Racial injustice and police brutality have rightfully been front-and-center in the nationwide discussion about the inherent unfairness of our legal system. Racism infects all aspects of that system. As we continue to grapple with issues of systemic racism, it is important to shine a light on one of the low-hanging fruit of racial injustice: the jury box, and the fact that those who sit in it are rarely a true cross section of the community.
Unfortunately, in ensuring racial equity in jury selection, Massachusetts lags behind. A 1994 report by a commission impaneled by the Supreme Judicial Court to study racial and ethnic bias in the courts found that “minorities are underrepresented on juries” in Massachusetts. Almost 30 years later, this problem endures. During the last few years, multiple convictions have been reversed by the SJC based on allegations of racial bias in jury selection — prosecutors removing jurors of color at higher rates than white jurors. More broadly, data from trial courts show that seated jurors are not only predominantly white; they are disproportionately white.
For example, from January through September 2021, white people made up 71 percent of the population but 81 percent of impaneled jurors. In both absolute and comparative terms, white people are substantially more likely to be part of the jury than they would be if they were proportionally represented. Latinx and Asian American residents, on the other hand, are far less likely to be jurors relative to their representation in the state, as the Trial Court’s own data show.
This is not without consequence. In addition to the fundamental injustice of removing jurors based upon their race — which tasks disproportionately white juries to decide the fate of defendants who are disproportionately people of color — research makes clear that diverse juries are better juries. When compared with racially diverse juries, all-white juries engage in lower-quality deliberations, are more likely to make factual errors and to be racially biased, and are less likely to be perceived by the public as fair and impartial. That unfairness echoes far beyond the cases that go to trial.
What can Massachusetts do to remove the stain of racial prejudice from jury selection?
It’s a matter of both personnel and policy. This year, the Commonwealth will see (at least) three new district attorneys elected. Voters need to insist that these DAs pledge to stop the practice of prosecutors routinely using courtroom strategies designed to strike people of color from juries. They should also adopt practices used in other states that can increase the diversity of the jury pool. And they should hire line prosecutors from diverse backgrounds who would be loathe to continue the disproportionate removal of jurors of color.
The judiciary should embark on its own noble campaign. Jeffrey A. Locke, the new chief justice of the Trial Court, should prioritize racial justice in all aspects of the operation of the trial court, especially jury selection.
Furthermore, there are policy options Massachusetts should consider. First, the Legislature should pass Senate Bill 918, which would disallow peremptory strikes — allowing either side to eliminate jurors for any reason — on grounds that they are highly correlated with race. For example, prosecutors would no longer be able to strike jurors because they distrust law enforcement or have a close relationship with people who have been convicted of crime. Although litigants cannot exercise peremptory strikes because of a juror’s race, implicit bias is rampant in jury selection and permitting strikes based on these sorts of “race-neutral” reasons virtually guarantees that jurors of color will be removed more often than their white peers. Arizona has eliminated peremptory strikes altogether; California and Washington have offered a similar list of facially “race-neutral” reasons that cannot be used.
Second, Massachusetts must eliminate categorical bans from jury service that have a disparate impact on people of color. Massachusetts currently imposes a seven-year ban on jury service for anyone convicted of a felony, and it disallows noncitizens from serving on juries altogether. Both bans are unjustified, eliminating potential jurors with unique and valuable perspectives to offer and also skewing the racial composition of juries. In Maine, people are excluded from jury service only while they are incarcerated. Connecticut now requires noncitizens who are lawful permanent residents to participate in jury service.
A person should never be removed from jury service because of their race, either explicitly or implicitly. But systemic bias in Massachusetts’ criminal legal system continues to cause racial disparities in the makeup of juries. Thankfully, there are simple, no-cost steps that leaders can take, with huge benefits in terms of equity and accuracy in Massachusetts court outcomes.
Geraldine S. Hines is a former associate justice of the Massachusetts Supreme Judicial Court. Sandra Susan Smith is a professor of criminal justice and faculty director of the Program in Criminal Justice Policy and Management at the Harvard Kennedy School. Nina Chernoff is a professor at the CUNY School of Law.