An Associated Press story points out that a judge in a criminal trial in Pittsburgh recently halted proceedings until steps could be taken to insure that blacks made up at least 10% of the jury pool. (Link and following Eric Muller link via Orin Kerr of Volokh et. al.Thanks also to email from reader Fred Ray.)
Eric Muller comments:
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?
Very good question.
As a member in good standing (I hope) of the colorblind conspiracy, I am bothered because official racialism (assuming that race correlates with much besides, ususally, skin color) reinforces and legitimizes that obnoxious notion.
And now I have a question: if you are not bothered by what this Pennsylvania judge is doing, don’t you think he should also confirm that the jury pool has the requisite percentage of Jews, Muslims (Sunni, Shiite, other), lesbians, Methodists, Episcopalians, gays, Presbyterians, Baptists (Southern and otherwise), the transgendered (of the male and female persuasions), etc., etc.?
Don’t you find the deficit of blacks in the jury pool suspicious (Eric Muller said 5% in pool vs 12% in the population)? It makes me wonder if the methods by which the pool is recruited are race-biased. There’s certainly a rich history of that. Of course, it used to be deliberate; now it’s probably inadvertant.
I don’t find that discrepancy particularly suspicious. If the discrepancy were much greater, that would indeed be grounds for investigating whether the selection methods were racially biased. But it would not, in my view, be grounds for insuring that the racial makeup of the pool closely parallels the racial composition of the community. I believe in non-discrimination, not racially proportional representation. The absence of the latter can be evidence of the absence of the former, but it is not an independent offense.
Does it matter whether the accused is black or white, or whether the victim is/was black or white? Emmett Till might have gotten justice if his killers hadn’t gotten a jury of their peers.
However, I also don’t see a huge discrepancy between 5% and 12%. A jury pool is such a small sample that you really can’t expect it to be representative.
Here’s another question(s): If the population in the subject area is 12% black and the jury pool had instead been 35% black, would one single word have been said by the presiding judge? (Obviously a risible proposition–can you imagine the howls of “racism!” if a judge had opined that there were too many blacks in the pool? But too many whites? Well, naturally)
As for our little corner of the Internet, would Andrew have wondered if the methods by which the pool is recruited are race-biased?
Andrew?
When a judge does things like this you realize the extent with which our liberties and the justice system has been corrupted. If a pool of jurrors is to be selected on the basis of race we as a nation are in for hard times. Having served on a jury for three cases I was shocked at the limited ability of some of the jurrors to comprehend AND APPLY THE LAW. It seems judges are no better.
Last winter, Harvey Silverglate wrote an Opinion Journal piece on the question of racialized jury selection. He describes how far things have gone in England, and discusses the implications for American trials. Very worth reading.
Erin – Thanks for bringing this to everyone’s attention. (I sy “everyone,” but
I mean my 7 regular readers….)
I just took a look at Silverglate’s article, and it is indeed quite good. It reminds me that … I read it when it came out. And that reminded me
that I then thought it so good I put a copy in my database of good things.
And that in turn reminded me that I’d even blogged it:
http://www.discriminations.us/storage/001870.html
Moral: it’s nice to have friends who remind me of what I’ve saved and … blogged ….
Saying that 5 and 12 seems like it’s not too big a discrepancy is meaningless. There are ways to determine if this is statistically significant — perhaps not for just one pool, as I have no clue what the size is (100? 1000?). But if jury pools on average have 5% blacks as compared to 12% in the population, this probably is statistically significant. Not racism, necessarily, but something that should eb addressed.
Whatish is right; if I understand what the numbers refer to, they are significant. My understanding is that the 5% vs 12% was based on an analysis of the jury pool in general, not the venire for this one trial. If the pool is 1000 citizens and we treat this as a Bernoulli trial, then the observed result is about 7 standard deviations out. That’s moving into DNA-match certainty levels that the level of blacks in the pool is not a statistical accident. (It would be better to use a chi-squared, probably, but I can’t do that by hand on the back of an envelope.) I agree that if you had one particular venire that was 5% but the pool as a whole was 12%, that by itself is not significant.
Laura: I think you misunderstand: if Emmett Till’s killers had faced a jury that was representative of the community as a whole, then, let’s put it this way, there would have been several votes for conviction. The judge isn’t insisting that black defendants face a 100% black jury; he is insisting that the pool be drawn in a manner that doesn’t discriminate against blacks. And the statistical evidence (as I understand the issue) is very strong that this is the case.
