The right to a fair jury is the only right stated in both the U.S. Constitution and Bill of Rights in the Sixth Amendment. “Fair” means that the jury be “truly representative of the community,” U.S. Supreme Court Justice Hugo Black said in the mid-twentieth century. A common term is “a jury of your peers.” Yet juries are typically not “representative” because many people who cannot afford to miss any work are excused for that reason. At the time, Black made this pronouncement, women were not equally called to be on juries in some states, and black citizens were typically excluded. Congress tried to amend the situation through the 1957 Civil Rights Act and the Federal Jury Selection and Service Act of 1968, the latter insisting that juries come from a fair cross-section of the community.
Federal laws regarding juries, however, applied only to juries in federal court. States continued to avoid women on juries by making it “voluntary,” requiring them to contact the court clerk to say that they were willing to serve. The U.S. Supreme Court upheld these laws even as late as 1961 (Hoyt v. Florida) in a unanimous vote after Ms. Hoyt was convicted of the second degree murder of her husband by a jury composed of 12 men. The rationale for excluding women from the jury was that “woman is still regarded as the center of home and family life.”
Not until 1975 did SCOTUS strike down state laws that limited women’s service on juries in Taylor v. Louisiana when Mr. Taylor was convicted of aggravated kidnapping by an all-male jury. Thankfully, Hoyt is not the end of this story. In 1975, the Supreme Court was again asked to face the female juror question, in Taylor v. Louisiana. Mr. Taylor was convicted of aggravated kidnapping by an all-male jury chosen from an all-male panel. Justice Byron R. White wrote the opinion for the ruling: “It is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires [panels] are almost totally male.” The only dissent to this decision came from Justice William H. Rehnquist, who became chief justice nine years later.
Attorneys continued to limit women on juries through peremptory challenges, a situation not settled until the 1994 case of J.E.B. v. Alabama ruled that gender could not be used for challenges (i.e., challenges without explanation). By then Rehnquist had picked up support against women on juries from two other justices still on the Supreme Court–Antonin Scalia and Clarence Thomas. Equal jury service for women came from two arguments: the belief that a “jury of her peers” would improve the legal system, and that women would not achieve equality without have equal rights and responsibilities as men. Excluding women from juries made them lesser citizens.
The issue of women on the jury may be more settled, but the research shows that jury selection discriminates against racial minorities as well as the poor and persons with low and high educational attainment. According to a 2012 study, black defendants are significantly more likely than whites when the jury pool has no black jurors. Just one black member makes the conviction rates for both races almost equal.
In Batson v. Kentucky (1986), the Supreme Court banned peremptory challenges based on race, but the high court has been forced to readdress the problem since then. For example, Thomas Miller-El appealed to the U.S. Supreme Court in 2003 after 10 out of 11 blacks were excluded from the jury at his trial. SCOTUS ruled that the Fifth Circuit Court had to accept his appeal, but the lower court ruled that he didn’t show clear and convincing evidence of purposeful discrimination. Miller-El was re-sentenced to death. After Miller-El made another trip to the U.S. Supreme Court, a lower court accepted his plea agreement in exchange for life in prison.
The most recent Supreme Court case about racial discrimination on juries was heard today. Timothy Tyrone Foster, a black man, is on death row after the prosecutors identified all of the black prospective jurors from the jury pool. The all-white jury convicted Foster of murder and sentenced him to death. Foster lost his appeal to the Georgia Supreme Court, but the U.S. Supreme Court said that it will hear the case because of Batson. Although Batson ruled that the prosecutor can use a race-neutral explanation for eliminating a potential juror if the defendant claims that the reason was race, a 2008 Supreme Court case (Snyder v. Louisiana) decided that a peremptory strike was motivated only “in substantial part by discriminatory intent.”
Prosecutors at Foster’s trial used four of nine peremptory strikes to block all the qualified black jurors in the pool. The state Supreme Court accepted the nonracial reasons after Foster appealed. Prosecutors used such reasons as “failure to make eye contact,” looking “bored,” being “divorced,” or “a social worker.” One exemption was because a black juror was a member of the Church of Christ. The rationale was that the denomination had a strong position against the death penalty despite the man testifying that he could vote for the death penalty. Marilyn Garrett, 34, was struck because she was close in age to Foster, who was 19 at that time. Another excuse was that she was a social worker although she wasn’t one. These excuses were accepted despite all the black prospective jurors’ being marked with a “B” on the prosecution’s worksheets, and the prosecution selected eight white jurors under the age of 35, one of whom was two years older than Foster.
Justice Elena Kagan said the case seemed as clear a violation “as a court is ever going to see” of the Batson decision, and six of the nine justices indicated that black people were improperly excluded from the jury. They showed little tolerance for arguments from Georgia Deputy Attorney General Beth Burton that the prosecutor Stephen Lanier used appropriate “race-neutral” reasons for the all-white jury. One excuse was the arrest of a cousin of a black juror, but Lanier learned about the arrest only after the jury was seated. “That seems an out and out false statement,” Justice Ruth Bader Ginsburg said about Lanier’s rationale. Justice Sonia Sotomayor said, “I have cousins who I know have been arrested, but I have no idea where they’re in jail. I hardly — I don’t know them.” Even Justice Samuel Alito didn’t accept the reason about a 34-year-old being too close to the age of a 19-year-old.
Foster’s first trial was the year after Batson ruled against excluding jurors on the basis of race, but judges have ignored the continued practice for almost three decades. A training video from the late 1980s shows then-Assistant District Attorney Jack McMahon explaining that “young black women are very bad, maybe because they’re downtrodden on two respects … they’re women and they’re blacks.” He also recommended that prosecutors avoid older black women as well as young black men but reminded them that they had to find nonracial reasons for the strikes. “Question them at length and on this little sheet that you have, mark something down you can articulate at a later time if something happens.”
A North Carolina study of 173 death penalty cases found that black prospective jurors were over twice as likely to be struck by the prosecution as comparable white jurors. The ratio for blacks in a Louisiana study of 390 felony jury trials was three times the rate of blacks. Houston County (AL) prosecutors used peremptory strikes to exclude 80 percent of blacks qualified for death penalty cases. In a county that is 27 percent black, half these juries were all white, and the rest of them each had only one black juror.
The Supreme Court is dealing with only one problem in Foster’s conviction. His IQ range between 58 and 80 makes him “in the borderline range for intellectual disability,” according to a psychiatric evaluation, but the jury ignored the testimony. Foster is also one of the 56 percent people of color awaiting execution although blacks comprise only 13 percent of the nation’s population. He has been on death row for 28 years. Even if the court rules in Foster’s favor, it would only be for a re-trial.
The prosecutor said that part of his peremptory strikes were for gender and not race. The final count for the all-white jury was seven men and five women. And now, peremptory challenges for gender are also illegal. Race and gender are being addressed as reasons for challenging jurors. Some day, the U.S. Supreme Court may address preventing sexual orientation and gender orientation for peremptory challenges. Last year the 9th Circuit Court of Appeals held last year that to be unconstitutional but only in the nine states that it covers. Blocking LGBT people from juries is still legal.