Academic journal article
By Forde-Mazrui, Kim
Vanderbilt Law Review , Vol. 52, No. 2
Court reformers continue to debate over efforts to select juries more diverse than are typically achieved through existing procedures. Controversial proposals advocate race-conscious methods for selecting diverse juries. Such efforts, however well-intentioned, face constitutional difficulties under the Equal Protection Clause, which appears to preclude any use of race in selecting juries. The challenge thus presented by the Court's equal protection jurisprudence is whether jury selection procedures can be designed that effectively enhance the representative character of juries without violating constitutional norms.
Professor Forde-Mazrui offers a novel insight for resolving this challenge. Analogizing juries to legislatures, he applies electoral districting principles to jury selection. Striking parallels between legislatures and juries justify comparing the selection of jurors to the election of legislators. Both legislatures and juries are fundamental institutions that best serve their function when their membership is representative of their respective jurisdiction. The electoral process enhances the representative character of legislatures through single-member districting. Although limiting the use of race in drawing electoral districts, the Court has endorsed designing districts around "communities of interest," communities with shared political interests identified geographically by demographic characteristics such as residential proximity, socioeconomic class, occupation, religion, and political affiliation. Curiously, the Court even permits some use of race in drawing districts provided it is only one among many factors.
Drawing on electoral districting experience and doctrine, Professor FordeMazrui proposes a jury selection procedure he terms "jural districting." An implementing jurisdiction would divide a jury district into twelve sub-districts, designed around "communities of interest," and would require juries to contain jurors from every sub-district. Such a procedure should satisfy constitutional objections and, moreover, would create broadly diverse juries representing a variety of communities, including communities identifiable by race, ethnicity, religion, political affiliation, and socioeconomic status. Jural districting would thereby create juries more broadly representative than juries selected by current procedures or even by proposals relying predominantly on race. By improving the quality of jury decision-making through deliberation and consensus among a cross section of groups, jural districting would thereby restore a substantial measure of legitimacy to the jury system.
Americans have long been ambivalent toward the criminal jury. In its favor, the right to trial by jury is deemed "fundamental to the American scheme of justice,"1 and is enshrined in the Constitution's Sixth Amendment.2 The primary purpose of the jury, according to the Supreme Court, is to guard against arbitrary government power by interposing the judgment of ordinary citizens between the defendant and the potentially arbitrary or overzealous prosecutor or judge.3 Despite its crucial role, the jury is criticized as being inefficient, incompetent, confused, biased, and discriminatory.4 A continuing challenge is to design a jury system that minimizes the risk of determinable error while enhancing its legitimacy over potential alternative institutions of criminal justice.
This Article focuses on the criminal jury5 as a representative6 institution. The persistent failure of juries to adequately represent various groups, particularly racial minorities, within a jurisdiction, and the apparently unjust verdicts that have been rendered by such underrepresentative juries, have brought the legitimacy of the jury under increasing suspicion.7 This concern is not new. Historically, juries have often failed to fairly represent minority groups residing within a community for a variety of reasons, including the intentional exclusion of group members from jury service. …