By Claire Austin

In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case. This comment analyzes the Supreme Court decision, Holland v. Illinois 493 U.S. 474 (1990), which held that the Sixth Amendment does not prevent prosecutors from striking potential jurors based on their race. In doing so, the Court missed an opportunity to provide meaningful relief to black capital defendants who faced all-white juries. This comment argues for the reversal of Holland, extension of Sixth Amendment protections, and a change in the framework for questioning the use of peremptory challenges to remove black jurors.

Marquette Benefits and Social Welfare Law Review, 25 Marq. Ben. and Soc. Welfare L. Rev. 59 (2023)

By Equal Justice Initiative

Race and the Jury: Illegal Discrimination in Jury Selection, released online July 27, 2021, places the continuing illegal exclusion of jurors of color in its historical context as “a continuing legacy of our history of racial injustice,” documenting the country’s “long history of tolerating racial bias in jury selection and a continuing indifference to correcting widespread underrepresentation of people of color on juries.” The report, a follow up to the organization’s 2010 report, Illegal Racial Discrimination in Jury Selection, details the numerous factors that contribute to ongoing jury discrimination today, and what EJI describes as the “persistent and widespread” impact it continues to have on the U.S. legal system.

While racial discrimination in jury selection is present throughout the criminal legal system, the report finds that it has especially pernicious effects in capital trials. “In cases where the death penalty is a possible punishment, the absence of meaningful representation on juries shapes sentencing outcomes, making them less reliable and credible,” the report explains. “The effect is greatest for non-white defendants, as studies show that less representative juries convict and sentence Black defendants to death at significantly higher rates than white defendants. White jurors are also less likely to consider critical mitigating evidence supporting a life sentence, rather than the death penalty, for Black defendants.”

EJI says illegal jury discrimination “persists because those who perpetrate or tolerate racial bias — including trial and appellate courts, defense lawyers, lawmakers, and prosecutors — act with impunity. Courts that fail to create jury lists that fairly represent their communities face no repercussions. Prosecutors who unlawfully strike Black people from juries don’t get fined, sanctioned, or held accountable.”

To redress the problem, EJI recommends that courts and legislatures remove procedural barriers to reviewing claims of jury discrimination, adopt policies and practices that commit to fully representative jury pools, hold accountable decision makers who engage in racially discriminatory jury selection practices, and strengthen the standard of review of jury discrimination claims. However, EJI says, only a few states “have recognized the problem and implemented reforms or initiated studies” and “[m]ost states have done nothing.”

Montgomery, AL: Equal Justice Initiative, 2021. 107p.

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

American Political Science Review, 2023, 16 pages