By Brian Stull and Henderson Hill, ACLU Senior Staff Attornies, Capital Punishment Project

Every person accused of a crime is entitled to a jury of their peers. While this is a fundamental right, it is not the case in death penalty trials. Jury selection in death penalty trials is unconstitutionally discriminatory and exclusionary because of a process called “death qualification,” which prosecutors use to exclude jurors.

Here’s how it works: To serve on a death penalty jury, potential jurors must declare to prosecutors that they are willing to impose the death penalty. This assertion makes them — “death qualified.” Death qualification is as sinister as it sounds, and it’s demonstrably racist.

Disproportionate numbers of Black jurors and jurors of faith, especially Catholics, are excluded from death penalty juries. Combined with the prosecutor’s use of peremptory strikes — or removing jurors without providing a reason — death penalty juries end up being overwhelmingly white, male, and biased in favor of the prosecution and death. We should note that even though the Constitution forbids using peremptory strikes to remove jurors based on their race, prosecutors frequently do so anyway by using various evasive tactics.

We are challenging the exclusionary and racist practice of death qualification on behalf of two clients — Brandon Hill in North Carolina, and Dennis Glover in Florida. A hearing on our motion to bar this practice in Mr. Hill’s case starts tomorrow.

In both cases, experts have conducted studies to learn whether death qualification skewed jury composition in the counties our clients are having their trials. It does.

In Duval County, Florida, where Mr. Glover is being tried, a study of 12 capital cases since 2010 (where 11 out of 12 people on trial were Black) involving more than 800 jurors found Black jurors were twice as likely to be removed as white jurors because of death disqualification.

In Wake County, North Carolina, where Mr. Hill is being tried, a study of the last 10 capital trials found similar results — with Black jurors again twice as likely as white jurors to be removed from capital juries because of death qualification and prosecutors’ use of peremptory strikes.

The death penalty has a racist history that lives on in prosecutors’ use of death qualification and Black communities’ opposition to the death penalty.

Since the founding of our country, white people could kill, assault, or degrade Black people for any reason. Courts and law enforcement upheld this racial hierarchy and racial violence. If Black people weren’t lynched, the deeply tainted court process served as an avenue for “legal lynchings” — where all-white juries sentenced Black people accused of crimes, often falsely accused – to death. Death qualification to exclude Black jurors is a legacy of this shameful history.

In the United States, Black people are as underrepresented on capital juries as they are overrepresented on death row. More than a third of people on the Florida death row are Black, more than half the people on the North Carolina death row are Black, and Black people are disproportionately represented on the remaining death rows across our nation as well as federal death row.

It’s an endless cycle of discrimination: Exclude skeptical Black jurors, disproportionately condemn Black people to death with whitewashed juries, prompt distrust in a racist system, and repeat.

Juries are meant to represent the community’s conscience. But in capital trials — where the stakes couldn’t be higher — our courts exclude entire demographic groups and entire viewpoints. Not only does this violate the rights of Black jurors and jurors of faith to serve, it violates the rights of accused people to have fair trials, like our clients Mr. Hill and Mr. Glover. They have the right to a fair, representative jury — not a jury that is unconstitutionally engineered to impose death.

A hearing on Mr. Hill’s motion is scheduled for August 31 – September 1 at the Wake County, North Carolina Justice Center.

This article was originally publised by the ACLU.

Following a radical Supreme Court term that has had a devastating impact on abortion access, the separation of church and state, immigrants’ rights, privacy, and more, it’s easy to feel powerless. But we can still fight for our rights — starting in our communities, at the ballot box. We have the power to send a message to elected officials about what we value and what we want them to prioritize. Your vote can send a clear message to lawmakers and elected officials that they need to take bold action to stem the tide of attacks on abortion, and protect access to essential care — just as Kansas voters recently did when they defeated a measure that would have stripped the right to abortion from their state constitution.

