The Jim Crow Jury - Vanderbilt University
Frampton Galley (Do Not Delete)10/3/2018 11:51 AMThe Jim Crow JuryThomas Ward Frampton*Since the end of Reconstruction, the criminal jury box has bothreflected and reproduced racial hierarchies in the United States. In thePlessy era, racial exclusion from juries was central to the reassertion ofwhite supremacy. But it also generated pushback: a movement resisting“the Jim Crow jury” actively fought, both inside and outside thecourtroom, efforts to deny black citizens equal representation oncriminal juries. Recovering this forgotten history—a counterpart to thelegal struggles against disenfranchisement and de jure segregation—underscores the centrality of the jury to politics and power in the postReconstruction era. It also helps explain Louisiana’s adoption ofnonunanimous criminal juries, which remain in use today.The Jim Crow jury never fell. Over a century later, statesanctioned racial discrimination in jury selection remains ubiquitous,and the racial composition of juries continues to shape substantive trialoutcomes. This Article examines over 13,000 peremptory strikes in recentcriminal trials in Louisiana and demonstrates that race continues todrive the selection of jurors. Additionally, by examining the racialbreakdown of 199 recent nonunanimous verdicts, this Article providesan unprecedented measure of how race enters into jury deliberations:viewing the same evidence in courtroom settings, black and white jurorsregularly came to starkly different conclusions about guilt andinnocence.*Climenko Fellow and Lecturer on Law, Harvard Law School. For comments, criticisms,and encouragement, I am grateful to Thomas Aiello, Angela A. Allen-Bell, Rachel Bayefsky, JackChin, Ryan Copus, Rhiannon Dowling, Daniel Farbman, Aya Gruber, Aliza Kaplan, Carolyn L.Karcher, Michael Klarman, Benjamin Levin, Reed Poole, Lawrence N. Powell, David Sklansky,Carol Steiker, Susannah B. Tobin, and Ronald Wright. Additional thanks to the dedicated andhelpful librarians and archivists at the Amistad Research Center at Tulane University, the XavierUniversity Archives & Special Collections (New Orleans), the Massachusetts Historical Society,the Manuscript Division of the Library of Congress, and the National Archives facilities inWashington, D.C., College Park, MD, and Fort Worth, TX. Henry Druschel, Mingming Feng, VailKohnert-Yount, and Charles Schully provided valuable research assistance. Finally, many thanksto the staff of the Vanderbilt Law Review (and, in particular, Nicholas Marquiss) whose editorialassistance significantly strengthened this work.1593
Frampton Galley (Do Not Delete)159410/3/2018 11:51 AMVANDERBILT LAW REVIEW[Vol. 71:5:1593The legal system’s current permissive approach to racial bias andthe jury perpetuates this tradition. Recent Supreme Court cases, eventhose granting relief to criminal defendants, fail to meaningfully grapplewith this entrenched history of exclusion. But aggressive measures tocounter racial bias in the jury system are needed now more than ever; atthe very least, the most overt relics of the original Jim Crow jury era—nonunanimous juries—should be declared unconstitutional.INTRODUCTION . 1594THE JIM CROW JURY, 1877–1900 . 1599I.A.The Integrated Jury after Reconstruction . 1600B.Fighting the Jim Crow Jury . 16041.Louisiana . 16052.Nationwide . 1609C. The Adoption of Nonunanimous Juries . 1611THE JIM CROW JURY TODAY . 1620II.A.Race-Based Challenges . 1623B. Measuring the Impact of Race on Jury Deliberationsand the Disparate Impact of Nonunanimity . 1635THE FUTURE OF THE JIM CROW JURY . 1640III.CONCLUSION . 1652INTRODUCTIONOn May 18, 1896, the Comité des Citoyens—an Afro-Creole civilrights organization based in New Orleans—suffered two losses at theUnited States Supreme Court. The first was a constitutional challengedubbed “the Jim Crow car” case; Homer A. Plessy, a light-skinnedactivist handpicked for his role by the Comité, was facing amisdemeanor charge for intentionally violating Louisiana’s SeparateCar Act. 1 Plessy v. Ferguson, rejecting a Fourteenth Amendmentchallenge to the statute, appropriately occupies a leading place in the“anti-canon” of American constitutional history. 2The second case, another criminal appeal stemming from thesame courthouse in Orleans Parish, largely has been forgotten. JamesMurray, a black man, was condemned to death by an all-white jury for1.Plessy v. Ferguson, 163 U.S. 537, 538–39 (1896).2.Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 412–17 (2011); see also Richard A.Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243 (1998) (examining the role ofdissents—particularly Justice Harlan’s dissent in Plessy—in the “anti-canon” of constitutionallaw).
