Aanan Piece

Running Out of Excuses: The All Too Familiar Narrative of Police Shootings

On June 16, in St. Paul, Minnesota, a decision was handed down in the trial of Jeronimo Yanez, the police officer who fatally shot Philando Castile in the summer of 2016. The facts of the case were hardly in dispute: after pulling Mr. Castile over, Officer Yanez asked to see his driver’s license. To avoid any confusion, Castile then told the officer that he was armed and was carrying a gun in his pants pocket. However, when Castile complied with the officer’s command and reached for his I.D., he was summarily shot seven times in front of his fiancée and four-year-old daughter. The immediate aftermath of this was captured on Facebook Live by Castile’s fiancée, sparking a national outcry in a political climate that was already rife with similar incidents. What was even more stunning about this incident was Mr. Castile’s compliance with what most law enforcement would say is proper procedure in that situation. Despite Mr. Castile’s cooperation, his killer was acquitted of any and all charges stemming from his incident by a jury of his peers and remains a free man. His acquittal dispels yet another myth in African Americans’ longstanding and contentious relationship with American law enforcement: the idea that complying with one’s local law enforcement officers erases racial bias and will always lead to a fair and safe interaction. In recent years there has been an increased reliance on these ideas, shifting the blame for similar shootings to factors other than race. However, as questionable and even fatal interactions for African-Americans with law enforcement disprove more of these excuses, apologists for police departments are running out of answers.

One of the most racially charged of these excuses is the notion that these incidents are only happening to African Americans who choose a criminal lifestyle that puts them at odds with law enforcement. We saw the opposite of that when 12-year-old Tamir Rice was shot within seconds of officers arriving at a park while he was playing with a toy gun. Rice had no criminal record nor was he involved in any illegal activity, and yet the officer who shot him made no attempt to communicate with him from a distance or even to ask him to drop the “weapon.” When we see an officer making the decision to shoot a twelve-year-old to death in a matter of seconds, it is imperative that we ask ourselves whether or not Rice would have been afforded those potentially lifesaving warnings if he had been anything other than a black male.

Tamir Rice’s death and the fact that his killer was not convicted of any crime only further illustrate the point that in a country that prides itself on the presumption of innocence, many African Americans are facing an undue bias based solely on skin tone.

The next excuse that has been offered to placate detractors of the criminal justice system is that the facts surrounding these shootings are complex and, in the heat of the moment, officers must make calls that civilians simply do not understand. The country watched as Walter Scott was gunned down from behind while he tried to run away from a police officer in South Carolina. We then watched as that same officer who claimed to have performed CPR on Scott in the immediate aftermath of the shooting did no such thing and instead handcuffed Scott’s body and threw a Taser next to him to make the shooting look more justifiable. In fact, this notion has been consistently discredited for decades now. The deaths of Alton Sterling, Oscar Grant, Eric Garner, and Jerame Reid were all caught on camera and none of those instances featured any of the victims using any sort of weapon or firearm when confronted by the police. We now are living in an age when officers’ actions are becoming ever more visible to the entirety of the public.

But I would argue that no excuse has gained more traction than the theory that if these people would just comply with law enforcement, none of this would happen. Unlike the others, this one contains some level of legitimacy. While it is obviously legally incorrect and morally reprehensible to argue that the penal retribution for refusing to comply with law enforcement should be an immediate execution, it is fair to say that the safest approach would always be to comply with law enforcement in any sort of traffic stop. Advocates for this theory might argue that it is only African Americans’ distrust for law enforcement and their refusal to act properly that cause these deaths. And perhaps that is why the Castile case is so crucial in dispelling this myth. Mr. Castile did everything right by any number of standards; in fact, one could argue that he went above what was required. According to Bryan Strawser of the Minnesota Gun Owners Caucus, people carrying weapons have no obligation to disclose their possession of a firearm to law enforcement. Strawser recommends that gun owners move slowly and follow all directions given by policemen. In Castile’s case, he made the officer aware that he was carrying a firearm and that he was licensed to do so, he was in possession of his license and registration, and he made no effort to do anything but comply with the Minnesota law enforcement official who had stopped him. For as long as police brutality has existed as a social issue, the prevailing defense used by officers has been that the officer in question feared for his or her own safety. During the Rodney King trial of the mid-1990s, every officer in question made it clear that he believed that the man who they were beating would surely have inflicted severe bodily harm on the four of them had they stopped at any point during their attack because they viewed him as a “PCP crazed giant.” Despite the fact that King never tested positive for PCP, the lawyers in that case argued that what was more important was how King was perceived by the officers. Officer Yanez told the Minnesota Bureau of Criminal Apprehension that he was fearing for his life and his partner’s life, and it is certainly possible that he was actually afraid. Similarly, it is certainly possible that the officer who shot twelve-year-old Tamir Rice while he was holding a toy felt threatened. However, it is more important to pay attention to why these officers felt threatened.

