Re-justifying the fair cross section requirement: equal representation and enfranchisement in the American criminal jury.

• Author: Re, Richard M.

INTRODUCTION I. DEMOGRAPHIC CONCEPTIONS OF JURY LEGITIMACY A. Demography's Legitimizing Benefits B. Demography's Detractions 1. Inapplicability to Petit Juries 2. Incompatibility with Equal Protection Jurisprudence 3. Intrajurisdictional and Interjurisdictional Diversity 4. Impartiality: Selected Versus Acquired Competence 5. Essentialist Jury Selection II. AN ENFRANCHISEMENT CONCEPTION OF JURY LEGITIMACY A. Conceptualizing Jury (Dis)Enfranchisement B. Enfranchisement and Impartiality C. Avoiding Demography's Detractions III. UNDERSTANDING THE DOCTRINE'S HEARTLAND: THE THREE DUREN PRONGS A. Distinctive Groups: Age and Permanence B. Substantial Underrepresentation: Measurement and Inference C. Systematic Exclusion: Voting and Voluntarism IV. EXPLORING THE DOCTRINE'S FRONTIERS: UNITED STATES V. GREEN A. Finding Jury Disenfranchisement B. Remedying Partial Disenfranchisement CONCLUSION INTRODUCTION

Under current precedent, the Sixth Amendment's Impartiality Clause (1) requires that venires for criminal juries be fairly cross-sectional over time. (2) Following Duren v. Missouri, criminal defendants can argue that: (1) a "group alleged to be excluded is a 'distinctive' group"; (2) the group is underrepresented, meaning that its long-term representation in the relevant jurisdiction's venires is not "fair and reasonable in relation to the number of such persons in the community"; and (3) "this underrepresentation is due to systematic exclusion"--that is, exclusion "inherent in the particular jury-selection process utilized." (3) Once these three prongs have been satisfied, a prima facie fair cross section (FCS) claim has been established, at which point the government must justify the underrepresentation by citing a "significant state interest," or the defendant is entitled to a new trial. (4)

This well-worked-out schema supplies the hinge on which two opposing conceptions of the criminal jury's legitimacy might swing into law. (5) Demographic conceptions maintain that a jury's legitimacy depends in part on its composition. On this view, jury venires are fairly cross-sectional when they possess particular traits sufficiently-that is, fairly-in proportion to the larger population, such that defendants have a "fair possibility" of being judged by a representative jury. (6) By contrast, an enfranchisement conception emphasizes democratic participation. On this alternative approach, a jury system is fairly cross-sectional when all eligible people have been given adequate--that is, fair-opportunity to participate in jury service, regardless of how demographically representative the resulting venires or juries may be. While demographic approaches are favored by the Supreme Court, enfranchisement conceptions appear only fleetingly in early FCS cases and, more recently, near the margins of lower court opinions.

In this Note, I argue that an enfranchisement conception of jury legitimacy better explains contemporary FCS doctrine and, indeed, central features of contemporary jury practice. Moreover, an enfranchisement conception is normatively superior in that it is consistent with values underlying the American criminal jury, whereas demographic conceptions are not. An enfranchisement conception of jury legitimacy should therefore supplant the demographic rationales for FCS doctrine currently enshrined in Supreme Court precedent.

The stakes in this debate are substantial, and not just because FCS doctrine remains a frequently litigated issue in criminal law. Any investigation into the FCS requirement leads quickly to larger debates about the meaning of juror impartiality, the legality of affirmative action in jury selection, and the role of the jury in American democracy. The choice between demographic and enfranchisement conceptions of jury legitimacy is therefore of fundamental constitutional importance.

My argument proceeds in four Parts. Part I describes demographic conceptions of the jury's legitimacy and criticizes them on both legal and normative grounds. Next, drawing on historical sources and voting law, Part II proposes and defends an enfranchisement conception of jury legitimacy that avoids the pitfalls associated with demographic approaches. Part III then argues that this enfranchisement conception best explains and justifies FCS doctrine's metes and bounds. Finally, Part IV discusses the important case United States v. Green (7) and recent reforms in the District of Massachusetts in order to bring an enfranchisement approach to bear on issues at the forefront of jury law and policy.

