Policy Proposals for Juries
Who likes jury duty?
We all know the people who routinely try to get out of jury duty, and we see it made fun of in t.v shows and movies (Jury Duty, 1995 and SNL skits ‘Hungry Jury’ and ‘O.J Simpson Jurors are Hard to Come By’).
John Oliver’s recent Last Week Tonight episode reminded us that serving on the jury can be imperative and is an important civic duty. It places all of us on an equal footing to be constitutional actors. At least, it’s supposed to. It may not surprise most of you, but people of color are routinely excluded from serving.
In a June 2018 study of 14 federal court districts, underrepresentation of the Latinx & Black populations is normal and frequent. Here is the abstract of the study that you can find in full here:
“Despite a constitutional mandate that jury pools in the United States be representative of their communities, almost no datasets exist that can describe typical levels and patterns of jury representation. We present data from federal courts on the composition of jury pools in 52 areas, representing 764 counties. We also compare current composition estimates to those available 20 years ago from published sources. Results show that, by far, some amount of underrepresentation in jury pools is the norm, and levels of attrition fail all but one proposed method for calculating and defining “not fair and reasonable” amounts of underrepresentation. On average, expected losses range between one and three members of each minority group from jury venires of 40 to 60 people. We find no evidence that the impact of attrition on Latino communities is greater than on African-American communities and, unlike Latinos, no indicators of African-American representation levels show improvement over time. We discuss the challenges of addressing racial/ethnic attrition in jury pools, which is evident but, given the repeated small-group sampling of venires, may be small in effect in any single case.”
In the same ways, having diverse classrooms or board committees can positively impact community, growth, and more, a more diverse jury (in both race/ethnic background but also in class), operates more fairly and deliberate more comprehensively and accurately. They can bring more facts and experiences in uncomfortable conversations.
John Oliver provides an example of researchers who examined felony trials in Florida and found that juries formed from all-white pools convict Black defendants 16% more often than white defendants. But that gap in conviction is eliminated when the pool includes at least one Black person. This research was done in April of 2012. The abstract is below, but you can read the full study here.
“This article examines the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. We use a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool.”
Similar research in Dallas County.
So how does the jury process work?
A Jury Wheel/Roll: Even after the Civil Rights Act of 1875, officials would purposefully target and remove Black jurors from the judicial system. In a 2010 report by the Equal Justice Initiative, titled Illegal Racial Discrimination in Jury Selection: A Continuing Legacy:
States abandoned statutes that expressly restricted jury service to whites, but local officials achieved the same result by excluding African Americans from jury rolls and implementing ruses to exclude black citizens. In some jurisdictions, names of black residents were included on the lists from which jury panels or “venires” were drawn, but were printed on a different color paper so they could be easily avoided during the supposedly random drawing of the venire. Theoretically valid but vague requirements for jury service – such as intelligence, experience, or good moral character – were applied in practice to mean “no blacks allowed.” Another method subject to abuse and manipulation was the key man system, in which prominent citizens submitted lists of suitable jurors to jury commissioners.
Instead of pieces of paper, jury wheels are computerized lists gathered from voter registration and driver license records….which seems smart in today's world. Still, not everyone has a vehicle, and not everyone is registered vote. Those people, depending on the community, are more likely to be people of color than white.
There are only a handful of states that allow people with past felony convictions to vote. (criminal convictions disproportionately impact people of color)
Juror pay is meager, which decentivizes lower-income individuals to even take part- in the state of North Carolina, for example, “Petit, or trial jurors receive $12 for the first day of service and $20 thereafter. If jurors serve more than five days, they will receive $40 per day. Grand jurors receive $20 per day. The Clerk of Court will issue jury payment in the form of a check after the jury service concludes. However, G.S. 7A-312(a) provides, in part, that “Jurors from out of the county summoned to sit on a special venire shall receive mileage at the same rate as State employees. Persons summoned as jurors shall be exempt during their period of service from paying a ferry toll required under G.S. 136- 82 to travel to and from their homes and the site of that service.” Are jurors’ transportation costs paid? No. The court does not provide transportation or pay the cost of transportation for jury service. However, G.S. 7A-312(a) provides, in part, that “Jurors from out of the county summoned to sit on a special venire shall receive mileage at the same rate as State employees. Persons summoned as jurors shall be exempt during their period of service from paying a ferry toll required under G.S. 136- 82 to travel to and from their homes and the site of that service.”