I would posit that these individuals were viewed as threats largely due to the color of their skin. While some might argue that there are always other factors at play besides race, it is important to note that the fact that race serves as an influencing factor in an officer’s decision-making process in any capacity is inherently unfair. Furthermore, when officers across the country use someone’s race as an implicating trait, what we are left with is systemic racial bias. According to one Washington Post report, African-Americans are 2.5 times more likely to be shot by the police as their white counterparts are. In 2008, Ian Ayres, professor at Yale Law School, noted that African Americans are more likely to be stopped by police officers and searched for drugs despite the fact that “hit rate”—the rate at which illegal contraband would be found—was higher among whites. Similarly, Vox reported in 2014 that SWAT team raids disproportionally target black neighborhoods, despite the fact that the same Vox report showed that 62 percent of raids are drug related and blacks and whites consume drugs at roughly the same rate. What all of these studies reveal is that there is a very real and at times overbearing bias against African Americans in the U.S. Criminal Justice System. A study published in the Journal of Criminal Justice looked at 1,846 use-of-force incidents to determine whether the racial aspects of force are consistent with the implicit-bias or counter-bias perspectives. In this study, “implicit bias” was taken to mean that officers’ biases would produce a greater tendency to use force against black subjects, while “counter-bias” represented the idea that officers would use lesser force against Blacks, due to officers’ concerns about the consequences of using force against racial or ethnic minorities. The study found that officers’ use of force was consistent with implicit bias in several areas concerning use of force. For example, officers were more likely to use Tasers with black suspects as opposed to non-blacks, and officers were especially more likely to use force against African Americans in high-crime areas. The study found that the negative information an officer is presented with (such as stories about the violence and danger that officers might encounter on the job) is more powerful than the positive information, which is why it is increasingly hard for officers to practice de-escalation tactics when they have been bombarded with increasingly negative and exaggerated images about how dangerous the community they are policing is.

This sort of “implicit bias” manifests itself in a departure from the fair and equitable policing we expect from officers across the country. It is by no means an issue that only exists among police officers; it affects and strains individuals across a broad spectrum of professions, but the effects that it can have on law enforcement are particularly gruesome. An officer who views African Americans as particularly violent or less likely to cooperate will then be more likely to implement unnecessary force. If this is the case, then it becomes the job of the citizen encountering that officer to diffuse the situation from the start and overcome that bias, and what we have seen is that historically, that does not always happen, and the results are often lethal. Implicit bias and the “us versus them” mentality that it creates were on full display in the Philando Castile case because of the training Officer Yanez received from the state of Minnesota. James Densely, an associate professor of criminal justice at Metropolitan State University and the author of Minnesota’s Criminal Justice System, believes that Minnesota’s officer training endangers civilians by stressing the key principle of officer survival over every other aspect of policing. Densely points out that Minnesota police officers are largely educated by retired officers who teach that policing is an incredibly dangerous profession despite the fact that most officers go through their career without ever firing their weapon. Densely writes:

“The fact is, policing is not especially dangerous, compared with, say, work in logging or construction, or driving a taxi, according to the Bureau of Labor Statistics. Since the 2000s, crime has declined and with it the risk of line-of-duty deaths. Indeed, police officers are many times more likely to commit suicide than to be killed by a criminal. But instructors teach what they know (or were themselves taught), perpetuating the 1990s ‘warrior’ culture of police that painted police officers as soldiers at ‘war’ with crime, drugs and criminal gangs.”

