Law and Whiteness

In America’s history race and the courts (both state and federal) have always been inextricably linked, after all it was the Supreme Court that bolstered the “separate but equal” claim in Plessy v Ferguson (1896) and it was said Court that declared the ‘end’ to Jim Crow and racial segregation. In present day America the link between the courts and race is not simply a matter of creating laws that attempt to set a precedent for equality but this relationship has extended to jury selection. It is not uncommon for lawyers to tailor their preferred juries in order to gain the maximum sympathy for their clients thereby earning themselves a win. This tailoring includes choosing persons from specific classes, levels of education, backgrounds, professions, and races. Unsurprisingly, this tailoring has the possibility of being taken too far, as it has in the cases of Timothy Foster and Daniel Holtzclaw. While these two cases are distinct cases from two different states they do have one thing in common: a racially homogeneous jury (both juries are all white).

Timothy Foster’s case began in 1987 in Georgia. Foster, then 19, was arrested and charged with the murder of a elderly white woman; the all white jury found him guilty and sentenced him to death at the behest of the prosecution who urged them to vote for the death penalty in order to “deter other people out there in the projects.” He has been on death row for almost thirty years. In 2006 his legal team received documents that showed that the prosecution deliberately removed potential jurors who identified as black and at least one who was deemed to be too close in age to Foster. The legal team petitioned the Supreme Court to hear his case and to reverse the ruling made almost thirty years before.

Daniel Holtzclaw’s case is more recent. Holtzclaw, formerly an officer for the Oklahoma City Police Department, was arrested in January 2015 and charged with 36 crimes including first-degree rape, sexual assault, indecent exposure, stalking, burglary as well as other. Holtzclaw’s charges were based on the reports of twelve women and one underage teenager who reported being sexually assaulted by Holtzclaw during his time as an officer. Of these 13 women, an overwhelming majority identify as black/African-American. his case was first heard in Oklahoma in early November with an all white jury consisting of eight men and four women. The jury has been deliberating since Monday, December 7th and by Thursday (10th) are yet to reach a consensus.

Both these cases show how whiteness can be used as a way of negating and affirming the identities of others through law. In Foster’s case the use of an all white jury reaffirmed the defendant’s blackness and the whiteness of the victim by ensuring that (though being found to borderline mentally incompetent) Foster would pay for his transgressions against the white community. Whereas in Holtzclaw’s case the all white jury is used as an attempt to negate the blackness of most of his victims – while the four women are able to have some association with his victims because of their shared womanness the eight male jurors have nothing in common with his victims as they are neither male nor black/African-American. This clearly racialized (and predominantly masculine) jury is expected to make a fair ruling on a case in which their lives and outward appearance have more in common with the defendant and not with his victims or a mixture of the two.

In class we mentioned how ‘white’ is rarely identified as a race until it is forced to be in stark contrast with another racial group and how whiteness is seen as the default (as least in America). American law has always played by these rules. During colonization, slavery, Jim Crow, the World Wars, and the civil rights era laws were made that restricted and defined what could and could not be done by Native Americans, blacks, Hispanics, and Asian-Americans but rarely what could be done by whites. Law has long been used to police the bodies of people of colour however in Foster and Holtzclaw’s cases it is whiteness that is used to police POC bodies through the guise of law.

Update as of Friday (11th) AT 1:07AM: Holtzclaw has been found guilty on 18 of the 36 charges that he faced.

Information sourced from:


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