Ahmaud Arbery and America’s White Juror Problem

In American life, the specter of an all-white jury contemplating damage done by a white person to the life, property or body of a Black person looms large. It is a troubling and recurrent part of the nation’s brutal racial history, but it’s not supposed to be part of the present: In 1986, the U.S. Supreme Court issued a clear ruling that race could not be used as a determining factor when lawyers use what’s known as “peremptory challenges” to exclude individuals from a given jury.

Yet, this week, nearly all-white juries were seated in two high-profile murder cases in which race plays a role in the context around the alleged crimes.

First, on Monday, a jury that includes just one member who identifies as a person of color was selected to consider charges facing Kyle Rittenhouse, the white teenager who shot and killed two demonstrators and wounded another last year in Kenosha, Wis., during protests that followed the police shooting of Jacob Blake, a Black man. (Rittenhouse’s lawyers have argued he acted in self defense.) Now, on Friday, a jury of 11 white and one Black Americans is set to begin considering charges against three white men in connection with the shooting death of Ahmaud Arbery, a Black man killed while jogging in Brunswick, Ga., last year—even though the judge himself noted that the jury selection process appears to have involved “intentional discrimination.” (The defendants’ lawyers have argued they were attempting to make a citizen’s arrest.)

Read more: The Trial Over Ahmaud Arbery’s Killing Is Set to Begin. Here’s What to Expect

Samuel Sommers, chair of the Tufts University Department of Psychology, studies racial inequities and how to eliminate them in key institutions such as the criminal justice system. I first encountered Sommers and his research in 2013 while waiting for the jury’s verdict in the trial of George Zimmerman over the shooting death of Trayvon Martin. The jury in that case acquitted Zimmerman—an outcome that Sommers told me, hours before the verdict, was made far more likely by the jury’s mostly white composition, even though many observers expected the all-female jury to convict because a child had been killed.

In fact, in the years before and after the Zimmerman trial, Sommers’ research and that of others has shown that a host of structural factors have rendered the all-white or nearly-all-white jury a relatively common and important feature of the modern American judicial system. One study published this year, for example, confirmed that American juries often don’t look much like increasingly diverse America. And over-representation of white suburbanites on juries increased the median sentence handed down to Black defendants.

In Glynn County, Ga., as the Arbery begins Friday, the factors that can contribute to less representative juries are certainly in play. There, as in other parts of the country, white residents are more likely to own homes, less likely to move often, and therefore easier to reach by mail with a jury summons. Compounding the problem are policing practices and the fact that individuals currently on probation or parole, including for minor offenses, cannot serve on Georgia juries. Black Glynn County residents make up almost 27 % of that area’s population—meaning that a racially representative jury would include three Black people—but about 53% of those on probation or parole.

Before the start of the Arbery trial, Sommers explained what the composition of the Glynn County jury may mean for the case, why all-white juries remain so common and why that matters. This interview has been edited for length and clarity.

TIME: When you heard that a nearly all-white jury had been seated in the Georgia case connected to the death of Ahmaud Arbery, what immediately came to mind for you?

Sommers: What comes to mind immediately? This happens a lot. Like, this happens regularly. It is not unusual, unfortunately, that juries do not feel like they’re particularly representative of the communities from which they are drawn. And, in particular, it’s often that the juries are whiter than the communities from which they are drawn.

Attorneys are not permitted to base a peremptory challenge, a removal from the jury, on race. But as you can see, in this case, the judge even sort of says, I feel like my hands are tied. The defense is able to articulate a neutral reason [for the potential jurors to be removed] and so what are you going to do? Does it mean we know how this jury is going to decide this case? No. But if you’re the family of the victim here or if you’re working with the prosecution, I’m sure it’s perceived as anything ranging from disappointing to outrageous. Unfortunately, not a new story.

How predictive is the racial composition of a jury in trial outcomes?

The strongest predictor of a jury’s verdict is usually the strength of the evidence. Honestly. If you’ve got me on video, I’ve confessed and there’s eight witnesses and there’s DNA evidence, most juries are going to convict, regardless. But a lot of cases in the world around us occur in gray areas.

There’s evidence that a juror’s race and ethnicity is predictive to some degree of their general tendencies. There are data that suggest white jurors, more generally, across cases, are more conviction-prone, more prosecution-friendly, than Black jurors in many instances, regardless of what kind of case we’re talking about. Juries that are all predominantly white judging a Black defendant in a case with a white victim, historically, are fairly punitive. Now, here we’ve got a reversal: we’ve got a predominantly white jury, judging white defendants accused of murdering a Black victim. I’ve got to believe that the [prosecutors] are going to make an argument that race played a major role here. It may very well be that there’s some motivation among some of these white jurors to not just see justice done but to not be seen as someone who came back with a verdict that’s tinged by racial bias, to hold people responsible if they’re responsible.

