2-3 Pgs. legal policy paper APA format.

 Overview: For this assignment, you will write a short paper addressing the controversial issue of obtaining a fair cross section of jurors to serve on a jury. 

 The continuing underrepresentation of some groups—including minorities, young adults, and the poor—remains a concern in attempting to create a fair cross section of the community represented on juries. One reason for this underrepresentation is obvious racism, bigotry, and prejudice. Another reason is that the poor often cannot afford to be on juries, because they will miss work and be compensated at a much lower wage to serve on the jury. Social class plays a strong role in conflict theory, as the theory suggests socioeconomic status directly affects the selection of jurors and the disparity in social class of those incarcerated in this country. Often, attorneys use peremptory challenges to exclude jurors, which require no show of cause or reasonable grounds to exclude. These peremptory challenges are often utilized when a juror seems apathetic or disinterested in the process. Peremptory challenges are limited in number, whereas challenges for cause (some type of conflict, bias, or affiliation with the involved parties) are unlimited. 

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2-3 Pgs. legal policy paper APA format.
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Prompt: Address the following critical elements in your paper:

 1. Issue Presented: Summarize the issue in the form of a brief one-sentence question.

2. Short Answer: Provide a short answer which summarizes the conclusion of the paper. 

3. Statement of Facts: Describe how the issue may negatively affect public perception of the criminal justice system. 

4. Discussion: Provide a brief discussion of the issue, including the recent history of the issue and any legal precedents related to it. 

5. Conclusion: Provide a conclusion based on the details of the issue outlined in the Discussion section. 

6. Recommendations: 

a) What recommendations should be in place to make sure that the jury pool contains a fair cross section of the community? 

b) What are types of evidence-based practices can be employed to have people of lower socioeconomic status more willing to serve on a jury? 

c) Based on your analysis of the issue using conflict theory, what are the best practices to ensure random selection of individuals to serve on a jury? 

d) Address what the impact of this issue is on the criminal justice system. Are more organizations than only courts affected by this?

 Include examples of the impact on the different branches of the criminal justice system. Reference your course readings in your submission to support your answers. 

READINGS ATTACHED IN DOCUMENTS

 Guidelines for Submission: Your submission should be 2 to 3 pages in length (in addition to title and reference pages) and should use double spacing, 12-point Times New Roman font, and one-inch margins. Use APA style to cite your sources within the text of your paper and on the reference page.  

CJ 500 Problem-Solving Strategies and Sample

Problem solving is used to address many disciplines, often with different strategies or perspectives. It is a
mental process in the area of criminology. Problems are often either well defined or ill defined. What
appropriate solutions can be determined is based on the definition of the problem. Ill-defined problems
do not have clear goals, solutions, or a path to a solution. Well-defined problems have specific goals and
a distinctive path to a solution. In selecting an issue, make sure that the issue or problem is well defined.
These problems also allow for more initial planning than ill-defined problems. The ability to comprehend
the problem and understanding the issue are paramount. This will be the key to solving your issue or
problem. Sometimes the problem requires some outside-the-box thinking to come up with a creative
and unique solution to the issue.

In determining whether an issue is well defined or ill defined, look to see whether significant research,
data, analysis, or published articles have been written on the topic. Consider the source of this research
when selecting your topic. If the issue appears in your textbook or has been covered in the modules, it
has been published and studied. Select your issue based upon the information that can be gathered,
paying mind to whether the issue is well defined. For example, the use of drug courts across the country
is an issue that has been addressed significantly over the past few years, both in research and in
publication. The use of drug courts is a fundamental shift from punishment to rehabilitation. This shift
has also sparked much controversy in the public. When researching this topic, students will find data
analysis, research, journal articles, and statistics on recidivism rates on drug offenders. This would be a
great example of a well-defined problem.

The following article is a great resource in understanding how problem solving has been incorporated
into the conventional court system: Breaking With Tradition: Introducing Problem Solving in
Conventional Courts.

Brainstorming Strategies

Brainstorming is a relaxed and informal approach to solving a problem. It requires you to think creatively
and outside the box. Brainstorming memorializes and crystallizes initial ideas into original or creative
solutions to the issue you are trying to solve. Brainstorming can also spark more ideas to the problem
you are attempting to solve. This can help implement a light-bulb moment when you are seeking a
solution to your problem, because during brainstorming there is no censorship of ideas. You are trying
to open up possibilities and break down wrong assumptions about the limits of the problem by thinking
outside the box. Ideas should only be evaluated at the end of the brainstorming session, after your
thoughts have been memorialized on paper, in order to tackle a more conventional approach. Review
the following steps in the problem-solving process as well as the problem-solving sample below.

Steps in the Problem-Solving Process

Define the Issue of the Well-Defined Problem

 What has led you to think of this issue as a problem? Understand the problem and how it came
to be; this is a huge first step. It is needed before moving on to other steps.

