The media has reported the almost all-white jury’s conviction of Ahmaud Arbery’s killers with relative surprise, which may seem justified considering the history of racial inequity in the US justice system. While this verdict has been celebrated by the victim’s family and Black Lives Matter activists across the country, it raises the question of whether or not Arbery’s killers were convicted because the prosecutor skillfully avoided mentioning race in the trial.
Referring to Arbery’s race only once while presenting her case, prosecutor Linda Dunikoski recognized the historic implications of speaking to a white southern jury about the death of a Black man; however, her careful side-stepping of the racial dynamics which caused Arbery’s death reveal deeper-rooted issues of how white supremacy is intertwined with the court system. This trial encapsulated one racist legacy especially clearly—racial representation in jury selection.
In Glynn County, which is 26 percent Black and 69 percent white, the jury of peers chosen to try Ahmaud Arbery’s killers featured just one Black juror and eleven white jurors. This unfortunately predictable outcome of the jury selection process not only reflects an inaccurate representation of the racial makeup of the county, but also a deliberate example of deeply rooted systemic racism in the US justice system. The Arbery case is a catalyst for larger questions of what it means to be fair and unbiased as a juror, and whether or not racial experience should count as bias. One Black juror was eliminated because she told lawyers that “this whole case is about racism.” Her recognition of the obvious racial basis for this case was considered grounds to dismiss her voice as a jury member; this jury’s racial composition raises the question of objectivity in jury selection and suggests that it is time for the country to reexamine why whiteness is considered an objective characteristic by the justice system.
Juries represent one of the strongest facets of citizens’ abilities to exercise power within the judicial system, yet have a long history of perpetuating discrimination within the United States. The protected right to serve on a jury was restricted to white male property owners until the late nineteenth century, when the Fourteenth and Fifteenth Amendments guaranteed Black men the right to vote and serve on juries in 1868 and 1870, respectively.
However, white-driven campaigns of terror and lynching forced Black citizens out of voting or exercising newly guaranteed rights, preventing any real change in the all-white legal system.
Cases such as Strauder v. West Virginia in 1880, in which the Supreme Court ruled that serving on a jury could not be restricted by race, were largely performative, as legal protections were inadequate to enforce the ruling. Furthermore, these rulings were immediately contradicted by cases such as Virginia v. Rives, also in 1880, in which the Supreme Court ruled to eliminate racial prejudice in the creation of jury pools but not in jury selection.
Virginia v. Rives forced courts to add minority applicants to the consideration pool, but not to actually select them, effectively eliminating the right to serve on a jury for Black Americans. This ruling created a loophole which allowed courts to “follow the law” while maintaining an all-white jury.
The courts continued to fail to protect Black Americans’ right to serve on juries throughout the 20th century. In 1935 the Supreme Court overturned the death sentence for the Scottsboro Boys, nine Black teens who were wrongfully convicted of rape, in Norris v. Alabama because they had been convicted by an all-white jury. But in 1945, the Court upheld a Texas county’s rule to include only one Black person on each jury. In the 1960s and 1970s the Duren test enforced the Constitution’s mandate that jury lists must represent a “fair cross-section” of the community, which required diversity within the jury pool, not on the actual jury.
Jury pools are only the first step in the racial disparities of juries; underrepresentation within jury pools results in underrepresentation on juries. Jury pools often pull from voter registration or driver’s license lists, both of which disproportionately exclude people of color. Due to socioeconomic, historical, and geographic barriers to voter registration, Black voters are traditionally underrepresented on these lists. In the 2018 election, only 63.9 percent of eligible Black voters were registered compared to 71.0 percent of white voters; this 7.1 point difference perpetuates the unequal racial makeup of jury lists. Additional obstacles to creating a diverse jury pool include the 12 percent of undeliverable jury summons that are returned, often because courts do not update mailing addresses, a phenomenon that disproportionately impacts low-income and minority Americans.
There are easy solutions to these racial inequalities; drawing from state income tax rolls, public benefits lists, or using computer programs to accurately track the demographic makeup of the jury lists are all ways to combat this initial inequality. States such as New Mexico have made an effort to expand their jury pool selection by pulling from state income tax rolls in addition to voter registration and driver’s license records.
During the process of jury selection, both the prosecution and the defense are often allowed 15 or more “strikes for cause” to eliminate potential jurors. While intended to be used for bias that might compromise the juror’s ability to sit objectively on trial, strikes often became an easy way to eliminate minorities from juries. In the 1965 Swain v. Alabama case, the prosecutor used strikes to eliminate all six Black potential jurors from the jury pool while the all-white jury sentenced the defendant to death. The Supreme Court upheld the ruling and ruled that there was not enough evidence of discrimination related to the dismissal of the Black potential jurors.
1986’s Batson v. Kentucky challenged the trend of all-white juries by creating a system to evaluate claims of racial discrimination in the selection process. The so-called ‘Batson Claims’ were intended to reduce racial discrimination by providing a form to challenge the racially motivated striking of jurors, but a report by the Alabama-based Equal Justice Initiative found that peremptory strikes—a limited number of dismissals given to each side to remove jurors without “cause”—are used to exclude people of color from juries, especially in capital and felony cases, and especially in the South.
The Equal Justice Initiative report cited a study finding that trial judges in North Carolina are 30 percent more likely to remove prospective jurors of color compared to white jurors. A study of almost 400 cases in Louisiana and Mississippi found that Black jurors were more than three times as likely to be excluded by prosecutors for cause compared to white jurors.
Prosecutors eliminate Black jurors for cause on the basis that they have experienced racial discrimination or do not have complete faith in the reliability of the criminal justice system, two realities of being Black in America. There is no reason that personal experience or relatability should make a Black juror incapable of sitting on a trial. Whiteness is not inherently more objective than Blackness. The court system was built upon white supremacy and still acts as a flawed mechanism of “justice,” but it does not have to stay that way. The fairness of the American criminal justice system depends upon acknowledging historical and systemic inequalities and validating the perspective that comes with experiencing the ugly realities of racism.
The trial for Ahmaud Arbery’s killing represents one example of the racism that pervades jury selection and the larger US justice system. The decision to cut 11 Black jurors in a case centered on the fatal shooting of an unarmed Black man is not only racist but inaccurate in its representation of the community Arbery lived in before his death. Despite the prosecutor submitting Batson claims for each of the Black jurors that were struck from the pool, the judge upheld that there were race-neutral reasons for striking them, leaving the final jury of eleven white men and one Black man.
Several jurors were eliminated for supporting the “I run with Maud” movement that demanded justice for Arbery’s death. Their perspectives were considered too biased to sit on the jury, but their passion regarding Abaury’s killing as another on a long list of unarmed Black men that have been brutally murdered at the hands of white men is beyond warranted. Why is whiteness considered to be a blank slate of objectivity?
The tendency to automatically assume white jurors are less biased is an unconscious racist manifestation of how this country devalues people of color, and in particular how it views Black people. If anything, being able to understand the trial because of a lived racial experience should be considered more fair and representative of the purpose a jury is meant to serve.
Giving a voice to every citizen to participate in democracy is one of the principles that this country was founded on; excluding Black people from juries is not only racist, it’s un-American.