NC courts now have the power to end a legacy of jury discrimination. Use it.

Last month, the North Carolina Supreme Court overturned the conviction of Christopher Clegg because a Wake County assistant district attorney engaged in race discrimination when selecting the jury. This was a historic moment.

Although studies show that prosecutors are much more likely to remove Black citizens from juries, Clegg’s case is the first time our state Supreme Court has ever overturned a conviction on that basis.

Since then, many people have asked me what the decision means. Will it lead to real change? Or is it just a token acknowledgment of a longstanding problem, soon to be overshadowed by an intractable status quo?

The answer will depend on how our trial judges, prosecutors and defense attorneys respond. But my hope is that the Clegg decision will not only compel change, but also serve as an opportunity for reflection and growth within our court system.

Race discrimination is baked into the American jury. All-white juries were a given during Jim Crow, with disastrous results for Black defendants and Black victims alike. After the civil rights movement made explicit racism taboo, prosecutors turned to the peremptory strike to weed Black citizens off juries. Peremptories traditionally give lawyers the ability to strike a certain number of jurors for any reason or no reason at all. In the 1986 case Batson v. Kentucky, the U.S. Supreme Court ruled that the reason cannot be a juror’s race.

But until Clegg N.C. appellate courts had accepted any reason a prosecutor could come up with to justify excluding jurors of color, no matter how ridiculous or unfounded. By reversing Clegg’s conviction, our state’s highest court sent the strongest message an appellate court can send. Trial prosecutors and judges should take notice or risk more convictions being overturned.

This will require a real change in courthouse culture. Because there has been no enforcement of Batson, discrimination has run rampant in our trial courts. Prosecutors have acted with impunity, and defense attorneys have given up objecting in the face of judicial inaction.

As the Clegg majority recognized, “a trial judge may feel understandably hesitant to imply that a prosecutor engaged in racial discrimination while that prosecutor is standing right in front of her.” Talking about race is hard; calling out racism even harder. And the people with power in our state’s courtrooms have too often treated an accusation of discrimination as worse than the harm of racism itself.

For too long, the court system has fought harder to defend its own than to protect Black citizens excluded from a fundamental democratic right and Black defendants sent to prison, or even to death row, by racially skewed juries.

Fortunately, change is possible. Elected district attorneys can confront their historical pattern of race-based exclusion and train their staff to avoid it; they can track their offices’ jury selection decisions and make that data available to the public. Defense attorneys can speak up when they see discrimination.

Trial judges should take seriously their job to hold prosecutors accountable; Gov. Roy Cooper’s Task Force for Racial Equity in Criminal Justice is creating suggested jury selection practices for judges that could help. And voters can demand action from district attorneys and judges, who are, after all, elected officials, while pushing for statewide reforms like those several other states have adopted.

The legacy of jury discrimination will barrel right along unless those with power stop it. In his Clegg dissent, Justice Phil Berger Jr. dismissed Wake County’s long history of jury discrimination as irrelevant, suggesting hopefully that “attitudes have changed.” But it should be obvious by now that racial disparities born of our nation’s history will not magically disappear if we just sit back and hope.

As Frederick Douglass said, “Power concedes nothing without a demand.”

The N.C. Supreme Court’s decision in Clegg is a demand. Those who hold power in our courthouses should heed it.