Racial discrimination in jury selection is specifically prohibited by law in many jurisdictions throughout the world. In the United States, it has been defined through a series of judicial decisions.
However, juries composed solely of one racial group are legal in the United States and other countries. While the racial composition of juries is not dictated by law,
racial discrimination
Racial discrimination is any discrimination against any individual on the basis of their skin color, race or ethnic origin.Individuals can discriminate by refusing to do business with, socialize with, or share resources with people of a certain g ...
in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. Depending on context, the phrases "all-white jury" or "all-black jury" can raise a host of expectationsamong them, as MIT social neuroscientist
Rebecca Saxe
Rebecca Saxe is a professor of cognitive neuroscience and associate Dean of Science at MIT. She is an associate member of the McGovern Institute for Brain Research and a board member of the Center for Open Science. She is known for her research on ...
notes, "the expectation that
deliberations may be less than fair."
Australia
In
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, the right to a representative jury is severely limited.
Australian Aboriginals
Aboriginal Australians are the various Indigenous peoples of the Mainland Australia, Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinbrook Island, the Tiwi Islands, and Groote Eylandt, but excluding the T ...
are overrepresented in the criminal justice system, but seldom appear on juries even in parts of Australia where they represent a sizable portion of the population.
Courts have examined objections raised when the selection of juries did not represent either the social class or ethnic background of the accused. Current law does not extend a legal right to that degree of representation on a jury, provided that selection of the jury pool has complied with the Juries Act 1967 (VIC).
There is a history of Aboriginal people being underrepresented in jury pools, or completely absent in juries selected to hear cases involving Aboriginal defendants. Some reasons offered are that Aboriginal people may be excluded from juries due to not being enrolled to vote (which is how juries are typically selected), or that they failed to respond to a summons, or because of challenges by the prosecution and defense attorneys, or because their English may be poor. Australia has mandatory voter enrolment and mandatory voting, but this is sometimes unenforced especially in remote areas or among homeless people.
However, there is also evidence that Aboriginal people are disadvantaged by the criminal justice system itself and its processes (such as jury selection). The ALRC found that Aboriginal Australians were 7times more likely to be charged with a crime and brought before the courts, but 12.5times more likely to receive a sentence of imprisonment.
* In 1983, 16-year-old Aboriginal boy
John Pat was attacked by five police officers and beaten to death in
Roeburne, Western Australia. The officers were tried for manslaughter, but acquitted by an all-white jury after pleading self-defence.
[ Als]
here
on Sage Journals paywall site
* In 2004, Aboriginal man
Cameron Doomadgee was arrested and died in a police cell on
Palm Island, Queensland
Palm Island is a locality consisting of an island group of 16 islands, split between the Shire of Hinchinbrook and the Aboriginal Shire of Palm Island, in Queensland, Australia. The locality coincides with the geographical entity known as the P ...
from injuries. In 2007, the arresting police officer Chris Hurley was charged with assault and manslaughter, but was later acquitted by an all-white jury.
* In 2019 in
Yuendumu
Yuendumu is a town in the Northern Territory of Australia, northwest of Alice Springs on the Tanami Road, within the Central Desert Region local government area. It ranks as one of the larger remote communities in central Australia, and has a t ...
,
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an states and territories of Australia, Australian territory in the central and central northern regions of Australia. The Northern Territory ...
, police officer Zachary Rolfe shot
Walpiri man
Kumanjayi Walker 3 times, killing him. This occurred shortly after Walker stabbed Rolfe with scissors. 3 days later, Rolfe was charged with murder. In 2022, Rolfe was acquitted unanimously. Juror candidates were drawn randomly. Rolfe's defence team used the majority of their 12 challenges to remove people of colour and those of Asian descent. In the end, the jury selected were all white with the exception of one young Asian woman, even though Indigenous people account for 30% of the Northern Territory population.
Canada
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
has also struggled with the issue of racial discrimination in jury selection, especially for
First Nations
First Nations or first peoples may refer to:
* Indigenous peoples, for ethnic groups who are the earliest known inhabitants of an area.
Indigenous groups
*First Nations is commonly used to describe some Indigenous groups including:
**First Natio ...
people. In 2001, Indian and Northern Affairs Canada (INAC) stopped producing band lists of First Nations people living on reserve for provincial jury rolls because of privacy concerns. The exclusion of this information from provincial jury rolls meant First Nations people living on reserves were not properly represented on juries.
The removal of First Nations people living on reserves from provincial jury rolls directly collided with the Supreme Court of Canada’s 1991 decision of R. V. Sherrat
991
Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar.
Events
* March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between ...
