July 3, 2020
Dear Chief Justice Beasley,
The North Carolina Commission on Racial and Ethnic Disparities in the Criminal Justice System (NC CRED) writes to you today during a watershed moment in the struggle for racial justice. In the wake of the continuing killing of Black people by law enforcement officers and vigilantes, people across our state and across our country are hurting and crying out for justice. On June 2nd, you made a timely speech asserting that “we must do better, we must be better” in ensuring equal justice for African Americans in our legal system.[i] We agree, and we support your intention to develop a new “plan for accountability in our courts.” We applaud you for rising to the moment, and we write to you today with a proposal that could contribute to repairing the lack of trust in our court system expressed by a majority of North Carolinians.[ii]
North Carolina Needs a Commission on Jury Discrimination
As you know, NC CRED is a nonprofit, nonpartisan organization consisting of criminal justice leaders and stakeholders who share a commitment to building a more equitable, effective, and humane criminal justice system throughout the state.[iii] Since its inception, NC CRED has focused on racial disparities in all aspects of the criminal justice system, including jury selection. In response to the historical and continuing removal of Black people from North Carolina juries, NC CRED urges the North Carolina Supreme Court to establish a commission on racial discrimination in North Carolina jury selection. We believe that this jury commission should be a central component of any accountability plan.
The longstanding and ongoing legacy of racial discrimination in jury selection is well documented, especially in North Carolina.[iv] Our current legal framework has proven incapable of addressing the problem.[v] Recognizing the failures of the Batson framework, courts in other states have formed commissions to develop more robust responses to this multifaceted and enduring problem. The North Carolina Supreme Court can lead us in ending race discrimination in jury selection by establishing a commission to (1) study and develop more effective safeguards against race discrimination and racialized outcomes in jury selection, and (2) develop a comprehensive jury selection data collection program sufficient to monitor enforcement of legal protections against jury discrimination.
Why it Matters
Racial discrimination in jury selection violates the rights of both defendants and potential jurors and undermines public confidence in our system of justice. “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”[vi] Courts have recognized that “prosecutors drawing racial lines in picking juries establish state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”[vii] As you know, “[f]or most of this country’s history, African Americans were not permitted to serve on juries in the United States.”[viii] Decades after Strauder v. West Virginia, 100 U.S. 303 (1879), in which the U.S. Supreme Court expressly outlawed discrimination against Black people in jury selection, resistance to the inclusion of African Americans remained powerful. In the 1920s and 1930s in North Carolina, for example, not a single African American served as a North Carolina juror.[ix] Modern jury discrimination is rooted in the systematic and often violent suppression of Black civic participation, and it has no place in the operation of our courts.[x]
Discrimination in jury selection erodes trust in the justice system.[xi] After jury selection in the State v. Jarrion Hood case tried in Durham County in 2018, struck juror Jermichael Smith stated, “[W]hen you see that [a Black defendant is] going to get stuck being judged by middle-aged white women, middle-aged white men, as a Black man, I didn’t feel like that was—it kind of hurt me that I didn’t get picked.”[xii] As the Equal Justice Initiative has observed, “[t]he sting of mistreatment can linger for years. . . . Memories of the racially-charged trial still trouble [wrongly struck juror Byron Minnieweather, who lamented that] ‘[i]t was my civil right to participate as a juror.’”[xiii] These experiences cause people to lose faith in the legal process and decrease the likelihood of future participation in jury service, as demonstrated by research showing that procedural justice–the perception that the legal process is fair–promotes compliance with the law.[xiv]
Evidence of Jury Discrimination in North Carolina
The racialized use of peremptory strikes in North Carolina jury selection is well documented. In 2012, a study of North Carolina capital cases analyzing over 7400 peremptory strikes found that the State struck 53% of eligible Black jurors and 26% of all other eligible jurors from capital trial juries.[xv] In a 2018 study of all felony jury trials across North Carolina in 2011, a Wake Forest School of Law study found the same racially disparate strike patterns in non-capital cases: on average, prosecutors across the state struck Black jurors at twice the rate of white jurors.[xvi]
Despite research demonstrating stubborn patterns of racialized strikes, and despite reviewing over 70 Batson challenges in the past 30 plus years, this Court has never once ruled that a defendant met his burden of proving discrimination against a juror of color.[xvii] Neither has the North Carolina Court of Appeals ever found a single instance of discrimination against a juror of color. “Statistics are not, of course, the whole answer, but nothing is as emphatic as zero.”[xviii] Our state’s constitution, in a unique provision adopted in 1970, provides that “[n]o person shall be excluded from jury service on account of sex, race, color, religion, or national origin.” This provision is “an absolute guarantee” that the justice system “be free of both the reality and the appearance of racism, sexism and other forms of discrimination . . . .”[xix] It protects against even a perception of bias, in addition to the actual bias prohibited by the state and federal constitutional guarantees of equal protection.[xx] Yet, no juror of color struck by a prosecutor has ever found relief under this provision either.[xxi] It is clear that our current legal framework is not up to the challenge of addressing discrimination in jury selection. As Justice Thurgood Marshall predicted, the Batson framework has largely failed. Batson v. Kentucky, 476 U.S. 79, 106 (Marshall, J., concurring). Fortunately, there is more this Court can do to address this difficult problem. Establishing a commission on discrimination in jury selection would be a powerful step in that direction.
