John Oliver: US is 'making a mockery of the phrase a jury of your peers'
After a week off, John Oliver returned to Last Week Tonight with another examination of an unjust cog in America’s criminal justice system: the unrepresentative makeup of trial juries. Serving on a “jury of your peers” is an “essential civic duty”, Oliver said, one enshrined in the sixth amendment to the constitution. But in practice, said “peers” are not chosen from a fair crosssection of society. People of color and particularly black Americans are chronically underrepresented in jury pools, which can have serious and devastating consequences for verdicts.
How did juries in America become so unrepresentative? Through compounding layers of implicit and explicit bias, which Oliver worked through from start to finish. First, there’s the list of potential jurors, which in many states draws from voter registration data or drivers’ license lists, both of which disproportionately exclude people of color. Many states contract jury selection to private companies, whose methods, when revealed, fall far short of truly representative or random; Oliver pointed to one example in Tulsa,
Oklahoma, where a private company accidentally excluded zip codes in which 90% of the county’s black residents lived.
Once potential jurors show up for selection, prosecutors can weed out jurors of color in ways both implicit and “pretty fucking explicit”, Oliver said. He pointed to a leaked 1980s training video in which Ed McMahon, the assistant district attorney in Philadelphia, explained to fellow prosecutors that “in selecting blacks, you don’t want the real educated ones … in my experience, young black women are very bad … they’re women and they’re black so they’re downtrodden in two areas so they somehow want to take it out on somebody and you don’t want it to be you.”
“OK, first, any white person who uses the word ‘black’ as a noun and not an adjective is pretty suspicious,” said Oliver. But the point is: although the supreme court ruled in 1986 that prosecutors can’t strike jurors on the basis of race, “it turns out that’s a pretty easy rule to get around,” said Oliver. “All you
have to do is just come up with some reason other than race to strike a juror and then do it anyway.”
Oliver returned to McMahon, who in the same lecture instructed prosecutors on how not to get caught discriminating by race: “Sometimes, you may want to ask more questions [of black voters] so it gives you more ammunition to make an articulable reason as to why you’re striking them not for race.”
“Wow, it’s pretty bizarre to see a government official so flagrantly teaching people how to do something illegal,” Oliver said of the clip. “It’s like if How to
Get Away With Murder was an educational series where Viola Davis explains how to literally get away with murder.”
More to the point, “to this day, prosecutors use a variety of bullshit reasons to strike black jurors, some of which are just flat-out ridiculous,” such as saying jurors were too young, too old, single or divorced, too religious or not religious enough, had a hyphenated last name, displayed bad posture, were too sullen or too talkative.
To demonstrate the brazen efforts prosecutors will take to whitewash juries, Oliver pointed to the six murder trials for Curtis Flowers in Mississippi, a black man whose case eventually reached the supreme court, which decided that the prosecutor had repeatedly and blatantly filtered out any potential black jurors. The white prosecutor waged a “relentless, determined effort to rid the jury of black individuals”, wrote Justice Brett Kavanaugh in the 2018 decision.
“You know you’re doing something wrong when it’s so flagrant even Brett Kavanaugh has a problem with it,” said Oliver, as he’s “a man who’s done exactly two good things in his life: this decision, and making it acceptable to spend your entire job interview screaming and crying.”
Kavanaugh aside, the point is that taken altogether, “it’s pretty clear that from how we decide who serves, to how the list is administered, to who we let lawyers select, we are making a mockery of the phrase ‘a jury of your peers’,” said Oliver. “Because who, exactly, is the ‘you’ there? The defendants’ peers? Or the prosecutors’ peers?”
Furthermore, the impact of a juror pool that can speak to the experience of being black in America and how that influences relationships with law enforcement can be “hugely beneficial”, said Oliver. “Yes, that might make a prosecutor’s job a bit more difficult, but the role of a court is not to make it fucking easy by having cases heard by only a group of white people – or, to use the proper collective noun, a Whole Foods.”
Oliver concluded with a few steps for change: broaden jury lists, such as through income tax returns rather than drivers’ license or voter registration lists; make jury lists public; increase juror pay so as to not weed out low-income residents; and reform the process of peremptory challenges so as to not shield prosecutors who exclude jurors based on race.
It’s hard work, but a necessary step in addressing how “every gear in the criminal justice system is unfairly biased against people of color,” Oliver said, “from policing, to bail, to the shortage of public defenders, to punitive sentencing, to incarceration, to re-entry from prison, and this is yet another to add to that depressing list.”