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A Supreme Court case about juries could have a big impact on racism in the justice system

The US Supreme Court. Mark Wilson/Getty Images

A Supreme Court case about juries may not sound like the most exciting legal battle of all time. But in Foster v. Chatman, the Supreme Court's decision on how juries work could have a big impact on issues that are definitely getting a lot of attention in America today — mainly, the death penalty and the racism in the criminal justice system.

On Monday, the Supreme Court effectively refused to weaken a legal rule that makes it harder for prosecutors to stuff juries with exclusively white jurors. In a 7-1 decision, the Court found that Georgia prosecutors really had purposely targeted black jurors to keep them off a trial with a black defendant, and that such a move was unconstitutional. "[T]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury," Chief Justice John Roberts wrote in the ruling.

The case has some grisly beginnings: Timothy Tyrone Foster, a black man, is accused of killing a 79-year-old white woman in Georgia when he was 18 in 1986. A jury found him guilty, and sentenced him to death.

But the jury that convicted Foster was all white. That's not because the jury pool was all white to begin with, but because prosecutors used what are called "peremptory strikes" to get 100 percent of the black potential jurors originally involved in the case removed from the jury. In comparison, 16 percent of white potential jurors were taken off the case, Lyle Denniston reported for SCOTUSblog.

Foster's defense argued the all-white makeup of the jury altered the outcome of the trial. Armed with evidence taken directly from prosecutor's notes, the defense claimed the ruling against Foster was based on race-based discrimination, violating a previous standard set by the Supreme Court for juries. The Supreme Court sided with Foster, arguing that the prosecution had clearly based its jury selection decisions on race.

On its face, then, Foster v. Chatman may seem like a merely procedural case about juries. But by upholding a legal safeguard against racism in the justice system, the case's impact could extend far beyond Foster (who may be retried as a result of the decision), potentially reverberating across a criminal justice system that many argue — and statistics show — is racially biased.

How Foster v. Chatman ended up at the Supreme Court

An affluent-looking white lady using a cellphone in front of the Supreme Court. Win McNamee/Getty

Despite its broader implications, Foster v. Chatman was really a case about legal procedure.

Foster was tried, convicted, and sentenced by an all-white jury. But the jury didn't start white — instead ending up that way after prosecutors used what are their peremptory strikes to get black potential jurors removed from consideration.

Unlike other methods for removing jurors, peremptory strikes are deployed without providing any justification. So in theory, a prosecutor can have someone removed from the jury for no particular reason. The big limitation is that prosecutors have a limited number of peremptory strikes to use.

But throughout history, prosecutors used these strikes to remove black potential jurors from juries. The idea: Black jurors are more likely to sympathize with black defendants, so getting them removed from a trial would make a conviction more likely. (Some research backs this up. More on that later.)

On top of being unconstitutional, the practice had the clear effect of making criminal justice racially skewed, since some of the biggest potential allies of black people accused of crimes were being taken out of the jury box. So in 1986, the Supreme Court laid out clear standards to stop the use of race-based peremptory strikes — in the landmark decision of Batson v. Kentucky.

Denniston explained for SCOTUSblog the three-step process set by the Supreme Court to prevent the use of race in peremptory strikes:

First, the accused has to show membership in a specific racial group, and make the point that prosecutors had used their peremptory strikes to preclude all or most members of that race from serving as jurors.

Second, it is then up to prosecutors to offer non-racial reasons for using those strikes.

Third, the task falls to the trial judge to decide whether, taking everything into account, the defense lawyers had succeeded in showing that prosecutors had intentionally kept minority jurors from serving because of their race, despite prosecutors' attempts to provide race-neutral explanations.

These standards are not perfect. As Dara Lind previously explained for Vox, prosecutors have long used tricks to get around them. But they at least shield from some racial bias in the justice system — and the possibility that these standards could be weakened alarmed many racial justice advocates and criminal justice reformers.

In Foster v. Chatman, Foster's defense argued that the courts failed to follow the process. The trial court and Georgia Supreme Court rejected the claims, but the Supreme Court agreed to hear the challenge. And the Supreme Court then sided against the lower courts, ruling that prosecutors really did engage in a concerted effort to keep black people out of the jury box.

