Chicago’s federal district court, the Eastern Division of the Northern District of Illinois, encompasses racially diverse and multicultural Cook County in addition to other primarily white counties. In 2013, at the start of a high-profile criminal tax-evasion trial, the 50-member prospective jury pool called for jury selection failed to include a single African-American man. See Annie Sweeney & Cynthia Dizikes, The balancing act of jury selection, Chicago Tribune (Mar. 27, 2013). Although U.S. District Judge James Zagel suggested that this incident was a rarity, the same courthouse had summoned an entirely Caucasian jury pool no more than two months earlier for another black defendant’s criminal trial. Id.
Turns out, this “rare” incident is not so rare after all. Tresa Baldas, No-shows for jury duty hurt diversity of Michigan pools, Detroit Free Press (Apr. 13, 2012). On the contrary, it is indicative of a challenge that courts are confronting across the country. These jurisdictions are struggling to provide criminal defendants with jury candidates that could be reasonably described as the defendant’s “peers.” In other words, courts are striving to effectively and randomly select jury pools with a composition that reflects the racially diverse populations they serve. Id. Criminal defense attorneys are often presented with a jury that features a majority of white, upper-middle class individuals who are then responsible for judging the guilt or innocence of a defendant who does not share their same characteristics or background. Hong Tran, Jury Diversity: Policy, legislative and legal arguments to address the lack of diversity in juries, Defense, May 2013, at 6. As one federal judge 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.” Baldas, supra (quoting U.S. District Judge Victoria Roberts).
Several causes have been identified as a source of this problem. A key factor associated with the underrepresentation of minorities is that jury questionnaires in many predominantly minority areas come back to the court as undeliverable or do not come back at all. Id. According to the Detroit U.S. District Court’s Jury Department, “one-third of undeliverable jury questionnaires or ones never returned are in Detroit,” a city with a significant minority population. Individuals with lower socioeconomic statuses tend to move more frequently, making them difficult to locate to deliver a juror summons. See Task Force on Race and the Criminal Justice System, Preliminary Report of Race and Washington’s Criminal Justice System, at 29 (2012) (“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.”). Furthermore, the costs associated with answering a summons or being called for jury duty are prohibitive for those who cannot afford to miss a day of work. Alexander E. Preller, Jury Duty is a Poll Tax: The Case for Severing the Link Between Voter Registration and Jury Service, 46 Colum. J.L. 1, 1–2 (Fall 2012) (“For many, [the] inadequate compensation [afforded to jurors] is simply inconvenient, but for those who are self-employed, hold multiple part-time jobs, or are dependent on tips as part of their compensation, potential loss of income is critical and they do whatever they can to avoid [jury duty].”).
Notwithstanding the difficulties in empaneling a multiracial jury, criminal defendants are still given the right to be tried by an impartial jury of their peers. But given the difficulty in composing a diverse jury pool, it bears asking: Why does it matter? Why do we strive for jury diversity?
As an initial point, there is an issue of “optics”: a heterogeneous jury not only confirms that the system is fair and impartial for the defendant, Tran, supra, at 6 (citing Paula Hannaford-Agor, Systematic Negligence in Jury Operations: Why the Definitions of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded, 59 Drake L. Rev. 761 (Spring 2011)), but also assures the public at large. Leslie Ellis & Shari Seidman Diamond, Race, Diversity and Jury Composition: Battering and Bolstering Legitimacy, 78 (3) Chi.-Kent L. Rev. 1033, 1033 (2003). As former federal judge for the Northern District of Illinois David Coar opined, “You want, especially at the outset, [for] this thing to not only be fair but look fair. This court system depends on people believing that you get a fair shake.” Sweeney & Dizikes, supra.
Conversely, a racially homogenous jury pool can have a harmful impact on the public’s perception of the justice system. Sonia Chopra, Preserving Jury Diversity by Preventing Illegal Peremptory Challenges: How to Make a Batson/Wheeler Motion at Trial (and Why You Should), The Trial Lawyer, Summer 2014, at 20 (citing Samuel Sommers, On Racial Diversity and Group Decision-Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 (4) J. Personality & Soc. Pschol. 597 (2006)) (noting that “jury verdicts are perceived as more fair by outsiders when they are rendered by diverse versus homogenous juries”). Indeed, a jury pool’s makeup can raise serious questions concerning this nation’s overall dedication to racial equality. Are all-white juries a cause or a symptom of systemic racism, oppression, and discrimination? Either way, a system in which non-diverse juries are almost uniformly deciding the fate of minority criminal defendants is inherently contrary to our society’s professed dedication to achieving and maintaining equality.