1. DEMOGRAPHIC CONCEPTIONS OF JURY LEGITIMACY

   The Supreme Court has repeatedly suggested that the composition of a given petit jury is relevant to its legitimacy. Most famously, Ballard v. United States held that both sexes possess "a flavor, a distinct quality" relevant to jury deliberations. (8) Similarly, in Peters v. Kiff, a plurality held that the exclusion of particular groups "deprives the jury of a perspective on human events." (9) These statements support what I call demographic conceptions of jury legitimacy. When a demographic conception is realized, the individuals making up a given petit jury appropriately reflect the demographic composition of the overall population. On this view, the goal of the FCS requirement (which applies only to venires over time) is to provide each criminal defendant with a "fair possibility" of being judged by a demographically representative petit jury. (10)

   Of course, given the jury's small size and the enormous diversity of modern American society, proponents of demographic conceptions must differentiate and prioritize among different characteristics. A jury might run afoul of demographic representativeness by lacking African-Americans, men, Democrats, millionaires, and so on, but only a finite number of these categories can be represented in a twelve-person jury. The need to prioritize among mutually exclusive conceptions of jury diversity gives rise to a variety of demographic conceptions, each one reflecting a particular understanding of fair representation.

   In this Part, I criticize demographic conceptions of jury legitimacy as inconsistent with contemporary jury law and practice. Section A discusses the benefits that courts and scholars ascribe to demographic proportionality. Section B then argues that demographic conceptions of jury legitimacy are incompatible with FCS doctrine's limitations, contemporary criminal jury practice, equal protection jurisprudence, the jury's function as an impartial decision-malting institution, and the Supreme Court's aversion to essentialist jurisprudence.

   1. Demography's Legitimizing Benefits

      Demographic conceptions are typically defended with reference to three types of benefits, which I call participatory, perceptional, and correlative. Participatory and perceptional benefits are best considered as a pair. The former accrue when jury service influences jurors in a way that ultimately redounds to society's advantage, while the latter arise when jury service increases public confidence in the legitimacy of verdicts. Participatory benefits have historically been understood to emerge simply from an individual's inclusion in a jury, regardless of that jury's demographic makeup. (11) The link between participatory benefits and demographic conceptions of jury legitimacy is comparatively recent, based on studies indicating that women who have served on diverse juries tend to have more confidence in the trial process. (12) By contrast, perceptional benefits are traditionally associated with demographic diversity. (13) Critics have long highlighted the apparent illegitimacy of verdicts rendered by homogenous juries, especially in racially charged cases. (14) More recently, empirical studies indicate that the public generally has more confidence in verdicts rendered by diverse juries. (15) Demographic conceptions grounded in either participatory or perceptional benefits are united in instrumentalizing criminal justice. That is, instead of arguing that jury diversity contributes to just or accurate verdicts, perceptional and participatory accounts view jury diversity as a means of promoting other social goals, such as the system's perceived legitimacy.

      Correlative benefits, by contrast, directly focus on the jury's fundamental mission of dispensing individualized justice, and so merit special attention. Correlative arguments suggest that "descriptively" representative juries also tend to be "substantively" representative. (16) That is, juries with members who exhibit certain traits in proportion to the larger population (descriptive representation) are believed to be more likely to render decisions that accord with the larger population's unarticulated interests (substantive representation). (17) Correlative arguments can be understood as efforts to compensate for the fact that jurors, unlike most community representatives, are neither elected nor appointed. Consequently, jurors are not institutionally tethered to the populace on whose behalf they speak. Because no accountability mechanisms constrain jury decision-making, the argument might go, jurors should at least be chosen according to demographic criteria that increase the likelihood of substantive representation.

      Arguments connecting descriptive representation to correlative benefits generally fall into one of two categories: single-viewpoint and multiple-viewpoint accounts. Single-viewpoint accounts assert that a particular idea or perspective must be included in any jury for the resulting verdict to be legitimate. For instance, Ballard suggested that a jury lacking women would inevitably also lack an important outlook on human experience that might prove relevant during deliberations. (18) Multiple-viewpoint accounts, by contrast, hold that the espousal of a particular viewpoint is less important than having an array of dissimilar views that enrich the quality of deliberations. (19) The...