When one also considers the fact that officers in Minnesota receive on average about 50 hours of firearms training and about 5 hours of de-escalation training, it is no wonder that officers feel like their safest option is to fire their weapon. Dr. Joshua Correll, a psychologist at the University of Colorado who has explored implicit racial bias in a series of laboratory studies since 2000, supports this theory. He developed and tested a paradigm that he refers to as “the police officer’s dilemma,” using a first-person-shooter video game. Participants are presented with images of young men, white and black, holding either guns or non-threatening innocuous objects such as cellphones or soda cans. The goal is to shoot armed targets, but to refrain from shooting unarmed targets.

The researchers found that participants are more likely to shoot armed targets more often and more quickly if they are black rather than white, and refrain from shooting more often when the target is white. The most common mistakes are shooting an unarmed black target and failing to shoot an armed white target. Correll then conducted the same experiment on actual police officers. He found evidence of bias in those officers’ reaction times: they reacted more quickly to armed black targets and unarmed white targets. He also found that officers who worked in units that targeted gangs were more likely to exhibit racial bias in their decision to shoot.

Officer Yanez told the Minnesota Bureau of Criminal Apprehension that he was fearing for his life and his partner’s life, and it may be true that he was afraid, the same way it may be true that the officer who shot twelve-year-old Tamir Rice while he was holding a toy felt threatened. Still, it is more important to pay attention to why these officers felt threatened. Countless studies have shown that officers like Yanez are brought into a culture that exacerbates existing biases and makes them more likely to use a force when no threat exists. There is a long and complex history as to why police officers view African-American males as threatening forces warranting lethal force. And despite all of the strides that have been made, the issue of how to ease tensions between African Americans and law enforcement has not yet been resolved.

Today, many on both sides continue to eschew the heart of the dispute between law enforcement and the African-American community. What has become increasingly clear is that this is not an issue that should be addressed by only black people or only white people. We are now all tasked with the issue of eradicating these biases. The ultimate goal is to build safe communities with trusted law enforcement officials who feel personally connected to the well-being of their citizens. It is not a task any of us asked for, but it is nonetheless essential that we challenge it if we hope to preserve any sliver of the Constitution’s commitment that all of us are entitled to equal protection under the law.

On April 10, 2017, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath to the Honorable Neil M. Gorsuch in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Neil M. Gorsuch in the Justices' Conference Room, Supreme Court Building.  Mrs. Louise Gorsuch holds the Bible.

The Hero Republicans Needed: A Reflection on the Nomination of Justice Neil Gorsuch

On a particularly chilly Monday morning in March, the Senate Judiciary Committee began confirmation hearings for the Trump administration’s Supreme Court nominee, Judge Neil Gorsuch. The hearings came at a perfect time for the Republican Party. After a failed healthcare bill, a series of blocked executive orders, and a highly contentious standstill on the federal budget, Gorsuch’s confirmation promised to be a win for a party that had so far struggled to make the tangible changes that the president promised during his 2016 campaign.

During the confirmation, Senate Democrats did everything in their power to derail Gorsuch’s confirmation. But, as the hearings proceeded, the inevitability of confirmation became increasingly clear. During his hearing, Judge Gorsuch distanced himself from the president’s more controversial policies, insisting that he would not be a puppet of the Trump administration if placed on the Court. Prior to the hearings, Judge Gorsuch publicly criticized the president’s derision of federal judge James Robart as a “so called judge.” Gorsuch went on to comment during hearings that, “When anyone criticizes the honesty or integrity of the motives of a federal judge, I find that disheartening. I find that demoralizing, because I know the truth.”

Judge Gorsuch’s impressive credentials stacked the deck heavily in favor of the nominee from the beginning. A decade on the federal appeals bench, a rating of “well-qualified” from the American Bar Association, and the support of several legal officials who served under President Obama provided Mr. Gorsuch with the academic and professional clout to withstand even the harshest Congressional inquiry. Unlike other Trump nominees, who were forced to divert questions away from their body of work (or lack thereof), Judge Gorsuch relied heavily on his years of judicial rulings to shield himself from attempts to discredit him by Senate Democrats. One example of this occurred when Senator Diane Feinstein accused Gorsuch of never ruling for the “little guy” and favoring large corporations over private citizens bringing lawsuits. Rather than dodging the question with ideological platitudes, Judge Gorsuch began to cite a long list of holdings in which he had ruled in favor of plaintiffs who were facing far larger opposition from corporations. This response left Senator Feinstein scrambling for a retort and illustrated the power of facts in a political climate all too defined by synthetic sensationalism.

