America Really Is Exceptional

The Times has an utterly unsurprising story on jury selection in many Southern states. Because the requirement for a race-blind reason to reject a juror is basically “you can’t say you’re rejecting him because he’s black,” prosecutors find all sorts of obviously bogus reasons to reject as many black jurors as possible when they are prosecuting black defendants:

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases

One way of dealing with these results would be to more strictly define what a “race-neutral” reason for rejecting a juror is, especially in those jurisdictions or with those prosecutors where the juries really are especially skewed in favor of white jurors. But the system we have, where prosecutors and defense attorneys have a huge role to play in jury selection isn’t necessarily the right one, or the one that other countries use. As Kevin Drum suggests, we could just pick 12 people at random and let judges ensure that no one has a really blatant reason for not serving.

This is just another weird part of our justice system — like electing judges, widespread use of exclusionary rules, the existence of for profit bails bondsmen, our huge number of prison inmates or one-sided expert witnesses — that we take as totally normal, but are actually pretty weird in the international context. Alas, I hardly see legal reformers using “but they do it differently over there” as a successful rallying cry.