 What has the problem done to cause it to need to be addressed and fixed?

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 Who are the stakeholders that will solve this problem? Assemble the stakeholders and begin the
next phase.

Brainstorm the Solutions

 Do not discard ideas at this point. Every idea may have usable information contained
somewhere within it.

 When it comes time to select a solution, you may need to use bits and pieces of other
suggestions in order to come up with a viable one.

 What are some possible solutions? When soliciting solutions, ask yourself these questions: How
will this help solve the solution? Will this have any adverse effects if executed? Could this
solution create other problems if executed?

Select a Solution

 This step may be repeated several times, requiring you to analyze the execution of the solution
and modify it along the way. Each time you modify the solution, always go back to the beginning
and work it through the process again from beginning to end. Each time you modify the
solution, you change the path of it. Analyze it completely through each time, to ensure you are
ending up at the point you need to be at in order to solve the problem.

 Is this solution the best one?

 Is this the most efficient way to solve this problem?

Implement the Solution (Both Immediate and Long-Term Actions)

 Where does the solution need to begin in the chain of events?

 How does the solution need to be executed?

 Does the solution require explanation, or a foundation of explanation, in order for it to take off?
Who is going to implement the solution, and where this occur?

 Is there a chance the solution will be misunderstood and create another problem?

Gather Feedback

 What is needed to accurately assess success of the solution?

 Is the problem solved? Who should you seek feedback from? What should you ask in order to
solicit the correct answer?

 What type of surveys or information can be gathered to assess whether your solution has been
successful? Consider the use of gathering statistics. Review, for example, the Key Statistics page
on the Bureau of Justice Statistics website. Also view the Crime Statistics page on the Federal
Bureau of Investigation website.

Problem-Solving Sample

Defining the Issue
At a certain bus stop in Anytown, USA, between the hours of 4:00 p.m. and 7:00 p.m., there are many
people congregating at the bus stop. The sidewalk pedestrian traffic is blocked, causing people on the
sidewalk to walk around the people waiting for the buses. They walk in the street to go around them.
Vehicle traffic slows to a crawl, backing up for miles. People’s safety is jeopardized when this happens.
So what is the issue? Is the bus stop too small for the number of people riding? Is it that the businesses
in the area are letting their employees off work at the same time? Depending on how you look at this,

http://www.bjs.gov/index.cfm?ty=kfa

http://www.bjs.gov/

https://www.fbi.gov/stats-services/crimestats

https://www.fbi.gov/stats-services/fbi-resources

https://www.fbi.gov/stats-services/fbi-resources

you could come up with many problems. Who are the stakeholders in this situation? Who can
contribute to the solution? The police, bus company, businesses in the immediate area, and the
pedestrian traffic would be a good place to start.

Brainstorm the Solutions, Select a Solution
Coming up with a solution for this simple scenario would be easy in a perfect world; the bus company
needs to increase bus service to this route by four buses. But what happens when the bus company only
has one or two extra buses? The point is that it is impractical to think that a solution is a one-person, or
in this case a one-company, responsibility. It becomes the responsibility of each stakeholder to fix the
problem, because each stakeholder has a vested interest in resolving the problem. The bus company
wants more revenue. The police want to reduce traffic jams and make the roads safer for everyone. The
pedestrians would like to get home quicker.

The solution here may involve a little bit of effort or change from each stakeholder. For example, say the
bus company was able to add one additional bus during this rush hour, which reduced the crowd a little.
The local businesses in the immediate area that employed large numbers of employees agreed to start
staggering their quitting times. Rather than everyone getting off work at the same time, they agreed to
stagger their quitting times between the affected hours, reducing the bus crowd a little bit more.
Another recommended solution was made by the police. They agreed to reroute opposing traffic and
open up the entire street to one-way traffic, expediting the vehicular traffic out of the city. The
pedestrian traffic (the people) suggested that they could line up at the bus stop in a single-file fashion,
allowing other pedestrians a clear path on the sidewalk to walk by. This would eliminate pedestrians
walking out into the street, causing traffic to slow down and putting other people at risk. These are all
great plans. Which one do you select? You could select one, or you could select them all. You could
implement them all at once, or you could implement them one at a time, allowing each solution time to
see if it reduces the problem to an acceptable level.

Implement the Solution
In the example above, all of the suggestions were implemented. The solutions suggested that involved
little to no money or resources were implemented first, and the rest were implemented from the least
costly to the most. The changes were implemented over a four-week period. By the end of the fourth
week, all solutions were implemented.

Feedback
After all solutions were implemented, each stakeholder sent a representative out to the street corner to
observe the plan. Vehicle traffic was moving at a normal speed. No pedestrians were walking in the
road. Standing and waiting for the bus was reduced to the point where there was nearly no wait. This
was due to the fact that the buses were able to get to the bus stop faster, because the traffic speed
moved at a normal pace, coupled with the extra bus that were added during peak times.