Judge Gorsuch was by no means a centrist pick for the job. His strict constructionist perspective on the Constitution, conservative approach to social issues, and Reaganesque opinions on the role of government suggest that he is a conservative judge who will likely shift the Court to the right. Judge Gorsuch’s specific opinions on many controversial issues, however, still remain unknown. During his hearing, Mr. Gorsuch on many occasions avoided committing himself to specific viewpoints. This refusal to make divisive statements on specific issues reached a climax when Gorsuch almost refrained from strongly endorsing the Brown v. Board of Education decision that desegregated schools throughout the country.

Gorsuch’s avoidance of delicate issues, while often frustrating, was also refreshing. Compared to the contentious confirmations of other Trump nominees, Gorsuch’s hearings felt civil and dignified. For a Senate that has just confirmed an attorney general who was previously deemed too racist to be a judge, an education secretary who didn’t seem to understand the debate between proficiency and growth, and a HUD secretary who doesn’t remember running for president, it is hard to raise public outcry about a mild-mannered conservative from Colorado.

Even this general air of civility, however, did not stop top Democrats from threatening to filibuster Gorsuch’s nomination. Republicans all but invalidated this threat with the so-called “nuclear option,” changing Senate rules to confirm Judge Gorsuch with only a simple majority vote.

Now confirmed, Associate Justice Neil Gorsuch’s has assumed a spot on the Supreme Court which he will likely occupy for decades. Justice Gorsuch’s nomination represents the first and most impactful victory of the Trump Presidency, a victory that will shape the direction of American jurisprudence well into the future.

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Tweeting Away Trust: Trump’s Wiretapping Allegation and its Implications for the Intelligence Community

During an early-morning tweet session on March 4, President Trump shared that he “Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory” and asked, “is it legal for a sitting President to be ‘wire-tapping’ a race for president prior to an election?”

The answer to Mr. Trump’s question is a definitive “no.” Without showing a warrant, the President does not have the unilateral authority to order a wiretap unless it is directed against non-Americans or purely overseas communications. If a sitting President were to order a wiretap of an opposing nominees’ headquarters during the height of their Presidential campaign, it could easily provoke the largest political scandal in recent memory. The very fact that President Trump would make such a claim is deeply troubling.

The media was quick to question Mr. Trump’s tweet. The president gave no evidence to back up his claims. In fact, in the days following the tweet, administration officials have distanced themselves from Mr. Trump’s language. Seeking to clarify the president’s meaning while staying true to his underlying sentiment, officials rephrased the allegation: the Obama administration had Trump Tower, or someone within it, under surveillance at some point before the 2016 election. This redacted claim seems significantly more plausible, but which parts of it are true?

Could President Obama, or his administration, have “wiretapped” Trump Tower?

Contrary to President Trump’s claim, the President does not have any authority to unilaterally order a wiretap or any other form of surveillance. Under Fourth Amendment law, a wiretap is considered a personal search, which cannot be conducted without the Department of Justice obtaining a warrant based on a showing of probable cause.

If an intelligence agency within President Obama’s executive branch, such as the National Security Agency (NSA) or Federal Bureau of Investigation (FBI), was wiretapping Trump Tower, there are two possible scenarios: a traditional court could have ordered a criminal wiretap through a Title III warrant, or the Foreign Intelligence Surveillance Court (FISA Court) could have ordered a national security wiretap. Under the first scenario, there would be probable cause that Trump or an associate had committed a crime. Under the second scenario, there would be probable cause that Trump or an associate was an agent of a foreign power, such as Russia.

It is also possible that conversations within Trump Tower could have been picked up by intelligence agencies legally without a specific warrant. When the FISA Court issues a warrant targeting an agent of a foreign power, any communication that individual has can be picked up. As revelations about communications between Russian agents and members of the transition team emerge, the likelihood that this completely legal incidental collection took place increases.

