Batson’s Unfulfilled Promise: Curtis Flowers and Racial Exclusion in the Jury Selection Process

Six trials, one alleged crime, one defendant. Each of the trials was either successfully challenged for prosecutorial misconduct or resulted in a hung jury. Meanwhile the defendant, an African-American man named Curtis Flowers, has been on and off death row since 1997—and none of the four juries that have convicted him had more than one black juror.

Thirty-three years ago today, the Supreme Court ruled that intentionally striking people from a jury because of their race violates the equal protection clause of the Fourteenth Amendment. The decision, Batson v. Kentucky, purported to counter decades of Jim Crow-era systematized racism in the criminal justice system and has been interpreted to lay the foundation that a single peremptory strike (the striking of a juror for an unenumerated reason) could be challenged as discriminatory.

The Batson Court recognized the damage to democracy imposed by systematic racism within the criminal justice system. Justice Lewis Powell wrote: “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposely exclude black persons from juries undermine public confidence in the fairness of our system of justice.” As Justice Thurgood Marshall likewise noted in a previous case, “Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.”

Cases like Curtis Flowers’s, though, show that the jury selection process is far from fixed.

In Flowers’s first three trials, the juries—empaneled in a town that is majority African-American—were nearly all-white. The guilty verdicts (and death sentences) resulting from these trials were all overturned by the Mississippi Supreme Court because of misconduct on the part of District Attorney Doug Evans. In the third trial, the Mississippi Supreme Court held that Flowers proved “as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.”

Flowers was then tried by two juries that included multiple African-Americans—both of which resulted in mistrials, as the juries could not decide on a verdict. The U.S. Supreme Court is currently considering whether Doug Evans unconstitutionally struck African-American jurors on account of their race in Flowers’s sixth trial. Meanwhile, Curtis Flowers enters his twenty-second year of criminal prosecution.

The numbers themselves are striking. During the sixth trial, Evans asked the empaneled white jurors 12 questions on average, while he asked the five prospective black jurors who were struck from the jury 145 questions. During the empanelment of the six juries, Evans used 41 out of 42 peremptory challenges to strike African-Americans from the jury pools. The racial discrimination apparent in this case not only violates Flowers’s constitutional rights, but also those of the eliminated jurors—both of which were rationale for the Court’s 1986 Batson decision.

Although Curtis Flowers’s experience is particularly disturbing, it is not unique. Racial discrimination in jury selection remains not only rampant but “central to the selection of criminal juries,” according to a 2018 study’s evaluation of seven recent empirical studies. According to the NAACP Legal Defense & Educational Fund’s amicus brief, studies have found that North Carolina’s prosecutors have struck black jurors from death penalty cases 2.5 times more often than non-black jurors, Louisiana strikes black jurors more frequently when the defendant is black, and South Carolina excluded black jurors from capital cases almost three times more often than white jurors. Prosecutors frequently exclude black jurors, making up ostensible race-neutral reasons when faced with Batson challenges to cover up their unlawful discrimination. Often, these pretextual reasons are upheld by trial courts.

Inextricably entwined with racial exclusion within jury selection is the death penalty’s racially disparate use: African-Americans make up 42 percent of inmates on death row, more than triple the percentage of African-Americans in the US population. The disproportionate representation of black defendants on death row stems from systematic racial disparities in charging, sentencing, plea bargaining, and jury selection. Much of Flowers’s adult life has been spent on death row—representing just one example of states’ racially disparate targeting of black men for execution.

On this anniversary of Batson, we must remember its promise of improving public confidence in the fairness of our system of criminal justice—and striving to engender a truly just system. We must also recognize that our federal courts play a central role in our country’s ongoing struggle for a future when our Constitution’s ideals are applied equally to all.