In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.
As some may know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender. To do otherwise would be a violation of Batson and its progeny. Right now, NJ is considering legislation (A3676) that would extend Batson-like protections to sexual orientation and gender identity. A few other states, like California and Oregon, have similar laws. A3676 has already passed the NJ Assembly and a companion bill, S2460, has been introduced into the NJ Senate. There have been similar legislative measures on the federal level but they have all been unsuccessful.
Federal law allocates jurisdiction to prosecute and punish crimes committed in Indian country based on the race of the perpetrator, the race of the victim, and the federal political status of the Indian tribe on whose land the crime was committed. At the founding, Indian tribes had plenary authority to address and punish all crimes committed in Indian country. Congress systematically stripped away most of this authority and allocated it either to the federal government or to individual states, leaving Indian tribes with severely restricted jurisdiction over individuals who commit crimes on their reservations. The primary federal statute for prosecuting crimes committed in Indian country is the Major Crimes Act. This statute gives the federal government authority to prosecute and punish enumerated crimes committed by Indians on reservations that are subject to federal criminal jurisdiction. These crimes typically also violate the criminal code of the tribe on whose reservation the crime is committed. This gives rise to concurrent federal and tribal criminal jurisdiction over the same defendant for the same conduct.
Under federal constitutional law, jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community has been excluded. These jury selection standards apply to the states through the Fourteenth Amendment, and they are codified into federal law under the Jury Selection and Service Act of 1968. These standards reflect a notion ingrained in American criminal justice that an accused should be judged by a jury of his peers in the community where the crime was committed. These legal principles, however, reflect more than a popular normative ideal of what an American jury should look like. They are also the product of a Supreme Court jurisprudence targeted at eradicating the practice of excluding potential jurors from service on the basis of race.
Whether a jury pool satisfies the fair cross section guarantees and the systematic exclusion prohibition is measured against “the community” from which a jury pool is drawn. Thus, how “community” is defined for jury selection purposes becomes critically important in evaluating whether a defendant’s jury pool reflects a fair cross section of that community from which no distinct group in that community has been systematically excluded. Federal, state and tribal courts use different jury pool boundaries for jury selection purposes. Federal district courts typically draw jury pools from large, multi-county areas; states from smaller judicial districts; and tribes from reservation communities. The three sovereigns, thus, will look to different “communities” from which to draw their jury pools, and that will often result in jury pools (and ultimately trial juries) with very different racial demographics.
When jury pool boundaries in federal districts with Indian country jurisdiction extend beyond a reservation on which a crime was committed and include non-reservation communities, the representation of Native Americans in that pool is naturally and inevitably diluted. In an Indian country prosecution with concurrent federal/tribal jurisdiction, this means the reference jury selection “community” for the same defendant (by definition, an Indian) will be radically different depending on whether he is tried in federal or tribal court. In federal court, this Indian defendant will face a jury drawn from a pool with a significantly smaller concentration of his ethnic and cultural peers than that found on the reservation on which the crime was committed. This same defendant in tribal court will face a jury drawn from the reservation community, the actual community in which the crime was committed and in which Native Americans will typically represent a majority of the residents. Federal Indian country prosecutions are typically tried off-reservation and, as a result of federal jury selection procedures, the Indian defendants in those cases are tried by juries drawn from communities that look nothing like the “community” from which that defendant’s jury would otherwise be drawn if not for Congress’ usurpation and limitation of tribal court jurisdiction over crimes committed on reservations.
This article argues that to the extent federal jury selection procedures result in a significant and quantifiable dilution of Native American representation in federal Indian country jury pools, they are incompatible with the anti-discrimination policies and fair cross section requirements of the federal Jury Selection and Service Act, federalism, and tribal sovereignty. The article forwards two proposals to lessen the dilution of Native American representation in federal jury pools in judicial districts with Indian country criminal jurisdiction. One, organize divisions in those districts around Indian reservations in such a way that increases the concentration of Native Americans in the jury pools in those divisions. Two, expand the sources from which those districts compile potential juror lists to include, at a minimum, tribal voter registration records. This article looks to the District of Montana, a federal jurisdiction with a significant number of Indian country criminal prosecutions, to demonstrate the feasibility of these proposals.
It appears that Judge Alsup has revitalized the debate about online juror research. Apparently, Judge Alsup believes that if lawyers want to research jurors prior to trial they have to inform jurors of this fact. While I don't necessarily agree with this approach, I do believe it has some benefits. First, it puts jurors on notice that they might be investigated online, which in turn allows jurors time to strengthen their social media privacy settings. This prior notice also encourages jurors to abide by the court's rules regarding online research and communications. If jurors know that their online activity may be monitored, they might be more inclined to adhere to the judge's instructions.
The folks at Radiolab have a new podcast on Batson v. Kentucky entitled Object Anyway. The podcast provides a history of Batson and the modern day implications of the Supreme Court's 1986 ruling. The podcast focuses less on the law surrounding the decision and more on the human story of those involved in the case to include James Batson and Joe Gutmann, the prosecutor. The podcast also offers a surprise twist at the end involving Joe Gutmann and James Batson.
In U.S. v. Ryan P. Collins, the defendant was found guilty after trial of receiving and distributing child pornography, 18 U.S.C. § 2252(a)(2), and possessing child pornography. Prior to sentencing the defendant, the trial judge polled the jurors and 11 of the 12 recommended that the defendant receive less than 30 months incarceration, which was in stark contrast to the federal sentencing guidelines that had the defendant looking at 262 to 327 months of incarceration. The judge ultimately sentenced the defendant to 5 years of incarceration and the government appealed.
As part of its argument to the 6th Circuit, the government claimed that the "judge's reliance on the jury poll impermissibly conflates the distinct roles of the judge and jury." The appellate court quickly batted this argument down by stating that the poll occurred after the jury determined the defendant's guilt thus the poll did not intrude on the jury's traditional fact finding role.
Next, the government argued that the jury poll was an "impermissible factor" for the judge to consider in determining a sentence. Here, the appellate court pointed out that "Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence." The appellate court went on to state that the "the jury's sentencing recommendation" did not prevent the trial judge from considering the other Section 3553(a) factors that judges must consider when crafting an appropriate sentence.
Ultimately, the 6th Circuit Court of Appeals held that it was not "substantively unreasonable" for a trial judge to poll jurors and consider their responses before sentencing the defendant.
Professor Suja Thomas has a new book out entitled, the Missing American Jury. Here is a brief description of the book.
Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government. Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies.
The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.
Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.
Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent — a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.
Despite Batson, discrimination by prosecutors in jury selection persists. Because this type of discrimination can easily be masked with an excuse that on its face is race neutral, examining whether an excuse like a juror’s arrest records is one that is truly race neutral is imperative. This Article will explore whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson. Part I examines how race affects the likelihood that a person will have an arrest record. Part II provides background regarding jury selection and Part III examines Batson and its progeny. Part IV discusses the constitutionality of strikes based on arrest records. This Article concludes with the common sense suggestion that questions about arrests during voir dire should be precluded, as should the practice of using a person’s arrest record as the sole basis for the exercise of peremptory strikes.