JUSTICE ON THE BENCH?

Chapter Six
JURY SELECTION
Strauder vs. West Virginia (1880)
 USSC struck down a state law limiting eligibility for jury service to white
males (violated the equal protection clause of the Constitution)
Neal vs. Delaware (1882)
 Limiting jury service to “sober and judicious” persons who were deemed
“intelligent, experienced and of moral integrity” to exclude African
Americans was unconstitutional
Norris vs. Alabama (1935) – Scottsboro case
 USSC ruled that the exclusion of blacks from jury rolls violated the equal
protection clause
Amadeo vs. Zant (1988)
 USSC reversed the conviction of Amadeo after it was revealed that the
district attorney asked the jury commissioner to limit the number of
African Americans and women on the master lists from which potential
jurors were chosen
JURY SELECTION
How do we get potential jurors?
 Registered voter lists
 DMV registration
 Property tax rolls

Racial minorities are less likely than whites to register to vote or own
vehicles or taxable property
Research indicates that racial minorities are less likely to respond to jury
summonses
Result: jury pool that over-represents white middle and upper class
persons
 WHAT IS THE BIG DEAL?
General legal thinking regarding race and jury service:
Asians are conservative
African Americans distrust cops
Latinos are emotional
Jewish persons are sentimental
Women are hard on other women
CA prosecutor claims that it is standard practice to exclude Jewish
persons and black women from juries in capital cases because they
would never vote for death
WHAT IS THE BIG DEAL?
Attorney Spence in Jackson, WY:
“In an ordinary case, most white jurors will say that black
people are more prone to crime than not. They go into
the trial assuming someone’s guilty, not innocent…
white people do not understand the black culture so they
suspect it. So you try to deal with it in voir dire. If I have
a black defendant I want as many black jurors as I can
get. This is not true for a Mexican defendant. Mexican
people want to be part of the mainstream. Mexican jurors
are not as sympathetic in civil actions” (Post, The
National Law Journal, 4/27/2005).
 STRIKING JURORS
How is a jury chosen?
Start with a pool of potential jurors – venire
Two ways we remove potential jurors during voir dire (questioning of potential
jurors)
1. Challenge for Cause
 If there is a legal reason why a person cannot serve, a potential juror will be
challenged for cause
 Unlimited number of challenges for cause
2. Peremptory challenge
 “challenges without cause, without explanation and without judicial scrutiny”
 Limited number of peremptory challenges
 Freebies – used for strategic purposes to create a more favorable jury
PEREMPTORY
CHALLENGES
Swain vs. Alabama (1965)
 USSC held that peremptory challenges could not be based on
race.
 Defendant has to show “systematic exclusion”
 Difficult to show
Swain replaced by Batson
PEREMPTORY
CHALLENGES
Batson vs. Kentucky (1986)
 USSC modified the scope of peremptory challenges by requiring
prosecutors to give "race-neutral" reasons for striking minority jurors.
Established a three-step process to investigate bias claims:
1. Initial burden of showing a suspicious pattern in the prosecutor’s jury
selection technique
2. If burden is met, prosecutor must offer race-neutral and case-related
reasons for striking the potential jurors
3. It is the role of the trial court to assess the prosecutor’s race-neutral and
case-related explanations to determine whether they were genuine or a
pretext for racial discrimination
Race, Jury Selection and USSC
Foster - USSC Case
 PEREMPTORY
CHALLENGES
Miller-El vs. Dretke (2005)
 USSC ruled that prosecutors made peremptory strikes of potential
jurors based on race
Prosecutors peremptorily struck 10 of 11 (or 91% of) African
Americans
Prosecutors used various techniques to create a primarily white jury
 Struck African Americans who answered similarly to whites but did
not strike the white potential jurors
 They asked different versions of the same questions in order to get
around Batson three-prong test
Challenging peremptory challenges
PLAYING THE “RACE
CARD”
Kennedy argues that playing the race card is “virtually always
morally and legally wrong.”
Typically used by prosecutors
 But used by both sides in criminal cases
Zimmerman case
 Zimmerman was acquitted of killing Trayvon Martin under
Stand your ground laws
RACE-CONSCIOUS JURY
NULLIFICATION
Jury nullification
 Occurs when a juror believes that the evidence presented at
trial establishes the defendant’s guilt but nonetheless votes to
acquit
 60 Minutes Segment
CONCLUSIONS
Reforms implemented since the 1930s have substantially
reduced racial discrimination in jury selection
One exception is the use of peremptory challenges
Jury selection and “playing the race card” suggests that the
system is not free from racial bias
 RACE AND SENTENCING

