The Effects of Race-Conscious Jury Selection on Public Confidence in the Fairness of Jury Proceedings: An Empirical Puzzle
King, Nancy J., American Criminal Law Review
I. INTRODUCTION 1177 II. THE RELEVANCE OF JURY COMPOSITION TO PERCEPTIONS OF JURY FAIRNESS 1182 A. The Effects of Racial Composition on Perceptions of Fairness 1182 B. The Effects of Jury Service on Perceptions of Fairness 1185 III. BEYOND RELEVANCE: MISSING PIECES IN THE EMPIRICAL PUZZLE 1186 A. The Pervasiveness and Strength of the Effects of Racial Composition on Perceptions of Fairness 1187 B. The Effects of Other Procedural Features, Such as Race-Conscious Selection Methods, on Perceptions of Fairness 1187 1. The Relevance of Attitudes Towards Other Types of Affirmative Action 1188 2. Perceptions of Varied Uses of Race During the Selection Process 1190 IV. GROUP DIFFERENCES IN PERCEPTIONS OF FAIRNESS 1190 A. Litigants' Perceptions vs. Jurors' Perceptions 1191 B. The Perceptions of Minority Group Members vs. the Perceptions of Majority Group Members 1192 V. HOW EMPIRICAL INFORMATION CAN ASSIST COURTS ASSESSING JURY SELECTION PROCEDURES THAT CONSIDER RACE 1195 A. Helping to Frame the Normative Questions 1195 B. Two Illustrations 1197 VI. CONCLUSION 1201
Regulating the selection of criminal juries has never been particularly easy for the Supreme Court, and it will soon become even more difficult. For several decades, the Court struggled to define and secure the criminal defendant's Sixth Amendment, equal protection, and due process rights to be judged by juries chosen without discrimination.(1) Recently, dissatisfied with the inability of this defendant-centered approach to control discriminatory selection practices,(2) the Court turned its focus from the rights of defendants to the rights of potential jurors whose opportunities for jury service are affected by jury discrimination. In Powers v. Ohio,(3) the Court held that a peremptory challenge based on race violates the equal protection right of the challenged veniremember not to have her opportunities for jury service determined by her skin color.(4) Powers and its progeny(5) have placed defendants in the secondary role of enforcers of jurors' equal protection rights, granting defendants relief whenever jurors' rights are violated. This shift away from litigant rights to juror rights solved some doctrinal problems but created others. One of these problems is the subject of this essay--the task of judging when, if ever, the Constitution permits racial preferences in jury selection.
The Court's heightened protection for potential jurors is on a collision course with increasingly popular race-conscious measures designed to secure representative juries. As more and more lawmakers recognize the dangers of ignoring the effects of racial underrepresentation on juries, selection methods that take account of race have proliferated. The race of potential jurors is now considered by judges choosing trial venues, by jury commissioners selecting names for jury source lists, by jury clerks selecting names of qualified jurors, and by judges choosing grand jurors and grand jury forepersons.(6) Defendants, the designated enforcers of colorblind jury selection, are already seeking relief from convictions and indictments by advocating expansive interpretations of the juror's right to be free from race-based treatment. …