Who benefitted here? Everyone did. The types of information collected to see whether this was a
successful solution showed that the police now had more time to spend on more important duties, and
that pedestrians got home quicker, which made them happier employees. Work production increased
due to happier employees. Profits for the bus company improved because, with this solution, they
quadrupled the number of passengers in the same amount of time. Businesses sold more items because
it was easier to move around from store to store. Plus—the most important thing—no one was placed in
harm’s way anymore.

The following methods were used to collect information to assess the success of the solution:

 Surveys to the police officers, pedestrians, and employers

 Data that showed what police officers were able to accomplish in the time period when they
used to be monitoring traffic

 The profit data from the bus company and the businesses in the area

 Analysis of the past and present incident reports from the area

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Bluebook 20th ed.

Hilary Weddell, A Jury of Whose Peers: Eliminating Racial Discrimination in Jury
Selection Procedures, 33 B.C. J. L. & Soc. Just. 453 (2013).

ALWD 6th ed.
Hilary Weddell, A Jury of Whose Peers: Eliminating Racial Discrimination in Jury
Selection Procedures, 33 B.C. J. L. & Soc. Just. 453 (2013).

APA 6th ed.
Weddell, H. (2013). jury of whose peers: Eliminating racial discrimination in jury
selection procedures. Boston College Journal of Law and Social Justice, 33(2),
453-[i].

Chicago 7th ed.
Hilary Weddell, “A Jury of Whose Peers: Eliminating Racial Discrimination in Jury
Selection Procedures,” Boston College Journal of Law and Social Justice 33, no. 2
(Spring 2013): 453-[i]

McGill Guide 9th ed.
Hilary Weddell, “A Jury of Whose Peers: Eliminating Racial Discrimination in Jury
Selection Procedures” (2013) 33:2 Boston College JL & Soc Just 453.

MLA 8th ed.
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Selection Procedures.” Boston College Journal of Law and Social Justice, vol. 33, no.
2, Spring 2013, p. 453-[i]. HeinOnline.

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Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

A JURY OF WHOSE PEERS?: ELIMINATING
RACIAL DISCRIMINATION IN JURY

SELECTION PROCEDURES

HILARY WEDDELL*

Abstract: The jury systen is intended to instill fairness and increase con-
fidence in the American legal system as a whole. Despite this goal, wide-
spread discrimination remains in jury selection procedures. In order to
adequately protect both a defendant’s right to be tried by a jury of his
peers and every citizen’s right to participate in the legal systen, represen-
tativeness should be improved at each of three levels where juror excli-
sion takes place: (1) the assembly of the jury pool; (2) the issuance of ex-
emptions and excusals front jury service; and (3) the use of peremptory
challenges in enipanelling the petit jury. States should institute a system
like the one used in Massachusetts, which limits service to one day or one
trial and eliminates all exemptions from jury service. In addition, the Sut-
prene Court should reevaluate the current unfettered use of peremptory
challenges.

INTRODUCTION

It was an unfortunate case of being in the wrong place at the
wrong time for the “Scottsboro Boys” on a chilly Spring morning in
1931.1 Nine young African American boys were “hoboing” their way
across rural Alabama on a freight train when a group of boys con-
fronted them exclaiming “[t]his is a white man’s train. All you Nigger
bastards unload.”2 The ensuing brawl between the two groups was re-
ported to the local Sheriff, who ordered the immediate deputization of
all available gun-owning men to “capture every negro on the train and
bring them to Scottsboro.” When the train stopped at Paint Rock sta-

* Editor in Chief, BostON COLLEGE JOURNAL OF LAW & SocIAt Just i (2012-2013). I
would like to thank my parents and my husband for their love, support, and encouragement.

1 See Stephan Landsman, History’s Stores: Stores of Scottsboro, 93 Micii. L. RiEv. 1739,
1739 (1995).

2 Powell v. Alabama, 287 U.S. 45, 50 (1932); SCOTTSBORO: AN AmERICAN TRAGEDY (PBS

2001). The Scottsboro Boys’ ages ranged from thirteen to twenty. N.Jereni Duru, The Central
Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 CARDoZo L. REv. 1315,
1334 (2004). Before this unfortunate day that would forever change their lives, many of the
boys had never met. See id.

