Jim Crow in the Jury Box

News that blacks are systematically excluded from juries in the South signals the need for a full investigation by federal authorities.

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For many Americans, a notice to appear for jury service is an annoyance. Being selected for a jury can mean days off work with only a tiny stipend, listening to the details of lurid criminal activity or the mind-numbing medical testimony in a personal injury case. Many people selected for jury service ask to be excused. Lawyers joke among themselves about the variety of creative excuses offered by potential jurors--from ''my daughter's having a baby'' to that mysterious but unverifiable ''business trip'' that would interfere with full participation. But according to a report released earlier this week, one segment of the population need not worry about the inconvenience of serving on a jury. In some parts of the country, they won't be selected anyway.

According to a comprehensive report released by Equal Justice Initiative, the Alabama-based criminal civil rights organization, African Americans are consistently excluded from jury service in jurisdictions throughout the South. The numbers are staggering in some southern counties. For example, according to the report, between 2005 and 2009, 80 percent of eligible African Americans were removed from jury service in Houston County, Alab., where the population is 27 percent African-American.

The culprits here are prosecutors, and their use of peremptory challenges, which allow them to remove a certain number potential jurors for any reason at all. In too many instances, prosecutors use peremptory strikes to target African Americans, especially in homicide cases involving black defendants. In one judicial circuit in Georgia, prosecutors used 83 percent of their peremptory strikes to remove African Americans from juries. The figures are similar in Dallas County, Alab., where prosecutors used 79 percent of their peremptory challenges to exclude black potential jurors.  Prosecutors may give the illusion of racial inclusion by allowing one or two black jurors to serve. But as the EJI report points out, in jurisdictions like Louisiana, this is still tantamount to preserving all-white juries because Louisiana allows convictions by a less than unanimous jury verdict. A criminal defendant can be convicted if 10 of 12 jurors vote to convict. As a result, although Jefferson Parish, La., is 23 percent black, ''there is no effective black representation on the jury'' in 80 percent of the parish's criminal trials.

Judges who oversee jury selection are also part of the problem. Using peremptory challenges to target black jurors was outlawed by the Supreme Court in 2006 in Batson v. Kentucky. But when defense attorneys challenge prosecutor's racially disparate juror strikes, the likelihood that they'll prevail is slim. Instead, trial judges often accept the ''race-neutral'' reasons proffered by prosecutors.  The EJI report documents prosecutors excluding a black man in Mississippi because he ''looked hostile,'' and an African-American engineer ''because she was 'inattentive' and dyed her hair.'' As recently as 2007, the Mississippi Supreme Court acknowledged the ongoing problem with ''racially motivated jury selection'' in state courts.

Racial stereotyping figures prominently in the removal of African Americans from jury service. In South Carolina, a black woman was struck from the jury pool because, the prosecutor argued, she was ''somewhat aged.'' The judge agreed that that the 43-year-old potential juror was ''sluggish.'' In a stunning and flagrant example, a district attorney explained that he removed so many blacks from serving on a jury in a capital case involving a black defendant, because he believed that many of the black potential jurors were of ''low intelligence.'' After multiple appeals, the black defendant was granted a new trial--more than 20 years after he was first convicted by an all-white jury.

The EJI report's shocking presentation of the systematic exclusion of blacks from jury service throughout the South cries out for investigation by the Department of Justice.  Assistant Attorney General Tom Perez should launch an immediate investigation into the abuse of peremptory challenges by southern prosecutors.  And where is the U.S. Civil Rights Commission? One of the commission's core functions is ''to study and collect information relating to discrimination or denial of equal protection of laws.'' Its most important power is its ability to hold hearings and issue subpoenas compelling testimony and the production of documents.  This year, that authority has been exercised exclusively in hearings devoted to the still-Republican-dominated commission's obsession with the Department of Justice's decision to drop a Bush-era case against the new Black Panther Party.  The commission should initiate hearings throughout the South to fully document the prevalence of the practices described in the EJI report.  Certainly, the EJI report raises questions that the Civil Rights Commission should seek to answer. Is the racial exclusion documented in the report limited to the South or do these practices also exclude blacks from jury service in other regions in the country? Are there actions that should be taken against prosecutors in particular counties? What has been the response in states like Mississippi where the state Supreme Court has aggressively rejected and spoken out against the use of racially motivated peremptories? Is there evidence that prosecutors' offices are training their lawyers to regard blacks as undesirable jurors? What is the state of judicial education about constitutional peremptory practice?

The EJI report documents an ongoing and systematic attack on the citizenship rights of blacks in counties throughout the South. Today, 127 years after the Supreme Court's decision in Strauder, federal authorities must make a firm and forceful effort to ensure that local jurisdictions adhere to the letter and spirit of the 14th Amendment. And African Americans who are called to jury service anywhere in the country should refrain from making excuses. We should enthusiastically seek to participate in this most important and long-fought-for exercise of full citizenship.

Sherrilyn Ifill teaches at the University of Maryland and writes about the law for The Root.

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