The defense has a big piece of evidence: the prosecution's notes, obtained through a Georgia open records law. In the notes, prosecutors highlighted black would-be jurors' names, circled "black" where it was marked on questionnaires to show the potential juror's race, and dubbed the black jurors "B#1," "B#2," and "B#3." They also ranked the potential black jurors, preparing for the situation in which "it comes down to having to pick one of the black jurors."

In this note, the prosecutors circled the word "black" where a juror's race was marked. Southern Center For Human Rights via Slate

Then there's the statistics: 100 percent of black would-be jurors were removed from the trial, while only 16 percent of white would-be jurors were. And when prosecutors asked for the death penalty, they said it would "deter other people out there in the projects" — language that's quite obviously racially charged.

This all seemed like a very clear violation of the standard set up in Batson. Justice Elena Kagan noted as much during the trial hearings, saying the notes are evidence "as clear a Batson violation as this court is ever going to see."

The prosecution disagreed, providing detailed reasons for excluding the black potential jurors in its brief — for example, that they struck would-be jurors with sons who were Foster's age and potential jurors with cousins who were arrested. Whether those are valid reasons — a juror might not have any real connection with a cousin, for one — is up for debate, but the prosecution said they're race-neutral justifications.

The Supreme Court rejected the prosecution's defense. The Court argued that prosecutors had clearly targeted black jurors in at least two cases. And although the prosecution claimed that it used race-neutral characteristics for peremptory strikes, the characteristics it cited were only applied to black would-be jurors — even though some white prospective juror shared some of the characteristics — in what appeared to be clearly racially motivated.

"The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago," Chief Justice Roberts wrote. "Two peremptory strikes on the basis of race are two more than the Constitution allows."

The case is obviously important for Foster's fate, but it also may have consequences for the criminal justice system more broadly — a system that's troubled by enormous racial disparities. By ensuring that a key safeguard against racism in the justice system remains in place and unweakened, the Supreme Court is at least trying to make sure that racial disparities at least don't get worse.

America's criminal justice system is very racially skewed

While Foster v. Chatman may seem like one case about one murder, it is really about a standard that acts as one of the few major safeguards to the massive racial disparities in the criminal justice system.

It is no secret that America's criminal justice system is racially skewed. For example, black people are also much more likely to be arrested for drugs, even though they're not more likely to use or sell drugs. And when black defendants are convicted for drug offenses, they get longer sentences for the same crimes: A 2012 report from the US Sentencing Commission found that drug trafficking sentences for black men were 13.1 percent longer than those for white men between 2007 and 2009.

Joe Posner/Vox

The same disparities apply to capital punishment, according to data from the Death Penalty Information Center: Black people make up about 13 percent of the general population, but they make up about 35 percent of people executed since 1976, the year the death penalty was reinstated in the US. And when someone is executed, it's much more likely that the victim was white: White, non-Hispanic Americans are about 62 percent of the US population, but about 76 percent of executions involved victims who were white.

Jurors can act as one way to safeguard against these disparities, because the research shows that diverse juries are much more likely to be sympathetic to black defendants.

A 2007 study by Samuel Sommers of Tufts University found that race plays a major role in juries. In a review of the research, Sommers found that white juries tend to be harder on black defendants than diverse juries. Sommers raised several explanations for this, including a theory that the mere presence of black jurors may make it harder for white jurors to express prejudice.

But Sommers also found that jurors don't seem to possess racial bias in cases that are racially charged. Still, in cases that don't bring up blatant racial issues, white jurors are much harder on black defendants than on white ones.

Researchers Shamena Anwar, Patrick Bayer and Randi Hjalmarsson put this idea to the test by studying different cases in Florida. They found all-white juries were much more likely — by 16 percentage points — to convict a black defendant over a white one.

It's hard to say what the exact difference is between white and black jurors' mindsets. But intuitively, it makes sense that people would empathize more with someone who looks and is more like them, and perhaps that leads to more reasonable doubt against a prosecutor's case. Furthermore, subconscious racial biases — known as implicit bias — are more likely to color white jurors' judgments.

Again, the Batson standards aren't perfect, and prosecutors have ways to get around them in some cases. But they're at least something.

Ultimately, this is the potential impact of Foster v. Chatman: If Batson hadn't applied in a case in which the prosecutors were so clearly racially motivated in how they struck out jurors, then it's hard to imagine how Batson could apply in any case. So by refusing to weaken the Batson standard through Foster's case, the Supreme Court has made it potentially more difficult for future prosecutors to act in clearly racially biased ways.