Publication Date

Summer 2017



Document Type


Subject Area(s)



The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012. It includes observations for over 3,000 venire members for gender and observations for over 1,000 venire members for race. This is one of few studies to examine the use of peremptory strikes in actual trials; no previous studies of this magnitude have examined this topic in South Carolina.

Consistent with comparable studies, this study’s results revealed that white and black potential jurors had substantially different experiences on their path to the jury box, while gender played a subtler role. Findings included that prosecutors used peremptory strikes against 35% of eligible African-American venire members, compared to 12% of eligible white venire members, and that the death-qualification process impeded a substantial number of African-Americans from serving. These disparities contributed to overrepresentation of whites on the juries. The study’s findings implicate the fairness of some of South Carolina’s current death row inmates' trials, in addition to further buttressing the argument that capital conviction and sentencing procedures are incompatible with the need for representative and impartial juries.


Originally published by Northeastern University Law Review and reprinted with their permission.