By ERIC MOUNT

Contributing columnist

“The area of American public life least affected by the civil rights movement is the criminal justice system.”

So spoke Danville native, Stephen Bright in a presentation at the Boyle County Public Library back in the fall. Bright is a recipient of both undergraduate and law degrees from the University of Kentucky and recently retired president and senior counsel of the Southern Center for Human Rights in Atlanta.

Tracking his more than 40-year career in the legal profession should suffice to establish his credibility. He has devoted his professional life to confronting forms of racism that color the way the death penalty is meted out, as well as other facets of the justice system.

One of his most significant encounters is highlighted in the case he pleaded successfully in May before the U.S. Supreme Court, targeting discrimination in jury selection in a 1987 capital trial. As with his two previous cases before the court, its decision reversed the client’s conviction and death sentence in lower courts because of racial discrimination in jury selection.

In this most recent case, Foster v. Chatman, the court invalidated the death sentence of Timothy Foster because prosecutors discriminated on the basis of race when they struck all four black prospective jurors to assure an all-white jury.  Foster was a poor, black, intellectually limited 18 year old when he was charged with murder in the killing of a white woman in Rome, Georgia in 1987. The prosecutors claimed “race-neutral” reasons for excluding all of the black jurors, and the Georgia courts had gone along. Decades later, SCHR was able to get a reversal because it obtained the prosecutors’ jury selection notes through the Georgia Open Records Law and found damning evidence of discrimination.

The names of the black jurors had been highlighted and labeled “B#1,” “B#2,” etc. The word black had been circled on their juror questionnaires. They had been ranked against each other in case one of them had to be picked. The prosecutors even created a strike list that contradicted the “race-neutral” explanations given for the strikes in case they had to shift gears.

This new evidence did not sway the Georgia courts, but it convinced the U.S. Supreme Court.  Only Clarence Thomas voted against the majority, claiming that determinations of discrimination should be made by states.  The majority found the “race-neutral” reasons given for the strikes implausible and inconsistent with the record.  It was noted that reasons given for one of the strikes (divorced and of young age) applied equally to white jurors, and they were accepted.

Where Batson v. Kentucky (1986) had recognized only “purposeful discrimination” (which is hard to prove) as a reason for reversal, and the discrimination could be “unintentional, institutional, or unconscious,” this time the court dismissed the cogency of the “race-neutral” arguments and pointed out that they shifted over time in the prosecution.

Discovering the prosecutors’ notes turned the tide for SCHR, but Bright insists that Foster v. Chatman was not an exceptional or unusual case. Further, he documents instances in several situations where veteran prosecutors schooled young prosecutors on “race-neutral” reasons to use in avoiding seating black jurors.  

Bright and SCHR have taken the allegations of systemic racism well beyond death penalty cases such as Foster v. Chatman. Writes Bright, “Criminal courts lack diversity more than just about any other institution in the country. They are run almost exclusively by white people. Ninety-five percent of the nation’s 2,437 elected state and local prosecutors are white.”

Prosecutors  exercise huge power over what the charges are, plea bargaining decisions, seeking enhanced penalties and striking jurors. Over three-fourths of state trial judges are white and 68 percent of people accused who come before courts in the 75 largest counties in 2009 were black or Hispanic. In death penalty cases, black jurors are struck at double the rate of white jurors.

Viewing the system as a whole, SCHR has found gross disparities in the administration of justice, from denial of bond to the likelihood of going to jail, to length of sentences. And to cite the long-time focus of Bright’s efforts, let us not forget capital sentences and executions. As Bright sums it up, discretionary decisions by prosecutors, judges and jurors are often influenced by the race of the victim, the race of the defendant, and the race and racial attitudes of the decision-makers. He has watched it happen.  

What about what happens before the arrest or the appearance in court? Writing in the Ohio State Law Review, Bright states that people of color are more likely to be stopped by police, abused during a stop (choke holds, pepper spray, beatings with a baton, being made to sit in a squad car hand-cuffed, having a gun pointed at them), and be arrested than a white person. He has the statistics to back these claims — for instance, situations where black citizens comprised 67 percent of the population but had 85 percent of traffic stops, 90 percent of citations, and 93 percent of arrests. (The article was written before the recent run of shootings.) He also documents the revenue-raising practices of municipal courts around the country, exacting fines and charges disproportionately from those who are poor and people of color.  

Bright makes a convincing case for what is variously called systemic or institutional or structural racism in our criminal justice system. He and the Southern Center for Human Rights also provide an exemplary model for combatting racism.  The racism that remains embedded in the structures of our institutions often goes unrecognized and unaddressed, even by conscientious professionals, if we remain passive and continue business as usual.  Bright and SCHR have been actively unveiling and countervailing, and they have made a difference.

The Supreme Court decision in Foster v. Chatman is a signal accomplishment in their continuing endeavor. Danville and Boyle County and Kentucky should be proud.  

Eric Mount is professor emeritus of religion at Centre College.