However, this would not be on par with “Nixon/Watergate” or make President Obama a “bad (sick) guy,” as Mr. Trump tweeted. If anything, such routine data collection would only affirm that the US intelligence agencies are properly monitoring adversarial foreign actors and potential threats.

In the past month, what has changed or been revealed?

Immediately after the tweets, Trump allies pointed to stories from right-wing websites like Breibart alleging a detailed FISA surveillance order. Yet these are backed by no evidence, and key intelligence officials such as former Director of National Intelligence James Clapper, NSA Director Mike Rogers, and FBI Director James Comey, have refuted the claim that any wiretap was ordered.

In a bizarre turn of events, Press Secretary Sean Spicer alleged that President Obama circumvented American law and asked the British GCHQ, the equivalent of the NSA, to tap Trump Tower. This claim has also been strongly denied, and competing claims as to whether the White House has retracted the accusation are left unresolved.

On March 22, Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee conducting the Trump/Russia investigation, announced that he has seen documents that prove that there was “some level of surveillance activity – perhaps legal” of Trump campaign officials. This claim has not been backed up by documents or confirmed by any other member of the Intelligence Committee.

What does this all mean? Where do we go from here?

The wiretap scandal will likely blow over. It’s fully possible that Trump associates were caught up in legal, incidental communication collection of foreign agents, which would speak more to who Trump allegedly associates with than the practices of the US intelligence community. However, the wiretap claims are symptomatic of larger problems that will not be resolved so easily: a fundamental distrust between the president and his intelligence agencies and a deep partisan divide between those committed to defending Trump’s claims and those willing to oppose him.

Trump has questioned the necessity of his daily intelligence briefing and frequently sends tweets questioning the intelligence community. On the flip side, there have been reports that the intelligence community is withholding information from the administration over the fear of leaks. Some have suggested that Trump is deliberately attempting to delegitimize these agencies preemptively, in case the ongoing investigation into his campaign’s ties to Russia exposes undesirable information. Regardless, coordination between the two entities is essential for national security and counterintelligence, and this deep mistrust threatens their relationship.

To make matters worse, the partisan divides between the Republican Chairman of the House Intelligence Committee, Rep. Devin Nunes, and his Democratic counterpart threaten conventional political norms and processes. Bipartisan congressional investigations have been essential to uncovering illegal activities and keeping the executive branch in check, and the distrust and dysfunctionality displayed by the Intelligence Committee may set a dangerous precedent for future investigations.

Those involved in the wiretapping allegations and investigations – the president, the intelligence committees, the intelligence community, and the media – should question what is happening and how they are responding. Prioritizing national security, functional government, and democracy is essential, and getting caught up in a President’s unsubstantiated tweets threatens these tenants of our government.

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Democracy for the Dissidents: The Legality of Flag Burning

The 1st Amendment is one of the staples of a functioning, free democracy. Yet, under the current administration, we have seen multiple attempts to undermine the freedoms of speech, expression, press, and religion enshrined in the 1st Amendment.

In November 2016, a tweet by then-President-Elect Donald Trump attacking flag burners sparked controversy related to the tension between the freedom of speech and the legality of flag desecration.

A quick review of the history of flag desecration in American history clearly illustrates the complex and contentious nature of the topic. Throughout the Vietnam war, antiwar activists often desecrated the American flag as a form of expressive, social protest. The ambiguity surrounding whether such an act was protected by the 1st Amendment lasted three decades; in the meanwhile, law enforcement and the lower courts held much of the discretionary power regarding each of the cases. The constitutional protection of flag desecration was finally addressed by the Supreme Court in Texas v. Johnson (1989), in which Johnson was arrested for violating a Texas statute that criminalized the desecration of a venerated object – a statute present in 48 out of the 50 states at the time. In a 5 to 4 decision, the Court ruled in favor of Johnson and the protestors, establishing the principle that speech or expression that is greatly offensive to the public is nonetheless protected under the Constitution. As the majority opinion of the case stated, “the principal function of free speech under our system of government is to invite dispute.” According to the Johnson majority, the Bill of Rights serves its purpose best when free speech creates unrest, dissatisfaction and controversy.