Frampton Galley (Do Not Delete)2018]10/3/2018 11:51 AMTHE JIM CROW JURY1595murdering a white watchman. 3 The Comité funded a legal challenge onMurray’s behalf as part of a larger campaign to oppose the rise of whatthe organization called “the Jim Crow jury.” 4 Since 1875, federal lawprohibited the exclusion of state court jurors on the basis of race, 5 andfor a short period, these rights were enforced. 6 Two decades later,however, black citizens’ access “into the sanctum sanctorum of justice—the jury box” 7—was sharply curtailed across the South, despite doggedefforts by activists and frequent legal challenges. Murray v. Louisianawas typical of these cases: in a short opinion, the Court denied Murrayrelief, noting that at least a few black jurors made it into the large poolof prospective grand and petit jurors. 8 Two months later, “crowds fill[ed]the streets” of New Orleans to catch a glimpse of the botched execution,during which Murray’s hanging body “was racked by spasms andconvulsions” as though “in the throes of electrocution.” 9 Murray gaspedfor air for over nineteen minutes before finally succumbing. 10 Across theSouth, the exclusion of black jurors from the jury box, in tandem withthe exclusion of black voters from the ballot box, served as a key leverfor the reassertion of white supremacy.Over a century later, the jury box continues to reflect andreproduce racial hierarchies in the United States. Recent scholarshipillustrates how the legacies of Jim Crow infect and permeatecontemporary criminal justice—from surveillance and policing to massincarceration and execution. 11 And, in a reprise of the Comité des3.Murray v. Louisiana, 163 U.S. 101, 104–05 (1896).4.See infra notes 71–76 and accompanying text.5.Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 335, 336–37.6.See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in theUnited States, 61 U. CHI. L. REV. 867, 892–95 (1994) (outlining the Supreme Court’s treatment ofrights of jurors following the enactment of the Civil Rights Act of 1875); James Forman, Jr., Juriesand Race in the Nineteenth Century, 113 YALE L.J. 895, 930–34 (2003) (tracing the sparseenforcement of the Civil Rights Act of 1875 across jurisdictions).7.William Henry Grey, Address at the Arkansas Constitutional Convention of 1868 (Jan.7, 1868), in ARKANSAS CONSTITUTIONAL CONVENTION, DEBATES AND PROCEEDINGS OF THECONVENTION WHICH ASSEMBLED AT LITTLE ROCK, JANUARY 7TH, 1868, 95–96 (John G. Price, ed.,1868):Give us our rights as citizens before the law, the right of trial by a jury of our peers, —admit us into the sanctum sanctorum of justice—the jury box,—give us a fair show inthe courts. . . . The idea of giving a negro justice, in a court where . . . the jurors thereassembled are imbued with the animus of the majority of the court in the case of DredScott, and do not believe that I have any right to be protected from the encroachmentsof that class looked upon as my superiors!8.163 U.S. at 104.9.Last of Greasy Jim: His Taking off Proves a Bungling Job, TIMES-DEMOCRAT (NewOrleans, La.), July 25, 1896, at 3.10. Id.11. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGEOF COLORBLINDNESS (2011); PAUL BUTLER, CHOKEHOLD (2017); ANDREW GUTHRIE FERGUSON, THE
Frampton Galley (Do Not Delete)159610/3/2018 11:51 AMVANDERBILT LAW REVIEW[Vol. 71:5:1593Citoyens’ work, a new generation of activists is forcefully arguing forthe centrality of criminal justice reform in the contemporary movementfor civil rights. 12 But the enduring role of racial exclusion in juryselection—and the stark, outcome-determinative impact of quatelydocumented.This Article argues for the salience of these continuities. Part Ipresents new archival research resurrecting the lost history of the latenineteenth-century struggle against “the Jim Crow jury,” a movementacross the post-Reconstruction South that contested racial exclusionfrom juries. While historians and legal scholars have devotedsignificant attention to black suffrage restrictions and theimplementation of de jure segregation during the Plessy era, theconcomitant battle over the jury box has received significantly lessattention. The social and political meaning of the jury during thisperiod—and activists’ mobilization, both inside and outside thecourtroom, against the exclusion of black jurors—have gone almostentirely unexamined. 13 For both civil rights activists 14 and theirRISE OF BIG DATA POLICING: SURVEILLANCE, RACE, AND THE FUTURE OF LAW ENFORCEMENT (2017);CAROL S. STEIKER & JORDAN M. STEIKER, COURTING DEATH: THE SUPREME COURT AND CAPITALPUNISHMENT (2016); Tamar R. Birckhead, The New Peonage, 72 WASH. & LEE L. REV. 1595 (2015)(connecting the array of fee, court costs, and assessments in contemporary juvenile and criminalcourts to post-Civil War peonage systems); 13TH (Kandoo Films 2016). For an incisive andimportant critique of the limits of “the New Jim Crow” frame, see James Forman, Jr., RacialCritiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. REV. 21, 21 (2012):The analogy [presented by Michelle Alexander] presents an incomplete account of massincarceration’s historical origins, fails to consider black attitudes toward crime andpunishment, ignores