Race in the Jury Box: Affirmative Action in Jury Selection

Chapter 3

Chapter 3 RACIALLY MIXED JURIES AND AFFIRMATIVE ACTION D uring the 1990s and early 2000s, some of the most serious and most controversial social assumptions and suppositions revolved around the constitutional and civil status of “races” and affirmative action programs. In the course of the ongoing battle, at least three major lines of thought emerged. First were disagreements over the propriety of some forms of race-conscious remedies and the need for affirmative action programs in certain social and political settings. Controversial narratives emerged from a heated debate about effective policy making on the foundation of past racial discrimination, thus embracing a spirit of favoring equality for minorities based on the equal protection clause of the U.S. Constitution. The 1991 appointment of Clarence Thomas to the Supreme Court was said to illustrate that he was nominated solely because of his race to replace Justice Thurgood Marshall, the first African American judge on the Court who had been an effective civil rights attorney. Though Justice Thomas has held a political posture that conflicts with Marshall’s and has remained a strong opponent of affirmative action, President George H. W. Bush openly acknowledged the symbolic value and political benefit of specifically selecting an African-American candidate for the highest court (Ryoko 1991). President Clinton also followed a similar political scenario—that his Attorney General would be a woman, appointing Janet Reno after an exclusive panel of four female candidates was reviewed for the position (Berke 1993; Lauter 1993; Lewis 1993).1 The political appointments of Thomas and Reno then led to decisions that influenced affirmative action policies, going both for and against the currents of conservative courts in many state and federal districts that have often ruled against many forms of race-conscious affirmative action programs. Public acceptance of some forms of affirmative action was also only sometimes reaffirmed by the political action of the executive branch of government , contrary to the judicial pronouncement by the Supreme Court, which more or less denounced the merit of affirmative action programs.2 Second, there was strong general consensus that the vision of individual equal opportunity—which may be considered by some to be hostile to the spirit of affirmative action—is deeply embedded in the American ethos. To explain the 61 62 RACE IN THE JURY BOX differences between opportunity and the merit, we need to look to the underlying concept of affirmative action that is embraced by the provision of the equal protection clause in the Fourteenth Amendment, which states: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” When the Fourteenth Amendment was drafted and passed by the Reconstruction Congress in 1868, the primary intention of the doctrine was to prohibit the enforcement of the “Black Codes,” laws that denied freed slaves and other African Americans the same rights granted to the white majority. It was not designed to provide the modern conception of special affirmative assistance to African Americans or other minority members to offset or remedy various measures of past discrimination (Brest 1987, 282; Klarman 1991, 228). However, the wording of the constitutional amendment was color-blind; and the intention of the Congress drafting the amendment was not based on specific race-conscious principles. This allowed the Reconstruction era Supreme Court to interpret the Constitution, incorporating the dramatic changes in the post-Civil War social settings , with its altered race relations and institutional arrangements. Third, the debate on affirmative action and preferential treatment of racial minorities has so far been limited to non-juridical areas such as employment, contracting, and college admission. Although affirmative action in jury selection and efforts to attain racially diverse juries are as important as affirmative action policies in other fields, the possibility for the adoption of affirmative juries creating racially mixed tribunals have so far escaped public attention. In this chapter, we argue that mandatory affirmative juries hold historical precedent and were once used extensively in both England and the United States, suggesting that the Supreme Court’s recent emphasis on the color-blind principle is a relatively new phenomenon. The first section that follows examines the historical background of affirmative action in jury selection, offering some critical comparisons for the possible mandatory application of affirmative action in criminal jury proceedings. Here we examine three different types of racially mixed juries—the jury “de...