MONTGOMERY, AL- The Equal Justice Initiative’s report, Unreliable Verdicts: Racial Bias and Wrongful Convictions, details the ongoing practice of discriminating against prospective Black jurors, and how this injustice can lead to increased wrongful convictions and possible wrongful executions.
This report comes after the state execution of Marcellus Williams in 2024, despite former witnesses revoking their testimonies and an acknowledgment of racial bias in jury selection, EJI claims.
The right to serve on a jury and to be tried by a jury of your peers is guaranteed by the Constitution, but EJI’s report notes Black Americans have been constantly prevented from fully exercising these rights, from the Reconstruction Era to the 21st century.
In 1875, race-based discrimination in jury selection was outlawed by Congress. Despite this, EJI documents the consistent and successful efforts Southern states took to disenfranchise Black Americans, resulting in a racial gap in voter resignation along with jury service.
In 1986, the landmark Supreme Court decision in Baston v. Kentucky “created a formal process for trial courts to use during jury selection to evaluate whether lawyers had illegally excluded potential jurors based on race,” EJI writes.
Even with this, Justice Thurgood Marshall felt that “the decision today will not end racial discrimination” in the jury selection process, adds EJI, detailing how prosecutors have learned how to legally exclude Black jurors, even with the Baston protections in place.
EJI stresses that even with Baston, racial discrimination in jury selection is still a pervasive issue that impacts innocent people, as evidenced by the exoneration of “at least 200 Americans under sentence of death since 1973,” according to the Death Penalty Information Center.
EJI continues to elaborate on the pitfalls of non-diverse juries, citing research indicating “non-diverse juries exhibit more bias and undertake less penetrating and rigorous deliberations.”
EJI connects the problem of non-diverse juries to wrongful death penalty convictions, finding “in dozens of known cases, innocent individuals were condemned to die based on verdicts reached by non-diverse juries.”
EJI then details numerous cases where innocent Black accused were convicted and put on death row by an all-white jury or mostly white jury, later to be exonerated, sometimes as close as 15 hours prior to their execution.
The prevalence of non-diverse juries violates both Black Americans’ right to serve on a jury and their right to be judged by a jury of their peers, according to EJI.
In states where the death penalty is still utilized, racial bias and discrimination in the jury selection process can have dire consequences, charges EJI recognizes, noting that “increasing the diversity of juries is one tool that can increase reliability and reduce the risk of wrongful conviction.”
EJI documents how this issue is especially prevalent in Alabama, where on death row 64 cases “were decided by juries with Black underrepresentation, meaning the jury included fewer Black jurors than would be proportional to the county’s Black population at the time.”
The illegal peremptory strikes of Black jurors by prosecutors can result in wrongful executions, which EJI details in the story of Robert Lee Tarver, Jr.
Further, in 2011, EJI “filed a federal civil suit on behalf of five Black Alabama citizens illegally excluded from jury service.”
EJI said it found “peremptory strikes (were used) to exclude 82 percent of all eligible Black jurors serving on death penalty cases,” adding the issue of wrongful convictions and non-diverse juries is still pressing and present in the criminal justice system.
EJI concludes the report by maintaining that “a system that values jury diversity for its increased reliability recognizes jury discrimination as a threat to all,” not just nonwhite citizens, noting how the judicial system must correct these errors of disenfranchisement and wrongful executions in order to be a legitimate source of judgment.
EJI Director Bryan Stevenson further reflects in the conclusion, stating, “The death penalty is not about whether people deserve to die for the crimes they commit…the real question of capital punishment in this country is, do we deserve to kill?”
