The United States Supreme Court can’t seem to make up its mind about race. In the affirmative action case decided in late June, it proclaimed the Constitution to be “colorblind” and promised to ensure that no one, whatever their race, would be subject to racial discrimination.
Then, one day later it turned a blind eye to blatant discrimination in the case of a Black man sentenced to death in Mississippi. Where higher education is concerned, the Court’s conservative majority is hyper-sensitive to anything that might be labeled racially motivated treatment.
In cases involving capital punishment, they seem less interested in ensuring that the treatment Black defendants get is indeed colorblind.
And to make matters worse, the Court, which recently has been jealous of its own prerogatives and aggressive in accruing power for itself, showed in the Mississippi case, as it did with respect to Texas’ infamous SB8 anti-abortion legislation, that it is perfectly happy to have its precedents ignored or its authority flouted when those who do so are carrying out its ideological agenda.
In the Mississippi death penalty case the Court refused, over a scathing dissent by Justice Sonia Sotomayor, even to hear the case.
Here are the facts.
Five years ago, Tony Clark was convicted of murder, attempted murder, and possession of a firearm by a convicted felon. He was sentenced to death in connection with the death of 13-year-old Muhammad Saeed. The jury that convicted him was composed of 11 white people and one Black person.
As Justice Sotomayor noted, “During jury selection in this case, petitioner Tony Terrell Clark twice raised Batson challenges based on a pattern of racial disparities in the prosecution’s strikes.” He alleged that the prosecutor had used his peremptory challenges to keep more Blacks from serving on his jury.
In Batson v Kentucky, the Court held that “While a defendant is not entitled to have a jury completely or partially composed of people of his own race, the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race.” As Justice Lewis Powell, writing for a seven-justice majority, put it, “The Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors.”
“The harm from discriminatory jury selection,” Powell wrote, “extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”
Under Batson, once the defendant makes a showing that race was a possible reason potential jurors were excluded, the burden shifts to the state to come forward with a race-neutral explanation for the exclusion. Clark claimed that the prosecutor in his case could not do so.
Right from the start, prosecutors in Mississippi resisted Batson and worked hard to find loopholes that would allow them to continue trying to keep Black people off death penalty juries.
In 2019, the Supreme Court responded to this foot-dragging.
In that case, Curtis Flowers, who had been tried for murder six times because of a series of procedural errors that plagued his case, claimed that Doug Evans, the prosecutor in his case, had violated Batson by blocking Black people from serving on the juries that heard his case. He noted that in his sixth trial, the prosecution had struck five Black prospective jurors.
The Court found in Flowers’s favor and threw out his conviction. It directed lower courts to “vigorously” enforce Batson and to “guard against any backsliding.”
To make sure that there was no misunderstanding, Flowers laid out a set of factors that courts should use in a Batson analysis, notably “statistical evidence” of racial disparity in the prosecution’s use of preemptory challenges, “evidence of the prosecutor’s disparate questioning and investigation of black and white prospective jurors,” and “a prosecutor’s misrepresentations of the record when defending strikes.”
Previewing the attitude that would be on display in the Clark case, Doug Evans called the Flowers case “a ridiculous ruling.” Nonetheless, an NBC News report observed, after Flowers that the Supreme Court “was hailed for sending a message to lower courts to be vigilant about racial bias in the criminal justice system.”
But if Tony Clark’s case is any indication, the Mississippi prosecutors and the state supreme court did not get the message. In its review of his case, that court simply ignored the factors that Flowers had required judges to use when a defendant brings a Batson challenge.
Justice Sotomayor points out that the “Mississippi Supreme Court was not just wrong, but wrong in the very same way it had been wrong just a few years ago.”
One would think that the U.S. Supreme Court would not take kindly to being ignored. But Sotomayor called out her conservative colleagues for ignoring and acquiescing “in the Mississippi Supreme Court‘s noncompliance” and for being “unwilling to do what is necessary to defend its own precedents.”
By refusing to act, the Supreme Court let Clark’s conviction and death sentence stand, even though the prosecutor’s conduct was egregious.
The prosecution’s race-based strategy was hardly subtle. It conducted special background investigations only of Black jurors who on initial screening looked like they would be plausible candidates to serve on the jury. The prosecution accepted white jurors who had equivocated about the death penalty on their jury questionnaires while it opposed Blacks who were death penalty supporters.
The result: while almost 35% of the initial jury pool were Black people, the prosecution used its peremptory strikes to produce a jury with a single Black member.
Egregious, apparently not by Mississippi standards.
Other states including two death penalty states, Arizona and California, have adopted rules aimed at implementing Batson and Flowers and preventing unconscious or implicit bias in the prosecutor’s use of jury challenges. Mississippi seems to be moving in the opposite direction.
And last week it received the tacit blessing of the United States Supreme Court.
In the Clark case, as Robert Dunham, former Executive Director of the Death Penalty Information Center, observed, “The [Supreme] Court’s refusal to intervene, especially after having reversed the same state court for the same violations, exhibits willful indifference to discrimination to reach a result-oriented outcome.”
Justice Sotomayor worries that the Clark decision sends a bad signal: “This Court does not always mean what it says.” As she says, it means that a “black man will be put to death in the state of Mississippi based on the decision of a jury that was plausibly selected based on race. That is a tragedy.”
She is right. And the tragedy of the Court’s racial hypocrisy is not just for Clark, but also for the integrity and reputation of the Supreme Court—and for Americans who say they aspire to a colorblind society.