Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

(D. Pollitt and B. Warren, "Thirty Years of Disappointment: North Carolina's Remarkable Appellate Batson Record," North Carolina Law Review, Vol. 94, 2016; A. Eisenberg, "Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2012," Northwestern University Law Journal, forthcoming.) See Race and Law Reviews.