By Dr. Ken Broda-Bahm:
At a time of heightened attention toward the disproportionate impact of law enforcement on African-American communities, it matters that prosecutors in many of the same communities appear to be actively limiting the participation of African-Americans on juries. In an illuminating new article, the New York Times reports on a study of strikes in Louisiana's Caddo Parish showing that over the last decade, prosecutors were three times more likely to use peremptory strikes against African-Americans rather than whites, striking fully 46 percent of African-American candidates but just 15 percent of others. The investigation showed similar patterns in other states, particularly in the South. During a five-year period in Houston and Henry counties of Alabama for example, prosecutors used peremptoriness to remove 82 percent of eligible African-Americans from potential juries.
Of course, the legacy of Batson v. Kentucky is that if attorneys on either side are accused of making racially-biased peremptory challenges, they need to offer a neutral explanation. In some venues at least, that has legitimized the use of a thin cloak of "race-neutral criteria" to cover over what is still, in effect, race-based jury selection. Prosecutors in North Carolina, for example, were found to have circulated a "cheat sheet" of race-neutral reasons, including such all-purpose rationales as "air of defiance" or "arms folded." While bad-faith rationals aren't allowed, that isn't easy to prove. Lawyers just need to give a race-neutral reason, and as Shari Diamond of Northwestern University School of Law points out, "Stupid reasons are okay." The New York Times article continues, "Here are some reasons prosecutors have offered for excluding blacks from juries: they were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name [ouch], displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard." The net result of legitimizing bad reasons is to perpetuate racially disparate jury selection. Long after the Civil Rights Act of 1875 -- yes, 1875 -- was intended to eliminate racial discrimination in jury selection, it is time to move beyond the "stupid reasons." Attorneys and the consultants who advise them, need to avoid not just the appearance of race-based selection, but the reality of it as well. In this post, I'll make the argument that selecting on neutral grounds is better legally, better strategically, and better for social justice as well. In addition to that broad argument, I'll also offer some practical implications for selection strategy.