A proposal for measuring underrepresentation in the composition of the jury wheel.

• Author: Detre, Peter A.

1. INTRODUCTION

   In most jurisdictions in the United States, the first step in choosing a jury is to compile a master list of potential jurors. This list is usually drawn from voter registration rolls, sometimes supplemented by other sources. People on the master list who are statutorily eligible are then added to the so-called qualified jury "wheel" or "Pool."(1) Panels of grand or petit jurors are chosen from the jury wheel, usually at random. Courts and commentators have considered various "measures"(2) to determine whether the underrepresentation of a given group on a jury wheel rises to a level that might require redress. Yet none of these measures seems to reflect accurately the extent to which the defendant's constitutional and statutory rights have been undermined by the underrepresentation. This Note proposes a new measure.

   There are two main routes to challenging the composition of a jury wheel. First, a defendant may allege that the wheel does not represent a "fair cross-section" of the community as required by the Sixth Amendment's guarantee of trial by "an impartial jury of the state and district wherein the crime shall have been committed."(3) This fair cross-section requirement has also been codified in the Jury Selection and Service Act of 1968 (JSSA).(4) Although the JSSA does not apply to state courts, the Sixth Amendment guarantee does, through the due process clause of the Fourteenth Amendment.(5) Second, the defendant may bring an equal protection challenge,(6) under either the Fourteenth Amendment for state juries or the due process clause of the Fifth Amendment for federal juries.(7)

   In order to prevail in either a fair cross-section or equal protection challenge, a defendant must show that the underrepresentation of the group in question is, in some sense, "substantial." Whether or not the underrepresentation is found to be substantial depends, in part, on the measure chosen by the court to gauge underrepresentation. None of the measures that courts have employed addresses the degree to which the defendant's ex ante chances of drawing an unrepresentative jury have increased as a result of the underrepresentation on the wheel. Consequently, each can lead to anomalous results: showing a greater degree of underrepresentation in situations in which the defendant's chances have been affected to a lesser degree, and vice versa. In particular, the two measures used most frequently in fair cross-section challenges tend to underestimate the degree to which the defendant's chances have been affected, leading to dismissal of challenges for failure to establish a prima facie case even though the defendant's chances of drawing a representative jury have been substantially undermined.

   Part II of this Note describes the elements of jury wheel composition challenges under the fair cross-section and equal protection theories and explores the measures courts have applied to determine whether the underrepresentation of a particular group on the jury wheel is substantial. Part III surveys the relevant case law, focusing on the various measures courts have chosen to test for underrepresentation and the rationales behind these choices. This Note argues that the increasing use of different measures in equal protection versus fair cross-section cases is a symptom of confusion on the part of the courts. There is no reason to apply different criteria in testing for substantial underrepresentation in the two contexts. Part IV argues that none of the measures courts have applied accurately reflects the degree to which a defendant's right to a jury chosen from a fair cross-section of the community has been undermined by underrepresentation on the wheel. It maintains that an appropriate test would measure the degree to which the defendant's ex ante chances of drawing an unrepresentative jury have increased. Finally, in Part V, this Note offers a new measure--"disparity of risk"--that precisely reflects the change in the defendant's ex ante chances of drawing a representative jury. In other words, it measures the increased risk that the defendant will draw an unrepresentative jury and for this reason it precisely captures the concerns behind the fair cross-section guarantee. Disparity of risk correctly measures the degree to which the defendant's chances of a representative jury have been undermined by the underrepresentation of a group on the jury wheel. Hence, a test that incorporated disparity of risk would lead to success in jury composition challenges that courts today generally would deny for failure to establish a prima facie case.

