Jury Selection Bias Removes Black Jurors at 3X the Rate — The System Calls It ‘Discretion’

In a courtroom in Winona, Mississippi, a Black man named Curtis Flowers sat in a defendant’s chair for the sixth time, charged with the same crime, tried by the same prosecutor, and facing, for the sixth time, a jury from which Black citizens had been systematically removed. The prosecutor, Doug Evans, the district attorney of Mississippi’s Fifth Circuit Court District, had tried Flowers six times for the 1996 murder of four people in a furniture store. In those six trials, Evans used peremptory strikes to remove 41 of 42 prospective Black jurors. Not 41 of 42 who expressed bias. Not 41 of 42 who indicated they could not be impartial. Forty-one of 42 Black people who showed up for jury duty in the county where they lived, in the country whose Constitution guarantees trial by a jury of one’s peers, were told by an agent of the state that their service was not wanted, and the reason, wrapped in the language of legal discretion, was their race.

The Flowers case is not an anomaly. It is an illustration, elevated to visibility by the Supreme Court’s 7-2 ruling in Flowers v. Mississippi in 2019 and by the extraordinary journalism of In the Dark, the podcast that investigated the case. But the practice it illustrates — the systematic removal of Black citizens from juries through peremptory strikes, using pretextual justifications that are accepted by courts with a credulity that would be comic if its consequences were not lethal — is not extraordinary. It is ordinary. It is routine. It happens in courtrooms across America every day, in cases that will never reach the Supreme Court, in trials that no podcast will investigate, and with consequences for Black defendants that are measured in years, decades, and lifetimes.

Batson and Its Failure

In 1986, the Supreme Court decided Batson v. Kentucky, a case that was supposed to end the practice of race-based jury selection. The facts were straightforward: James Batson, a Black man, was tried by an all-white jury after the prosecutor used peremptory strikes to remove all four Black members of the jury pool. The Court held, in a 7-2 decision, that the use of peremptory challenges to remove jurors on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment. The decision established a three-step framework: if the defendant demonstrates a prima facie case of racial discrimination in jury selection, the prosecution must offer a race-neutral explanation for the strike, and the trial court must determine whether the defendant has established purposeful discrimination.

The framework was elegant in its logic and catastrophic in its application, because the second step — the requirement that the prosecution offer a “race-neutral explanation” — set the bar so low that virtually any explanation, no matter how flimsy, no matter how transparently pretextual, was sufficient to defeat a Batson challenge. Prosecutors learned, with the adaptability of organisms responding to evolutionary pressure, that the explanation did not need to be persuasive. It needed only to be articulable. And so they articulated.

The catalog of “race-neutral” explanations that courts have accepted as sufficient to overcome Batson challenges reads like a document authored by someone who believes that the law’s purpose is to provide the appearance of justice while preventing its substance. Prosecutors have successfully struck Black jurors because they “seemed inattentive,” because they “lived near the defendant,” because they “had a relative who had been arrested,” because they “watched certain television shows,” because they “were unemployed,” because they “were too young,” because they “were too old,” because they “seemed nervous,” because they “seemed too confident,” because they “had facial hair,” because they “did not have facial hair,” and because they “seemed like they might be sympathetic to the defendant.” Each of these explanations was offered with a straight face, accepted by a court with apparent seriousness, and resulted in the removal of a Black citizen from a jury that would decide the fate of a Black defendant.

The Data That Indicts the System

In 2010, the Equal Justice Initiative, founded by Bryan Stevenson, published a report titled “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” that documented the scope of the practice with a comprehensiveness that leaves no room for the comforting fiction that Batson solved the problem. The report examined jury selection in eight Southern states and found a pattern so consistent that it constituted a de facto policy of racial exclusion: in county after county, in case after case, prosecutors used peremptory strikes to remove Black jurors at rates that were three to four times higher than the rates at which they struck white jurors with similar demographic profiles.

In Houston County, Alabama, prosecutors struck 80% of qualified Black jurors in capital cases over a twenty-year period. In Jefferson Parish, Louisiana, prosecutors struck Black jurors at more than three times the rate of white jurors in non-capital cases. In some jurisdictions, the practice was so routine that prosecutors received training — formal training, in continuing legal education courses — on how to craft race-neutral explanations for strikes that were transparently racial. A training video produced by a Philadelphia district attorney’s office, later obtained by public defenders, explicitly instructed prosecutors on how to remove Black jurors while surviving Batson challenges. The video was treated as a scandal when it was exposed, but the techniques it taught were already standard practice in courtrooms across the country.

The implications for case outcomes are not ambiguous. Samuel Sommers, a psychologist at Tufts University, conducted experimental research demonstrating that racially diverse juries deliberate longer, consider a wider range of perspectives, discuss more case facts, and make fewer factual errors than all-white juries. His research also showed that the mere presence of Black jurors changes the behavior of white jurors, who are more attentive to racial issues and more thorough in their deliberation when they are sitting alongside jurors of different races.

