It’s been 30 years since Timothy Foster, a black man, was sentenced to death by an all-white jury. Unfortunately, the problem of race in American jury selection is still relevant today.
By Francie Diep
(Photo: Win McNamee/Getty Images)
The Supreme Court ruled today that Timothy Foster, a black man sentenced to death row in 1987 by an all-white jury, deserves a re-trial. Justices say prosecutors in the trial abused their so-called peremptory challenges, the limited number of potential jurors whom lawyers may dismiss from jury duty without stating a reason. According to a landmark ruling from 1986, the state may not use peremptory strikes to exclude potential jurors based on race. Yet prosecutors selecting the jury for Foster — who confessed to and was convicted of killing an elderly white woman — dismissed all of the black prospective jurors. In 2006, one of Foster’s attorneys obtained the prosecution’s notes, which showed they highlighted the black prospective jurors’ names, marked them with a “B,” and ranked them in case “it comes down to having to pick one of the black jurors.”
Foster’s case may have been heard nearly three decades ago, but it brings up a debate that’s still hot today. Lawyers continue to discriminate based on race in their peremptory challenges, according to critics. That’s based on studies of several American states and counties:
- Among death-row cases in North Carolina, prosecutors were 2.5 times more likely to dismiss black jurors than white jurors, one 2012 study found. The pattern didn’t lessen with time, the study’s authors wrote in the Iowa Law Review, and it showed up independent of jurors’ views on relevant issues such as the death penalty and crime.
- In Caddo Parish, Louisiana, prosecutors were three times more likely to dismiss black jurors than jurors of other races, according to an analysis by Reprieve Australia, a group that advocates for an end to capital punishment. Between 2003 and 2012, none of the Caddo Parish juries comprising two or fewer black jurors acquitted the defendant. A 12-person jury that reflected the racial balance of the parish would include five black members — and 19 percent of such juries acquitted.
- An analysis of eight Southern states found white-biased jury selection in several jurisdictions, including Houston County, Alabama, where 26 percent of residents are black. Between 2005 and 2009, half of Houston County juries were all-white, and the other half included only one black member. The analysis — conducted by a non-profit called Equal Justice Initiative, which offers legal representation to those “whose trials are marked by racial bias or prosecutorial misconduct” — also pointed to evidence that some district attorney’s offices trained lawyers to stealthily exclude racial minorities from jury service.
- Although most studies of juror dismissals examine the racial biases of prosecutors, it works the other way too. In one North Carolina county, defense attorneys disproportionately chose to dismiss whites, while state prosecutors disproportionately chose to dismiss blacks, according to a 1999 study published in the journal Law and Human Behavior.
Among the Equal Justice Initiative’s recommendations for combating this problem: training in anti-discrimination law for judges and lawyers, especially those involved in capital cases; penalties for attorneys who break the law; and the retroactive application of the 1986 Supreme Court ruling, Batson v. Kentucky, which would mean older cases could be re-tried if lawyers are found to have used their peremptory strikes in a racially biased way.