William & Mary Bill of Rights Journal
This article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modem empirical evidence continues to show a devaluation of black victims; dramatic disparities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of rape and domestic violence for failing to meet gender norms. Statistical studies show that the "appropriateness" of a female victim's behavior is one of the most accurate predictors of conviction for gender-based violence.
Discriminatory acquittals violate the Constitution. Jurors may not constitutionally discriminate against victims of crimes any more than they may discriminate against defendants. Jurors are bound by the Equal Protection Clause because their verdicts constitute state action, a point that has received surprisingly little scholarly analysis. Finally, defendants have no countervailing right to jury nullification based on race or gender discrimination against victims. The Sixth Amendment promises defendants an "impartial" jury, not a partial one.
Double jeopardy prohibits a direct remedy for the problem of discriminatory acquittal, and jury secrecy makes proof difficult. Yet recognizing the unconstitutionality of discriminatory acquittal would result in fundamental normative shifts. It would create a new constitutional language for prosecutors and judges to protect victims against jury discrimination within our existing criminal procedure. Most of all, the pervasiveness of discriminatory acquittals could no longer serve as a legitimating excuse for police and prosecutors to magnify the problem by conducting their own anticipatory underenforcement of the law.