miller El v. Cockrell was such a case.69 That case involved a jury-selection manual that sanctioned race-based selection. The Court noted that it was unclear whether the official policy of race-based exclusion was still in effect, but the prosecution did in fact exclude ten of eleven black jurors, in part by employing an unusual practice of “jury shuffling” that reduced the number of black jurors.70 The prosecution also engaged in disparate questioning of jurors based on race—practices that seemed linked to the jury-selection manual. This was a highly unusual case. In typical cases, there are no official policies authorizing race discrimination in jury selection still lurking around, arguably in effect. Normally, the discrimination is obvious yet unstated, and the systematic exclusion of black jurors continues largely unabated through use of the peremptory strike.
Peremptory strikes have long been controversial. Both prosecutors and defense attorneys are permitted to strike “peremptorily” jurors they don’t like—that is, people they believe will not respond favorably to the evidence or witnesses they intend to present at trial. In theory, peremptory strikes may increase the fairness of the proceeding by eliminating jurors who may be biased but whose biases cannot be demonstrated convincingly to a judge. In practice, however, peremptory challenges are notoriously discriminatory. Lawyers typically have little information about potential jurors, so their decisions to strike individual jurors tend to be based on nothing more than stereotypes, prejudices, and hunches. Achieving an all-white jury, or nearly all-white jury, is easy in most jurisdictions, because relatively few racial minorities are included in the jury pool. Potential jurors are typically called for service based on the list of registered voters or Department of Motor Vehicle lists—sources that contain disproportionately fewer people of color, because people of color are significantly less likely to own cars or register to vote. Making matters worse, thirty-one states and the federal government subscribe to the practice of lifetime felon exclusion from juries. As a result, about 30 percent of black men are automatically banned from jury service for life.71 Accordingly, no more than a handful of strikes are necessary in many cases to eliminate all or nearly all black jurors. The practice of systematically excluding black jurors has not been halted by Batson; the only thing that has changed is that prosecutors must come up with a race-neutral excuse for the strikes—an exceedingly easy task.
In fact, one comprehensive study reviewed all published decisions involving Batson challenges from 1986 to 1992 and concluded that prosecutors almost never fail to successfully craft acceptable race-neutral explanations to justify striking black jurors.72 Courts accept explanations that jurors are too young, too old, too conservative, too liberal, too comfortable, or too uncomfortable. Clothing is also favorite reason; jurors have been stricken for wearing hats or sunglasses. Even explanations that might correlate with race, such as lack of education, unemployment, poverty, being single, living in the same neighborhood as the defendant, or prior involvement with the criminal justice system—have all been accepted as perfectly good, non-pretextual excuses for striking African Americans from juries. As professor