Prosecutors Still Using Race to Choose Juries in Death Penalty Cases, Despite Century of Supreme Court Rulings

Yesterday’s 7-1 Supreme Court decision in Foster v. Chatman was a huge victory for Timothy Foster, a 49-year-old Black man who has been on Georgia’s death row for 29 years. The ruling also reflects a systemic problem with the death penalty: prosecutors’ repeated, deliberate use of race to choose jurors. This practice alone makes capital punishment so fundamentally unfair that we must end it.

In 1987, Foster had been convicted of murdering a white woman and was sentenced to death by an all-white jury. During jury selection, the prosecutors in his case deliberately eliminated potential Black jurors based on their race. Those prosecutors violated the Constitution when they excluded those jurors, and yesterday the Supreme Court held them to account. The justices struck down Foster’s conviction and death sentence and ordered a new trial because it’s unconstitutional to choose jurors according to race.

While this ruling may save Foster’s life, it doesn’t represent a big advance in the law. The court applied a legal doctrine that was already a settled principle: prosecutors may not use race as a basis to select—or exclude—jurors. In fact, the Supreme Court has been condemning racial bias in jury selection in capital cases since 1880 when it outlawed the practice in Strauder v. West Virginia. But more than 100 years after the court’s first decision on this problem, and 40 years into our modern experiment with the death penalty, widespread racial bias continues in jury selection for capital cases. We continue to send people to die from trials tainted by racial bias.

In criminal cases, prosecutors and defense counsel are each granted “peremptory strikes,” whereby each side is permitted to dismiss a set number of potential jurors. A handful of studies have undertaken systemic investigations of prosecutors’ use of peremptory strikes in capital cases. Each one has uncovered damning patterns of discrimination, showing disproportionate strikes of Black jurors by prosecutors.

Most recently, a 2015 study of prosecutor strikes in Caddo Parish, Louisiana, found that prosecutors struck Black jurors at two to three times the rates of other jurors. An extensive study of strikes in capital cases in Philadelphia found prosecutors struck Black jurors at twice the rates as other jurors. Here in North Carolina, researchers conducted the only state-wide study and found the same All across the state, city and country alike, discrimination against qualified Black jurors remains depressingly constant.

During jury selection, if the defense can point to some signs that prosecutors are using their strikes in a discriminatory manner, the prosecutors will be required to give explanations for their strike decisions. In Foster, the Supreme Court criticized the prosecutors’ “concerted effort” to keep Black people off the jury in the Georgia case, as well as their “shifting explanations” and “misrepresentations” to the courts intended to camouflage those efforts. Foster involved the rare indisputable proof of discrimination: Prosecution notes showed a planned strategy to avoid selecting any Black jurors.

In North Carolina, we litigated extensively jury discrimination practices in four capital cases. (All four were recently sent back from the North Carolina court for new hearings on their claims alleging discrimination.) As in Foster, we found handwritten notes showing racially influenced jury selection in individual cases. Even worse, we uncovered evidence that several prosecutors were trained in how to provide canned explanations for why they removed Black jurors. A statewide prosecutor training handed out a cheat sheet with a list of the top 10 explanations for use in responding to allegations of racial bias. Prosecutors were instructed to complain of the juror’s “age,” or body language—two of the very same explanations offered by the prosecutors in Foster to hide their discrimination.

With so much evidence of racial bias in jury selection for capital cases, we know the damage is too pervasive for our courts to rectify. After more than 100 years of racially biased jury selection, the inescapable truth is that capital punishment can’t be squared with the Constitution or any other commitment to equality. It’s time to shut it down.