Friday, June 13, 2003

Volokh Conspirator Orin Kerr points out Eric Muller's remarks on an interesting jury selection issue. Apparently, "a judge in Pennsylvania is delaying a murder trial until the district's jury selection procedures are changed to produce a jury pool that is ten percent black." According to Muller,
[L]egally speaking, there's really nothing to be outraged about here. It has been settled law for decades that the Sixth Amendment requires a jury pool or "venire" to reflect a fair cross-section of the community. A jury venire is not a fair cross-section if the selection system is calibrated to underrepresent a "distinctive group" in the community. Racial groups are, under the Sixth Amendment, "distinctive." The district where this murder trial is to occur is twelve percent black, but the venire is never more than five percent black. So this ruling strikes me as an elementary application of well settled law.


To the extent that people are talking about this story, it is because some people seem to be upset that this area of Sixth Amendment law appears to run counter to the "colorblindness" theory that is all the rage in some constitutional quarters. And, in an important sense, it does do that: this area of the law works from the assumption that race is not completely irrelevant to people's life experiences, perspectives, and perceptions.

So it's worth taking a moment to think: if you're bothered by what this Pennsylvania judge is doing, is it because you think that the assumption underlying this area of law is actually false? Or for some other reason?
Well, if race is "not irrelevant" when creating a pool of jurors, then surely political and legal views are not irrelevant, either. Would it therefore be legitimate for the judge to observe that, say, popular support for legalizing drugs runs at x percent in the polls, and consequently to require every jury pool to contain at least x-2 percent proponents of drug legalization?

The problem with this kind of thinking is not that these human categories are "irrelevant", and therefore should be ignored. On the contrary, precisely because they are relevant--like so many other factors--their inevitably selective inclusion in the jury pool creation process cannot but become a powerful device for "jury pool engineering". As we've already seen in the case of jury selection, increasing the number of tools with which a jury can be painstakingly sculpted in the name of "fairness" or "representativeness" only increases the likelihood that those tools will be wielded so as to undermine, rather than enhance, justice.

Perhaps there really is a bias against African Americans in Philadelphia's jury pool selection process. But whatever that bias may be, it's bound to pale in comparison with those introduced by rules that make it much easier for some categories of people than others to avoid jury duty, and that allow both defense counsel and the prosecution to exclude jurors on the flimsiest of pretexts. It's absurdly naive to think that adding yet another gimmick to the mix will somehow shift the system more towards a fair balance, rather than simply pushing it even further askew.

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