Juries are disproportionately white. Although it is illegal to dismiss potential jurors on the basis of their race, lawyers can give any reason they want for dismissing a juror, and they are rarely challenged during the jury selection process. And in practice blacks are much more likely to be excluded from jury service than whites are.

A new study of the jury selection process in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee) by the Equal Justice Initiative found widespread racial discrimination, particularly in serious criminal cases. In one Alabama county 4 out of every 5 blacks who had qualified for jury service in capital cases were struck by prosecutors. And, according to the report, some district attorney’s offices explicitly train prosecutors to exclude minorities from jury service under false pretenses, even though it is a violation of the law.

"We've had African-American jurors excluded because they're too old at 43, because they're too young at 28, while other white jurors much older are being accepted, and other white jurors much younger are being accepted," The Equal Justice Initiative’s Bryan Stevenson told NPR. "We've had jurors excluded because they were in an interracial marriage or had a biracial son." Stevenson said that another common reason for dismissing potential black jurors—including ones with college degrees—was that they were supposedly not smart enough.

Blacks, of course, are just as qualified to serve as jurors as whites, and just as entitled to have to a voice in the legal process. And prosecutors should not be able try to use racial bias to obtain convictions of black defendants. The practice is particularly troubling in cases where the death penalty or a life sentence is at stake. But because it is hard to prove that lawyers are discriminating on the basis of race, it may be hard to stop. "The culture has tolerated this all-white jury, white prosecutor, white judge phenomenon," Stevenson says, "because that's what people have seen for decades."