The Law: Bias in the Jury Box

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Royal-Flush Odds. Even random selection techniques fail when the lists are unfairly drawn to begin with. In a recent New York case, for example, Attorney Michael Finkelstein produced evidence showing that a federal grand jury list included only 1.1 of every 10,000 voters in Harlem, compared with 62.6 of every 10,000 voters from the city's fashionable and predominantly white East Side. A statistician testified that the chances of obtaining that disparity in a random selection were smaller than the probability of a poker player being dealt 24 consecutive royal flushes in a fair game of five-card stud.

One result of all this is that blacks across the U.S. are far more likely to be convicted in crimes against whites than are whites in crimes against blacks. In the South, despite the fact that more than half of all convicted rapists are white, 87% of those executed for rape between 1930 and 1963 were black. Southern white juries also tend to be lenient toward black crimes against blacks. During an eleven-year period in North Carolina, for example, 26.6% of all blacks accused of killing whites were executed. Of the blacks convicted of murdering blacks, only 4% were executed.

Most proposed solutions for getting more blacks on juries seem to raise more problems. Proportional representation, besides limiting the lawyers' rights to peremptory challenges, might yield only one black per jury, plus absurd demands that juries precisely reflect all other groups—Jews, Chinese, Indians, Catholics and so on. Some reformers urge another method: racial quotas. They might be held unconstitutional if applied to jury selection, and almost certainly would be unwise. White jury commissioners could still control the system, and perhaps select only compliant or ultraconservative blacks. They might be harsher on black defendants than white jurors would be.

A recent article in the Yale Law Journal suggests that federal juries in civil cases be drawn from the community where the cause of action arose, and in criminal cases where the crime occurred. In this way, most blacks would be judged by substantially black juries. At the same time, a black who committed a crime in a white area would get a substantially white jury (and vice versa). If and when integration occurred, all juries would reflect that too.

Whether this plan is both wise and workable remains to be seen. Whatever the answers, it is clearly important to get more blacks on juries because, as the N.A.A.C.P. Legal Defense Fund's Michael Meltsner puts it, "the confidence of the black community in the judicial process is critical to the survival of the whole society."