Jury selection and race in the American legal system

Jury Selection- Race

In the Supreme Court case, United States v. Bass, the Supreme Court reversed the sixth circuit opinion holding that the Defendant made a threshold showing based on national statistics that "the United States charged black with a death-eligible offense more than twice as often as it charges whites." On appeal, however, the United States Supreme Court reversed this finding, instead holding that Defendant failed to make a threshold showing for a selective prosecution case. Such a case requires the showing of both discriminatory effect and discriminatory intent. The Court held that discriminatory effect could not be found because "raw statistics regarding overall charges say nothing about charges brought against a similarly situated defendant."

The Supreme Court's decision is in error in that it mis-interprets the law as to proving a discrimination case.

The case at hand is an equal protection case because it involves the application of a law in a manner that treats a person or class of persons differently than others. Village of Willowbrook v. Grace, 528 U.S. 562 (2000). Further, because this case specifically involves discrimination based on race, which the court considers a suspect class, strict scrutiny must be used. Korematsu v. United States, 323 U.S. 214 (1944). Under such a standard of review, the burden is on the government to show that the use of the law is necessary to achieve a compelling or overriding government purpose. Further, the court must consider whether less burdensome means of accomplishing the legislative goal are available.

Further, the law must be shown to have the intent to discriminate. However, discriminatory effect and discriminatory intent are not two separate factors. Instead, intent can be shown in one of three ways: facial discrimination, discriminatory application or discriminatory motive. Facial discrimination is simply that the law is discriminatory on its face as it makes explicit distinctions between classes of persons. Discriminatory application occurs where the law is neutral on its face but is applied in a different manner to different classes of persons.

If a person can show that government officials applying the law have a discriminatory purpose, the law will be invalidated. Discriminatory motive occurs when the law is neutral on its face and in its application but will have a disproportionate impact on a particular class of persons. Although statistical studies alone are not enough to prove discriminatory motive, when combined with other evidence it can suffice. McCleskey v. Kemp, 481 U.S. 279 (1987).

In the case at hand, the argument should focus on both discriminatory application and discriminatory motive. As to discriminatory motive, the Supreme Court is correct in holding that statistical evidence alone is not enough to show discriminatory motive. However, if the Defendant provided other, non-statistical evidence to supplement this statistical evidence, then the Supreme Court's ruling is incorrect.