violent crimes while focusing almost exclusively on drug crimes,obscures class distinctions within the African American community, and overlooks theeffects of mass incarceration on other racial groups. Finally, the Jim Crow analogydiminishes our collective memory of the Old Jim Crow’s particular harms.12. See, e.g., End the War on Black People, MOVEMENT FOR BLACK -E7U2] (“We demand an end to the war against Black people. Since thiscountry’s inception there have been named and unnamed wars on our communities. We demandan end to the criminalization, incarceration, and killing of our people . . . .” (emphasis omitted)).13. The most notable exception is Forman, supra note 6, at 897, who devotes careful attentionto examining “how various parties during the antebellum and Reconstruction eras thought aboutjuries, and especially how they thought about juries and race.” His nuanced study—whichemphasized the jury’s centrality in efforts “to protect black victims of white violence”—ends wherethis one begins, with the Supreme Court’s 1880 decision in Strauder v. West Virginia, 100 U.S. 303(1880). Id. For an excellent recent account of the racial politics of civil justice during this era,including some discussion of black jurors in civil cases, see MELISSA MILEWSKI, LITIGATING ACROSSTHE COLOR LINE: CIVIL CASES BETWEEN BLACK AND WHITE SOUTHERNERS 27–110 (2017).14. This Article uses the phrase “civil rights activists” to refer to the Comité and others likethem during this period. Although for many at the time, “[t]he right of blacks to serve on jurieswas initially conceived, alongside voting, as quintessentially ‘political’ in nature, and therefore notguaranteed by the Civil Rights Act of 1866 or the Fourteenth Amendment, both of which were
Frampton Galley (Do Not Delete)2018]10/3/2018 11:51 AMTHE JIM CROW JURY1597antagonists in post-Reconstruction America, however, the racialpolicing of the jury box was anything but secondary; this Articleunderscores the profound symbolic and practical importance of the juryafter the fall of Reconstruction. Particularly as the Supreme Courtevinces renewed interest in issues of racial bias and the jury—as it didlast Term in Peña-Rodriguez v. Colorado 15 and the Term before inFoster v. Chatman 16—this research provides some historical context forthe fraught intersections of criminal justice, the jury, and movementsfor racial equality in America.It also solves a historical puzzle with important contemporaryimplications. Oregon and Louisiana still allow nonunanimous juries toreturn verdicts in serious felony cases. 17 In recent years, there has beena flurry of scholarly and popular attention devoted to the issue ofnonunanimity in both states, 18 with several scholars observing that thepractice was first adopted in Louisiana at a Constitutional Conventionexpressly convened “to establish the supremacy of the white race.” 19 AnEqual Protection Clause challenge to the constitutionality ofnonunanimous verdicts in Louisiana, however, recently failed.Although there was “clearly . . . racist intent to disenfranchise AfricanAmerican voters through the 1898 Constitution,” a state appellate courtconcluded that the existing scholarship failed to show evidence that thecontemporaneous shift to nonunanimous verdicts was motivated byunderstood to protect only ‘civil’ rights.” Daryl J. Levinson, Rights and Votes, 121 YALE L.J. 1286,1321 (2012).15. 137 S. Ct. 855 (2017).16. 136 S. Ct. 1737 (2016).17. The original enactment in 1898 of Louisiana’s nonunanimous jury system provided thatverdicts in cases involving offenses necessarily punishable at hard labor (i.e., serious noncapitalfelonies) could be decided by a 9-3 vote. LA. CONST. of 1898, art. 116. A subsequent constitutionalconvention in 1974 altered the provision to require the concurrence of ten jurors to return a lawfulverdict. LA. CONST. art. I, § 17. But change may be underway. In May 2018, the LouisianaLegislature passed Senate Bill 243, proposing to amend the Louisiana Constitution to eliminatethe use of nonunanimous verdicts in criminal cases. The measure will go before voters in November2018.18. E.g., THOMAS AIELLO, JIM CROW’S LAST STAND: NONUNANIMOUS CRIMINAL JURY TRIALSIN LOUISIANA (2015); Angela A. Allen-Bell, How the Narrative about Louisiana’s Non-unanimousCriminal Jury System Because Person of Interest in the Case Against Justice in the Deep South, 67MERCER L. REV. 585 (2016); Bidish Sarma & Robert J. Smith, How and Why Race Continues toInfluence the Administration of Criminal Justice in Louisiana, 72 LA. L. REV. 361 (2012); Kyle R.Satterfield, Circumventing Apodaca: An Equal Protection Challenge to Nonunanimous JuryVerdicts in Louisiana, 90 TUL. L. REV. 693 (2016); Adam Liptak, Guilty By a 10-2 Vote: Efficient orConstitutional?, N.Y. TIMES, July 6, 2009, at A10.19. Thomas Semmes, Chairman of the Judiciary Committee, Address at the LouisianaConstitutional Convention of 1898, in CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA,OFFICIAL JOURNAL OF THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OFLOUISIANA: HELD IN NEW ORLEANS, TUESDAY, FEBRUARY 8, 1898, at 374 (H. J. Hearsey,Convention Printer 1898) [hereinafter OFFICIAL JOURNAL].