2. BACKGROUND TO JURY WHEEL COMPOSITION CHALLENGES

   The Supreme Court's statement of the law governing equal protection and fair cross-section challenges to the composition of a jury wheel can be found in two cases from the late 1970's. In Castaneda v. Partida,(8) the Court established the test for equal protection challenges. Although the language of Castaneda is not entirely clear, later decisions have interpreted it as a three-pronged test which, if satisfied, creates a presumption of intentional discrimination in equal protection cases.(9) In order to make out a prima facie case, the defendant must prove:

   (1) that the group to which he belongs "is a recognizable, distinct

   class, singled out for different treatment under the laws, as written or

   as applied";(10)

   (2) that "the degree of underrepresentation [is substantial] by

   comparing the proportion of the group in the total population to the

   proportion called to serve as grand jurors, over a significant period of

   time";(11) and

   (3) that the "selection procedure . . . is susceptible of abuse or is

   not racially neutral," which the Court stated, "supports the

   presumption of discrimination raised by the statistical showing."(12) If the defendant establishes the elements of the prima facie case, the burden then shifts to the state "to dispel the inference of intentional discrimination."(13)

   In Duren v. Missouri,(14) the Supreme Court stated a similar three-pronged test to establish prima facie violations to the composition of a jury wheel under the Sixth Amendment's fair cross-section guarantee, holding that the defendant must prove:

   (1) that the group alleged to be excluded is a "distinctive" group in

   the community; (2) that the representation of this group in venires

   from which juries are selected is not fair and reasonable in relation to

   the number of such persons in the community; and (3) that this

   underrepresentation is due to systematic exclusion of the group in the

   jury-selection process.(15) If the defendant establishes the prima facie case, the burden then shifts to the state to justify "this infringement by showing attainment of a fair cross-section to be incompatible with a significant state interest."(16)

   The Duren test's three prongs seem roughly to correspond to those of the Castaneda test, but since intentional discrimination need not be shown for Sixth Amendment or JSSA challenges, conventional wisdom has it that defendants will find it easier to prevail in fair cross-section cases.(17) Nevertheless, defendants continue to bring equal protection challenges,(18) in part because some courts have imposed different mathematical criteria for what constitutes sufficient underrepresentation to make out a prima facie case in equal protection cases as opposed to fair cross-section cases.(19) Thus, despite the additional requirement of discriminatory intent, equal protection challenges may succeed in certain situations where fair cross-section challenges would fail.

   The second prongs of the Castaneda and Duren tests both require a showing that the underrepresentation in question is in some sense substantial enough to make out part of a prima facie case. This immediately raises two questions: first, how should underrepresentation be measured, and second, what level of underrepresentation, according to whatever measure has been chosen, is to be considered substantial? This Note will concentrates on the first question, though the second is discussed briefly in Part V.(20)

   Courts have looked to four different mathematical measures to determine whether the second prong of the Duren or Castaneda test has been satisfied, i.e., whether the degree of underrepresentation is sufficiently large.(21) These measures are generally referred to as "absolute disparity," "absolute impact," "relative" or "comparative" disparity, and "statistical significance" or "statistical decision theory."

   In order to calculate the absolute disparity between a group's representation in the population and its representation on the jury wheel, one simply subtracts the latter percentage from the former.(22) Thus, if a group forms 10% of the population as a whole, but accounts for only 6% of the jury wheel, the absolute disparity is four percentage points.(23)

   The second measure, absolute impact, is calculated by multiplying the absolute disparity by the size of the panel in question. One can think of the result as the number of jurors from the group excluded from the average panel. For example, the absolute impact on a grand jury of twenty-three corresponding to an absolute disparity of four percentage points would be .92 (.04 x 23), or slightly less than one person.

   Comparative disparity is calculated by dividing the absolute disparity by the percentage of the group in the overall population and then multiplying by 100%. The comparative disparity in the above example of a group comprising 10% of the community and 6% of the jury wheel is 40% ((4%/10%) x 100%). In effect, comparative disparity imagines how many members of the group in question would be on the wheel if there were full representation, and then calculates the percentage decrease from this figure due to the under-representation. Another way to think of the comparative disparity is as the percentage decrease in the probability that someone in the underrepresented group will be selected for...