Every person accused of a crime is entitled to a jury of their peers. While this is a fundamental right, it is not the case in death penalty trials. Jury selection in death penalty trials is unconstitutionally discriminatory and exclusionary because of a process called “death qualification,” which prosecutors use to exclude jurors.

Here’s how it works: To serve on a death penalty jury, potential jurors must declare to prosecutors that they are willing to impose the death penalty. This assertion makes them — “death qualified.” Death qualification is as sinister as it sounds, and it’s demonstrably racist.

Disproportionate numbers of Black jurors and jurors of faith, especially Catholics, are excluded from death penalty juries. Combined with the prosecutor’s use of peremptory strikes — or removing jurors without providing a reason — death penalty juries end up being overwhelmingly white, male, and biased in favor of the prosecution and death. We should note that even though the Constitution forbids using peremptory strikes to remove jurors based on their race, prosecutors frequently do so anyway by using various evasive tactics.

We are challenging the exclusionary and racist practice of death qualification on behalf of two clients — Brandon Hill in North Carolina, and Dennis Glover in Florida. A hearing on our motion to bar this practice in Mr. Hill’s case starts tomorrow.

In both cases, experts have conducted studies to learn whether death qualification skewed jury composition in the counties our clients are having their trials. It does.

In Duval County, Florida, where Mr. Glover is being tried, a study of 12 capital cases since 2010 (where 11 out of 12 people on trial were Black) involving more than 800 jurors found Black jurors were twice as likely to be removed as white jurors because of death disqualification.

In Wake County, North Carolina, where Mr. Hill is being tried, a study of the last 10 capital trials found similar results — with Black jurors again twice as likely as white jurors to be removed from capital juries because of death qualification and prosecutors’ use of peremptory strikes.

The death penalty has a racist history that lives on in prosecutors’ use of death qualification and Black communities’ opposition to the death penalty.

Since the founding of our country, white people could kill, assault, or degrade Black people for any reason. Courts and law enforcement upheld this racial hierarchy and racial violence. If Black people weren’t lynched, the deeply tainted court process served as an avenue for “legal lynchings” — where all-white juries sentenced Black people accused of crimes, often falsely accused – to death. Death qualification to exclude Black jurors is a legacy of this shameful history.

In the United States, Black people are as underrepresented on capital juries as they are overrepresented on death row. More than a third of people on the Florida death row are Black, more than half the people on the North Carolina death row are Black, and Black people are disproportionately represented on the remaining death rows across our nation as well as federal death row.

It’s an endless cycle of discrimination: Exclude skeptical Black jurors, disproportionately condemn Black people to death with whitewashed juries, prompt distrust in a racist system, and repeat.

Juries are meant to represent the community’s conscience. But in capital trials — where the stakes couldn’t be higher — our courts exclude entire demographic groups and entire viewpoints. Not only does this violate the rights of Black jurors and jurors of faith to serve, it violates the rights of accused people to have fair trials, like our clients Mr. Hill and Mr. Glover. They have the right to a fair, representative jury — not a jury that is unconstitutionally engineered to impose death.

UPDATE: On Oct. 21, 2022, Mr. Glover’s case was resolved and he was sentenced to life in prison without parole. Mr. Glover’s challenge to death qualification remains relevant in other Florida cases.

One year ago, my phone rang in California at what I knew was 2:00 a.m. in Afghanistan. It was the country director of Nutrition & Education International, the non-profit food aid organization I founded 18 years ago and lead as president. “Dr. Kwon, Zemari is no longer with us,” he told me. “Zemari has died with his children due to a drone strike.” In my immediate shock, this news hardly made any sense at all.

Zemari was one of the first six people NEI ever hired. He grew up poor, like many Afghans, and started with us in 2006 as a handyman. He never attended school for formal training, but was extraordinarily smart, a gifted electrical engineer, and he became a key leader in our small organization. NEI’s concept was simple: If we could go to poor villages in Afghanistan with high mortality rates among women and children, and teach farmers how to cultivate protein-rich soybeans and consume them at home, they could help save their malnourished families. By 2019, we had successfully built a national infrastructure for sustainable soy value-chain development in Afghanistan. None of this would have been possible without Zemari.