Stuart, as you know, a 35% black jury pool from a 12% black population would also be statistically significant and suggests something is wrong with the process. However, I’m aware of pool assembly techniques that, either deliberately or inadvertantly, resulted in a shortage of blacks, and I’ve never heard of a single one that discriminated in the direction of too many blacks. So let’s burn that bridge when we come to it. And I suspect that to black people, this question is as inflammatory as asking what to do when Israel sets up concentration camps.
I guess by Stuart’s standards (and maybe also Laura and John), the Oklahoma grandfather cause would pass muster because it’s racially neutral on its face. But to my mind, sophisticated as well as simpleminded forms of racially-biased jury pool selection are outlawed, and a good thing too.
No, the Oklahoma grandfather clause does not pass muster with me. It was a bizarre and unprecedented rule that had no other purpose than to exclude blacks from voting, in defiance of the law. Unless you can come up with some purposeful exclusion of blacks from the jury pool, I don’t see the connection.
Around here, jury pools are drawn from the list of people who have driver’s licenses. You meet in a huge auditorium and are treated to a nice lecture on the history of courtroom justice (actually, the one I sat through was very nice) and then people who had a legitimate reason to be skipped over for jury duty had the opportunity to present their case. In groups, of course, so it didn’t take too much time. My county has about the same number of blacks and whites, with a growing Hispanic population and some Asians too. I didn’t notice if the jury pool ended up matching our racial demographic; there was no real reason for it not to. If it didn’t, I can’t imagine that that was because anyone was deliberately excluding blacks or whites. I don’t know when they’d have had the opportunity.
Andrew: A good solid post, and one that is worthy of an articulate rebuttal–in the absence of which, my words will have to suffice.
In one sense, I am going to agree with you (gasp). If, indeed, the figures are systemic and not isolated, then the racial stratification is curious, though certainly far from outlandish. It proves nothing, however, and the mere conscious regard of which is, I believe, far more corrosive to our society than any underlying statistical dynamic.
Let me be slightly less opaque: A belief in strict racial proportionalism is simple-minded naivety (and I don’t believe you are either). Nothing, literally nothing, in America (or the history of the world) has occurred in strictly proportional terms. Yet, when this unattainable proportionalism is held aloft, it magnifies the impact–and import–of race in every aspect of our lives. This foments tribalism and entitlement and creates client constituencies for race pimps like Jackson and Sharpton.
But if you insist on racial proportionalism, then I would hope you were at least equitable about it. Now I could fill John’s alloted disk space with examples, but let me just give you two. The 2000 US census showed whites and blacks comprised 75 and 12% of the population, respectively. That same year, the Department of Education employed 4,922, with 54% white and 37% black. HUD employed 10,284 with 54% white and 35% black. These are huge samples with enormous stochastic disparities from the larger “pool.” I presume you would find these figures to be de facto proof of discrimination in favor of blacks?
A few other items:
1) You say, “I’m aware of pool assembly techniques that, either deliberately or inadvertantly, resulted in a shortage of blacks…” You have me at a disadvantage here. What assembly techniques are currently being deployed to DELIBERATELY exclude blacks from the jury pool?
2) You say you are unaware of a jury assemblage that favored blacks. I doubt this. Do you recall why OJ Simpson was tried in downtown LA rather than Santa Monica? If you think it had nothing to do with putting blacks on the panel, well I would guess that Ronald Goldman would disagree–were he alive to do so.
3) The Oklahoma grandfather was explicitely designed to disqualify those recently gaining suffrage. It was, indeed, neutral only on its face. However, this site is dedicated to neutrality in fact–a different concept. And almost 90 years removed, I can think of no modern analogue to the OGC. Can you?
4) Finally(!) you suspect that some blacks may find my question inflammatory. Well, let me be blunt: I don’t care. I don’t seek to offend anyone other than the sophist or the demagogue, but if some particularly thin-skinned reader takes humbrage at my comments, then I invite them to identify the flaws in my logic and savage me accordingly. But to retreat into “taking offense” is a refuge of the scoundrel–and I’ll leave them to it.
My opus is concluded.
