The Bill of Rights is the nickname for the first ten amendments to the U.S. Constitution. You can probably rattle off at least a few of those, especially the First Amendment, which guarantees the freedoms of speech, religion, petition, assembly, and the press. Believe it or not, today is the Bill of Rights Day, a time to observe the place these freedoms hold in our laws, society, and politics. This doesn’t mean, however, we can’t highlight where they still fail us.
The Sixth Amendment involves several courtroom rights for defendants, including the right to face one’s accuser, the right to a fair and speedy trial, and the right to counsel. Perhaps most famously, the Sixth Amendment promises a jury of one’s peers.
When it was written, “peer” most likely meant other citizens. Today, it’s come closer in meaning to “equitable.” After all, the Sixth Amendment additionally guarantees an “impartial jury,” and the best way to guarantee a fair trial is to build it with a diverse cast. In other words, an equitable jury limits the courts’ ability to inflict its inherent prejudices on defendants it has sworn to treat fairly.
We’ve seen the opposite scenario play out all too often.
An all-white jury acquitted the murderers of Emmitt Till in 1955. Before that, in 1932, an all-white jury sentenced the Scottsboro Boys, who had been falsely accused of sexually assaulting white women. No matter their racial makeup, juries aren’t perfect. But these are just two examples of a grim reality faced by defendants of color everywhere. Attorneys’ best weapon to stack juries is the peremptory strike, or the right to challenge a juror without reason. Both the defense and prosecution are allowed a few peremptory strikes to use at their discretion without ever needing to justify them.
In Batson v. Kentucky, the Supreme Court took notice of this weapon. In that cause, a prosecutor used his peremptory challenges to remove all four Black candidates from the jury pool before going on to obtain a guilty verdict against the Black defendant. The Supreme Court ruled that the equal protection clause of the Fourteenth Amendment, the root of desegregation, preempted such peremptory strikes. From then on, both prosecution and defense couldn’t use their challenges in a way that guaranteed anything but an impartial jury – especially as it related to race.
Our judicial system has not lived up to that promise.
This has created a vastly disparate system. A 2020 UC-Berkeley study found that in California, prosecutors used peremptory strikes to expel Black jurors 75% of the time, Latinx jurors 28% of the time, and white jurors only 0.4% of the time. A 2018 study found that in North Carolina, appellate courts have never reversed a case due to minority juror discrimination. Several other states have similarly ignored the spirit of the Court’s ruling in Batson without genuine consequences.
Our judiciary also boasts inequity in its staff. In Nevada, a state where minorities constitute 51% of the population, the entire Supreme Court is white. Every appellate judge in Alabama is white too, despite the state being 35% nonwhite. Almost half of all states have all-white supreme courts, including 11 in which people of color amount to over one-fifth of the population.
Despite Supreme Court rulings, statutory limitations, and massive demonstrations, not enough has changed since the days of Emmitt Till and the Scottsboro Boys. An overreliance on Supreme Court rulings creates doubt and debate where we cannot afford either. Our criminal justice system is rigged against minorities, as its amendments demonstrate. The groups of people with the most control over the accused’s fate – the judges and the jury – are almost never representative of the overall population.
This is what we mean by “systemic” racism. Neither our institutions, nor our laws, are built to propagate equity, but rather the status quo. Until we address even the smallest expressions of this discrimination, equality will elude us.