Jury Selection Program (Computerized mistakes): In his show, John Oliver mentions a terrifying example of the jury selection computer program getting it wrong: “a computer error caused the federal jury selection system in Connecticut to read the "d" in Hartford to mean "deceased," and accordingly failed to call anyone from Hartford for jury service. This hidden error eliminated 63% of eligible African-Americans from the jury system and thereby produced a racially unrepresentative jury pool in violation of the fair cross-section guarantee. The flaw went undetected until a federal defendant obtained access to jury records under federal law. Yet under Connecticut law, a state defendant in that district would be prohibited from accessing the records that revealed the error. As a result of state laws like Connecticut's, defendants are often denied access to the information they need to discover violations of the fair cross-section right.”
Private Companies: Many courts contract out their jury selection to companies who make promises to run the process cheaper and effectively. John Oliver gives the example of Tulsa, Oklahoma- a Black man was tried by an all-white jury drawn from a pool of 200 jurors without a single Black person. Courthouse Technologies Ltd (now Tyler Jury Manager) ‘accidentally’ excluded zip codes where 90% of Black residents lived. You could read about the full case here. Another company had a system that claimed to work through an alphabetical list of townships and would stop when it reached 10,000 names. In Allen County, Indiana- 75% of African American’s in that county happened to live in Wayne Township.
Private companies do not reveal details about their systems, so the only discrimination we know of is from what’s been brought up by lawsuits. 39 out of 50 States provide no public access to jury data. How do we fix a fundamental problem with one of our most basic civil duties- if we aren’t aware of what’s wrong?
All of what’s above- is to collect names. How does actual screening and selection work? In the 1980s, a leaked training video by the Philadelphia DA explained to a room of persecutors what kind of jurors they should avoid. His reasoning was entirely race-based. The whole video is a little over an hour, but he basically says- you don’t want Black people who are educated, young, or female. The process of removing Black jurors has been studied in places like North Carolina and Louisiana, where prosecutors refused them twice and three times the rate of white jurors.
The first way jurors are removed is by ‘challenge for cause’: where a juror can’t be impartial because they show some connection to a case or are unfit to serve.
The second is the peremptory challenge, where they can remove a limited number of jurors without explaining. In 1986, in Batson v. Kentucky, a Supreme Court ruling made it illegal to remove someone solely based on race.
John Oliver makes four recommendations for fixing jury bias and discrimination- they include:
Broaden Jury Lists- so they don’t exclude large community sections (could be made possible by using income taxes rather than alphabetizing townships).
Make Jury Lists Public- so we can monitor mistakes, offer feedback, and see what processes work and don’t work.
Increase Jury pay- so that more people can participate without feeling the repercussions from missing work.
Reform peremptory challenges to make it more practically difficult to strike juries by race.
Here are some further recommendations offered by the EJI report mentioned earlier:
Community groups, civil and human rights organizations, and concerned citizens should attend court proceedings and monitor local officials' conduct concerning jury selection practices to eliminate racially biased jury selection.
Community groups, civil and human rights organizations, and concerned citizens should question their local district attorneys about policies and practices relating to jury selection in criminal trials, secure officials’ commitment to enforcing anti-discrimination laws and request regular reporting by prosecutors on the use of peremptory strikes.
States should strengthen policies and procedures to ensure that racial minorities, women, and other cognizable groups are fully represented in the jury pools from which jurors are selected. States and local administrators should supplement source lists for jury pools or utilize computer models that weight groups appropriately. Full representation of all cognizable groups throughout the United States can easily be achieved in the next five years.
Reviewing courts should abandon absolute disparity as a measure of under-representation of minority groups and utilize more accurate measures, such as comparative disparity, to prevent the insulation from remedy of unfair underrepresentation.
State and local justice systems should provide support and assistance to ensure that low-income residents, sole caregivers for children or other dependents, and others who are frequently excluded from jury service because of their economic, employment, or family status have an opportunity to serve.
Greater racial diversity must be achieved within the judiciary, district attorney’s offices, the defense bar, and law enforcement to promote and strengthen the commitment to ensuring that all citizens have equal jury service opportunities.
Prosecutors who are found to have engaged in racially biased jury selection should be held accountable and should be disqualified from participation in the retrial of any person wrongly convicted due to discriminatory jury selection. Prosecutors who repeatedly exclude people of color from jury service should be subject to fines, penalties, suspension, and other consequences to deter this practice.
Photo above does not belong to me.
The John Oliver Episode I’ve been referring to: