If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014

Abstract

This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.

The study and the article it builds on add to decades of empirical research exploring the impacts (or lack thereof) of Batson and related jurisprudence on jury selection practices. The findings from the earlier study persisted with the stronger dataset in this study and are consistent with many previous studies’ findings indicating that capital jury selection procedures serve to systematically siphon off women and African-Americans through the death-qualification process and peremptory strikes.

Key findings in the earlier study included that the prosecution struck 35% of strike-eligible black potential jurors, accounting for removing 15% of black venire members; that approximately 32% of black venire members were removed for opposition to the death penalty; and that the combined effects of these two stages prevented a total of 47% of black venire members from serving, compared to those stages preventing a combined 16% of the white venire pool from serving. Those findings have for the most part persisted with the stronger dataset here, with slight variations. Here, the prosecution struck 29% of strike-eligible black potential jurors (the average of a 33% strike rate for black men and 25% for black women), accounting for removing 13% of black venire members; approximately 24% of black venire members were removed for opposition to the death penalty; and the combined effects of these two stages prevented a total of 42% of black venire members from serving. This is compared to the prosecution striking 12.5% of strike-eligible white potential jurors, which equates to about 7% of the overall white venire pool; and 6.2% of white potential jurors being removed for anti-death views, with the two stages preventing, combined, an approximate 13% of white venire members from serving.

Keywords: capital punishment, death penalty, empirical analysis, equal protection, jury selection, peremptory challenges, voir dire, race discrimination, gender discrimination, death qualification, Batson, South Carolina