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Racial Stereotyping is the “Worst Thing” for Our Criminal Justice System

October 12, 2016

In 2007, an Aurora, Colo., jury convicted Miguel Angel Peña-Rodriguez on three misdemeanor counts of sexual misconduct for allegedly accosting two teenagers at the racetrack where he worked.

After the trial, two jurors reported to defense lawyers that another juror had said the defendant was guilty “because he is Mexican and Mexican men take whatever they want.”

Did that and other alleged slurs unfairly weigh on the jury’s decision to convict Peña-Rodriguez? Or should the juror’s words be protected by state and federal rules that guarantee the secrecy of jury proceedings? That was the question before the Supreme Court Tuesday.

The Court should not hesitate in its conclusion. We are living in an era when a major party presidential candidate declares before the world that Mexican immigrants are “rapists“ and “killers;” in an era in which police shoot too frequently at unarmed black men because they are wrongfully stereotyped as aggressive and violent. The Peña-Rodriguez case provides the perfect opportunity for the Court to renounce the systemic racism that has shadowed the American story since its beginning and instead reaffirm our abiding constitutional principle of equality for all.

As Justice Elena Kagan observed during oral arguments, using particular stereotypes about race and criminality is not just in conflict with constitutional principles of individual equality, but it would also be “the worst thing that you can suggest about our criminal justice system, that it allows that to happen.”

The Court should rule in favor of Peña-Rodriguez to make clear that racial prejudice has no place in our judicial system.

The idea of a fair trial in criminal proceedings can be traced back to 18th Century English common law. The renowned British jurist Sir William Blackstone called juries a “sacred bulwark” of liberty. And as our nation’s Founders crafted the Constitution – the most enduring in history – they adopted that revolutionary concept. Based on the text of the Sixth Amendment – “… the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” – the Founders clearly believed that jurors should be free of any bias of any kind.

While many of us cringe when we get our jury duty notice, the jury is a crucial gatekeeper of justice, standing between individuals and wrongful convictions, serving as a check from the community on overzealous prosecutors, and ensuring that everyday people—our peers—have a say before our liberty is taken away. As American constitutional scholar Akhil Amar has argued, the concept of impartial juries is at the heart of American identity: “the jury summed up – indeed embodied – the ideals of populism, federalism, and civic virtue that were the essence of the original Bill of Rights.”

Unfortunately, this Founding Era guarantee of an impartial jury was hardly a reality for many people of color in this country after the Bill of Rights was adopted, as African Americans were barred from serving on juries and justice was far from blind when it came to non-white defendants. After the abolition of slavery and the ratification of the Fourteenth Amendment, our Constitution made clear that “any person” in our country—black or white, rich or poor, citizen or not—has the right to equal protection of the laws and due process.

The Supreme Court has long recognized that racial bias on juries cannot be squared with the Sixth and Fourteenth Amendments. Since 1879, the Court has repeatedly held that racial prejudice in the justice system is unconstitutional. In a 1979 case, the Justices stated that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”

The text and history of the Constitution validate the principle that discrimination doesn’t just violate the law of the land, but is at war with our basic ideals of democracy. A juror who infers a defendant’s guilt “because he is Mexican and Mexican men take whatever they want”—a statement attributed to one of the jurors in Peña-Rodriguez’s case—is an appalling violation of this ideal. Disbelieving the crucial testimony of an alibi witness because he is Hispanic and “an illegal”—also a statement attributed to this juror, and, as a matter of fact, not an accurate statement of the man’s legal status—is out of line with our constitutional guarantees of impartial justice.

Sometimes bias can be hard to see. But much like the horrific shootings of unarmed African American men pre-judged as violent and dangerous, the Peña-Rodriguez case is a terrible and unmistakable reminder of the real harms that racial and ethnic stereotyping can create. As Justice Kagan put it during argument, the case has “the best smoking-gun evidence you’re ever going to see about race bias in the jury room.” When it makes its decision, the Supreme Court should ensure that our jury system, hailed at our nation’s founding as a sacred bulwark of liberty, is a protective barrier against such discrimination, not an agent of it. 

This piece is cross-posted at Huffington Post.

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