Bias in the Jury Box

When the framers of the Bill of Rights guaranteed every U.S. defendant the right to an "impartial jury," they underscored a truism of human affairs—that a people's respect for law depends largely on the law's respect for them. It is an equal truism of U.S. life that nearly all black defendants are tried by white juries, a fact that fuels black suspicion of "white law."

Racial discrimination in the jury box has grown far more subtle since the 1870s, when many state laws openly barred blacks as jurors. The Supreme Court has consistently struck down unfair statutes and practices. But the court has insisted only that black defendants have a right to a fair chance that blacks be on the jury, and the right is seldom fulfilled in practice: most juries are permitted to remain white. In the 1965 case of Swain v. Alabama, for example, the court upheld the conviction of a black rape suspect, even though peremptory challenges had excluded all blacks from the jury and no black juror had served in the county for 15 years.

Vanishing Neighbors. The assumption is that most jurors can reach a fair verdict, regardless of their race, ethnic background or economic circumstance. Yet Southern white juries have repeatedly acquitted the obvious white killers of civil rights workers. Blacks feel that Northern white juries have railroaded various black militants.

Critics point out that juries were originally composed of actual witnesses to the crime, and later of the defendants neighbors. The defendant, in short, was entitled to the benefit of his community's feelings and familiarity with the social context of his actions. Whatever the verdict, it could be viewed as a fair product of a democratic process.

In theory, the U.S. retains this principle. Yet jurors in general are no longer neighbors in the old sense. In urban areas, they are drawn from citizens who seldom understand the pressures on minorities. Many states further narrow the jury base by excusing women and many professionals. Most blacks are barred in the drawing process or later by lawyers' peremptory challenges.

In its most recent decision on jury selection two months ago, the Supreme Court upheld a Georgia statute that empowers jury commissioners to choose veniremen from "intelligent and upright citizens of the county." The phrase can be variously interpreted. Of 2,152 names on the voting list in Taliaferro County, 178 were excluded on this basis—171 of them blacks. The county is 60% black; the grand jury was 25% black. Yet the court found the statute's standards acceptable, demanding only that they be applied objectively and without discrimination.

Some of the deficiencies in the federal system have been corrected by the Federal Jury Selection Act of 1968, which reaffirms a national policy entitling defendants to juries that reflect the full range of community opinion. The law requires veniremen to be chosen primarily from voter registration lists—which seems reasonable enough, but tends to exclude many blacks, especially in the South. Nor does the federal act touch state laws.