Race in the Jury Box: Affirmative Action in Jury Selection

Chapter 9

215 Chapter 9 RACE AND THE AFFIRMATIVE JURY Conclusions H anded down from the past, class and caste, race and gender, ethnicity and attributed national origins, together play a powerful role in the formation of racial hegemony and the racial state in the United States. Despite the illogic and fallacy of the premise that the human Homo species may be neatly divided and classified by racial categories, race relations and racial designations continue to serve as a powerful foundation of social divisions in our time. Racial hegemony and hierarchy have not only become deeply embedded in popular thinking , but also taken on institutional forms that may only be overturned by directly confronting and challenging them legally and by active exposé, leading to the retreat and transformation of both racialized ideas and their institutional permutations. For the disenfranchised segments of the population, the only remaining shield may lie within the fold of the court system, though even here the best legal armor is the system of juries that still require great reforms and restructuring . And, as this study describes, the criminal jury is one place that these disenfranchised groups might look for relief and social reform: to install the racially mixed jury as a new mediating force in the heart of racial inequalities and inequities past—so much so that the traditional regime of prosecutors, police officers and judges, courts and juries, that once mediated law and order, are prevented from continuing their reign of imposing racial and legal inequities. The potential for the democratic transformation of our legal system thus lies with the jury and its diversity, placed at the heart of the criminal justice system. Some might have said that the jury is the soul of our most democratic institutions, which in step says fairly little for the rights of disenfranchised racial and social groups. But even to play that role, the jury and its selection system will have to be drastically restructured, remodeled, and reshaped, top to bottom. THE JURY AND THE POTENTIAL FOR DEMOCRACY Today, after harshly criticized and attacked by the media and the public, the shortcomings, failures, and inequities of the jury system have led to the loss of 216 RACE IN THE JURY BOX much of its moral authority, respect, and legitimacy in our society. The persistent failure of juries to adequately represent racial minorities within particular jurisdictions , and the seemingly unjust verdicts that have been reached by racially unrepresentative juries, have brought on protest, questioning the legitimacy of the jury system, placing it under increasing suspicion. Systematic and significant underrepresentation of racial minorities in criminal trials has also led to the erosion of public trust in purported democratic and egalitarian principles embedded in the jury system. Jury selection itself is often perceived to be a mystery that has been shrouded in obscure procedures and complicated legal language. At its most basic level, the selection of an accused’s jury of peers should come from a community of individuals who may find resonance with the condition of the defendant in the social and cultural setting where the alleged offense took place. A problem, however, arises when such peers are purposefully or procedurally excluded, particularly in criminal cases when racial minorities are systematically screened and eliminated from serving on final juries. To improve racial representation of the criminal jury, legal scholars and social scientists have long questioned racially discriminatory practices of peremptory challenges and their consequent unrepresentative makeup of final juries. These studies and recommendations, however, have their own shortcomings and limitations. For the call to eliminate peremptory challenges seems to reflect a mental frame seeking a quick or easy “fix,” without mobilizing sufficient insight to face much deeper and more structured problems of institutionalized racism and skewed, racialized underrepresentation that actually begins at a much earlier stage of the jury selection process. As demonstrated in chapter 6, the overwhelming majority of racial minorities have already been eliminated from jury service long before they report to the courthouse as potential jurors—that is, before they reach the jury panel stage of the selection process. A variety of procedural difficulties and structural biases impacting the jury selection system also remain in place, continuing to eliminate a significant proportion of racial minorities from jury service. Suggested reforms are also inadequate to rectify representative inequities; and the narrowly focused analyses of representative jury selection in voir dire—and the possible elimination of peremptory challenges as a reform measure—simply do not...