Racial discrimination in jury selection

Racial discrimination in jury selection survived constitutional prohibitions by shifting from explicit exclusion to practices that were harder to challenge. In Monroe County, Alabama, a county that was 40 percent Black, prosecutors could still remove nearly all Black prospective jurors from a capital case; when Walter McMillian was tried, jury selection lasted only a few hours, and the judge summarily rejected the defense’s objection to the prosecutor’s strikes. The practice shaped who could judge, whose communities were represented, and how much confidence Black defendants could place in a trial’s fairness.

A Formal Prohibition, Persistently Evaded

The Supreme Court of the United States had ruled in Strauder v. West Virginia in the 1880s that excluding Black people from jury service was unconstitutional. Yet the ruling did not quickly transform the composition of Southern juries. In 1945, the Court upheld a Texas statute that limited the number of Black jurors to one per case. In the Deep South, jury rolls were often drawn from voter registration lists, which excluded African Americans when discriminatory voting practices kept them from registering.

The passage of the Voting Rights Act did not by itself end exclusion. Clerks and judges continued to keep jury rolls largely white through other tactics. Local jury commissions could invoke statutory standards of intelligence and uprightness to exclude African Americans and women. The result was a recurring gap between the formal promise of equal access and the composition of juries actually assembled in court.

The Pool and the Peremptory Strike

In the 1970s, the Supreme Court of the United States ruled that racial and gender underrepresentation in jury pools was unconstitutional. In some communities, this meant that Black people began receiving summonses to appear for possible jury service. But the constitutional rule addressed representation in the pool, not a guarantee that people from excluded groups would actually serve. It prohibited exclusion on the basis of race or gender while leaving prosecutors substantial discretion in choosing a final jury.

Peremptory strikes became a central means of exercising that discretion. Although the Court had held in the mid-1960s that racially discriminatory use of such strikes was unconstitutional, the standard for proving discrimination was so demanding that no challenge had succeeded in the following twenty years. Prosecutors continued to strike all or nearly all Black prospective jurors, often with the practical effect of preserving all-white juries without an openly stated racial rule.

The impact was especially stark in capital cases. Black defendants in counties that were 40 or 50 percent Black frequently faced all-white juries. The exclusion was not simply a matter of who appeared at the courthouse: it determined whose perspectives could enter the jury room and left defendants to be judged by panels from which members of their own communities had been systematically removed.

Batson and the Limits of Reform

In 1986, Batson v. Kentucky gave defendants a more direct way to challenge prosecutors’ racially discriminatory use of peremptory strikes. The ruling offered Black defendants new hope, but its effect was not the automatic integration of juries. The book describes the decision as forcing prosecutors to find more creative ways to exclude Black jurors: a legal barrier could be raised while discriminatory selection adapted around it.

Alabama’s political landscape underscored the imbalance in the institutions responsible for prosecution. In 1987, all forty of the state’s elected district attorneys were white, although sixteen counties had Black majorities. As African Americans exercised their voting rights, legislators had aligned counties in ways that preserved white majorities in judicial circuits that included majority-Black counties. Ted Pearson, the prosecutor in McMillian’s case, had to be more attentive to Black residents’ concerns than earlier in his career, but that increased attention brought no substantive change during his tenure. This context does not by itself establish how any individual juror was struck; it shows the wider structure in which local prosecutorial power operated.

McMillian’s Trial

By the time McMillian’s case went to trial, he was worried about the jury he would face. Other men on death row described prosecutors using peremptory strikes to remove Black prospective jurors from their cases, and nearly everyone there had been tried by an all-white or nearly all-white jury. Their accounts made the risk concrete for a pretrial defendant awaiting a capital trial.

McMillian’s own jury selection lasted just a few hours. Pearson used peremptory strikes to remove all but one of the handful of African Americans summoned for jury service. McMillian’s lawyers objected, but the judge dismissed their complaints summarily. The episode gave the long history of exclusion an immediate courtroom form: Black prospective jurors had been summoned, yet nearly all were removed before the jury was seated.

The case illustrates the distance between a rule against racial exclusion and a process capable of identifying and remedying it. Batson had made a challenge more available, but McMillian’s objection did not prevent the near-total removal of Black prospective jurors. The enduring significance of the practice lies in that mismatch: formal access to the jury pool could coexist with a trial jury that scarcely reflected the county or the defendant’s community.