Excerpted From: Lauren Kingsbeck, A History of Exclusion: “For Cause” Challenges and Black Jurors, 19 University of Saint Thomas Law Journal 654 (Spring, 2023) (101 Footnotes) (Full Document)


jurorsIn the fall of 2021, many Americans were shocked to learn that the Georgia jury for the trial of three white men accused of murdering Ahmaud Arbery, a young Black man, consisted of eleven white jurors and only one Black juror. Even more shocking was the judge's admission that there appeared to be “intentional discrimination in the panel” after the defense attorneys repeatedly struck Black potential jurors, yet the judge allowed the jury panel to remain since the defense attorneys were able to offer “race-neutral” arguments for excluding the potential jurors. While these events may have seemed disturbing and unusual to many white Americans, they actually reflect the incredibly common racial discrimination that occurs during the jury selection process.

This article examines the history of racial discrimination in jury selection, specifically the exclusion of Black potential jurors, and proposes ways in which the judiciary can take immediate action to increase the diversity of juries. Black Americans in particular have been long excluded from jury service, and that discrimination continues today in the form of peremptory challenges and challenges for cause. While peremptory challenges were the tool utilized by the defense attorneys in the trial of the men who murdered Ahmaud Arbery and have been subject to much criticism, this article focuses on the equally relevant and much more hidden effects of “for cause” challenges. Section II delineates the history of Black exclusion from jury service and racial discrimination in jury selection. Section III traces that history to the rise in discriminatory “for cause” challenges today. Finally, sections IV and V analyze how racial disparities in criminal history and wealth relate to challenges for cause and propose possible solutions to minimize the exclusion of Black potential jurors during jury selection.

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Although jury diversity has come a long way since 1860, the discriminatory rate at which Black potential jurors are struck both for cause and by peremptories remains a glaring miscarriage of justice. The history of racial discrimination in America that has resulted in disparate rates of arrest, criminal conviction, incarceration, poverty, and low-wage employment for Black Americans directly translates to increased removal of Black potential jurors for cause, thus contributing to the lack of diverse juries. Rather than wait for Congress or the Supreme Court to address these underlying disparities or the discriminatory use of peremptory strikes, the judiciary can take immediate action to increase the representativeness of jury panels and decrease the removal of Black jurors.

Lauren Kingsbeck is a 2022 graduate of St. Thomas School of Law. She is also a former editor for the St. Thomas Law Journal.