1 SCR 509 wherein the Court found that the “representativeness right” is an essential component of the right to trial by jury. In particular, the Court pronounced that:
“The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place”
The Supreme Court of Canada in 2015 evolved the issue of a “representative right” in jury trials in the case of R. V. Kokopenance,
015
Fifteen or 15 may refer to:
*15 (number), the natural number following 14 and preceding 16
*one of the years 15 BC, AD 15, 1915, 2015
Music
*Fifteen (band), a punk rock band
Albums
* ''15'' (Buckcherry album), 2005
* ''15'' (Ani Lorak album ...
SCR 28 wherein the Court held that “an accused is not entitled to a jury that includes members of their own race or religion; rather, they are only entitled to a fair and honest process of random jury selection”
The issue of “representative right” is not dead or a decided issue. In 2018 the Federal Government introduced Bill C-75 in response to the Colten Boushie case. Bill C-75 eliminated peremptory challenges of jurors in criminal cases, thereby preventing the exclusion of jurors by both Crown and defense counsels. Bill C-75 became law on June 21, 2019 , which coincidentally happens to be National Indigenous Peoples Day in Canada.
United States
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, racial discrimination in jury selection has a long
history
History (derived ) is the systematic study and the documentation of the human activity. The time period of event before the History of writing#Inventions of writing, invention of writing systems is considered prehistory. "History" is an umbr ...
. The practice has been prohibited by law, through a series of judicial decisions.
Juries composed solely of one racial group are legal in the United States. While the racial composition of juries is not dictated by law,
racial discrimination
Racial discrimination is any discrimination against any individual on the basis of their skin color, race or ethnic origin.Individuals can discriminate by refusing to do business with, socialize with, or share resources with people of a certain g ...
in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. However, the phrases "all-white jury" or "all-black jury" can raise a host of expectationsamong them, the expectation that deliberations may be less than fair.
Current precedent and legal challenges
Under the standard set forth by the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in ''
Strauder v. West Virginia
''Strauder v. West Virginia'', 100 U.S. 303 (1880), was a landmark decision of the Supreme Court of the United States about racial discrimination and United States constitutional criminal procedure. ''Strauder'' was the first instance where the ...
'' and ''
Batson v. Kentucky'', the striking of a juror on account of race denies a defendant equal protection under the constitution. However the court held that a defendant is not entitled to a jury containing or lacking members of any particular race, and the striking of jurors for race-neutral reasons is permissible. This standard has been extended to civil trials in ''
Edmonson v. Leesville Concrete Company
''Edmonson v. Leesville Concrete Company'', 500 U.S. 614 (1991), was a United States Supreme Court case which held that peremptory challenges may not be used to exclude jurors on the basis of race in civil trials. ''Edmonson'' extended the court's ...
'' and on the basis of gender in ''
J.E.B. v. Alabama ex rel. T.B.
''J. E. B. v. Alabama ex rel. T. B.'', 511 U.S. 127 (1994), was a landmark decision of the Supreme Court of the United States holding that peremptory challenges based solely on a prospective juror's sex are unconstitutional. ''J.E.B.'' extended ...
''
History
Following the
American Civil War
The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states th ...
, the
13th,
14th
14 (fourteen) is a natural number following 13 (number), 13 and preceding 15 (number), 15.
In relation to the word "four" (4), 14 is spelled "fourteen".
In mathematics
* 14 is a composite number.
* 14 is a square pyramidal number.
* 14 is a s ...
, and
15th
15 (fifteen) is the natural number following 14 (number), 14 and preceding 16 (number), 16.
Mathematics
15 is:
* A composite number, and the sixth semiprime; its proper divisors being , and .
* A deficient number, a smooth number, a lucky ...
Amendments to the
U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
had
abolished slavery and guaranteed basic
civil rights
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
to
African-American
African Americans (also referred to as Black Americans and Afro-Americans) are an Race and ethnicity in the United States, ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American ...
s; the
Civil Rights Act of 1875
The Civil Rights Act of 1875, sometimes called the Enforcement Act or the Force Act, was a United States federal law enacted during the Reconstruction era in response to civil rights violations against African Americans. The bill was passed by the ...
extended this to "public accommodation" and jury selection, including the establishment of criminal penalties for court officers who interfered:
The
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled in 1880 in ''
Strauder v. West Virginia
''Strauder v. West Virginia'', 100 U.S. 303 (1880), was a landmark decision of the Supreme Court of the United States about racial discrimination and United States constitutional criminal procedure. ''Strauder'' was the first instance where the ...
'' that laws excluding black people from jury service violated the
Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the 14th Amendment; yet in
Virginia v. Rives' (1879), the court denied an appeal from a black defendant who asked that black jurors be made at least one third of his jury, noting that an all-white jury was not in itself proof that a defendant's rights had been violated. Nevertheless, Southern states easily evaded ''Strauder'' and set up other ways than explicit legal bans to exclude black Americans from jury service.
In 1883, the Civil Rights Act of 1875 was overturned entirely by the Supreme Court, in an 8–1 decision. In 1896, the landmark ''
Plessy v. Ferguson
''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality ...
