We ended race discrimination at the lunch counter; now let’s ban it in the jury box

Sixty years ago this February, four black men sat down at a Greensboro lunch counter and asserted their right to be served. Today, we take it for granted in America that no person should be denied a seat in a restaurant — or a seat on a bus — because of their race.

Yet, black citizens are still fighting for equal rights to occupy a far more important seat, one which allows them to control the levers of power in North Carolina’s justice system: a seat in the jury box.

On Feb. 3, the North Carolina Supreme Court will hear argument in two cases involving race-based jury discrimination, State v. Hobbs and State v. Bennett. These cases represent a historic chance for the court to address an egregious civil rights violation, one that North Carolina courts have long ignored.

Across North Carolina, black citizens who answer the call for jury service are disproportionately and unfairly excluded. Study after study has proven this to be true. As a result, criminal defendants are denied their constitutional right to be tried by a fair cross section of their community. And the courts have turned a blind eye to this glaring problem.

Here’s how the system works: At trial, the prosecutor and defense attorney each get to strike a certain number of jurors for any reason at all, except their race or gender. If the opposing attorney suspects a strike was racially motivated, the other side has to explain its reasons.

This is where the courts have failed in their duty to prevent race-based strikes. For example, one North Carolina prosecutor said he excluded a Black juror because the juror attended a historically black college. The trial court actually accepted this reason as “race neutral.”

North Carolina courts have proven themselves willing to accept almost any reason as race neutral. And when defendants appeal, the state’s higher courts have refused to help. In the nearly 35 years since the U.S. Supreme Court forbade discrimination in jury strikes, North Carolina appeals courts have never upheld a claim of race discrimination against a juror of color. No other southern state has such an extreme record of failing to protect the civil right to serve on a jury.

The first step toward solving any problem is to acknowledge its existence. On February 3, the North Carolina Supreme Court has a chance to finally do that. It will hear arguments in two cases of alleged jury discrimination. The court can and should find discrimination in these cases.

The North Carolina Supreme Court also can, and should, go further, just as other state courts have begun to do. For years, my home state of Washington had never enforced its law against jury discrimination. But beginning in 2013, Washington began enforcing stronger civil rights protections. Our high court convened task forces to propose solutions to racial bias in jury selection and criminal prosecutions. In 2019, we were joined by the Connecticut Supreme Court, which formed a similar commission. And just this week, the California Supreme Court announced it will form its own work group to study the need for stronger protections against racial discrimination in jury selection.

Now it is North Carolina’s turn to make sure everyone has a seat at the table. The North Carolina Supreme Court must begin enforcing the law barring racially discriminatory jury strikes. In doing so, it will finally live up to its duty to ensure fairness and equal protection for all.

Robert S. Chang is a Professor of Law and Executive Director of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law.