A Jury of Whose Peers?

a-jury-of-whose-peers

When it comes to choosing juries that reflect the community, we’ve got a real problem. I’ve written about demographics and juries, but let’s take a closer look at why juries tend to be whiter, wealthier, and more suburban than they should be, and how that affects outcomes.

The roots of the problem

In order to get a venire (the group of people from whom the jury will be selected) that represents the community in terms of sex, race, income level, geography, and so on, jury summonses must reach all those groups in proper proportion. In other words, if 7% of a court district’s presumably jury-eligible population is African-American men, then 7% of jury summonses need to reach African-American men, so that (one would hope) around 7% of jurors in fact turn out to be African-American men.

But there are serious flaws in how the courts gather data to create lists of potential jurors, and serious flaws in the way those potential jurors are contacted.

Most courts use government records to find potential jurors. These records include voting registration lists, licensed drivers, and sometimes tax rolls or public utilities records. The lists are then compiled so that each potential juror appears just once. Then, those who have served recently are excluded. Finally, a random set of venire persons is summoned via snail mail.

Acknowledging the problem

You may be anticipating where this is leading. All of those methods of compiling lists of potential jurors lead to sending far too many jury summonses to white, prosperous suburbanites.

Why? Those are the citizens with the highest levels of voter registration. White, prosperous suburbanites feel enfranchised into the political process. In other words, they believe their votes matter. If they don’t like what the politicians are up to, they think they can get rid of them. More importantly, they perceive the differences between two (or more) politicians vying for the same job as real and important. That perspective is not as common in less-prosperous or minority communities.

The more prosperous you are, the more likely you are to have a driver’s license. Only a fool would pay for a driver’s license (and put up with the awful trip to the DMV to get one) if he has no car to drive.

Finding diversity where it lives

Tax rolls and utilities records might be more universal, but the fact that summonses are sent via snail mail creates another thorny problem: getting the summons to the potential juror. White, suburban, prosperous people are much more likely to own their own homes, thus tying them to an address for a long period of time. Renters tend to move often. Lack of stable housing is a problem that particularly affects poor and minority communities. If the U.S. Mail can’t find you, you’ll never get that summons.

A person with a disenfranchised perspective on civic participation is a lot more likely to ignore a jury summons. The fact that the summons is not written in plain English adds yet another layer of difficulty, as poor and minority communities have significantly lower levels of literacy, partly because they include many more non-native English speakers than prosperous suburbs do.

Many jury summonses allow potential jurors to exclude themselves if they have transportation challenges, or if they would suffer a financial hardship if required to serve (few employers in lower-income communities will pay an employee who doesn’t show up for work due to jury duty), or if they are physically disabled. A criminal conviction can also render a person ineligible.

Challenging diversity right out the door

So, after all this, lies the last trap door for diverse juries: the peremptory challenge. It would be disingenuous for me to suggest at this point that if demographics matter to jurors, they don’t matter to lawyers. Batson v. Kentucky, 476 U.S. 79 (1986) outlawed peremptory challenges based on race. But lawyers who look at a venire and see people with no potential demographic predispositions for or against a defendant (or plaintiff) are almost certainly a rarity. Since Batson, trial lawyers have learned to cloak their real causes for striking a venire member behind “concerns” that can pass for reasonable, thus rendering Batson toothless.

What courts are doing

How are courts responding to this mess? With their budgets continually squeezed by cost-cutting legislatures, there’s little opportunity to undertake real change. The federal court in Detroit is at least trying to tweak its summons-mailing process.

Last month in Chicago, two federal judges reacted differently when the venires for trials for African-American defendants were far from diverse. One judge dismissed the 45-person venire that included one African-American, while another judge kept his all-white 50-person venire.

Courts are stuck with a broken system of data-gathering and communication that prevents addressing this systemic problem. Until legislators decide to do something about it, only some citizens can expect to see a panel of “peers” in the jury box.

That’s not equal justice under the law. Not even close.

(image: Colorful pumpkins collection from Shutterstock)

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Jon Soroko

    I think Andy has raised a critical national issue, and one made more complicated by the individual geographic/demographic “personalities” of venires. I’m based in New York City, and live in the Eastern District of New York – only four counties, but, based on number of docket numbers issued each year, the busiest U.S. district court in the nation.
    Commuting across the district, even for a week, would be a horrid imposition on jurors. So, like the Southern District – lots of headline cases, main courthouse in Manhattan – the Eastern District has a satellite courthouse in Suffolk County – and its main facility in Brooklyn. The venires within the district are in different galaxies. And the counties within a venire vary radically. One example: in Bronx County, the local prosecutor’s office (I was an assistant D.A. there) currently has a felony trial conviction rate under 50%. Bronx jurors are believed to be skeptical of authority, and not deferential to wealth, so that awards to plaintiffs in the Bronx often set records.
    I’m not suggesting that this is or isn’t desirable, but that geography and community have attitudes which affect litigation. And there are many good reasons to address the issue, including trying to make verdicts fair or fairer everywhere, and to ensure that dockets are not overloaded to the extent that they slow down resolution. (Justice delayed = justice denied).
    JS