'' decision enshrined the unofficial civil code termed
Jim Crow
The Jim Crow laws were state and local laws enforcing racial segregation in the Southern United States. Other areas of the United States were affected by formal and informal policies of segregation as well, but many states outside the Sout ...
, ranging from
separate but equal
Separate but equal was a legal doctrine in United States constitutional law, according to which racial segregation did not necessarily violate the Fourteenth Amendment to the United States Constitution, which nominally guaranteed "equal protecti ...
accommodation to voter disenfranchisement and jury exclusion; blacks were thus denied access to the public, political, and judicial spheres.
In the 1931 case of the
Scottsboro Boys, nine black youths were accused of raping two white women, one of whom later
recant
Recantation means a personal public act of denial of a previously published opinion or belief. It is derived from the Latin "''re cantare''", to re-sing.
Philosophy
Philosophically recantation is linked to a genuine change of opinion, often ...
ed her testimony. Eight of the defendants were
sentenced to death
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
(although none would be executed). Defense attorney
Samuel Leibowitz
Samuel Simon Leibowitz (August 14, 1893 – January 11, 1978) was a Romanian-American criminal defense attorney, famously noted for winning the vast majority of his cases, who later became a justice of the New York State Supreme Court.
Early ye ...
argued before the
Alabama Supreme Court
The Supreme Court of Alabama is the highest court in the state of Alabama. The court consists of a chief justice and eight associate justices. Each justice is elected in partisan elections for staggered six-year terms. The Supreme Court is house ...
that black people had been kept off the jury rolls, and that names of black people had been added to the rolls after the trial to conceal this fact. The appeals in the case ultimately led to two landmark Supreme Court decisions. In ''
Powell v. Alabama
''Powell v. Alabama'', 287 U.S. 45 (1932), was a landmark United States Supreme Court decision in which the Court reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama. Th ...
'' (1935), the Court ruled that criminal defendants are entitled to effective counsel, and in ''
Norris v. Alabama'' (1935), that blacks may not be excluded systematically from jury service.
Despite ''Norris'', the practice of excluding black people from juries did not disappear. In 1985, the Supreme Court in ''
Batson v. Kentucky'' addressed a situation where a prosecutor had used his
peremptory challenges
In American and Australian law, the right of peremptory challenge is a right in jury selection for the attorneys to reject a certain number of potential jurors without stating a reason. Other potential jurors may be challenged for cause, i.e. by ...
to strike all four black candidates from a jury and obtained a conviction against the black defendant. The defendant was not able to demonstrate that the state's court system systematically excluded black people from juries but nonetheless raised
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
and
equal protection
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equa ...
arguments in his particular case. In ''Batson'', the court ruled that the defendant could make a ''prima facie'' case for purposeful racial discrimination in jury selection by relying on the record and that a State denies a defendant equal protection in a trial before a jury from which members of his race have been purposely excluded.
''Batson'' did not eliminate the exclusion of black people from juries. ''Batson'' applied only in criminal trials, only to prosecutors, and only in situations where the challenged juror and the defendant were of the same race. The
Mississippi Supreme Court
The Supreme Court of Mississippi is the highest court in the state of Mississippi. It was established in the first constitution of the state following its admission as a State of the Union in 1817 and was known as the High Court of Errors and Appe ...
noted, in reversing a 2004 murder conviction of a black man, where prosecutors used all 15 of their peremptory strikes to exclude black jurors: "racially motivated jury selection is still prevalent 20 years after Batson." In 2010, a white man in Alabama appealed his murder conviction and death sentence after a trial by 11 white jurors and 1 black juror, stating that ''jury selection was tainted by racial discrimination'' in excluding additional black jurors from his jury.
On December 15, 2016, the
Kentucky Supreme Court
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the U.S. state of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky. The Kentucky Court of ...
, citing ''Batson'', ruled that judges don't have authority to dismiss randomly selected jury panels for lack of racial diversity. The ruling arose from a decision by
Jefferson County Circuit Court Judge Olu Stevens to dismiss a nearly all-white jury panel in a 2014 case involving a black defendant. When prosecutors in Louisville asked the Kentucky Supreme Court to review whether Judge Stevens abused his discretion in dismissing the all-white panel, Judge Stevens commented on Facebook that the prosecutor's request amounted to an attempt "to protect the right to impanel all-white juries." Judge Stevens also suggested "something much more sinister" and wrote that the prosecutor would "live in infamy." For his remarks, Judge Stevens received a 90-day suspension without pay, acknowledged he violated judicial canons and apologized for any statements that implied the prosecutor was racist.
References
{{Equal protection and criminal procedure, jury, state=expanded
History of civil rights in the United States
Juries in the United States
Legal history of the United States
Political terminology of the United States
African-American-related controversies
Race-related controversies in the United States
Corruption in the United States