After I got off the phone, I couldn’t stop thinking about how a good person, working to make his country a better place, could die like this, at the hands of my own government. I could still hear Zemari’s laugh so distinctly. He loved to tell jokes, and we laughed so much together. For over a decade, he and I spent countless hours traveling together, eating meals together, and talking about our families, our work, the world, and life. We were so close that my wife and I considered him our Afghan son.

The day after the strike, our country director visited the scene. It was gruesome, he told me; he could still see pieces of human flesh. In addition to Zemari, the strike killed all three of his sons and six members of his extended family. His two brothers and sister-in-law lost four children under the age of seven, while Zemari’s step-daughter lost her own daughter, a sweet little girl who was barely two years old. The 10th victim was Zemari’s nephew, Naser, a breadwinner for his branch of the family, who was only in Kabul at all to pick up a U.S. Special Immigrant Visa, for which he was eligible because he risked his life working with the U.S. military. He had hoped this visa would help get him and his family to safety.

Credit: Nutrition & Education International

The Pentagon originally claimed the strike was “successful” and “righteous,” because it allegedly killed ISIS operatives, but NEI’s own investigation and those of prominent American media outlets quickly dispelled that falsehood. With our country director’s help, I located the people that Zemari spoke to that day while going about his work—people at the police station, the refugee camp, the bank. All of them said he was his usual optimistic and joyful self. We reviewed the security camera footage, and hours later, we saw a video of Zemari doing exactly what the guard had said: Packing up and loading large bottles of water into his car trunk to bring home for his family— not explosives as claimed by the Pentagon. Weeks later, the head of U.S. Central Command, called the strike a “tragic mistake” and confirmed innocent civilians were indeed killed in the attack.

Knowing that he was killed by my government over water bottles left me devastated. Then and there, I promised Zemari I would take care of his family and achieve justice. I saw this as my moral responsibility in return for his dedication and loyalty to NEI, to his country, and to his family. NEI has been paying the daily living and education expenses of Zemari’s wife and daughter for the past year to be sure they are cared for.

It’s still unbelievable to me how many people were irreparably harmed and how many families’ lives were shattered because of this wrongful strike. A legal team led by the ACLU represents approximately 144 surviving family members and NEI employees. Within months, we documented for the U.S. government the security risks they were facing, and since then, we have beseeched the government to coordinate their safe evacuation to the United States.

Sadly, today, only 11 of the 144 people the government promised to help are in the United States. Thankfully, 110 more have been safely evacuated, currently in third countries awaiting immigration processing, But, shamefully, 32 others — including Zemari’s wife and his daughter — are still in Afghanistan. Without even a timeline for evacuation, those still stuck are losing hope and trust in the U.S. government’s promises.

Most of the survivors were already at risk when the Afghan government fell. Like Naser, many of Zemari’s family members and NEI colleagues previously worked for the Afghan or U.S. governments in Afghanistan. But any hope they had of maintaining a low profile was lost with this strike. The U.S. government’s false ISIS allegations forced many of Zemari’s grieving family and NEI colleagues to publicly proclaim their innocence, painting targets on their back.

Credit: Nutrition & Education International

My country director cried during one of our calls, telling me that after the drone strike, he prayed that if he was killed, it would be when he was alone so at least his daughters would be spared. What kind of prayer is that? To kill me when I am alone and not with my family members?

Zemari was a proud father who spoke constantly about building a better future for his seven children. Nothing can bring him, his three sons, or his six nieces and nephews back, but the U.S. government can and must help the innocent people whose lives they destroyed by bringing them to safety and helping them rebuild their lives. On the one-year anniversary of the strike, I’m hoping my government will finally keep its promise and quickly evacuate all the survivors and their families.