We don’t know. What makes the jury process fascinating is no one’s in there and we don’t know. But sure, in the abstract, if you give me 2,000 cases with a white defendant and a Black victim and 1,000 cases tried with an all-white jury and 1,000 cases tried with a racially diverse jury, I’m going to bet there’s more convictions from the racially diverse 1,000 juries than from the all-white 1,000 juries, all things being equal. This is a one particular case being tried in front of 12 particular jurors. And so we don’t know.

Read more: Unreasonable Fear Is Killing Black Men in America—And There’s No Justification For It

To your earlier point that many juries across the country look a lot like the one just seated in Georgia and the one seated in Wisconsin, how can this be? Is there something about the jury formation system that we need to fix?

For sure. There are obstacles to creating a diverse jury pool to begin with. Many jurisdictions use things like voter registration rolls or utility bills or DMV records and so forth. Underrepresented tend to be people who move around more often or who don’t own property, who are renters or who are less likely to register to vote. So some studies show that you get an underrepresentation of young people, people of color, people of lower socioeconomic status, who also frankly might feel like it’s harder for them to show up for jury duty because they have to work and their employer won’t be very understanding. And so you’ve got the whole category of issues that occur at that level.

And then you’ve got a system that still has these peremptory challenges. Even though you’re not allowed, by Supreme Court rule, to base challenges on race and gender, that’s a very difficult prohibition to enforce. It’s not hard for people to generate a neutral explanation for a challenge, to say this juror didn’t have children and I want people with children and this juror just didn’t make good eye contact with me and I didn’t get a good vibe with them.

These biases aren’t necessarily unique to the legal system, in jury service, but there are all these other things that feed the inequalities in our system to begin with. All of these things just get magnified now, and with life and death consequences, when it comes to juries making decisions.

One of the defense lawyers in the Georgia case has complained about what he described as the limited number of “white males born in the South, over 40 years of age, without four-year college degrees,” men he labeled “Bubba” or “Joe Six Pack,” in the jury pool. Is that “neutral”?

Right. Well, a couple of notes there. One is that being a “Bubba,” is not a protected category in the United States and so there’s no requirement that they have representation on the jury. And just because you’re a 47-year-old doctor with three kids who’s been married twice, doesn’t mean you get 12 people like that on your jury. That’s not how this works.

The other thing is the fact that the lawyer is saying that. What you’re telling me is that, yes, he’s paying attention to race and class and things like that. But he’s allowed to talk about one of those things and not the other.

What is the actual definition of “one’s peers”? Many people are familiar with that phrase: you are entitled to a jury of your peers. How are peers defined under the law?

You aren’t really entitled to a jury of your peers; you’re entitled to a jury pool of your peers. The jury pool is supposed to represent the community from which it’s drawn. That’s the general principle. I mean, if you can show that this is a population that’s 26% Black but in the course of these eight years, the juries have been 3% Black, you probably have a pretty good case to make that something is going on.

Is there anything else people should know as they’re thinking about the fact that there are nearly all-white juries in the cases involving Ahmaud Arbery and Kyle Rittenhouse?

When juries are more homogeneous, people feel like the system’s less fair. And that’s important to consider by itself. But there is evidence that with an all-white jury and a Black defendant, for example, you have a much higher chance of conviction than some other permutations.

No one’s arguing that we know what’s going to happen now because we know the jury’s racial composition, but it does matter. It does have the potential to make a difference. And, you don’t even have to go to, “well, jurors are going to be racist” in order to think that this matters. Yes, that can happen; jurors tell racist jokes. But even absent that, I guess the point I’d want to make—I know it’s a controversial take in this country today for some reason—[is that] race is the lens through which we see the world around us all the time, regularly. It’s the lived experience of many people in this country.

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The race of a defendant in a case, the race of a victim in the case, our own racial and ethnic identity—these things shape how we see the world around us, and here you’ve got [a case that] it is not a parking meter appeal. This is white guys chasing down a Black guy jogging in the neighborhood and him ending up on the receiving end of fatal gunshots in the context of a country undergoing all sorts of forms of racialized violence and some, well, in theory, racial reckoning. So, this influences how we see the world. For some people in our society that really is a challenging conclusion to wrap one’s head around. But the scientific data are very clear on that point.

The beauty of the jury is supposed to be [that] 12 heads are better than one, in decision making and in terms of representing the community. So I think we have to ask ourselves, when the jury doesn’t really represent the community, when it’s not representative of those multiple viewpoints, is it really 12 heads better than one at that point? Is the jury system, which is supposed to be this great beacon of freedom and democracy and liberty, really living up to its potential?