Regardless of the Court’s decision, flag desecration has always been condemned by public sentiment and political authorities. Echoing Rehnquist’s dissent in Johnson, opponents of flag burning perceive the flag as uniquely sacred because it symbolizes national unity. In response to the Johnson ruling, Congress passed the Flag Protection Act of 1989, which prohibited anyone from “knowingly” desecrating the US flag. The act was again overturned in the Supreme Court case, US v. Eichman (1990), in which the Court refused to change its interpretation of the 1st Amendment established in Johnson.

This tug-of-war culminated in six unsuccessful attempts on the part of Congress to pass a constitutional amendment allowing lawmakers to criminalize flag desecration. This political effort has proven challenging, however, since all constitutional amendments stringently require a supermajority in both chambers of Congress or the approval of three-quarters of state legislatures. Proponent of an anti-flag-burning amendment have appealed to the unique status of the American flag as a symbol for democracy and freedom that sets it apart from other viewpoints. While these inherent qualities of the flag may be present, the government should not be fully involved in the decision of which types of offensive or hateful speech warrant criminalization. In fact, the Brandenburg test, which originated from the Brandenburg v. Ohio (1969) case, allows for the restriction of speech only when the speech is “directed to inciting or producing imminent lawless action,” and/or is also “likely to incite or produce such action.” In Brandenburg, the Supreme Court ruled that even the KKK should be allowed to rally and spew hateful speech about African Americans and Jews. While the intuitive response to offensive speech or expression for most morally panicked people is to advocate for its criminalization, (consider prostitution and blackmail) these issues usually require a more comprehensive form of contemplation and foresight into other unintentional consequences of its criminalization. Beyond a matter of public safety, curbing speech deemed as offensive may have a censorial effect on viewpoint diversity and may ultimately become a mechanism of social control. In fact, the manner in which we treat offensive, absolutely repulsive speech is the test of our baseline tolerance of free speech and of people who have disparate viewpoints.

jury-box

Re-Coloring Justice: Segregation in the Jury System

In 1875, African Americans were given the right to serve as jurors. Now, nearly 150 years later, people of color are still grossly underrepresented on jury panels across the country. In 2012, almost every criminal trial in Houston, Alabama (a county composed of nearly 30% African Americans) was heard by an all-white jury. How did this disparity between the ideal — a diverse, qualified jury — and the reality begin?

The story starts with a man named James Batson, a Kentuckian accused of burglary in 1986. While the case, the crime, and even the man himself were unremarkable, the proceedings of Batson’s trial have revolutionized the way juries are created. During Batson’s voir dire, (jury selection process) all four potential African American jurors were struck from service. Batson, an African American man, was tried and convicted by an all-white jury. Resentful of the seemingly racialized treatment his jury had received, Batson appealed the decision under the 6th and 14th Amendments. Batson argued that, because the jury was not drawn from an accurate cross-section of the community, the conviction violated his right to equal protection under the law. The Supreme Court agreed. In a 7-2 decision, the Court declared that the striking of potential jurors based solely on race was unconstitutional.

Batson v. Kentucky was hailed as a landmark ruling protecting the sanctity and impartiality of the justice system from the scorn of segregation. But the truth is more complex. Only twenty-six years after Batson, North Carolina prosecutors were still striking African American jurors twice as often as their white counterparts.

In retrospect, this sharp disparity between the law and its effects isn’t surprising. While Batson initially played an integral role in alerting judges to racialized jury selection, the holding itself is riddled with loopholes. The Batson ruling applies to the pre-trial process of voir dire, during which attorneys from both the defense and prosecution evaluate potential jurors for biases and competence. After this questioning session, attorneys can dismiss jurors for personal relationships with the defendant, financial interests, or other types of bias. These dismissals, called “for-cause” challenges, lay the groundwork for an impartial jury. After both sides have used their for-cause challenges, however, each is issued a certain number of peremptory challenges as well. Peremptory challenges, which have been an element of the US court system since its inception, allow attorneys to strike jurors without having to issue a reason. These are the kind of strikes that the prosecutor in the Batson case — and prosecutors across the country — used to eliminate African Americans from the jury before 1986. Enthusiasts of the peremptory strike system note that, if both prosecution and defense have a hand in shaping their ideal jury, both are more likely to accept that jury’s eventual ruling. Skeptics, however, question whether the system — without the accountability of giving a reason for dismissal — is ripe for racialized exploitation. The Batson ruling was an attempt to quell these criticisms, but its shaky structure hasn’t made judicial discrimination any harder. After the Supreme Court ruling, attorneys facing a “Batson objection” for racial discrimination in jury selection simply had to provide separate, non-racial reasons for striking jurors. And they did.