Chapter Seven

The Sentencing Project - Video

Mass Incarceration Visualized

"In no area of American society are
the legacies of slavery and racism more
evident than in the criminal legal
system. Despite making up only 12% of
the U.S. population, Black people make
up 50% of the country’s prison
population.“

From
Ending Mass Incarceration: Faith Communitie
s Working to Transform Justice
 WHEN DOES RACE
MATTER?
There are two types of evidence on racial disparity in
sentencing: (1) national prison statistics and (2) studies of
judicial decision-making
1. National prison statistics
In 2014:
 AA comprised 13% of U.S. population but 35.8% of state and
federal prison inmates
 H comprised 17% of U.S. population but 21.6% of state and
federal prison inmates
 Non-H W comprised 63% of U.S. population but only 33.6% of
state and federal prison inmates
WHEN DOES RACE
MATTER?
National Prison Statistics
Among inmates who were 18-19 years of age, black males
were 10 times more likely than white males to be imprisoned
National Research Council’s Panel on Sentencing Research
(1983) – “Factors other than racial discrimination in the
sentencing process account for most of the disproportionate
representation of the racial disparity in incarceration of black
males in U.S. prisons.”
WSD say most scholars contend this is still true today
 WSD say, “Not all of the racial disparity, however, can be
explained away in this fashion.”
WHEN DOES RACE
MATTER?
2. Studies of Judge’s Sentencing Decisions
 Studies show that African American and Hispanic
defendants are more likely than whites to be sentenced
and those who are sentenced to prison receive longer
terms than whites.
 WHEN DOES RACE
MATTER?
Five Explanations for Racial Disparity in Sentencing
1. AA and H commit more serious crime and have more serious criminal
records than whites
2. AA and H are more likely than whites to be poor; being poor is
associated with a higher likelihood of pretrial detention and
unemployment, both of which lead to harsher sentences (Indirect discrim)
3. Judges are biased against racial minorities (direct discrim)
4. Disparities occur in some contexts but not in others (contextual
discrim)
5. More likely to be subject to facially neutral laws and policies that
prescribe more severe sentences or sentence enhancements (institutional
discrim)
 RACE, ETHNICITY AND
SENTENCING DECISIONS
Spohn’s meta-analysis of state and federal sentencing decisions:
1. Racial minorities are sentenced more harshly than whites if they
 Are young and male
 Are unemployed
 Are male and unemployed
 Are young, male and unemployed
 Have lower income
 Have less education
Extra-legal factors (i.e., age, race, sex, educational attainment, etc.)
Interaction effects – (age x race x sex)
RACE, ETHNICITY AND
SENTENCING DECISIONS
Spohn’s meta-analysis of state and federal sentencing
decisions:
2. Racial minorities are sentenced more harshly than whites if
they
 Are detained prior to trial
 Are represented by public defender versus private attorney
 Are convicted at trial rather than by plea
 Have more serious criminal records
Process-related factors – cumulative or spillover effects
RACE, ETHNICITY AND
SENTENCING DECISIONS
Spohn’s meta-analysis of state and federal sentencing decisions:
3. Racial minorities who victimize whites are sentenced more harshly than
other race-of-offender/race-of-victim combinations
 Victim-offender dyad
4. Racial minorities are sentenced more harshly than whites if they are
 Convicted of less serious crimes (Liberation Hypothesis – slide 23 will
explain the liberation hypothesis)
 Convicted of drug offenses or more serious drug offenses
 Type of offense
Spohn, in her meta-analysis, found contextual discrimination in
sentencing
 WHEN DOES
RACE/ETHNICITY
MATTER?
Overall, Spohn found that race/ethnicity interacts with or is conditioned
by:
1. other legally irrelevant (extra-legal) offender characteristics such as
sex and employment status;
2. process-related factors such as pretrial detention
3. race of the victim/race of offender
4. nature and seriousness of the crime
DIFFERENTIAL TREATMENT
OF INTERRACIAL AND
INTRARACIAL SEXUAL
ASSAULT
“Heavier sentences imposed on blacks for raping white women
is an incontestable historic fact” (Brownmiller)
 405 of the 453 men executed for rape in US between 1930-
1972 were African Americans
 Coker vs. Georgia (1977) – USSC ruled the death penalty