1. I have no idea what is causing the shortage of blacks in the jury pool. I mean, I can wild-guess… maybe they are using property records to identify potential jurors, missing out on poor renters (disproportionately black). Maybe they’re working like the Florida voter rolls, purging people with the same names as felons (disproportionately black), even names like “Jones” and “Johnson”. All I can say is that something in their process is not race-neutral in effect. Given modern politics, it’s probably inadvertant, like use of property records, and not deliberate, like the “grandfather clause”. Unless, however, this effect arises for a legitimate reason (e.g., far more blacks proportionately are under the age of 21), something should be done to fix it. Just because we can’t immediately identify a consciously racist component in the jury pool selection process doesn’t mean the system is OK, when the statistics say that something is fishy. “Neutrality in fact”, you say? Well, those 7 std deviations are a fact.
[Aside to Laura: different jurisdictions assemble their jury rosters from different sources.]
2. Sure, they went jury shopping for a good venue for OJ, but was the eventual venire representative of the community where he was tried? On the other hand, that case suggests maybe there is something to the theory that blacks bring some things to the jury more often than whites, like experience with rampant police incompetence and perjury.
3. Well, it’s outside the public sphere, but legacy admissions have a whiff of the grandfather clause, esp at institutions that freely admit to private racist practice back when it was fashionable.
4. As far as HUD employees, it seems to me that the universe is going to be weighted towards urban areas, disproportionately black. I don’t see any corresponding excuse in the jury case, where the universe (citizens) is clear. I’m not really sure what the Dept of Education does, but maybe they are heavily in urban areas too.
5. As far as offense, there seems to be a fine line between some types of race-neutrality and amnesia. The Civil War wasn’t symmetric.
1) Andrew post#9: “I’m aware of pool assembly techniques that, either deliberately or inadvertantly, resulted in a shortage of blacks.” Post#12: “I have no idea what is causing the shortage of blacks in the jury pool.” Well, which is it, do you know or not? After speculating you say that “something must be done to fix it.” Like what, pray tell? As for the 7 standard deviations, how many did you calculate for the HUD data? And, by the way 12% to 5% is DNA style certainty? I doubt it–though, I’m admitedly no statistician.
2) It’s here where your double-standard explodes forth. “Sure they went shopping for a good venue for OJ…” Do you know who “they” are? The prosecutors! Think through this. The prosecutors intentionally moved the venue from its proper jurisdiction (the scene of the crime), to one assuring a near all-black jury for the black defendant who murdered two whites. Imagine–for a nanosecond–if prosecutors in a Southern city had intentionally moved venues to assure a white jury for a white defendant accused of murdering two blacks. This would be unfathomable in modern America. But your blithe response is that blacks know more about police incompetence and perjury. From what? And what about assessing the case at hand would this help even if the preposterous is true?
3) Your HUD comments are off as well. HUD is a federal agency which provides housing assistance in (mainly) urban areas. However, there is nothing on Earth to suggest that its labor force would be drawn commensurately from this demographic. This is not a local outfit. Do you think the EPA also pulls largely from ANWR? So what accounts for the 12%/35%? And how many standard deviations would this be?
Andrew Lazarus,
All I can say is that something in their process is not race-neutral in effect.
But why should this matter? Why should the law be race-conscious? So long as the system is applied without racist intent, how is it justified for a judge to take it upon himself to make a jury racially proportionate?
And it appears the reasons for low black representation in Pittsburg jury pools are perfectly legitimate. According to this article, blacks in Pittsburg are more likely to change locations and hold jobs that don’t pay enough to get them through serving on a jury. Accordingly, they’re more likely either not to notified, or to skip out on jury duty if they are notified.
The only way to change the situation would be to spend more money to pay jurors and sift through change of address forms purchased from the US Postal Service. That might be a good idea, but it would cost a great deal of money and probably wouldn’t eliminate the discrepency.
But what is clear is that judges shouldn’t be able to alter the jury pool at will…
I hesitate to interrupt this interesting conversation, but I would like to pipe up and make a (relatively narrow) but I think important point about, appropriately enough, discrimination.
In my view, the test is intent. The grandfather clauses were clearly and unambiguously discriminatory. Their uncontroverted intent was to exclude blacks from the polls, and there was no other even colorable purpose or benefit.
