How Racism in the Courtroom Produces Wrongful Convictions and Mass Incarceration

By Ella Wiley
Senior Communications Associate

In recent years, police violence and militarization have been under a microscope. For many Americans, it is now frighteningly clear that police consider Black people suspects when sitting in their backyards, failing to signal, and simply going about many daily life activities — and that this racial targeting too often results in callous abuses, unjust imprisonment, and senseless killings at law enforcement’s hands. Tragically, policing is only one of many racial discrimination pitfalls in America’s criminal justice system, merely representing the first step in a deeply problematic process.

As the oldest civil rights legal organization in the United States, the Legal Defense Fund (LDF) is intimately familiar with this system’s failures. It cannot be overlooked how — in addition to vast racial disparities in policing, arrests, and detention — every stage of the criminal justice process following the filing of charges also contributes to the mass incarceration of Black people in this country. This piece will examine three major failures in court proceedings that often lead to unjust convictions and sentencing — and how LDF has confronted these failures over the years.

Discrimination in Juror Selection

While some Americans may wonder why they are asked to perform jury duty, juries are an indispensable part of ensuring fairness in trials. Yet, although the Sixth Amendment to the U.S. Constitution promises a public trial by an impartial jury, this promise is a false one for many Black people charged with crimes.

During jury selection — a process known as “voir dire” — both the prosecution and defense can strike potential jurors they believe are unfit to serve. Attorneys can justify a juror strike using several reasons, including citing biases that might cloud an individual’s ability to provide a fair verdict. These strikes are called challenges for cause. However, attorneys on each side are also given a set number of peremptory challenges where they are not required to explain why they’d like a specific juror struck from the roster. While peremptory challenges are limited, prosecutors often abuse this process to strike Black jurors — particularly when the defendant is Black — even though it’s illegal to strike a juror based on their race or ethnicity.

In one of the most egregious and infamous examples of this kind of systemic discrimination, former Mississippi District Attorney Doug Evans struck Black jurors 4.4 times more frequently than white jurors over the course of his nearly 30-year career. Under Evans’ authority, defendant Curtis Flowers, who is Black, faced six trials for the same charge, each resulting in a hung jury or a reversed conviction due to prosecutorial misconduct. During those six trials, Evans removed 41 of 42 potential Black jurors and struck them 20 times more frequently than white jurors.

When Flowers’ case was brought to the Supreme Court, LDF filed an amicus brief condemning the exclusion of Black Americans from a crucial part of the democratic process. In 2019, the Supreme Court reversed Flowers’ conviction and condemned Evans’ use of racist peremptory strikes, instituting protections against striking potential jurors based on race.

“The Flowers story is a powerful reminder that discrimination is alive and well in the criminal legal system right now. We cannot pretend it’s some sort of unfortunate chapter from American history that we’ve now moved beyond,” remarks LDF Deputy Director of Litigation Chris Kemmitt. “It continues to pervade our criminal legal system — and not just implicit bias, but open, naked racism.”

Kemmitt adds, “The Flowers trials also illustrate just how important it is to stop prosecutors from using their peremptory challenges to target and remove Black prospective jurors. Even though the state’s evidence against Curtis Flowers was weak and unconvincing, every time the district attorney was able to remove all of the Black jurors or all but one of the Black jurors, the jury voted to convict despite the lack of evidence. But any time the jury had two or more Black jurors, some of those jurors followed the evidence and voted to acquit.”

“The Flowers story is a powerful reminder that discrimination is alive and well in the criminal legal system right now. We cannot pretend it’s some sort of unfortunate chapter from American history that we’ve now moved beyond. It continues to pervade our criminal legal system — and not just implicit bias, but open, naked racism.”

- Chris Kemmitt, LDF Deputy Director of Litigation

Photo: Curtis Flowers leaves the Winston County jail with sisters Charita Baskin (left) and Priscilla Ward. (Photo by Hunter Hart for APM Reports)

Racism and Bias Among Jury Members

While attorneys from both the defense and prosecution can strike potential jurors they believe hold biases that will prevent them from providing a fair verdict, many substantial biases either go undetected or, worse, are tolerated outright. There have been countless cases where a person of color was convicted of a crime, and it was later discovered that one or more jurors responsible for determining their innocence were racist. It is also important to note that the true number of cases where racism among jury members has resulted in an unfair conviction of a person of color is unknown.

However, when they are known, LDF and other organizations work to reverse such convictions. In 2004, Andre Thomas, a Black man, killed his white wife and their two children during a schizophrenic episode. He also attempted to kill himself at the scene and subsequently gouged out both of his eyes. At Thomas’ capital trial, the jury had to assess his severe mental illness when considering his insanity defense and then decide whether he should be sentenced to death or life imprisonment. Despite the substantial impact that their decision would have on Thomas’ future, three jurors were allowed to serve after openly condemning interracial relationships, a bias that could’ve unquestionably impacted their decision. Thomas has been on death row ever since.