unconstitutional in rape cases (up until this point, persons
could be put to death for rape/sexual assault
Research shows that African American men convicted of raping
white women continue to be singled out for harsher treatment
 Type of offense
 Victim/offender dyad
EFFECT OF RACE ON
SENTENCING FOR VARIOUS
TYPES OF CRIMES
Liberation Hypothesis
 In serious cases, sentencing is largely guided by seriousness of
crime and prior criminal record
 In less serious cases, sentencing is not clearly indicated by legal
factors which allows judges (and other CJ personnel) to consider
extralegal factors
The liberation hypothesis argues that the effects of extra-legal
factors such as victim and/or offender race on sentencing outcomes
are conditioned by legally relevant factors, particularly the severity
or the strength of the case. Where the evidence is weak or
contradictory or the offense is less severe, decision makers are
most liberated to use extra-legal factors in reaching their decisions.
LIBERATION HYPOTHESIS
Sentencing research supports the liberation hypothesis
 Racial discrimination in sentencing is confined to less serious
criminal cases
 Introduction of extra-legal factors
Think about very serious cases like homicide – criminal justice
officials are going to handle these cases by the book
 Policy all the way
 Cases, for the most part, are handled similarly because formal
policy dictates how these cases are handled
In less serious cases, criminal justice officials have more
discretion – with more discretion comes more liberation – or more
freedom to allow personal biases to influence decision-making
SENTENCING AND THE WAR ON
DRUGS:
RACE AND STEREOTYPES OF A DANGEROUS
DRUG OFFENDER
STEEN, ENGEN AND GAINEY (2005)
Steen, Engen and Gainey (2005) – see book
 Interviewed CJ officials about their perceptions of typical
drug cases and drug offenders and the factors they use to
differentiate among drug cases
Officials used three offender characteristics to construct the
stereotype of a “dangerous drug offender”
 Sex, prior record, and whether offender was using or dealing
drugs
SENTENCING AND THE WAR ON
DRUGS:
RACE AND STEREOTYPES OF A DANGEROUS
DRUG OFFENDER
STEEN, ENGEN AND GAINEY (2005)
Males with prior felony convictions who were convicted of
drug-delivery offenses involving cocaine, heroin, or meth were
perceived as more dangerous and threatening than other types
of drug offenders
AA were more likely than W to have the characteristics of the
stereotypical dangerous drug offender
SENTENCING AND THE WAR ON
DRUGS:
RACE AND STEREOTYPES OF A DANGEROUS
DRUG OFFENDER
STEEN, ENGEN AND GAINEY (2005)
“…this disproportionality, along with cultural stereotypes, makes
decision makers more inclined to expect the ‘worse case’
behavior from black offenders (especially black males) than from
white offenders.”
W’s who match stereotype are seen as atypical and will be
subjected to more judicial scrutiny
AA’s who match stereotype are seen as typical and cases are
handled in a routine fashion
 Consequently, AA’s more likely to be incarcerated than W’s
SENTENCING AND
THE WAR ON DRUGS
(CAPTIONED VIDEO IN MODULE)
Stereotypes of dangerousness affect sentencing outcomes for
African Americans in particular at state levels
 Only AA’s at the federal level (Spohn and Sample, 2008)
War waged by police in racially segregated, inner-city areas
impacts sentencing patterns
Cumulative impact of pre-trial decisions on sentencing
outcomes

"Nothing has contributed more to the systematic mass

incarceration of people of color in the United States than the
War on Drugs.“ Michelle Alexander, The New Jim Crow (2010)
SENTENCE ENHANCEMENTS
1994 VIOLENT CRIME ACT
(CAPTIONED VIDEO IN MODULE)

Three Strikes Laws

Mandatory Minimum Sentencing
Truth in Sentencing
“Racially neutral” sentencing laws are not racially neutral
 They appear racially neutral but actually produce racially
disparate outcomes
 Institutionalized discrimination
 CONCLUSION
Overall, WSD argue that racial discrimination in sentencing is
contextual
 Judicial decision-making in some jurisdictions
 Victim-offender dyad (B who victimize W)
 Seriousness of case (liberation hypothesis)
 Drug cases
Existence of institutionalized discrimination
 Racially neutral sentencing policies
 Sentence enhancements
Flagrant discrimination has been eliminated
Equality under the law has not been achieved