By contrast, in my opinion, legacy admissions do not have even a “whiff” of grandfather clause-ness about them. True, they do have a “disparate impact” on blacks, a smaller proportion of whom have parents/grandparents who attended legacy-preference colleges. But there is no evidence that I’m aware of that this fact had anything at all to do with adoption or continuation of legacy preferences, and there are other reasonable, non-racial reasons for the preference (building school loyalty, i.e., contributions). I’m no particular fan of legacy preferences — the argument that they are unfair is not off the wall — but I don’t believe they are an example of racial discrimination.
Perhaps a better example for Andrew’s argument are veterans’ preferences, which, especially for the World War II generation, definitely had an adverse “disparate impact” against women. But that was not their intent; they had other clear non-discriminatory purposes; and they have (properly, in my view) not been found by the courts to be discriminatory.
Finally, some of you with good memories for trivia may recall that in the past I have discussed EEOC v. Sears, Roebuck and Co., a large sex discrimination case with which I was involved (working with lawyers for Sears). The EEOC discovered what it regarded as a disproportionately low number of women working in certain jobs as Sears (commission sales, installed heating and cooling, etc.), and tried to make in effect a “disparate impact” case based on statistics alone. When pressed to identify the Sears policy or practice that allegedly produced the disparity, however, it could find nothing, and fell back on the argument that Andrew makes here: “something in the process” must be causing it. That was not enough, and Sears won (for what it’s worth, the trial judge actually concluded that Sears had proved itself innocent, which rarely happens. That judgment was upheld on appeal.)
Stuart, when I said I knew how to keep a jury pool all-white, I was referring to the techniques used in the Jim Crow South. In case you have forgotten, these included assembling juries from friends of the sheriff, assembling them from voter rolls which had already been purged of blacks, assaulting blacks who did not ask to be excused (if they had made it so far as the panel), etc. Certainly none of these are taking place now, but the article Owen cites shows how facially race-neutral measures have the exact same effect of eliminating (or greatly reducing) the number of blacks in the jury pool.
As far as I can tell, John and Owen are calling for a repeal of the unanimous [?] Griggs doctrine that tests that accidentally discriminate against blacks can’t stand unless there’s a really good reason. I don’t think that the money saved by not processing change-of-address forms is a good enough reason. Suppose the jury commissioner were a bigot who had learned to keep his mouth shut? Why work on divining intent, when we can just require that the selection process be reformed to fix the situation? Moreover, the process can be fixed in a race-neutral way, not by the emergency expedient of automatically choosing the small number of minorities (not a great solution). Especially considering a long history of deliberate discrimination, I support a policy of eradicating discriminatory effects, not guessing intent.
I distinguish this case from Sears because once you look at the process, it’s possible to hypothesize why blacks are underrepresented.
And, yes, Stuart, the ratio of black employees at HUD can not be explained by chance variation. However, I don’t think you’ve refuted my claim that HUD draws employees disproportionately from urban areas by referring to the small number of employees at EPA who work with the ANWR.
Andrew – I would indeed be calling for overturning Griggs if it weren’t pretty much gone already. “Disparate impact” as a theory of discrimination is just about dead as a viable legal strategy, though it still lives in the fond hopes of liberals and could be revived by a liberal Supreme Court. Garrett Moritz of gTexts and I went around and around for a good while about this last summer or fall. About the only thing we agreed on (other than jointly appreciating the civility of our disagreement) was that “disparate impact” is close to being a dead horse, though I believe still worth kicking to insure that it doesn’t revive.
Good debate folks. And, by the way, I agree that Griggs (like a dormant virus) can’t be dead enough. John, correct me if I’m wrong, but when you refer to a liberal supreme court, do you mean “liberal?” I ask only because I would guess that you consider yourself a classical liberal, possibly in the Hayek vein.
I have only one thing to add here: I can see a plausible argument that race-neutrality in affirmative action could eventually lead to improved race relations in the United States. I have no such hopes that formally race-neutral jury selection procedures that leave black defendants facing a sea of white faces will ever have any positive social outcome, nor, IMHO, should it.
Andrew, a totally race-neutral jury selection could leave a black defendent facing 12 white jurors in an area where only 12% of the population is black. 12% of 12 is 1.44; let’s say a strictly representative sample would have one or two black people in it. By the time voir dire is finished, it would be quite feasible that to get that one or two blacks, a deliberate effort would have to be made to include them. They surely would know that was taking place. And then what? Would it be carefully explained to them that they are included in order to look after the black defendent? Please.