Trust in American institutions has dramatically decreased in recent years, according to recent polling. Americans are losing confidence in the Supreme Court, politicians, and the media. But people still trust their family, friends, and neighbors.

That’s why your vote is so important this year, and why the ACLU wants to arm you with the knowledge you need to talk to your friends and family about the issues that matter. With just a conversation, you can use your existing networks to mobilize and activate your community.

Here, we break down some of the elected offices you may see on your ballot, so you can better understand how these officials wield the power to protect civil liberties and civil rights. Whether it’s for a district attorney election in your county or a supreme court judge race in your state, you have the power to change this country. This November, let’s remind our elected officials that they don’t have the final say when it comes to our rights — we do.

State attorneys general are the top legal officers of their state. They have the ability to issue legal guidance or formal opinions to state agencies, including opinions on the constitutionality of abortion bans, restrictions on the right to learn, as well as choosing to not enforce education gag orders that restrict teachers and students from being able to learn and discuss issues related to race and gender in the classroom. They can advise their legislature and state agencies on ways to protect LGBTQ people from discrimination and ensure equal access to services, and can also join or initiate lawsuits challenging anti-LGBTQ laws or policies.

In many states, the secretary of state is the state’s chief elections officer with responsibility for oversight and administration of elections. The secretary of state can expand voting access by implementing measures such as automatic voter registration and universal mail-in voting, as well as advocating for a legislative agenda that pushes for greater access.

State supreme courts — often elected or retained by the people in statewide elections — can and often do find that state constitutions protect more rights than the U.S. Constitution, making them a powerful backstop protecting our rights against the attacks they face. They decide cases related to abortion, voting rights, the rights of LGBTQ people, free speech, and more. Now that the U.S. Supreme Court has overturned Roe v. Wade, state courts will likely be the final arbiters to decide whether reproductive freedoms are protected in the states, making this role especially crucial.

Also referred to as County Attorney, Prosecuting Attorney, or Commonwealth Attorney in some states, elected prosecutors are the most influential actors in the criminal justice system. They have the power to decide who should be charged with a crime, and can decline to press charges — including declining to prosecute a person accused of violating an abortion ban. Prosecutors’ decisions and their influence over local and state criminal justice laws have been one of the primary drivers of incarceration and racial disparities throughout the justice system. District attorneys can exercise prosecutorial discretion to not bring charges against those accused of violating classroom censorship laws and education gag orders that restrict teachers and students from being able to learn about issues related to race and gender in the classroom. They can also decline to prosecute crimes related to HIV status, sex work, and other criminalization that disproportionately affects LGBTQ people; train staff to respectfully manage cases involving hate crimes and domestic violence; and establish data collection to track treatment of LGBTQ victims and defendants.

In many states, county clerks act as the local election administrator and run the day-to-day operations of registration and voting. They may be responsible for recruiting and training election officials, mailing absentee ballots, and counting and canvassing election results. County clerks may be also responsible for issuing permits for LGBTQ parades or events, recruiting or training poll workers to ensure they are LGBTQ-friendly, or ensuring that same-sex couples can access marriage licenses.

School Board representatives can pass important policies to protect LGBTQ students from harassment, discrimination, and bullying, including ensuring students in their district have the right to access restrooms and play sports in accordance with their gender. They can also either endorse or fight back against attempts to restrict school curriculums limiting how race, sexual orientation, and gender identity may be talked about in school, and push back against attempts to remove books by and about LGBTQ people from school libraries.

The Board of Regents or Board of Governors are elected and approve curricula in some states, determining what students are allowed to learn or required to learn. They may be responsible for enforcing classroom censorship policies and education gag orders that restrict teachers and students from being able to learn about issues related to race and gender in the classroom. These officials have the power to protect the right to learn in higher education.

From limiting how and when we vote, to removing books by LGTBQ authors from library shelves, to criminalizing access to basic health care, politicians are attacking our fundamental rights. The midterm elections are a chance for all of us to say enough is enough.