“The opposite of poverty is not wealth. The opposite of poverty is justice.”
— Bryan Stevenson, "Just Mercy"

The Flowers Case: A Laboratory of Injustice

The case of Curtis Flowers deserves extended attention because it demonstrates, with the clarity of a controlled experiment, every failure of the Batson framework. Doug Evans tried Flowers six times. In the first trial, Evans struck all five Black prospective jurors. The conviction was overturned by the Mississippi Supreme Court for prosecutorial misconduct. In the second trial, Evans struck all five Black prospective jurors again. The conviction was overturned again. In the third trial, Evans struck all the Black prospective jurors he could — a mistrial resulted. The fourth trial produced a hung jury. The fifth trial resulted in a conviction that was overturned by the Mississippi Supreme Court, which found that Evans had again violated Batson. In the sixth trial, Evans struck five of six Black prospective jurors, producing a jury with one Black member, which convicted Flowers and sentenced him to death.

The Supreme Court’s decision in Flowers v. Mississippi, authored by Justice Kavanaugh and joined by seven justices, reversed the sixth conviction and held that Evans’s pattern of striking Black jurors across all six trials constituted evidence of racial motivation. The opinion was notable for its detailed documentation of Evans’s behavior, but it was also notable for what it did not do: it did not disbar Evans, it did not hold him in contempt, it did not impose any penalty for what amounted to two decades of documented constitutional violations. Evans remained the district attorney. The message was clear: you may violate the constitutional rights of Black jurors for twenty years, and if the Supreme Court eventually notices, the consequence is that you must try the case again.

Why Jury Composition Is Life or Death

The connection between jury racial composition and case outcomes is not theoretical. It is empirical, and the empirical evidence is devastating. Research on capital sentencing in particular has found that all-white juries are significantly more likely to impose the death penalty on Black defendants than racially diverse juries. A study of capital cases in North Carolina found that qualified Black jurors were struck at more than twice the rate of qualified white jurors, and that cases tried before all-white juries produced death sentences at higher rates than cases tried before diverse juries, even after controlling for the severity of the offense and the strength of the evidence.

Bryan Stevenson, in Just Mercy, documented case after case in which the composition of the jury was the dispositive factor — not the evidence, not the quality of the lawyering, not the severity of the offense, but the presence or absence of Black people in the jury box. His account of Walter McMillian, a Black man sentenced to death by an all-white jury in Monroe County, Alabama, for a crime he did not commit, illustrates the stakes with a simplicity that no statistical analysis can match: an innocent man was convicted and sentenced to die because the people who decided his fate had been selected, through the mechanism of peremptory strikes, to ensure that no one in the room shared his experience of the world.

Reform Models: Beyond Batson

The recognition that Batson has failed to prevent race-based jury selection has produced a growing movement for reform, and the most significant model comes from Washington state. In 2018, the Washington Supreme Court adopted General Rule 37, which replaced the Batson framework with a standard that does not require proof of discriminatory intent. Under GR 37, a peremptory strike can be denied if an objective observer could view race or ethnicity as a factor in the strike, regardless of the prosecutor’s stated reason. The rule explicitly identifies several commonly cited justifications — including demeanor, lack of eye contact, neighborhood of residence, and prior contact with law enforcement — as presumptively invalid because they are disproportionately associated with race.

The Washington model represents a fundamental shift in the legal analysis. Batson asks: did the prosecutor intend to discriminate? This question is nearly impossible to answer, because intent is invisible and because prosecutors have learned to articulate non-racial reasons for strikes that are transparently racial. GR 37 asks: could a reasonable person see race as a factor? This question is answerable, because it does not require reading the prosecutor’s mind. It requires looking at the pattern of strikes, looking at the explanations offered, and assessing whether those explanations would lead an objective observer to conclude that race played a role.

Arizona, California, Colorado, Connecticut, and New Jersey have adopted or are considering similar reforms. Some scholars and advocates have gone further, arguing that peremptory challenges should be eliminated entirely — that a system designed to allow lawyers to remove jurors without explanation is fundamentally incompatible with the right to a jury drawn from a fair cross-section of the community, and that no amount of procedural tinkering can fix a tool whose purpose is to allow discrimination that cannot be detected.

The constitutional guarantee of trial by an impartial jury of one’s peers is not a suggestion. It is not an aspiration. It is not a principle that can be honored in the breach when honoring it in practice would produce outcomes that prosecutors find inconvenient. It is a right, guaranteed by the Sixth and Fourteenth Amendments, and it is the right upon which the entire legitimacy of the criminal justice system depends. A verdict rendered by a jury from which Black people were systematically excluded is not a verdict. It is a performance — a theater of justice staged for an audience that is expected to confuse the scenery with the substance.

Curtis Flowers was released from custody in September 2020, after the Mississippi Attorney General’s office dropped all charges. He spent 23 years in prison, 20 of them on death row, for a crime that six juries could not agree he committed, tried by a prosecutor who struck 41 of 42 Black prospective jurors across those trials, in a system that was supposed to have solved this problem in 1986. The system did not solve the problem. The system named the problem, created a test that was designed to be failed, and then expressed satisfaction when the test was failed, case after case, decade after decade, in courtrooms where the absence of Black faces in the jury box was as predictable as the sunrise and as consequential as the sentence that followed.

The question is not whether this practice continues. The data is unambiguous: it does. The question is not whether Batson has failed. Forty years of evidence confirm that it has. The question is whether the legal system will continue to provide prosecutors with a tool whose primary function, documented across thousands of cases in dozens of states over four decades, is the removal of Black citizens from the juries that decide the fates of Black defendants — or whether it will acknowledge, finally, that a right that exists on paper and is violated in practice is not a right at all, but a cruelty dressed in the language of fairness, and retire the tool that makes the cruelty possible.