In 2021, LDF filed a cert petition urging the Supreme Court to review Thomas’ conviction and jury discrimination claim. LDF’s petition detailed the Supreme Court’s precedent protecting against such biases in courtroom proceedings. It also emphasized that racial biases within the deliberation room cannot be tolerated because they undermine our nation’s promise for fair trials by an impartial jury. The Supreme Court has yet to make a decision on whether it will consider Thomas’ case.

“The Supreme Court has long recognized that overt racial bias has no place in our criminal justice system,” says LDF Assistant Counsel Santino Coleman. “When jurors in a criminal case openly express racial bias, it creates the unacceptable risk that racial prejudice will infect the jury’s deliberative process. This risk is uniquely harmful in capital cases where jurors’ racial biases may prevent them from fairly considering mitigating evidence at sentencing. This not only violates an accused person’s constitutional right to trial by an impartial jury, but erodes the legitimacy of the criminal justice system.”

“When jurors in a criminal case openly express racial bias, it creates the unacceptable risk that racial prejudice will infect the jury’s deliberative process. This risk is uniquely harmful in capital cases where jurors’ racial biases may prevent them from fairly considering mitigating evidence at sentencing. This not only violates an accused person’s constitutional right to trial by an impartial jury, but erodes the legitimacy of the criminal justice system.”

- Santino Coleman, LDF Assistant Counsel

Photo: Anti-death penalty demonstrators in front of the U.S. Supreme Court in 1977. (Source: Getty)

Sentencing Disparities

According to the Sentencing Project, 48% of people serving life or virtually life sentences are Black. Moreover, in 2017, the United States Sentencing Commission reported that Black men receive federal prison sentences that are nearly 20% longer than white men convicted of the same crime. Federal prosecutors are also twice as likely to charge Black people with offenses carrying a mandatory minimum sentence than their white counterparts.

While there are many factors contributing to the extreme racial disparities in sentencing — and countless others that perpetuate vast disparities in arrests and detention — discretion, from both the judge’s bench and prosecutor’s office, contributes most to this gap. We must enact comprehensive federal legislation to limit sentencing discretion, diminish these disparities, and end our country’s mass incarceration of Black people. In 2018, LDF supported the First Step Act, which reduced mandatory minimum sentences for certain crimes, retroactively applied the Fair Sentencing Act of 2010, and generally decreased the federal inmate population, among other changes.

Still, further reform is critical. The risk-assessment tool created by the First Step Act and used to determine whether someone is eligible for release, for example, has been shown to produce racially disparate results. The First Step Act also limits how some of its provisions can be applied retroactively to those currently incarcerated. For many incarcerated individuals, this means they may continue to serve harsh sentences for crimes that now hold lesser punishments.

The above pitfalls are just a few examples of how our criminal justice system repeatedly fails Black people. In each step of the process, racial bias seeps into decisions made by prosecutors, jurors, and judges — decisions that all profoundly impact a person’s life. This bias undermines the very fabric and premise of our democracy and, unless it is eliminated, no trial will ever be impartial. As a result, LDF and other advocacy organizations remain ever vigilant in working to comprehensively reform the criminal justice system and render it truly fair and impartial.

Published: July 20, 2022

LDF Case

Attala County NAACP v. Evans

Filed: November 2019

Attala County NAACP v. Evans was filed on the heels of Flowers v. Mississippi, a U.S. Supreme Court case concerning District Attorney Doug Evans’ efforts to exclude Black people from jury service in the case of Curtis Flowers, a Black man, who was sentenced to death by a nearly all-white jury. Attala County NAACP  v. Evans seeks to end Evans’ and his office’s racially discriminatory jury selection practices and ensure that Black prospective jurors enjoy the same democratic rights as the white citizens in his district.

LDF Case

Buck v. Davis

Filed: December 2012

One of LDF’s most high profile death penalty cases in recent memory, Buck v. Davis challenged the death sentence of Texas death row inmate Duane Buck, whose death sentence was a blatant product of racial discrimination. Mr. Buck’s own attorney introduced testimony in the sentencing phase of his trial that he was more likely to be dangerous solely because he is Black. LDF argued before the Supreme Court that the rule of law demands a new sentencing hearing free from racial bias. The Supreme Court granted Mr. Buck a new hearing and he was later resentenced.

Death Row USA

LDF issues a quarterly report entitled Death Row USA that contains death row populations by state and other statistics pertaining to capital punishment. For decades, LDF has been a pioneering voice in the fight to abolish capital punishment and eliminate racial discrimination from the court system. In our landmark 1972 case, Furman v. Georgia, LDF won the country’s first and only nationwide halt to executions when the Supreme Court struck down capital punishment.

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