Join us as we talk to our family and friends about why this election matters and pledge to vote our values.

https://www.youtube.com/watch?v=T7_vBWccJk0

By Sophia Lin Lakin, ACLU Deputy Director, Voting Rights Project

This week marks 57 years since the signing of the Voting Rights Act (VRA), landmark legislation that ensured the right to vote was protected for all Americans.

In the decades following the Civil War, states in the South enacted discriminatory measures, such as poll taxes and literary tests, in order to stop Black Americans from voting. Not to be deterred, voting rights activists protested and mobilized, but were met with brutal violence and intimidation. These efforts culminated in 1965, as voting rights activists seeking to march from Selma to Montgomery, Alabama were severely beaten and bloodied. The nation watched, shocked and outraged, which pushed President Lyndon B. Johnson to call on Congress to pass comprehensive legislation to protect the right to vote. The result was the crown jewel of the civil rights movement: the VRA.

The VRA was designed to enforce voting rights guaranteed by the United States Constitution, and to secure the right to vote for racial minorities throughout the country, especially for Black voters in the South. For decades since its signing, the VRA has stood as a bulwark against racially discriminatory voting practices and paved the way for 45 years of progress on voting rights. But over the last decade, instead of protecting the VRA and expanding access to the ballot box, the Supreme Court and courts across the country have dismantled and gutted crucial parts of the VRA.

First, in the 2013 Shelby County v. Holder case, the Supreme Court eviscerated Section 5, one of the VRA’s most effective guardrails. Prior to this decision, states and counties with the worst histories and recent records of racial discrimination in voting had to obtain federal “preclearance” — that is, approval from the Department of Justice or a federal court — before implementing any changes to voting laws and practices, to ensure they did not curtail the right to vote for minority voters. Shelby County struck down the formula used to identify which states and localities were required to do so, gutting the heart of the VRA and opening the floodgates to wave after wave of anti-voting legislation.

Then last year, the Supreme Court dealt another blow to the critical protections provided in the VRA. In Brnovich v. Democratic National Committee, the court erected significant new barriers to lawsuits brought under Section 2 of the act, the nationwide prohibition on racially discriminatory voting laws. The new standard is completely at odds with the VRA’s purpose — to eradicate racial discrimination in voting, no matter how blunt or subtle.

The attacks on the VRA have not abated. Just last month, the Supreme Court reinstated Louisiana’s congressional map, despite a federal court ruling that the map was racially discriminatory and likely violated the VRA. This is a repeat of what occurred earlier this year in Alabama. There, the Supreme Court allowed yet anotherhttps://www.aclu.org/news/voting-rights/alabamas-new-electoral-lines-are-racially-gerrymandered-heres-why racially discriminatory congressional map to stand in the face of a federal court ruling that it likely violated the VRA. It’s clear the robust federal safeguards instated by the VRA to protect the right to vote are quickly being rolled back.

At the same time, politicians across the country continue to push the big lie that the 2020 election was stolen. This lie not only led to the attack we saw on the Capitol on January 6, but is fueling even more voter suppression legislation across the country.

In 2021 alone, more than 400 anti-voter measures were introduced by states across the country, many of which will disproportionately burden voters of color. This relentless assault on voting rights shows no signs of receding. These measures run the gamut from restricting access to vote by mail, eliminating Election Day registration, and making it more difficult to vote early in person to criminalizing efforts by local election administrators to assist voters. Additionally, like in Louisiana, several states have enacted new electoral maps that systemically minimize the voting strength of Black voters.

As we reflect on the 57th anniversary of VRA, there should be no question that the right to vote is under siege and that these efforts to interfere with and minimize our right to vote fall heaviest on already marginalized people, especially Black communities. We still have so much work ahead of us to ensure every eligible American has the right to vote. Here at the ACLU we’ve redoubled our efforts to fight for voting rights in courts, in state legislatures, and on the streets. For over 100 years we’ve protected the civil liberties of all Americans, and we’ll continue to be on the frontlines of this fight to protect our rights.