While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases. An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.
In North Carolina, at least 26 current death row defendants were sentenced by all-white juries. In South Carolina, a prosecutor said he struck a black potential juror because he “shucked and jived” when he walked.
Studies have shown that racially diverse juries deliberate longer, consider a wider variety of perspectives and make fewer factual errors than all-white juries, and that predominantly black juries are less likely to impose the death penalty. Excluding jurors based on race has been illegal since 1875, but after Reconstruction, all-white juries remained the norm in the South.
“It really made lynching and the Ku Klux Klan possible,” said Christopher Waldrep, a historian at San Francisco State University and the author of a forthcoming book about a lawyer who was able, in a rare case, to prove jury discrimination in Mississippi in 1906. “If you’d had a lot of black grand jurors investigating crimes, it would have made lynching impossible.”
In one Mississippi case, a black man, Curtis Flowers, was sentenced to death in 2004 for killing four furniture store employees. The jury was made up of 11 whites and one black after prosecutors used all 15 of their peremptory strikes on black jurors. Montgomery County, where the crime occurred, is 45 percent black. The Mississippi Supreme Court reversed the case, noting that “racially motivated jury selection is still prevalent 20 years after Batson.”
At a retrial, in which prosecutors did not seek the death penalty, the jury of seven whites and five blacks was split along racial lines, resulting in a hung jury. At the second retrial, prosecutors sought the death penalty, which eliminated more blacks from the pool of qualified jurors. The jury, nine whites and three blacks, hung again when one black member declined to convict, said Andre De Gruy, the director of the state’s Office of Capital Defense Counsel.
The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.