American culture is haunted by the possibility of an all-white jury considering the potential damage that a White person could do to the property or life of a Black person. It is a troubling and recurrent part of the nation’s brutal racial history, but it’s not supposed to be part of the present: In 1986, the U.S. Supreme Court issued a clear ruling that race could not be used as a determining factor when lawyers use what’s known as “peremptory challenges” to exclude individuals from a given jury.
Two high-profile murder cases involving racial factors were decided by almost all-white juries this week.
On Monday, Kyle Rittenhouse was charged with killing two protestors and injuring another. This happened during the demonstrations following the shooting by police of Jacob Blake (a Black man). (Rittenhouse’s lawyers have argued he acted in self defense.) Now, on Friday, a jury of 11 white and one Black Americans is set to begin considering charges against three white men in connection with the shooting death of Ahmaud Arbery, a Black man killed while jogging in Brunswick, Ga., last year—even though the judge himself noted that the jury selection process appears to have involved “intentional discrimination.” (The defendants’ lawyers have argued they were attempting to make a citizen’s arrest.)
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Samuel Sommers is the chair of Tufts University Department of Psychology. He studies race inequalities and their elimination in institutions like the criminal justice system. I first encountered Sommers and his research in 2013 while waiting for the jury’s verdict in the trial of George Zimmerman over the shooting death of Trayvon Martin. The jury in that case acquitted Zimmerman—an outcome that Sommers told me, hours before the verdict, was made far more likely by the jury’s mostly white composition, even though many observers expected the all-female jury to convict because a child had been killed.
In fact, in the years before and after the Zimmerman trial, Sommers’ research and that of others has shown that a host of structural factors have rendered the all-white or nearly-all-white jury a relatively common and important feature of the modern American judicial system. One study published this year, for example, confirmed that American juries often don’t look much like increasingly diverse America. The median sentence given to Black defendants was also increased by the over-representation white suburbanites on juries.
As the Arbery in Glynn County begins Friday, there are many factors which can lead to less representative juries. As in many other areas of the nation, there are whiter residents who own more homes and move less often. This makes it easier for them to send a summons to the jury by post. Problems are compounded by policing, as well as the fact that Georgia juries cannot accept individuals who are currently on probation/parole, or for minor infractions. Black Glynn County residents make up almost 27 % of that area’s population—meaning that a racially representative jury would include three Black people—but about 53% of those on probation or parole.
Sommers discussed the implications of the Glynn jury’s composition for the Arbery trial. She also explained the reasons why all-white juries continue to be so popular and what that means. This interview was edited for clarity and length.
TIME: What was the first thing that came to your mind when you learned of the Georgia case involving Ahmaud Abery’s death?
Summers What immediately comes to your mind? These are common situations. This happens all the time. It is not unusual, unfortunately, that juries do not feel like they’re particularly representative of the communities from which they are drawn. And, in particular, it’s often that the juries are whiter than the communities from which they are drawn.
An attorney cannot base a peremptory question, or a removal form the jury on race. As you can see in the case, the judge said, “I feel like my hands have been tied.” Defense is capable of articulating a neutral explanation [for the potential jurors to be removed]What are you planning to do about it? Do we now know the verdict of this jury? There is no way to know. But if you’re the family of the victim here or if you’re working with the prosecution, I’m sure it’s perceived as anything ranging from disappointing to outrageous. This is not an uncommon story.
Is it predictive of the race composition of juries in terms of outcome?
The strongest predictor of a jury’s verdict is usually the strength of the evidence. Sincere. If you’ve got me on video, I’ve confessed and there’s eight witnesses and there’s DNA evidence, most juries are going to convict, regardless. However, there are many cases around the globe that fall in this gray area.
There’s evidence that a juror’s race and ethnicity is predictive to some degree of their general tendencies. There are data that suggest white jurors, more generally, across cases, are more conviction-prone, more prosecution-friendly, than Black jurors in many instances, regardless of what kind of case we’re talking about. Historisch speaking, juries that are predominantly made of white men and judge Black defendants in cases with white victims are quite punitive. Now, here we’ve got a reversal: we’ve got a predominantly white jury, judging white defendants accused of murdering a Black victim. I’ve got to believe that the [prosecutors]You will be arguing that race was a key factor in the decision. It may very well be that there’s some motivation among some of these white jurors to not just see justice done but to not be seen as someone who came back with a verdict that’s tinged by racial bias, to hold people responsible if they’re responsible.
