The evidence that racism is infecting the selection of juries in North Carolina is clear and unmistakable, despite the federal law that says it’s illegal. On February 3, 2020, the North Carolina Supreme Court heard argument in two cases that provide the state a historic opportunity to remedy its longstanding failure to enforce civil rights law barring race discrimination in jury selection. The question now is whether the Court will act on the cases before it and begin to fix this problem.

This jury selection process allows both the defense and the prosecution to use “peremptory” challenges to exclude jurors without having to state a reason. In 1986, the U.S. Supreme Court decided Batson v. Kentucky, which outlawed intentional racial discrimination in this process. This made peremptory challenges illegal if the motive is intentional racial discrimination.

Despite good intentions, Batson’s impact has disappointed everyone except those who never expected it to work. To begin, only intentional discrimination is prohibited, so a prosecutor willing to use a seemingly race-neutral reason for a race-based challenge could avoid a Batson claim. And prosecutors were willing.

After Batson, prosecutors across America, including prosecutors in North Carolina, started training their lawyers to literally “make up” race-neutral reasons so that Black jurors could be excluded in violation of the law. North Carolina prosecutors designed a statewide training program, teaching other prosecutors how to give prepackaged reasons when they are asked to explain why they removed Black jurors, like objecting to the jurors’ age or dress.

The impact of these practices shows up in the most serious of cases in North Carolina. Experts analyzed North Carolina’s post-Batson death penalty cases as of 2010 and the sample size was large – 173 death penalty cases with 7,400 potential jurors. Two different statistical studies – one from the Illinois Law Review and another from Michigan State University College of Law – showed that qualified Black citizens in North Carolina were excluded from juries at about two and a half times the rate of white jurors.

The lack of response from North Carolina courts has been deafening: In the thirty-four years since Batson, more than a hundred North Carolina defendants have raised claims of race discrimination against jurors of color. Not one case has found discrimination – ever. This includes cases where the prosecution struck between 50 percent and 100 percent of the Black jurors.

The lack of response may be based, in part, on the fact that North Carolina law on race discrimination in jury selection is in direct violation of Batson-related standards set by the U.S. Supreme Court. This makes North Carolina unique in the country. Despite its failures, courts in every southern state, except North Carolina, have followed Batson and related cases and reversed convictions because of jury selection based on racism.

The fact that North Carolina has never found discrimination against a juror of color has resulted in judges and prosecutors showing little respect for the law, and two cases pending now before the North Carolina Supreme Court demonstrate this problem. In State v. Bennett, instead of examining the removal of Black jurors, the trial judge accused the defense lawyer who raised the issue of discriminating against “white Americans.” In State v. Hobbs, the prosecutor was asked to explain reasons for a challenge of a Black juror. Instead of answering the question, the prosecutor accused the defense lawyer of lying with statistics and painting everyone in the county as a racist.

It gets worse. Prosecutors have referred to Black jurors as “thugs” and “winos.” They have invoked long-held racist stereotypes questioning Black jurors’ intelligence, and suggesting that only Black jurors from “respectable” families might serve. Prosecutors in one case removed a Black juror because he expressed a concern after overhearing white jurors say two Black defendants should have been shot in the woods instead of being arrested and brought to jail.

If these circumstances are not disturbing enough, North Carolina courts have gone beyond passive acquiescence. In some cases where prosecutors have offered insufficient reasons to justify a challenge of a Black juror, the appellate courts made up non-race-based reasons for them.

The exclusion of Black citizens from juries harms our justice system in many ways. It continues to honor a heritage of white supremacy that must be eliminated from the system. It denies Black citizens one of the fundamental rights and responsibilities of American citizenship – the right to serve on a jury. It is hypocritical to ask Black America to accept and trust the criminal legal system and then use racist tactics to prevent us from participating in the system as jurors. Of course, the damage goes beyond that. Research has found that juries with two or more members of color deliberate longer, discuss a wider range of evidence, and are more accurate in their statements about cases, regardless of the defendant’s race.

I am a Black criminal defense lawyer with three decades of experience in the criminal legal system in America. I know that racism in jury selection is a normal thing in courtrooms across America, and I have seen it play out time and time again, including in “non-southern states” like Washington. This is why I know something can be done to address this problem.

I served on a task force in Washington State that reported to the Supreme Court regarding racial bias in jury selection. In 2018, the Washington State Supreme Court became the first court in the nation to adopt a court rule aimed at eliminating both unconscious and intentional racial bias in jury selection. In December 2019, the Connecticut Supreme Court formed a task force to study the need for new rules to prevent discrimination in jury selection. The California Supreme Court did the same in January 2020.

In his book 1984, George Orwell described “the final, most essential command of the Party” – to reject all evidence of your eyes and ears. The North Carolina Supreme Court cannot follow that rule if racial discrimination in jury selection is to be eliminated. Our eyes are on them to see what they do.

Jeffery Robinson is the Deputy Legal Director of the ACLU and Director of the organization’s Trone Center for Justice and Equality.