The color of justice | Arkansas Blog

Wednesday, June 2, 2010

The color of justice

Posted By on Wed, Jun 2, 2010 at 6:03 AM

A study finds that blacks are disproportionately excluded from juries in eight Southern states including Arkansas.  Why is this important?

Studies have shown that racially diverse juries deliberate longer, consider a wider variety of perspectives and make fewer factual errors than all-white juries, and that predominantly black juries are less likely to impose the death penalty.

Excluding jurors based on race has been illegal since 1875, but after Reconstruction, all-white juries remained the norm in the South.

The study, linked in the Times article, said the Arkansas Supreme Court had found discriminatory jury selection practices sufficient for reversals in 10 cases. The article also notes that all prosecuting attorneys in Arkansas are white. That's about to change. Carlton Jones of Texarkana is unopposed for election in November.

Further commentary from the study on Arkansas practices (and, for legal students, an Arkansas Court of Appeals decision in which two black members of the court pointed out some years ago  problems with the broad discretion precedent affords prosecutors in making peremptory challenges of jurors):

Arkansas similarly is resistant to successful Batson claims and Arkansas law has several features which make it particularly difficult to prove racial discrimination in jury selection. First, an Arkansas court typically will credit a prosecutor’s explanation for a peremptory strike even when the strike is based on information known only to the prosecutor’s office which cannot be verified by the record.

In Thornton v. State, the prosecutor claimed to have struck a juror because of a “hunch” that the juror was related to a criminal defendant in another case, and this strike was upheld as race-neutral.

Arkansas courts have upheld strikes of African Americans based on a prosecutor’s descriptions of the jurors’ demeanor, body language, tone, or other amorphous characteristic which cannot be disproved by the record.

Finally, Arkansas courts repeatedly have found that the presence of any African American on a jury is strong evidence that the prosecution has not engaged in racial discrimination.

This overly simplistic approach ignores Supreme Court precedent holding that the presence of a single African-American juror does not disprove discriminatory intent on the part of the prosecutor, and that removing even a single juror on the basis of race violates the Equal Protection Clause.

 Moreover, when coupled with the Arkansas courts’ deference to prosecutors and acceptance of peremptory strikes not supported by the record, it effectively exempts prosecutors from any meaningful review of peremptory strikes.

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