Yesterday's post looked at U.S. v. McMahan, where a prosecutor struck a black juror, asserting race-neutral justifications that were closely intertwined with race. Researchers recently looked at the same issue in a larger framework, and found that peremptory strikes may be race-based when lawyers don't admit it or even know it.
That's the problem tackled in a paper in the June issue of Law and Human Behavior: "Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure," by Michael I. Norton of Harvard Business School and Samuel R. Sommers of Tufts University. (This via Psychology and Crime News, which flags volumes of new research in the area.) The full paper isn't at the journal's website, but it's posted at Tufts, Harvard, and SSRN.
Does it do any good to ask for justification?
Batson is based on the assumption that if we ask lawyers to justifiy their peremptory strikes, we can expose and reduce racial bias, the authors continue -- but no one has looked at whether that assumption is true. What research exists, they point out, suggests it isn't:
Many researchers have demonstrated that people can offer compelling explanations for their behavior even when unaware of the factors—such as race—that are actually influential. But even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it. Such an admission would have immediate consequences, as it would comprise a Batson violation. More generally, psychologists have noted that behavior is often influenced by the desire to appear nonprejudiced and to avoid the social sanctions that can follow from the appearance of racial bias.
(I've eliminated cites from this excerpt, but they're in the paper, which has an extensive and well-explained bibliography.)
Pretend you're a prosecutor
So they designed an experiment. The idea was simple: ask subjects to be prosecutors. Three groups of participants -- 90 college students, 81 law students (from a Top 10 school, the paper points out), and 28 trial lawyers -- agreed to pretend they were prosecutors trying a black defendant. The undergraduates were told they could strike jurors “because (a) you don’t think they would be able to be fair jurors or (b) you do not think they would be sympathetic to your case.” The law students and lawyers were simply told they could exercise peremptory challenges.
The participants were then given profiles of the same two fictional male jurors -- a journalist who wrote often about police misconduct, and an executive who said he was skeptical about statistics. Half the group got a picture of a black man with the journalist's profile and a white man with the executive's, while the rest of the group got the pictures and profiles reversed. They were all told they had one strike left, and asked to choose which juror to strike and explain their reasons.
You guessed it. The strikes depended significantly on race, and the explanations didn't. Juror #1 was struck 77% of the time when he was black, and only 53% when he was white. Juror #2 was struck 47% of the time when he was black and 23% when he was white. But only 7% of college students, 6% of law students, and 8% of attorneys said that race had anything to do with their decisions. Instead, they cited the non-race aspects of the profiles.
"Little reason to believe"
Norton and Sommers conclude with blunt candor. "The practical implications of these findings are clear: even when attorneys consider race during jury selection, there is little reason to believe that judicial questioning will produce information useful for identifying this bias." Whether they know it or not, "the present data suggest that decision-makers are remarkably facile at recruiting race-neutral characteristics to justify jury selection judgments, and this tendency poses a threat to current restrictions on peremptory use."
(Photo by wonderferret at http://www.flickr.com/photos/wonderferret/587407945/; license details there.)