Photograph by Chip Somodevilla/Getty

Last week, the Supreme Court agreed to hear the case of Timothy Tyrone Foster, a black man sentenced to death by an all-white Georgia jury in 1987 for murdering an elderly white woman. Foster claims that the prosecution deliberately eliminated all four eligible black jurors. The state argues that race played no role in jury selection. It’s an odd argument in light of the evidence that emerged decades after Foster’s conviction: in their notes, the prosecutors highlighted the black jurors’ names in green; circled the answer “black” on the questionnaire where jurors had been asked to identify their race; labelled three black jurors “B#1,” “B#2,” and “B#3”; and identified which person to keep “if we had to pick a black juror.”

The Supreme Court may well grant Foster a new trial on the grounds that the state violated Batson v. Kentucky, a landmark 1986 case in which the Court declared it unconstitutional to strike potential jurors because of their race. But a victory for Foster won’t change the fact that, nearly thirty years later, prosecutors across the country, and especially in the South, continue to get away with intentionally striking black people from juries in trials of black defendants. The most remarkable thing about Batson, it turns out, is how easy it has been to ignore.

Jury selection occurs in two steps. First, the judge dismisses potential jurors “for cause” if they can’t be impartial. Second, after questioning the remaining jurors, the defense and the prosecution each have a number of peremptory strikes (the number varies by state) to remove jurors they don’t like until twelve are left. The lawyers don’t have to give any justification for these strikes, and they don’t need the judge’s approval. That poses a problem for a legal system that forbids racial discrimination: If the prosecutor doesn’t have to give a reason, what’s to stop him from getting rid of a juror because he’s black?

The Supreme Court’s answer in Batson was to allow a defendant to force the prosecution to explain a strike if it seems to be racially motivated. When making a Batson challenge, as it soon came to be called, the defense must first convince the judge that there is reason to suspect that a strike was based on race, usually by pointing out the high proportion of black jurors being targeted. Next, the prosecutor has to give a race-neutral reason for striking the juror. Then it’s up to the judge to decide whether the reason is legitimate or a pretext for a race-based strike.

Justice Thurgood Marshall voted with the majority in Batson, but in a concurring opinion he warned that its procedure wouldn’t really solve the problem of race-biased jury selection: it would be too easy for prosecutors to make up race-neutral reasons for striking a juror.

Marshall’s skepticism was quickly vindicated. As soon as Batson was decided, prosecutors started coming up with tactics to evade it. In a 1987 training video that became notorious when it was leaked years later, Jack McMahon, an assistant district attorney in Philadelphia, told new prosecutors, “When you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. . . . You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race.”

A consensus soon formed that the Batson remedy was toothless. In a 1996 opinion, an Illinois appellate judge, exasperated by “the charade that has become the Batson process,” catalogued some of the flimsy reasons for striking jurors that judges had accepted as “race-neutral”: too old, too young; living alone, living with a girlfriend; over-educated, lack of maturity; unemployed, employed as a barber; and so on. The judge joked, “New prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations’ or ‘20 Time-Tested Race-Neutral Explanations.’”

As it turns out, that really happens. In the nineteen-nineties, the North Carolina prosecutors’ association held training sessions where prosecutors got one-page handouts such as “Batson Justifications: Articulating Juror Negatives,” which listed reasons for striking jurors based on traits like age and body language. A similar list distributed in 2004 to Texas prosecutors included justifications like “Agreed with O. J. Simpson verdict” and “Watched gospel TV programs.”

Stephen Bright, the president of the Southern Center for Human Rights, who is representing Foster on its behalf, argued and won a Batson appeal at the Supreme Court in 2008. But Bright, a longtime capital trial and appellate lawyer, doesn’t see that victory as a vindication of the procedure.

“It just makes such a farce of the system,” he said. “Nobody—the judge, the prosecutor, the defense lawyers—nobody thinks the reasons are really the reasons they strike the people. They strike the people because of their race. I mean, we all know that. And then you try to come up with a good reason for doing it and see if you can get away with it.”

“You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it,” he went on. “That’s very difficult psychologically for the average judge.”

There are no comprehensive statistics on how often prosecutors strike jurors based on race, but there is little doubt that the practice remains common, especially in the South. In Caddo Parish, Louisiana, prosecutors struck forty-eight per cent of qualified black jurors between 1997 and 2009 and only fourteen per cent of qualified whites, according to a review by the Louisiana Capital Assistance Center. In Jefferson Parish, where a quarter of the population is black, the split was even greater—fifty-five per cent to sixteen per cent—so that twenty-two per cent of felony trials between 1994 and 2002 had no black jurors. According to a 2010 report by the Equal Justice Initiative documenting discrimination in eight Southern states, half of all juries that delivered death sentences in Houston County, Alabama, between 2005 and 2009 were all white; the other half had a single black juror. Houston County is twenty-seven per cent black.

In 2012, a North Carolina judge found that in capital cases between 1990 and 2010 prosecutors statewide struck potential black jurors at twice the rate of non-blacks.* A regression analysis showed that the disparity held even when controlling for other factors that correlate with race. In a pained opinion, the judge concluded, “Race, not reservations about the death penalty, not connections to the criminal justice system, but race, drives prosecution decisions about which citizens may participate in one of the most important and visible aspects of democratic government.”

Why do race-based peremptory challenges persist? Because race is an unfortunate but powerful basis for generalization. To state the obvious, black people are more likely to have been targeted or abused by police; to be affected by the extreme racial disparities in arrests, incarceration, and the death penalty; and to understand that crimes against black victims are prosecuted less vigorously than those against whites. All things being equal, a prosecutor has reason to think that a black juror is less likely to side with the government against a black defendant than a white one. (Former prosecutors with whom I spoke stressed that attorneys defending black clients are just as likely to strike whites in order to get more blacks on the jury. The Supreme Court has held that defense strikes of white jurors also violate Batson.)