Opinion: Our jury system is racially biased. But it doesn’t have to be that way.
The Supreme Court in Washington. By Stephen B. Bright March 27 at 1:44 PM Stephen B. Bright teaches at the law schools at Yale, Georgetown and Georgia State universities.
Two of Flowers’s earlier trials resulted in hung juries with regard to guilt or innocence; but the sixth jury took only a half-hour to find him guilty. This discrimination persists because of peremptory strikes — strikes that allow each side to exclude prospective jurors simply because they do not want them. They have long been used to keep racial minorities off juries. The Supreme Court tried to put a stop to the practice by prohibiting strikes based on race in the 1986 case of Batson v. Kentucky. It ruled that, if there is a pattern of strikes that appear to be based on race, prosecutors may be required to give reasons for the strikes.
Prosecutors have also developed lists of reasons to give when they do not have one. One used in Texas includes “chewing gum,” “didn’t speak,” “very vocal,” “inattentive,” “wore sunglasses” and “T-shirt.” Another used by prosecutors in North Carolina included “arms folded,” “obvious boredom” and “lack of eye contact.”
So what can be done? Marshall said that discrimination would end only when peremptory challenges were eliminated. Other justices, judges, lawyers and commentators have also called for the elimination of peremptory strikes, but neither courts nor legislatures have been responsive.
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