We don’t know. What makes the jury process fascinating is no one’s in there and we don’t know. But sure, in the abstract, if you give me 2,000 cases with a white defendant and a Black victim and 1,000 cases tried with an all-white jury and 1,000 cases tried with a racially diverse jury, I’m going to bet there’s more convictions from the racially diverse 1,000 juries than from the all-white 1,000 juries, all things being equal. The case is being considered by 12 jurors. And so we don’t know.
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Your earlier observation that many juries in the United States look very much like those seated in Georgia or Wisconsin is a clue to why? Do we have something to improve about our jury system?
For sure. It is not easy to create a diverse jury pool. Many jurisdictions use records such as voter rolls or utility bills and DMV records. Underrepresented tend to be people who move around more often or who don’t own property, who are renters or who are less likely to register to vote. So some studies show that you get an underrepresentation of young people, people of color, people of lower socioeconomic status, who also frankly might feel like it’s harder for them to show up for jury duty because they have to work and their employer won’t be very understanding. And so you’ve got the whole category of issues that occur at that level.
And then you’ve got a system that still has these peremptory challenges. Even though you’re not allowed, by Supreme Court rule, to base challenges on race and gender, that’s a very difficult prohibition to enforce. It’s not hard for people to generate a neutral explanation for a challenge, to say this juror didn’t have children and I want people with children and this juror just didn’t make good eye contact with me and I didn’t get a good vibe with them.
These biases aren’t necessarily unique to the legal system, in jury service, but there are all these other things that feed the inequalities in our system to begin with. When juries are making their decisions, all of these factors become more severe and can have serious consequences.
A Georgia defense lawyer complained about the “limited number” of attorneys involved in this case. “white males born in the South, over 40 years of age, without four-year college degrees,” men he labeled “Bubba” or “Joe Six Pack,” in the jury pool. Is that “neutral”?
Yes. Let me make a few comments. One is that being a “Bubba,” is not a protected category in the United States and so there’s no requirement that they have representation on the jury. And just because you’re a 47-year-old doctor with three kids who’s been married twice, doesn’t mean you get 12 people like that on your jury. That’s not how this works.
Another thing to note is that the lawyer says that. What you’re telling me is that, yes, he’s paying attention to race and class and things like that. But he’s allowed to talk about one of those things and not the other.
What is the actual definition of “one’s peers”? That phrase is familiar to most people: your peers are eligible for a jury. What is the definition of peers under law?
You aren’t really entitled to a jury of your peers; you’re entitled to a jury Swimming poolRefer to your peers. The jury pool is supposed to represent the community from which it’s drawn. That’s the general principle. I mean, if you can show that this is a population that’s 26% Black but in the course of these eight years, the juries have been 3% Black, you probably have a pretty good case to make that something is going on.
Is there anything else people should know as they’re thinking about the fact that there are nearly all-white juries in the cases involving Ahmaud Arbery and Kyle Rittenhouse?
When juries are more homogeneous, people feel like the system’s less fair. And that’s important to consider by itself. There is some evidence to suggest that a jury of all whites and a Black defendant has a higher likelihood of being convicted than any other possible combinations.
No one’s arguing that we know what’s going to happen now because we know the jury’s racial composition, but it does matter. You can make a significant difference. And, you don’t even have to go to, “well, jurors are going to be racist” in order to think that this matters. True, it can happen. Jurors often tell racist jokes. But even absent that, I guess the point I’d want to make—I know it’s a controversial take in this country today for some reason—[is that]Race is how we view the world every day, often through a lens called the “lens of the race”. It’s the lived experience of many people in this country.
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The race of a defendant in a case, the race of a victim in the case, our own racial and ethnic identity—these things shape how we see the world around us, and here you’ve got [a case that]It isn’t a parking-meter appeal. It’s a white man chasing down an African-American jogger in his neighborhood. He ends up being the victim of fatal gunshots. This happens in a context where there are many forms of racism and some racial reckoning. It has a profound effect on how we view the world. For some people in our society that really is a challenging conclusion to wrap one’s head around. However, the science data is very clear about this point.
This is what the beauty of a jury should be. [that]In terms of decision-making and community representation, 12 heads is better than 1. So I think we have to ask ourselves, when the jury doesn’t really represent the community, when it’s not representative of those multiple viewpoints, is it really 12 heads better than one at that point? Are the juries, supposed to represent freedom, democracy, and liberty, living up to their potential?