In The Devil and Daniel Webster, Stephen Vincent Benét depicts the American judiciary as an institution above individual biases, human error, and as a perfect national moral center. In the story, the grave mistake the Devil makes is challenging Daniel Webster to argue in front of an American court to save Jabez Stone’s soul. The Devil brings in notorious villains of American history to be the jury. Jabez Stone thinks he’s done for, given that these individuals would be highly partial to the Devil, as they are “evil” just like him. However, Daniel Webster, being the icon of American greatness and patriotism that he is, delivers a breathtaking, vivid, emotional testimony to the jury. The jurors, supposedly evil and favoring Satan, rule in favor of Jabez Stone on Webster’s rhetorical merits, and Webster casts the Devil away.

The Devil and Daniel Webster presents an extremely idealistic view of the American judiciary. It advocates the idea that this institution is so impeccably designed by our founders that even the most evil jurors would have to rule in favor of the better argument. This assertion, that individuals will always put their biases and egos aside to rule the most noble and meritorious thing, is false and dangerous.

In the American judicial system today, our jury selection and sentencing processes are steeped in systemic racism and systematic racial exclusion. Before a trial begins, the court selects jurors, and the prosecution and defense attorneys can advocate for the jurors they think will be more favorable to their side. During this process, known as “voir dire,” each attorney is allowed a certain number of “pre-emptive exclusions,” or people they are allowed to strike from the jury pool right away without providing a reason. Since Black jurors are statistically more likely to acquit than white jurors, prosecutors preemptively exclude about 20% of all the potential Black jurors, compared to just 10% of whites, according to researchers at Wake Forest University. After preemptive exclusion, prosecutors dismiss Black jurors “for cause” at a comparable rate. In addition to the biases of juries, there’s evidence to suggest that racial bias is a factor in judges’ sentencing as well. A 2017 report by the United States Sentencing Commission found that Black male offenders were 21.2% more likely to receive longer sentences than similarly situated White male offenders. In summary, our judicial system creates juries that are significantly less diverse than the pool that was originally summoned, leading to disproportionate convictions for Black defendants. After they are convicted, they recieve disproportionately long sentences compared to their White counterparts.

Constitutionally, it would be illegal for an attorney or judge to preemptively strike someone on the basis of race, according to the Supreme Court decision in Batson v. Kentucky. In practice, however, this is easy to get around and hard to enforce. If the opposing attorney makes a “Batson challenge,” as it is known, the attorney can create any other valid reason why they may have excluded the juror. They can cite ridiculous cosmetic grievances, such as when a prosecutor in North Carolina struck a black juror for humming a song from Annie. A Black juror was once struck for something as mundane as having dyed red hair. Prosecutors also use more obviously coded racial dog whistles, like when a Louisiana prosecutor was allowed to strike a Black male juror because he “looked like a drug dealer.” In a South Carolina case, a Black juror was removed because he “shucked and jived” as he walked. Prosecutors have even admitted to being trained to use these rhetorical loopholes to circumvent Batson. Black jurors are dismissed routinely for reasons that are clearly illegal and racially motivated, but unfortunately “Batson challenges” have proven to be a wholly ineffective means of combating these unjust strikes.

When the Devil is speaking with Daniel Webster and Jabez Stone, before the eventual trial, he says, memorably and hauntingly, “When the first slaver put out for the Congo, I stood on her deck. Am I not in your books and stories and beliefs, from the first settlements on? Am I not spoken of, still, in every church in New England?” He continues, “to tell the truth, Mr. Webster, though I don't like to boast of it, my name is older in this country than yours.” At this point, it appears that the author, Stephen Vincent Benét, is arguing, rather convincingly, that evil and sin have always existed in American institutions and culture. However, he severely undercuts and reverses this message later on in the story, when Daniel Webster heroically saves Jabez Stone’s soul by getting the Devil to agree to an American trial with an American jury, who Webster wins over on the merits of his argument.

I do not believe that Benét is ignorant of American history, or race relations in America, on a basic level. He clearly believes slavery, and early genocide of Native Americans, were wrong and sinful. In fact, he may have condemned contemporary blatantly racist policies and actions in his time. 1936, when The Devil and Daniel Webster was written, racist voter suppression, Jim Crow, and routine lynchings were prevalent in America. 19 years after The Devil and Daniel Webster was written, in 1955, a 14-year-old Black child named Emmett Till was brutally lynched and murdered by two white men, after allegedly whistling at a white woman in a grocery store. Even after court evidence pointed to the men’s guilt, they men were acquitted by an all-white jury. The jury’s deliberations lasted only one hour and five minutes.

Benét might consider Emmett Till’s murder, and subsequent acquittal of his alleged murderers a wrongful tragedy, just as he believes slavery, and brutality towards Native Americans were. While Benét acknowledges this violent, ugly, racist past, he still enthusiastically maintains that contemporary institutions, specifically our judicial system, are ultimately just, and were designed with equality and justice in mind. Sure, he might have condemned the most viscerally evil, violent incidents of racism in his time. But to think this narrowly is hypocritical, short-sighted, and ignorant of the larger problem.

Much of the most serious, pervasive, and harmful racism in America does not manifest itself so blatantly. Benét might see Emmett Till’s trial as unfair and racially motivated, but what would he say about the countless trials where Black jurors are removed for the clothes they’re wearing or the way they speak. These actions are not immediately racially-motivated to an objective observer, but they are part of a clear pattern of racial discrimination in the judicial system.

For every slave captured in the Congo, for every brutalized Native American, for every hour-long Emmett Till murder acquittal, there will be countless more trials where a disproportionate number of Black jurors are, perfectly legally, dismissed. Where Black defendants will be unjustly convicted or sentenced because of it. And this will be due to the institution of the jury, and the institution of the judicial system as a whole. In The Devil and Daniel Webster, Benét is living in a world where past acts of sin and racism (the slave trade, early genocide of natives) are bad, as well as, presumably, more contemporary overt racism like the murder of Emmett Till. What he fails to recognize is the subtler, more deadly racism found in our institutions. Found in our courts, our judges, and our juries. Although our juries may not be made up of traitors like King Phillip, Simon Girty, or Black Beard, like they are in his story, our juries are shaped by a racist institution, and filled by people with conscious and subconscious biases who are selected in a racially-motivated way. If Benét were alive today, he might learn a thing or two from observing a trial. Maybe he’d realize that juries, judges, and prosecutors may not be swayed from their existing biases on merit alone, even by someone as convincing, charismatic, and distinctly American as Daniel Webster himself.