Let’s say you’re a Black woman who regularly takes time out of your work week to serve on the county jury when your circuit court mails you a jury notice. You resign yourself to the pay cut and uncomfortable courtroom pews, and you prepare to endure the both-sides litigation of prosecutor and defense for a few days.
You survive the weeding process, as attorneys remove jurors they suspect of bias and dismiss candidates with schedule or health conflicts. Two days later it’s just you and a jury of county neighbors. Then for three days, you all patiently take in every bit of information two teams of attorneys throw at you, from opening arguments to closing statements, and every scrap of information in between.
After hearing the evidence, let’s say you and the others on the jury determine it is highly likely the defendant committed the serious felony the prosecution alleges. He might have a history of violence, and he has a possible motive, according to police. Phone records also show he was in the area at the time of the crime. So you and the rest of the jury deem the man guilty of the crime, and you go your separate ways.
The “fun” isn’t over for the newly convicted man, however. If your county lies within a death penalty state—and the crime for which the defendant is convicted qualifies for the death penalty—a second jury gets to come in and decide whether the death penalty should apply.
You, a Black woman, will not likely be there.
“This is because of a process known as death qualification, which dictates that to serve on a death penalty jury, a prospective juror must be willing to impose the death penalty,” says Brian Stull, senior staff attorney with the ACLU Capital Punishment Project. “Those unwilling to impose the death penalty are excluded from jury service.”
In the eyes of attorneys, this includes you and most other Black women, because you are far too thoughtful. As a Black woman, you might be a little too sensitive to the nation’s ugly history of railroading Black defendants into the electric chair, gas chamber or hanging noose. It probably doesn’t even matter to you the defendant in your case was white. There are other things about you, too. Unlike some of your white peers, you might be wary of the fact that the man you just convicted has a history of mental illness and child abuse in his early years. Didn’t his defense team make clear how badly his mom’s boyfriend hurt him when he was 5? Didn’t you have a cousin who went through that? And what about the guy’s bipolar disorder? Aren’t two of your own friends struggling with depression and mental illness every day of their lives?
And what about the claim the police made during testimony? Didn’t the defense team show how one of those cops changed his statement to match his partner’s account after his second report? What if more information comes to light later showing the first cop had a grudge against the defendant or was just sloppy? A death sentence could mean there’s no room for fixing bad information later. Things like this matter to you, and there’s a chance it would keep you from easily approving a death penalty for the very same person you just convicted three days ago. That is precisely why the court system wants that complex, nuanced, Black woman mind of yours off a death penalty jury. You, madam, will complicate things—particularly in Kansas, according to attorneys.
“I find that Kansas prosecutors have disproportionately exercised peremptory strikes against Black jurors … and relied upon racial stereotypes to justify their strikes,” wrote U.C. Berkeley School of Law clinical professor Elisabeth Semel. “I found that in more than half of the cases, the prosecutor struck at least half of the jurors of a cognizable minority race or ethnicity from the panel, and, in at least one third of the cases, the prosecutor struck every member of a cognizable minority racial or ethnic group from the panel.”
Semel also concluded Kansas prosecutors frequently relied upon explanations that correlate with racial stereotypes deemed impermissible in other states. Additionally, their methods are in direct violation of Batson v. Kentucky, which expressly forbids prosecutors from whitewashing Kansas juries. Semel also noted “there is only one published Batson decision in Kansas reversing for the wrongful exclusion of a juror of color,” so there is little evidence that courts are applying the Batson rule to jury selection.
“In death penalty cases, juries are rigged to be more conviction-prone, friendlier to the prosecution, and to exclude Black community members,” claims the ACLU, which filed a challenge to the death penalty law in Kansas this year. “… Black people are more likely to oppose the death penalty — and as a result, are disproportionately excluded from death penalty juries.”
The ACLU claims the ghoulish personality preference of death qualification juries noticeably altered the composition of juries in Sedgwick County, Kansas, and “[put] a thumb on the scales in favor of the death penalty, while disproportionately excluding Black women.”
Kansas prosecutors, like historians and statistical experts in Kansas v. Kyle Young, are aware Black people know the “undeniable line from lynching to the death penalty” and that the Kansas capital punishment system, like those in other Southern states, is the legacy of more than 150 years of racial violence against Black residents.
Black U.S. residents are overrepresented in the criminal legal system, with Black people incarcerated at roughly five times the rate of white people. Executions happen more frequently to Black prisoners overall, and the killers of Black people are less likely to be executed, say sources. Segregated schools and segregated neighborhoods contribute to the problem by depriving Black children of resources and helping to funnel them into the justice system.
The ACLU claims the death penalty “is just the culmination of a (bigger) system designed to oppress Black people,” and by “challenging it, and ultimately ending it, we will chip away at racial oppression and move toward justice.”
Other arguments joining the “whitewashed juries” dispute includes the claim that the death penalty is arbitrary and discriminatory in nature and violates the prohibition on cruel or unusual punishment. It doesn’t even deter crime, according to critics, and separating and processing death row people from the rest of the prison population is prohibitively expensive. Kansas hasn’t even killed anybody on death row
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