The One Place Colorblindness Will Benefit Black People: America’s Courtrooms. The Supreme Court Should Take Note

Black people usually recoil when we hear a white person say, “I don’t see color,” and with good reason. It usually denotes a form of racial denialism, at best, and a subtle, yet clear implication that there is something wrong with race, and specifically, something wrong with being black.

But there is one venue that can use a lot more colorblindness: the American criminal courtroom, particularly concerning the makeup of juries.

It would have greatly benefited a man like Curtis Flowers, who is at the center of one of the most intriguing criminal justice cases to reach the Supreme Court in recent memory. Flowers was tried six times for the same crime. The racial makeup of the juries he faced, as well as the prosecutor’s use of race, played a critical role in his eventual placement on death row.

Flowers’ case isn’t typical, given that throughout much of the country, more than 90 percent of criminal cases are settled before they reach trial. And almost none are tried so many times after hung juries and overturned convictions. But it will lay down a marker for how race can be used in the justice system. Most black defendants settle on plea agreements, in large part because they (rightly) believe juries are often stacked against them. If that barrier is removed, and the system reformed, there will be less reason for innocent defendants to plead guilty—or even confess—to try to avoid potentially long prison sentences. It can also take away some of the sting of a prosecutor’s decision to overcharge defendants in hopes they won’t fight the charges.

I’m not talking about the phony kind the court system currently practices, as illustrated by the statue of a blindfolded woman. I’m talking about the kind that can level the playing field for black defendants by protecting them against implicit—and explicit—racial bias.

The system must stop allowing prosecutors and defense attorneys to have the names of potential jurors. And it must outlaw the practice of allowing them a certain number of peremptory challenges (depending on the state) as potential jurors sit in the same courtroom, making race a prominent, if unspoken, feature of jury selection. Prosecutors routinely strike potential black jurors from the jury pool, even while using non-racial fig leafs for excuses so as to not trigger a so-called Batson violation. A prosecutor where I live, in Horry County, South Carolina, said he tries to exclude young black men from juries when the defendant is also a young black man. He believes that’s not racist because he is happy to seat older black men in judgment of younger ones. He thinks older black men are more likely to find young black men guilty because an older black man will be disappointed in the younger one for getting into trouble, the prosecutor told me. In my native state of South Carolina, a prosecutor said he dismissed a potential black juror because he “shucked and jived,” and our justice system was cool with it. I’m not making that up.

In 1986, the Supreme Court outlawed the use of peremptory challenges that are based on race, ethnicity or sex. But the standard is so incredibly vague—a prosecutor essentially has to say, “Why, yes, judge, I’m kicking him out of the jury pool because I’m racist and because he’s black” in order to be in violation of Batson—it is essentially worthless, offering little to no protection against racism, intentional and otherwise, in the courtroom. That’s because court officials know it is practically impossible to prove the “subjective intent inside someone’s mind.” It matters because the racial makeup of a jury can have a profound effect on a case, as has been made clear in the prosecution of Flowers.

Legal scholar Adam Benforado laid out a persuasive case for radical criminal justice reform that accounts for implicit and other kinds of biases in Unfair: The New Science of Criminal Justice.

This is what he said on NPR during an interview:

[HOST]: There’s a lot of interesting stuff here about how jurors decide who they’re going to believe at trial – prosecutors, witnesses. And a lot of people would not be surprised to find that there are studies that suggest people are more likely to believe a person of their own race. There’s other fascinating stuff. Are attractive people or thin people more likely to – or confident people – more likely to be believed in court?

BENFORADO: Yeah, there is evidence that a lot of physical features play a big role in whether people treats a particular witness as credible or not credible. And that’s worrisome. But I think there’s actually a deeper problem with jurors and that is that the things that we think are determining the outcomes of cases – that is the facts and the law – are often not what determines whether someone is convicted or not convicted, how long a sentence is. What matters most are the particular backgrounds and identities of the jurors.

How to avoid the use of race during jury selections? Simple. Take a cue from the experience of America’s orchestras. Just as orchestras went to blind auditions when it became clear women were being discriminated against, despite their talent and expertise, the American court system should adopt something similar—blind jury selections. No more allowing prosecutors to throw potential jurors out of the pool because they don’t want too many black people on the jury, even as they claim race has nothing to do with their choices.

Orchestra selection committee members also declared they were only judging musicians on their ability. That turned out to not be true. After blind auditions were implemented—meaning they could only hear the music being played on the other side of a partition and could not see who was doing the playing (think of a precursor to The Voice)—the process “increased the likelihood that a female musician would advance to the next round by 11 percentage points. During the final round, “blind” auditions increased the likelihood of female musicians being selected by 30 percent.”

But the system can’t stop there. It would also need to assign each potential juror a number so prosecutors and defense attorneys won’t even have access to their names—because we know names can also trigger implicit bias. And we would need to make sure the jury pool is diverse. We can do that with the kinds of reforms that are happening in Florida, which makes sure former felons are no longer permanently banned from voting (such laws disproportionately affect black people because black people are often on the wrong side of racial disparities within the justice system), except under extreme circumstances, as well as mandating voter registration when a person turns 18. Jury pools are often drawn from the voter registration rolls.

In other words, we need to stop relying upon the goodness of a prosecutor’s heart, or weak racial discrimination protections, if we really want to get closer to racial equality. Taking the decision out of their hands—and heads—is one way to guarantee we will get at least a step closer to that goal.

In the case of Curtis Flowers, the ridiculousness of the current system has been laid bare. Flowers was tried six times for the same offense, which stemmed from a brutal multiple killing. Journalists for the podcast In The Dark found that the prosecutor used his peremptory challenges almost exclusively on potential black jurors, was found to have violated even the weak-tea Batson requirements—and was still allowed to keep prosecuting Flowers.

Not only that, In The Dark discovered that every single white juror over the course of six trials found Flowers guilty, while the 11 black jurors who served during that time period split on his guilt or innocence. When Flowers was fortunate enough to have gotten a truly diverse jury in one of his cases, it ended in a hung jury. But because of the way we allow race and racism to continue infecting the criminal justice system, Flowers now sits on death row, hoping the same court system that allowed this injustice to unfold over several years will undo some of the damage it has already done.

Here’s how the Equal Justice Initiative detailed the case:

A study by American Public Media’s In the Dark podcast series found that, during the 26 years that Mr. Evans was district attorney, prosecutors struck prospective black jurors at nearly four and a half times the rate of white prospective jurors. The series’s second season casts doubt on much of the State’s evidence against Mr. Flowers, who has always maintained his innocence.

As Mr. Flowers’s case demonstrates, nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.

With a truly colorblind jury selection process, no prosecutor would ever be able to get away with this kind of injustice again. It wouldn’t solve all the system’s problems. But it would be a good start.

I know it’s asking a lot of a “justice” system apparently OK with a man being put to death in a case that involved a juror who called him a “nigger,” as well as a Supreme Court that turned a blind eye to proven racial injustice because it might be really difficult to root it out. Still, we must ask. And push—and hard.