The Jim Crow Jury

Abstract

Since the end of Reconstruction, the criminal jury box has both reflected and reproduced racial hierarchies in the United States. In the Plessy era, racial exclusion from juries was central to the reassertion of white supremacy. But it also generated pushback: a movement resisting “the Jim Crow jury” actively fought, both inside and outside the courtroom, efforts to deny black citizens equal representation on criminal juries. Recovering this forgotten history — a counterpart to the legal struggles against disenfranchisement and de jure segregation — underscores the centrality of the jury to politics and power in the post-Reconstruction era. It also helps explain Louisiana’s adoption of non-unanimous criminal juries, which remain in use today.

The Jim Crow jury never fell. Over a century later, state-sanctioned racial discrimination in jury selection remains ubiquitous, and the racial composition of juries continues to shape substantive trial outcomes. This Article examines over 13,000 peremptory strikes in recent criminal trials in Louisiana and demonstrates that race continues to drive the selection of jurors. Additionally, by examining the racial breakdown of 199 recent non-unanimous verdicts, this Article provides an unprecedented measure of how race enters into jury deliberations: viewing the same evidence in courtroom settings, black and white jurors regularly came to starkly different conclusions about guilt and innocence.

The legal system’s current permissive approach to racial bias and the jury perpetuates this tradition. Recent Supreme Court cases, even those granting relief to criminal defendants, fail to meaningfully grapple with this entrenched history of exclusion. But aggressive measures to counter racial bias in the jury system are needed now more than ever; at the very least, the most overt relics of the original Jim Crow jury era — non-unanimous juries — should be declared unconstitutional.