Powerful new technologies continue to emerge that make it possible to conduct surveillance in all kinds of new ways. But just because something can be done, does not mean that it should be. The current Chinese government shows us what it looks like when there is no space between what can be done, and what is done — when technology is used to monitor and control with no counterbalance or restraint. But many American workplaces are also “anything goes” environments when it comes to surveillance, where employers face few constraints on their use of cameras, keystroke loggers, and other sensors to monitor and track their workers.

Last week The New York Times published a fascinating story on the growth of worker micro-surveillance, which has seen an eightfold increase in funding in just the last five years. Zephyr Teachout also published a broad and devastating piece on the same trend in The New York Review of Books this month.

Last year, I wrote about Amazon’s use of AI cameras to micro-monitor the drivers of its trucks, and how less powerful workers will be the first to be placed under oppressive AI surveillance microscopes — but that ultimately, in one form or another, such monitoring is likely to affect everyone. Indeed, one of the points of the Times story is that this is happening now:

“Architects, academic administrators, doctors, nursing home workers and lawyers described growing electronic surveillance over every minute of their workday. They echoed complaints that employees in many lower-paid positions have voiced for years.”

As with Amazon drivers, many of these professional workers are subject to second-by-second monitoring by cameras, as well as keyboard and mouse micro-trackers, which mercilessly log any diversion of attention from workers’ keyboards, and score them, and base their evaluations and pay on such metrics.

Obviously, employers have legitimate interests in ensuring efficiency and productivity. But we shouldn’t allow electronic surveillance that either goes beyond legitimate management concerns or becomes so intense that it creates an oppressive atmosphere of pervasive surveillance or intimidation.

There are at least three reasons why this is a bad idea.

While new technologies allow for workers’ physical movements to be tracked in increasingly exacting ways, the Times story makes clear that they remain crude and inaccurate when it comes to interpreting such data, and therefore unfair to workers in many respects. AI algorithms are very unreliable at interpreting human meaning and activity, yet are increasingly being trusted with judgments about people — including in workplaces. Sometimes the problems are even more basic; for example, the Times interviewed social workers, therapists, and hospice chaplains who were considered not to be working when they were away from their keyboards — even though a vital part of their jobs is actually talking to people.

Intense surveillance, in addition to just feeling bad, is actively unhealthy for workers. Years of studies have shown that oppressive surveillance (or even just perceptions of surveillance) causes stress and anxiety for people. As Teachout summarizes,

“Electronic surveillance puts the body of the tracked person in a state of perpetual hypervigilance, which is particularly bad for health…. Employees who know they are being monitored can become anxious, worn down, extremely tense, and angry. Monitoring causes a release of stress chemicals and keeps them flowing, which can aggravate heart problems. It can lead to mood disturbances, hyperventilation, and depression.”

She points to a study of 2,100 workers at call centers, which are known for their heavy use of electronic monitoring. The study found that 87 percent of the workers reported high or very high stress levels, with a remarkable 50 percent of them reporting having been prescribed medication for stress or anxiety.

There is good evidence that workplace surveillance can be counterproductive for employers — and not just because it makes workers unhappy. It can create what business professor Ifeoma Ajunwa describes as an “opposition feeling, where employees view the employer not as benevolent, but as dictators.” And it can inhibit the agency that makes workers perform better. One study found that when workers in a Chinese factory were shielded from surveillance by their bosses, their productivity went up. The workers were less creative and efficient when they were nervous or feeling they were being watched, the study concluded.

Of course, some companies won’t care about any of this, and will prefer to reach for brutal efficiency gains by burning through miserable workers. Teachout argues that this is the favored approach of Jeff Bezos and Amazon. At the same time, many employers won’t ever institute this kind of monitoring, whether out of tradition, because they understand that it’s counterproductive, or because their workers have enough market or union power to push back.

Overall, however, it’s clear that oppressive levels of monitoring at work are now becoming increasingly common. That’s likely the result not just of new technologies but also increased monopolization and over 40 years of political dominance by pro-business politicians (since the end of what American historians call the “New Deal Order” in 1980). Policymakers need to do something about this problem — not only by directly regulating the use of such surveillance in the workplace, but also by broadening protections for workers to organize and fight for workplace democracy.