Frampton Galley (Do Not Delete)159810/3/2018 11:51 AMVANDERBILT LAW REVIEW[Vol. 71:5:1593hostility toward black jurors. 20 This Article’s research fills the gapregarding the Louisiana jury law’s original purpose. Across the postReconstruction South, nonunanimity gained political traction as amechanism for vitiating the veto power that the occasional minorityjuror might wield through his dissenting vote. In Louisiana, whereblack jury participation remained relatively robust into the latenineteenth century, these reform proposals eventually made their wayinto law. Understood in its full context, the discriminatory origins ofthis peculiar jury system are inescapable. 21Part II turns to the Jim Crow jury today, offering the mostcomprehensive data assembled to date on race, jury selection, and jurydeliberation in U.S. courts. Through an analysis of a new dataset—which includes information on thousands of Louisiana jury trials (andover 13,000 individual race-coded prosecution and defense peremptorystrikes)—this Article demonstrates that the systematic exclusion disproportionately target nonwhite jurors for exclusion in all cases, thedisparity is significantly more pronounced in trials involving blackdefendants. The data also provide an unprecedented look at the impactof race in jury decisionmaking: because individual jurors’ votes innonunanimous cases are occasionally included in court records, thepractical effect of racial exclusion can now be measured in a novel and20. State v. Hankton, 122 So. 3d 1028, 1037 (La. Ct. App. 4th Cir. 2013) (emphasis added).21. This Article does not examine in detail the adoption of nonunanimous jury verdicts inOregon, the only other state to employ the practice today, but there are conspicuous parallels tothe Louisiana experience. Oregon adopted nonunanimous juries in the wake of a 1933 murderprosecution of a Jewish defendant, which controversially ended in a manslaughter verdict—acompromise resulting from a lone holdout juror. Oregon’s leading papers editorialized in outrage:This newspaper’s opinion is that the increased urbanization of American life, thenatural boredom of human beings with rights once won at great cost, and the vastimmigration into America from southern and eastern Europe, or people untrained in thejury system, have combined to make the jury of twelve increasingly unwieldy andunsatisfactory.Editorial, MORNING OREGONIAN (Portland, Or.), Nov. 25, 1933, at 2 (emphasis added); see alsoModify the Jury Law, STATESMAN J. (Salem, Or.), Nov. 26, 1933, at 4 (endorsing MorningOregonian position and reprinting “southern and eastern Europe” argument). The MorningOregonian later cited “the epidemic of lynchings” across the country as further reason to endorsethe change. Jury Reforms Up to Voters, MORNING OREGONIAN (Portland, Or.), Dec. 11, 1933, at 6.Although the evidence of discriminatory intent is significantly more circumstantial in Oregon thanin Louisiana, one district judge recently held that “race and ethnicity was a motivating factor inthe passage of [Ballot Measure] 302-33 [adopting nonunanimous verdicts in Oregon], and that themeasure was intended, at least in part, to dampen the influence of racial, ethnic, and religiousminorities on Oregon juries.” Oregon v. Williams, No. 15CR58698, at *16 (Multnomah Co. Cir. Ct.Dec. 15, 2016) (Opinion and Order), CommitteeMeetingDocument/138793 [https://perma.cc/2G8B-MFXW]. The judge stopped short ofdeclaring the law unconstitutional, however, for want of “direct evidence of a disparate impact onminorities of non-unanimous juries” and “how minority viewpoint jurors under a 10-2 systemequate to racial minority jurors.” Id. at *29. But see infra Part II.
Frampton Galley (Do Not Delete)2018]10/3/2018 11:51 AMTHE JIM CROW JURY1599illuminating way. In 199 serious felony “guilty” verdicts reached byracially mixed, nonunanimous juries, black jurors were vastlyoverrepresented among those jurors holding out for an acquittal. Thisresearch thus confirms a large body of social science literaturesuggesting that race matters in the jury box.
THE JIM CROW JURY. 1595 murdering a white watchman. 3. The . Comité . funded a legal challenge on Murray’s behalf as part of a larger campaign to oppose the rise of what the organization called “the Jim Crow jury.” 4. Since 1875, federal law prohibited the exclusion of
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