The failure of the Batson ruling to accomplish its goal of equitable, diverse juries begins with its ambiguity. The law reads that an attorney (usually a defense attorney) alleging racial discrimination with a Batson objection must rely on “suspicious questions or statements” made by opposing counsel to prove intent. This is an incredibly high bar to meet. Even if the prosecuting attorney were deliberately striking all African American jurors, finding and eliciting racialized statements from their voir dire session would be nearly impossible. After such statements are offered, the prosecution still has a chance to provide counter-evidence during rebuttal. Faced with an objection, the opposing attorney may offer race-neutral reasons for excluding certain jurors. By law, these reasons need not be “persuasive” or even “plausible.” They merely need to be “valid” at face value. This low bar, according to an Illinois Court of Appeals judge, has turned Batson objections into a “legal charade,” with attorneys concocting all sorts of race-neutral reasons to successfully strike an African American juror. If these excuses can be proven true from the juror’s answers during voir dire, a judge must accept them as race-neutral, however ridiculous they may seem.

There is a myriad of evidence confirming that prosecutors exploit the peremptory strike system to disproportionately exclude African Americans jurors. The Equal Justice Initiative, an Alabama-based law firm providing pro bono representation to clients on death row, spent two years reporting on the use of peremptory strikes in eight different Southern states. The report found frequent and pervasive use of racially-motivated strikes, particularly in serious criminal and capital cases. In each case, “non-racial” reasons were used by prosecutors to justify the strikes. Such reasons varied from a juror’s “dyed hair” to their “low intelligence”. In Jefferson Parish, Louisiana, African American jurors were struck three times as often as white jurors, and prosecutors were using 83% of their peremptory strikes to exclude black jurors. The consequences of these exclusions are rife. Relative to diverse juries, racially homogenous juries — particularly all-white — deliberate for far less time per case and convict far more frequently. In a ten-year survey of Florida jurisdictions, all-white juries were found to be much more likely to convict black defendants than white defendants. When just one African American juror was included, however, the conviction rates for black and white defendants became nearly identical. Racially diverse juries are more precise and deliberative. How, then, do we codify diversity into law?

Legal luminaries spanning the spectrum have proffered Batson reforms, from small language changes to eliminating peremptory strikes entirely. Some attorneys have suggested flipping peremptory strikes on their head, allowing peremptory inclusions as well as exclusions. Under this proposal, each counsel would be allowed to include a certain number of jurors who are exempt from challenges. This would invariably create a messier, longer voir dire, with attorneys disputing both challenges and inclusions. Other reformers have argued for using racial quotas based on locality demographic data. While such quotas might improve diversity, they would undoubtedly complicate finding jurors and result in considerable administrative backlog. Alternatively, Justice Thurgood Marshall proposed an end to all peremptory strikes. Because peremptory strikes are so deeply interred in American jurisprudence, however, this proposal seems ultimately impractical. A Northwestern law professor recently proposed a creative proposal for a “blind” voir dire process, in which carefully-designed surveys written by prosecution and defense automatically strike biased jurors based on quantitative answers rather than attorney preference. This proposal seems promising and merits further consideration.

Ultimately, racialized jury selection is an issue that runs far deeper than the letter of the law. Implicit bias and tacit toleration of discrimination are stubborn realities that color not only our judicial system but all the ways we think and act. Unconsciously prejudicial behavior is not a matter we can legislate away. For now, though, improving Batson and the legitimacy of our courts are certainly ways to start.

 

Cameron Beach is a first-year Trinity student from Chicago, Illinois. She plans to study Political Science, Economics and Education. Cameron is a U.S. Law columnist.