Jury Pool Underrepresentation in the Modern Era: Evidence from Federal Courts

• Published date: 01 June 2018
• Date: 01 June 2018
• Author: Mary R. Rose,Raul S. Casarez,Carmen M. Gutierrez
• DOI: http://doi.org/10.1111/jels.12182

Jury Pool Underrepresentation in the

Modern Era: Evidence from

Federal Courts

Mary R. Rose, Raul S. Casarez, and Carmen M. Gutierrez*

Despite a constitutional mandate that jury pools in the United States be representative of

their communities, almost no datasets exist that can describe typical levels and patterns of

jury representation. We present data from federal courts on the composition of jury pools

in 52 areas, representing 764 counties. We also compare current composition estimates to

those available 20 years ago from published sources. Results show that, by far, some amount

of underrepresentation in jury pools is the norm, and levels of attrition fail all but one

proposed method for calculating and defining “not fair and reasonable” amounts of

underrepresentation. On average, expected losses range between one and three members

of each minority group from jury venires of 40 to 60 people. We find no evidence that the

impact of attrition on Latino communities is greater than on African-American

communities and, unlike Latinos, no indicators of African-American representation levels

show improvement over time. We discuss the challenges of addressing racial/ethnic

attrition in jury pools, which is evident but, given the repeated small-group sampling of

venires, may be small in effect in any single case.

I. Introduction

The racial profile of juries holds powerful significance in the United States, particularly

when verdict outcomes are controversial (e.g., Bobo 2013; CBS News 2014). References

to an “all-white jury” are common in news reports (see discussion in Georgia v. McCollum

1992), and this phrase currently has its own Wikipedia entry (http://en.wikipedia.org/

wiki/All-white_jury). In interviews, judges express concerns about representativeness of

jury venires (Clair & Winter 2016), and both survey and experimental data reveal that

citizens view trials as less fair and verdicts as less legitimate if they come from juries that

are racially homogenous (Ellis & Diamond 2003; Fukurai & Davies 1997).

Despite such powerful symbolism, when we speak of litigants’ right to juries that

represent a “fair cross-section” of the community, or if a party charges an equal protec-

tion violation regarding underrepresentation, these claims do not concern the final petit

*Address correspondence to Mary R. Rose, Associate Professor of Sociology, University of Texas at Austin,

305 E. 23rd St., Mail Stop A1700, Austin, TX 78712-1086; email: mrose@austin.utexas.edu. Casarez is a graduate

student in Sociology at Rice University; Gutierrez is a graduate student in Sociology at the University of Texas at

Austin.

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Journal of Empirical Legal Studies

Volume 15, Issue 2, 378–405, June 2018

jury. Instead, rights in this area refer to representative “jury wheels, pools of names, pan-

els, or venires from which juries are drawn” (Taylor v. Louisiana 1975:538; see also

Berghuis v. Smith 2010; Hoyt v. Florida 1961; Lockhart v. McCree 1986). Thus, although

states and court systems are responsible for ensuring representative juries, their duties

primarily concern these larger-sized bodies (which we summarize as “pools”) from which

the final petit jury is eventually selected.

1

Therefore, if we are to ask questions about the

state of jury representativeness and whether legal challenges will likely redress disparities

in representation, jury pools are the critical site for scholarly analysis.

Remarkably, in the current legal and social science literature, we lack quality

answers to even the most basic social science questions about jury pools: How often do

disparities occur and how large are they? Are disparities larger for some groups than for

others? How often are disparities likely to be deemed “not fair and reasonable” under

any one of the available legal tests of underrepresentation? The existing literature offers

few answers to these questions, primarily because nearly all existing studies of jury

representation provide data from one or a few counties to highlight particular issues

and outcomes via the case-study approach. We instead need detailed multijurisdictional

data, something that, as we will describe below, is quite challenging to acquire from

most court systems.

We fill gaps in the jury representation literature by presenting original data based

on surveys of federal court cases as well as direct requests for federal records. We also

compare our results to published studies, including matching specific jurisdictions in

our data with those studied previously, to examine trends over time. We focus on the

representation of African Americans and Latinos because these are the two largest

minority groups in the United States, and they are, by far, the groups most likely to be

the subject of court challenges concerning representation.

2

We begin by reviewing the law and standards in this area, focusing on the differ-

ent descriptive questions one could ask about the make-up of a pool and the different

ways to assess whether any lack of representation is “not fair and reasonable,” the stan-

dard of existing law (Duren v. Missouri 1979). We review patterns emerging from case

studies of underrepresentation, which point to several additional research questions. We

then describe our data and rationales for focusing on federal courts. Our results show

that underrepresentation of the Latino and African-American populations is ubiquitous,

occurring in nearly all federal districts and divisions we surveyed. The patterns we

1

Litigants are also protected from the discriminatory use of peremptory challenges (e.g., Batson v. Kentucky 1986),

although policing these challenges is extremely difficult (Sommers & Norton 2007). Further, although peremp-

tory challenges can radically warp the composition of any single jury (see, e.g., Rose 1999), multiple studies sug-

gest that, excepting capital cases, peremptories only negligibly affect whether, on average (i.e., across a set of

cases), juries tend to represent their communities (e.g., Diamond et al. 2009; Gau 2015; Rose 1999; Rose et al.

2012).

2

Although women were the subject of early fair cross-section cases, such as Taylor v. Louisiana (1975) and Duren

v. Missouri (1979), there is little evidence that women continue to be systematically underrepresented on juries

today, and they are sometimes slightly overrepresented (see, e.g., Eigenberg et al. 2012; Rose 1999; U.S. v. Taylor

2009).

379Jury Pool Underrepresentation in the Modern Era