Jury Duty: Your Chance To Improve The Criminal Justice System
William Snowden, NLC Louisiana
“When a person is accused of a crime in America, the law says that we have a right to a trial with a jury of our peers. But, that was impossible for black people who weren’t even allowed to serve on juries until the Supreme Court stepped in, in 1880.” — Andre (Dre) Johnson, ‘black-ish
You can read this article, or watch ‘black-ish, Season 3, Episode 16: One Angry Man — which I encourage you to do — and you’ll walk away with the same understanding — our juries lack diversity. That lack of diversity is leading to a lack of fairness in our criminal justice system.
ABC’s ‘black-ish takes a spin on Henry Fonda’s classic “12 Angry Men.” In this film, twelve white men deliberate after a murder trial and try to reach a unanimous decision. During the deliberation, one juror (Henry Fonda) raises doubts and convinces the other eleven jurors to switch their votes to not guilty — saving an innocent inner-city teenager from the death penalty.
In the ‘black-ish episode, One Angry Man, Andre (Dre) Johnson loathes the jury summons he receives in the mail and throws it away. His son, Junior, scolds him for sidestepping this important civic responsibility and Dre answers the call of duty. Dre hopes he does not have to serve, but once in the courtroom he quickly realizes the young black man on trial does not stand a chance with an all-white jury. Thus, Dre sees himself as the young black man’s only chance at fairness for that trial.
There are a few real-world things to unpack here.
Our juries lack diversity. Not just diversity of color, but also diversity of ideology. This lack of diversity is driven by inadequate summoning practices, the strategic exclusion of certain minorities and mindsets during the selection process, and misconceptions about jury duty that discourages participation. When our juries lack diversity, they also lack representativeness, which is at the core of the constitutional right to a jury of one’s peers.
Research shows that whether a defendant goes home or is sentenced to death can be determined by the racial makeup of the jury. Given that importance, we must look at how we are calling jurors to serve.
A majority of jurisdictions use voter registration and Department of Motor Vehicle (DMV) records to summon jurors. This is problematic. Using these two lists excludes eligible citizens because not everyone is registered to vote, and not everybody drives a car. In fact, these two lists have nothing to do with actual qualifications one must have to serve on a jury. The qualifications typically require you to be a citizen, over eighteen years of age, who possesses an understanding of the English language.
Best practices do it differently. Massachusetts generates annual resident lists that catalogue all the eligible jurors in a particular county, and that list is used to supplement the voter registration list. Other states should be considering, absent an annual resident list, which other lists they can utilize to accurately summon a representative portion of the population. For example, some jurisdictions generate juror lists from public utility bills, department of revenue databases, and property taxes.
Prosecutors play a role in this lack-of-juror-diversity problem, too. During the jury selection process, some prosecutors will ask certain questions aimed at removing certain people. For example, some prosecutors will ask a question like, “How many of you have had a bad experience with the police department?” Sometimes a majority of the African-American jurors raise their hands, and follow up questions are tailored to have those jurors struck from the panel for legal cause.
This type of improper prosecutorial behavior is exactly what led Washington State’s Supreme Court to pass a rule that seeks to diminish such biases influencing jury selection.This model rule not only aims to “eliminate the unfair exclusion of potential jurors based on race or ethnicity,” but also invalidates any juror’s negative commentary or bad experiences with the police as a legitimate reason to strike a juror. This benefits people of color as well as progressive white individuals who have a mindset critical of our system, too.
The most powerful people during a trial are not the prosecutors, defense attorneys, or judges, but the jury of one’s peers. They hold power, collectively, in their hands to decide the future of someone’s life. Too often, we shirk this responsibility by not realizing its importance.
There have been laws in our country’s history specifically trying to control that power and aimed at nullifying certain votes in that jury box. In fact, there are some still at work down South.
The law in Louisiana is different. A vestige of Jim Crow — a 19th Century practice — is still part of the criminal justice system, where if ten people vote guilty and two people vote not guilty, the person is still going to prison. These are called non-unanimous verdicts.
According to the transcript at the 1898 constitutional convention, where non-unanimous verdicts became law, a Confederate Senator specifically noted the purpose of the convention was to “promote the supremacy of the white race.” A product of that white supremacist convention was non-unanimous verdicts. At the time there were 400,000 African-American voters that these confederate statesmen were trying to disenfranchise in a new way — in the jury box. Non-unanimous verdicts disparately impact African-Americans. According to data collected and cited by The Advocate, “In those 63 cases, involving 756 jurors, black jurors were 2.4 times more likely to disagree with the verdict than white jurors.” Essentially, when a black juror disagrees with the majority verdict, their vote does not matter, given that unanimity is not required.
Since 1989, twelve people have been exonerated that were originally convicted via a non-unanimous verdict. Ten of them were black. This means that either one or two jurors got it right when they originally voted not guilty, but our non-unanimous system did not allow them to prevent an innocent person serving time for a crime the person did not commit.
On November 6, 2018, Louisianans will have the opportunity to vote for unanimous verdicts in criminal trials. Almost all states — Louisiana and Oregon being the exception — require unanimous verdicts; all twelve individuals must agree when deciding a person’s innocence or guilt. (Just like they did in 12 Angry Men)
91 percent of Americans say that the criminal justice system has problems that need fixing. Even if you are not a lawyer, a politician, or a judge, you can still be part of fixing our criminal justice system by serving on a jury.
William C. Snowden is the Founder of The Juror Project and the Director of the Vera Institute of Justice (New Orleans Office). For the last two years he’s served on the executive board for the New Leaders’ Council — Louisiana.