Eradicating bias from jury selection is only half the battle: What if the jury pool is skewed?
“The Louisianans who were summoned to decide whether Grover Cannon killed a police officer were Asian, Black, Hispanic and white. They were caregivers and engineers, state workers and self-employed. But Adrienne Harreveld, a law student working for the defense team in Cannon’s death penalty trial, noticed something else: In a city with one of the South’s largest public universities, not one member of last month’s jury pool in East Baton Rouge Parish seemed all that young,” wrote Alan Blinder this week for the New York Times. Why? A “computer glitch” kept the parish’s jury database from updating properly since 2011, leaving more than 150,000 people—including thousands born after June 2, 1993—possibly excluded from jury rolls, potentially starving young defendants of jurors who were roughly their age. [Alan Blinder / New York Times]
“Across the country, computer-reliant jury coordinators have for years confronted database problems that kept otherwise-eligible potential jurors from being called to the nation’s courthouses,” Blinder writes. “Although they are typically unintentional, such systematic exclusions raise constitutional concerns and threaten the integrity of the jury system, legal experts said.” In the early 1990s, a truncated data field mistakenly identified all residents of Hartford, Connecticut, as dead, preventing them from being considered for federal juries. In Kent County, Michigan, hundreds of thousands of people, many of them Black, did not receive jury summonses in the early 2000s because of a system glitch. In 2002, the Indiana Supreme Court overturned a death sentence after “a flawed program” excluded nearly one-third of a county’s jury pool. And in the nation’s capital, a programming mistake once erroneously kept Washingtonians with misdemeanor convictions from jury duty. [Alan Blinder / New York Times]
“I think they probably happen more frequently than we know about, but it’s only rarely you can look out into the jury assembly room and say, ‘There’s something wrong right now,’” said Paula Hannaford-Agor, the director of the Center for Jury Studies, a project of the National Center for State Courts. About 15 percent of Americans are called for jury duty each year, their names drawn from sources like lists of licensed drivers and registered voters. “With millions of names in the mix, a decentralized legal system, and harried judges, clerks and lawyers trying to stem backlogs, researchers and court officials said jury database errors can happen at plenty of points along the way,” writes Blinder. [Alan Blinder / New York Times]
Cannon’s legal team, a committed group dedicated to a high-profile capital case, caught the problem in East Baton Rouge Parish, but consider the thousands of people who cycled through that parish in the years since 2011 whose legal teams did not. And the unknown number of people who are being judged by juries drawn from incomplete pools. Much has been written about the challenges of eradicating bias from jury selection, but what if the overall jury pool itself is skewed?
In Cannon’s case, it seems, the error would have cut against him. A study of over 700 felony trials in Sarasota and Lake counties in Florida from 2000 to 2010 examined the role of age in jury selection and trial outcomes. The results suggested that prosecutors are more likely to use their peremptory challenges to exclude younger members of the jury pool, while defense attorneys exclude older potential jurors. And empirical evidence implied that older jurors are indeed more likely to convict.
And since then, awareness about systemic bias in the criminal legal system among younger people has spiked. Andrew Guthrie Ferguson, a law professor at the University of the District of Columbia, told the New York Times that younger jurors might better relate to Cannon. “This is an age that grew up in an era of Black Lives Matter and Blue Lives Matter, and their consciousness about shootings and police and shootings involving the police was filtered through a different experience that may not actually be shared in some ways by others.”
Even in the absence of computer glitches, jury pool selection itself may be biased in ways that disadvantage defendants. A 2015 article by the American Bar Association explored this phenomenon. Two years prior, in Chicago’s federal district court, whose juries draw from racially diverse Cook County, the 50-member prospective jury pool empaneled for a high-profile criminal tax evasion trial included no Black men. Although the judge suggested that this incident was a rarity, it is not. The same courthouse had summoned an entirely white jury pool two months earlier. As one federal judge in Michigan put it: “Unless you are totally blind, a judge cannot help but realize that when 100 people come into court for jury selection that there are one or two, or none, who are visible minorities.” [Ashish S. Joshi and Christina T. Kline / American Bar Association]
One key contributing factor is that jury questionnaires in predominantly low-income and non-white areas come back to the court as undeliverable or do not come back at all. Lower socioeconomic status is correlated with moving more frequently, making these people difficult to locate to deliver a juror summons. According to a 2012 report, “African Americans, Native Americans and Latinos are more likely to be economically disadvantaged, have unstable employment, experience more family disruptions, and have more residential mobility.” And the costs of answering a summons, being called for jury duty, and serving on a jury are prohibitive for those who cannot afford to miss a day of work. The authors suggest offering more incentives such as increased juror pay, to increase turnout. [Ashish S. Joshi and Christina T. Kline / American Bar Association] But this would not solve other problems that exclude low-income people and people of color, such as unstable housing, and only drawing from DMV records or voting registries.
In 2010, the ACLU of Northern California published a study of jury pools in Alameda County, California, finding that they “suffer from a racial and ethnic disparity that jeopardizes the administration of justice.” Black people represented 18 percent of the eligible jury pool in the county but only 8 percent of the people who appeared for jury duty in the 11 trials surveyed. They concluded that delivery rates of summonses to correct addresses can be improved by “using additional source lists for services, such as public benefits payments, utilities, or other services” rather than “DMV or voter registration records.” They also recommend frequent and manual record updating. Finally, the authors urged courts to work together with people to accommodate their jury service. [ACLU of Northern California]
One method to avoid: threatening arrest, jail time, or a monetary fine for failures to appear for jury service, as one federal judge has done.