Sunday, September 20, 2015

The Newest Jim Crow

Almost a year ago I picked a jury in a Capital Murder. The State had waived the death penalty so jury selection was conducted as usually done in Texas state courts. The jury panel started at around 100 people, large by my county's usual felony metric. It took about 12 hours to seat the jury and alternates.

At the end of the jury selection, I was struck by two related things: African Americans, particularly African American men, were significantly underrepresented in the panel as a whole, and, second, the two female African Americans who had been in the strike zone were struck by the State.

My male African-American client was eventually convicted and sentenced to life without possibility of parole. I read the appellate brief filed in his direct appeal this week and both items were assigned points of error. This post is not really about the case. Instead, like an eye adjusting from a lighted room to darkness, it reminded me the longer you stay in the dark the better your focus.

That focus should be the lack of representation of African Americans on Texas criminal jury panels. The short and long term implications for a criminal justice system that promises but does not deliver a cross section of the community are dire. The deeper problem is African American populations within the community being isolated, and isolating themselves, from a criminal justice system that has steadily been locking them - particularly their men -  in prison.

There is an almost shameful lack of empirical data on the topic. Props to Chris Daniel, the District Clerk in Harris County, who wrote an article in the Houston Chronicle in 2012 that crunched some data collected from his office. The story can be found here. In it he writes:
It's worth taking another look at the racial/ethnic breakdown of the county's 18 and older population who are citizens (45 percent white, 26 percent Hispanic, 23 percent black and 5.3 percent Asian) and comparing these figures to the racial/ethnic breakdown of those who appear for jury service (59 percent white, 17 percent African-American, 16 percent Hispanic, 5 percent Asian). 
These two sets of figures indicate that African-Americans are slightly underrepresented among those who report for jury service (23 percent of population, 17 percent of those who appear at jury service) and Hispanics are underrepresented to a greater degree (26 percent of population, 16 percent of those at jury service). 
Daniel should be commended for collecting, collating and publishing the data. I do not, however, agree with his characterization of a 6% attrition rate from a 23% population total to be a "slight underrepresentation." In Harris County although African Americans make up about 1 in 4 residents, for every 10 summoned jurors, only between one and two showing up will be African American. I suspect that controlling that number for African American men would drive the figure significantly lower. This is not a "slight" underrepresentation.

This underrepresentation is accompanied and exacerbated by overrepresentation of white middle aged and older Harris County residents. In rural counties, or counties with lower African American populations (think suburbs and counties like mine), Daniel's numbers demonstrating this underrepresentation/overrepresentation phenomenon would probably be more pronounced.

Michele Alexander's groundbreaking book, The New Jim Crow, explores some of what I write about but with a bigger canvas upon which to paint. Most of the debate, and her focus, centers on criminal justice disenfranchisement laws. However, the criminal laws that Alexander writes about directly impact jury panels from which juries are picked. It is these panels that are disproportionally sending African American men to prison. We can debate the merits of the penal laws being used to charge and send this population to prison. We can debate the larger issue of mass incarceration. What really cannot be debated is the jury panels creating the juries systematically sending African American men to prison are not a true cross section of the community.

The relative merits of these debates are lost on most African American men caught in the Texas felony gristmill. These mostly young black men take one look at the jury panels summoned for selection and see middle age white faces, to the exclusion of African American men. This contaminates their view of the system that is simultaneously locking and knocking them down. It perpetuates their arguments to people like them that they all are being victimized by a system that demands their subjugation.

It has become increasing hard for me to argue with them. Why should they play by rules when the people deciding to send them to prison, keeping them from voting and thereafter serving on a jury that would decide the future of people like them, look, talk and value things so differently? Right or not, they opt out of that system, refusing to play by those rules and by so doing establish a value system disconnected from the system that is locking them up in droves.

I cannot exclude the African American population from my rantings and ravings. They must show more motivation to show up and be counted. It pains me every time a African American summoned for jury duty slips the bailiff a note asking to be excused for a non-exemption reason. Unfortunately, the burden falls disproportionately, and unfairly to this population to show up and be counted. Until the new Jim Crow is confronted and racial politics is discussed openly and honestly, this affliction will persist, potentially fissuring us to a point of no return.

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