Black Jurors Need Not Apply

If you’re black, you may have trouble getting on to a jury.

The way in which jurors are chosen in the United States is intended to ensure an unbiased jury; and part of that process is the right of “peremptory challenge,” by which the prosecution and the defense are each allowed to reject a certain number of potential jurors without having to prove them unfit. But some prosecutors, especially in the southern states, appear to be using this procedure not to prevent bias but to guarantee it. (“Exclusion of Blacks From Juries Raises Renewed Scrutiny,” New York Times, 16 August 2015)

According to one recent study released this past August, prosecutors in Louisiana have made use of peremptory challenges to reject black jurors three times as often as non-black ones. Other studies (including one from Michigan State’s law school) have found similar numbers for Alabama and North Carolina. In one Louisiana jurisdiction, public prosecutors “used peremptory strikes against 46 percent of the black potential jurors … and against 15 percent of others.”

The New York Times describes some of the reasons cited for rejecting blacks from juries: those rejected were “young or old, single or divorced, religious or not”; they “failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard.” In the North Carolina court system, grounds for rejecting black jurors were couched in coded language, such as having “arms folded” or an “air of defiance.” I suppose we should just be grateful that “uppity” didn’t make it on to the list.

One apparent motive for the exclusion is the perception that black jurors are less likely to convict, particularly in death penalty cases. (Not coincidentally, the most recent study was commissioned by Reprieve Australia, an anti-death-penalty group.) And it is certainly plausible that those who have been disproportionately oppressed by the “justice” system might be disproportionately skeptical of it. In a recent Georgia case, “prosecutors excluded every black prospective juror in a death penalty case against a black defendant.”

Given that blacks are disproportionately victimized by cops and disproportionately incarcerated in the prison system, the government’s practice in many southern jurisdictions of excluding blacks from juries is especially troubling, and raises questions about the practice of peremptory challenge itself.

In his 1852 Essay on the Trial by Jury, the 19th-century American abolitionist, anarchist, and libertarian legal theorist Lysander Spooner argued that allowing the state a say in the composition of juries was contrary to the proper function of a jury trial.

Since, Spooner reasoned, a jury is supposed to be “a fair epitome of ‘the country’ at large, and not merely of the party or faction that sustain the measures of the government,” it follows that a trial by jury should be as far as possible a “trial by the country,” meaning that a truly representative jury can be expected to “agree to no conviction except such as substantially the whole country would agree to, if they were present.”

But this requires that “substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government … will be represented there, as well as its friends.” Thus, a trial would be “no trial at all ‘by the country,’ but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence,” since “if the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures.”

The ability of governments to skew the judicial process in their own favor is ultimately a reason for challenging any and all government involvement in the legal system, which should ideally be rendered autonomous — a function of civil society rather than the state. So long as governments still run the courts, however, the ability of prosecutors (who are, after all, agents of the government) to control the composition of juries needs to be abolished.

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