Will You Be Judged by a Jury of Your Peers?

Defendants in criminal trials, and parties on both sides of civil disputes, often believe that they have a right to be judged by a jury of their peers. When minorities face an all-white jury, however, they learn that the definition of “peers” does not mean “people of your race or ancestry.”

Ideally, juries reflect the diversity of the community from which they are chosen. Jurors from different backgrounds contribute valuable insights during deliberations. Homogenous juries lack the benefit of a variety of perspectives and life experiences.

According to Supreme Court Justice Byron White, juries “make available the common sense judgement of the community … in preference to the professional or perhaps over conditioned or biased response of a judge.” They cannot serve that purpose if large, distinct segments of the community are excluded from jury service. The Supreme Court has therefore recognized a constitutional right to “the presence of a fair cross-section of the community” on the panels from which juries are selected.

Selecting Representative Juries

Supreme Court decisions have established that a state’s method of selecting jury pools violates the Constitution if the selection process purposefully or systematically excludes potential jurors because of their race, nationality, gender, or religion. States are entitled to establish reasonable qualifications for jurors and to grant exemptions from jury service, provided that the pools from which jurors are drawn remain representative of the community.

That concept is easy to articulate as a theory but difficult to implement in practice. Choosing jury pools from voter registration lists, for example, assures that people who do not register to vote will never serve on juries. Voter registration lists generally reflect a higher percentage of older, white, affluent individuals than the community as a whole.

Since members of minority groups tend to have less residential and employment stability, juror questionnaires that are mailed to minority communities are often returned as undeliverable. In addition, the low pay that jurors typically receive tends to bias jury pools toward people who can afford to take time away from work, either by using vacation pay or by working for employees who offer paid leave for jury service. Low-income individuals, overrepresented in minority communities, are more likely to disregard a jury summons because they cannot afford to miss a day, much less a week or two, of work.

Problems of that nature explain why fifty-person jury pools in racially diverse Cook County, Illinois have sometimes included only one African-American, or none at all. America’s long history of bringing minority members to trial in front of all-white juries continues to undermine faith in the fairness of the criminal justice system.

A Jury Selection Controversy in Kentucky

Efforts to make juries more closely reflect the community from which they are drawn have been met with limited success. A Kentucky judge’s effort to assure that juries are racially diverse illustrates the difficulty of achieving the representative juries that stand as a constitutional ideal.

Prosecutors have been embroiled in a long-running battle with Jefferson Circuit Judge Olu Stevens over the composition of Jefferson County’s juries. Judge Stevens recently agreed to dismiss a jury panel in a criminal case because it did not represent a fair cross-section of the community. Only 3 of 41 prospective jurors were black. Prosecutors objected, arguing that the selection procedures were not intentionally discriminatory and that they did not systematically exclude black jurors.

While the prosecutors might have the law on their side, it strikes many observers as strange that they would object to a ruling that is designed to serve the constitutional ideal of racially representative jury pools. Yet the Jefferson County Commonwealth Attorney’s Office has repeatedly appealed Judge Stevens’ rulings when he has dismissed jury pools because they do not constitute a fair cross-section of the community. The contention that procedure is more important than substance lies at the heart of the prosecution’s appeals.

Jefferson County’s Racial Fairness Commission, consisting of local judges, lawyers, and other citizens, acknowledges that the county’s jury panels consistently lack fair minority representation. After years of study, however, the Commission has failed to come up with a solution to the problem.

Judge Stevens might have overstepped the bounds of judicial propriety by defending his actions on his Facebook page, where he commented that Tom Wine, the Commonwealth’s Attorney, favors all-white juries. Some organizations, including the NAACP and the National Bar Association, have leveled similar criticisms against the controversial prosecutor. In response to the Facebook posts, Wine attempted to have Judge Stevens removed from all criminal cases, but the Kentucky Supreme Court concluded that it had no authority to take that action.

The Kentucky Supreme Court does have the authority to decide whether Judge Stevens correctly dismissed jury panels that did not reflect the community’s minority population in the absence of proof that the county systematically excludes minorities from jury service. That question is expected to be decided in the coming months.