A Way Forward
North Carolina would not be the first state to recognize that jury discrimination is escaping meaningful judicial review.[xxii] In 2015, the Washington Supreme Court convened a task force to consider a proposed general rule aimed at strengthening Batson protections. The result of the task force was the codification of Washington General Rule 37, which, among other things, ends the requirement to prove purposeful discrimination to succeed on a Batson claim and provides instead that the Batson objection will be reviewed from the perspective of an objective observer.[xxiii] According to the rule, the objective observer “is aware that implicit, institutional, and unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.”[xxiv] Additionally, General Rule 37 provides that reasons historically associated with jury discrimination are presumptively invalid, including, for example, “expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; having a close relationship with people who have been stopped, arrested, or convicted of a crime; and living in a high-crime neighborhood.”
Connecticut formed a Jury Selection Task Force in December 2019, which Chief Justice Richard Robinson announced in the case of State v. Holmes (SC 20048) 2019. While the Connecticut Supreme Court rejected Mr. Holmes’s Batson challenge, it found that “[t]he broader themes of disparate impact and implicit bias that the defendant advances raise, as the state candidly acknowledges, extremely serious concerns with respect to the public perception and fairness of the criminal justice system.” For this reason, the court created a task force charged with “(1) proposing changes to statutes governing the confirmation form and questionnaire provided to prospective jurors, (2) improving the process by which we summon prospective jurors in order to ensure that venires are drawn from a fair cross section of the community that is representative of its diversity, (3) drafting model jury instructions about implicit bias, and (4) promulgating new substantive standards that would eliminate Batson’s requirement of purposeful discrimination.”
Most recently, in January 2020, the Chief Justice of the California Supreme Court announced the formation of a study group to consider what additional measures should be taken to ensure diversity in California juries. This announcement came shortly after California Appeals Court Judge P.J. Humes, in a case rejecting a Batson claim in a 2017 murder case in which the prosecutor dismissed all Black jurors, called for “the Legislature, Supreme Court and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection.”
In October 2017, the Iowa Supreme Court called for a Committee on Jury Selection to review the process on selection of jury pools and jurors. The Committee’s 2018 report recommended, in addition to a number of proposed reforms aimed at ensuring a fair cross section of the community in Iowa jury pools, a reduction in the number of available peremptory strikes, comprehensive training on Batson for the Iowa judiciary,and a comprehensive review of methods to reduce implicit bias in jury selection and throughout trials.[xxv]
In addition to considering the topics reviewed by the commissions and study groups in other states–-including addressing strikes motivated by implicit bias, revisiting the purposeful discrimination standard and the prima facie case, and responding to strike justifications historically associated with discrimination–-this Court should ask a North Carolina Jury Discrimination Commission to recommend data collection efforts sufficient to promote transparency and monitor progress in fortifying the right to an impartial jury. In its recent decision in State v. Hobbs, this Court recognized the importance of historical evidence in evaluating claims of jury discrimination.[xxvi] Ongoing collection of data reflecting the use of peremptory strikes and for cause challenges is necessary to review current practices in light of historical patterns of racialized jury selection.[xxvii] Additionally, this Court should charge the Commission to look beyond peremptory strikes and consider all decisions that shape the demographic composition of juries, including challenges for cause and jury formation procedures at the state and county level.[xxviii]
North Carolina needs a bold plan to end discrimination in jury selection, and the state is fortunate to have practitioners, scholars, and court actors who can help develop such a plan. This Court has exercised leadership in forming commissions to address pressing concerns in the recent past, including the Chief Justice’s Commission on the Administration of Law and Justice (2015) and the Advisory Commission on Portraits (2019). You have recognized that it is time for the judiciary to create new systems of accountability to address longstanding problems that plague our justice system. NC CRED believes strongly that such a comprehensive plan must include a meaningful effort to address the harmful practice of race-based jury selection. For the reasons set out above, NC CRED respectfully encourages the Court to form a commission to study and address jury discrimination in North Carolina. We pledge our full support for the work of such a commission.
James E. Williams, Jr., Board Chair
Stephen Raburn, Executive Director
The North Carolina Commission on Racial and Ethnic Disparities in the Criminal Justice System
[i] Josh Shaffer & Will Doran, Emotional NC Supreme Court Chief Says Racism, Prejudice ‘Stubbornly Persist’ in Courts, News & Observer, June 2, 2020 (“The data overwhelmingly bears out the truth . . . [that] in our courts, African Americans are more harshly treated, more severely punished, and more likely to be presumed guilty.”)
[ii] Josh Shaffer & Will Doran, Emotional NC Supreme Court Chief Says Racism, Prejudice ‘Stubbornly Persist’ in Courts, News & Observer, June 2, 2020 (noting the finding of Chief Justice Martin’s Commission on the Administration of Law and Justice that “a majority of North Carolinians lack trust and confidence in our court system”).
[iv] See Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1548-49 (2012) (hereinafter referred to as the “MSU study”); See State v. Marcus Reymond Robinson, Order Granting Motion for Appropriate Relief, ACLU.ORG; EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 14 (2010).
[v] See Daniel Pollitt and Brittany Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957 (2016).
[vi] Batson v. Kentucky, 476 U.S. 79, 87 (1986).
[vii] Miller-El v. Dretke, 545 U.S. 231, 237–38 (1995) (internal quotations omitted); see also State v. Saintcalle, 309 P.3d 326, 337 (Wash. 2013) (when courts “allow the systematic removal of minority jurors, we create a badge of inferiority, cheapening the value of the jury verdict”).
[x] See James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L. J. 895, 909–910 (2004); EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 14 (2010);April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals, 16 Stan. J. C.R. & C.L. 1 (2020); Thomas W. Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review 1593, 1613-14 fns 118, 123, 124 (2019).
[xi] EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 14 (2010) (“When documented acts of illegal discrimination against minority citizens go unremedied, the integrity and credibility of the criminal justice system itself suffers, and excluded jurors and communities lose faith in the system.”).
[xii] Interview on file with Elizabeth Hambourger at the Center for Death Penalty Litigation.
[xiii] EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 14 (2010)
[xiv] Tyler, Tom R.; Blader, Steven L. (2000), Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement. Psychology Press.
[xv] See Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1548-49 (2012).
[xvi] Ronald F. Wright et al., The Jury Sunshine Project: Jury Selection Data as a Political Issue, 2018 U. Ill. L. Rev. 1407 (2018); see also Seth Kotch & Robert P. Mosteller, The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031 (2010)..
[xvii] James E. Coleman and David C. Weiss, The Role of Race in Jury Selection: A Review of North Carolina Appellate Decisions, North Carolina State Bar Journal, Fall 2017 Vol. 22, No. 3.
[xviii] Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1959 (2016) (quoting U.S. v. Hinds Cty. Sch. Bd., 417 F.2d 852, 858 (5th Cir. 1969)).
[xix] State v. Cofield, 320 N.C. 297, 310 (1987) (Mitchell, J. concurring).
[xx] Cofield, 320 N.C. at 302 (“the judicial system . . . . must also be perceived to operate evenhandedly.”) (emphasis in original).
[xxi] In State v. Cofield, 320 N.C. 297 (1987), this Court held that the selection of a grand jury foreperson violated Art. I Sec. 26 as it was not conducted in a racially neutral manner. However, no claim of discrimination against a juror of color during jury selection has ever succeeded under Art. I Sec. 26.
[xxii] Beth Schwartzapfel, A Growing Number of States are Confronting Unconscious Racism in Jury Selection, The Marshall Project, May 11, 2020.
[xxiii] See Washington General Rule 37. The incorporation of strikes motivated by implicit bias in the Batson framework came on the heels of Justice Wiggin’s lead opinion in State v. Saintcalle, 309 P.3d 326 at 336, 339 (Wash. 2013), in which he lamented that that the prevalence of implicit biases “upends the Batson framework,” and called a new Batson framework that “accounts for and alerts trial courts to the problem of unconscious bias, without ambiguity or confusion.”
[xxvii] Ronald F. Wright et al., The Jury Sunshine Project: Jury Selection Data as a Political Issue, 2018 U. Ill. L. Rev. 1407 (2018).
[xxviii] Id., Thomas Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, (March 2020).