Powell, 287 U.S. at 50-51; DAN T. CARTER, SCOTTsBoRo: A TRAGEDY OP TIHE AMERI-

CAN SouTn 5 (2007); Landsman, supra note 1, at 1739; Douglas 0. Linder, Without Fear or

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

454 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

tion later that afternoon, a posse of armed men rushed onboard and
captured the young Scottsboro Boys within minutes. 4 What the posse
did not expect to find, however, were two young white girls who had
also been free riding on the open carts of the freight train.6

Not until twenty minutes later, when the girls were being taken
into custody for their free riding and were directly asked whether they
were bothered by the Scottsboro Boys, did Ruby Bates claim that she
and her friend, Victoria Price, had been raped. 6 The girls claimed that
they were held down at knifepoint while the nine Scottsboro Boys took
turns raping them.7 All nine of the boys were immediately taken to
Scottsboro where an angry mob was eagerly awaiting their arrival, al-
ready convinced of the boys’ guilt.8 Six days later the boys were ar-
raigned for the alleged rapes, and each of them plead not guilty.9 The
boys were never given an opportunity to coninunicate with their faimi-
lies or obtain competent legal counsel of their own choice.10

Favor: Judge James Edwin Horton and the Tial of the “Scottsboro Boys,” 68 UMKC L. REv. 549,
550 (2000); ScoTi sBoRo: AN AmRICAN TRAGEDY, supra note 2.

4 CARTER, supra note 3, at 5; Linder, supra note 3, at 550; see Landsman, supra note 1, at
1739.

5 CARTER, supra note 3, at 5; see Landsman, supra note 1, at 1739. Ruby Bates was seven-
teen years old. HOLLACE RANSDELL, AMERICAN CIVIL LIBERTIES UNION, REPORT ON TIIE
ScorIsSoRo, ALA. CASE 2 (1931), available at http://1aw2.umkc.edu/faculty/projects/
FTrials/scottsboro/Scottsbororeport (last visited May 16, 2013). Victoria Price’s age at
the time of the alleged incident is unclear although townspeople reported her age as be-
tween nineteen and twenty-one. Id at 16.

6 See Linder, supra note 3, at 550-51.
7 JAMEs R. ACKER, SCOTTSBORO AND ITs LEGACY: TiIE CASES THAT CHALLENGED AMERI-

CAN LEGAL AND SocIAIJusTICE 8 (2008); CARIER, supra note 3, at 14.
8 Powell, 287 U.S. at 51 (stating the “attitude of the community was one of great hostil-

ity”); (ARTER, supm note 3, at 8; Linder, supra note 3, at 551; see Duru, supra note 2, at 1335.
9 Powell, 287 U.S. at 49, 52; ACKER, supra note 7, at 5; Landsman, supra note 1, at 1739;

Scottsboro Timeline, PBS, http://www.pbs.org/wgbh/amex/scottsboro/timeline/index.html
(last visited May 16, 2013) [hereinafter Scottsboro Timeline]. The girls’ identification of the
Scottsboro Boys as their attackers at the jailhouse line-up was highly suspect. See Linder,
supra note 3, at 551. The attention seeking, quick witted Price identified six of the Scotts-
boro Boys who had allegedly raped her, while Bates just stood silently. Id. The guard as-
sumed that “[i]f those six had Miss Price, it stands to reason that the others had Miss
Bates.” Id.

“0 See Powell, 287 U.S. at 52-53. Defense counsel was not appointed until the morning
of the first trial and had no knowledge of the case or of procedure in Alabama. Id at 57-
58. Throughout the trials, Price, the prosecution’s star witness, played to the sentiment of
the courtroom, giving what was expected of her: a convincing story without hesitations
that might “slow up the death sentences.” See RANSIMI i, supra note 5, at 5, 16. Because
Price gave exactly the story she knew most white southerners expected to hear, few noticed
that her testimony was riddled with inconsistencies. See RANSDELL, supra note 5, at 11 (ex-
plaining that Price and Bates’s testimony “fitted together so badly as to indicate that they
were deliberately giving untruthful evidence”); Duru, supra note 2, at 1337. In contrast,

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 455

In the span of four days, the boys were tried in four separate
cases.” By April 9, 1931, just two weeks after that fateful train ride across
rural Alabama, eight of the nine Scottsboro Boys were sentenced to
death by all-white juries.’2 The ninth boy, thirteen year-old Roy Wright,
narrowly escaped the death penalty when the jury could not agree
whether to impose death or life imprisonment, resulting in a hung
jury.13 The nine young boys, many of whom met for the first time on the
train, would spend the rest of their lives fighting for their freedom. 14

In the days after the pronouncement of the Scottsboro Boys’ death
sentences, word of the “legal lynching” suffered by these boys spread
across the country. 15 Despite the resulting public outcry for justice, on
March 24, 1932, just one day shy of the one year mark of the train ride
that forever changed their lives, the Supreme Court of Alabama af-
firmed the convictions of all but one of the Scottsboro Boys.16 Only
Eugene Williams was granted a new trial because he was thirteen years
old and thus subject to the juvenile court’s jurisdiction.’ 7

Continuing their fight for freedom, the Scottsboro Boys appealed
once again, this time to the United States Supreme Court.’8 On No-
vember 7, 1932, the Court overturned the boys’ convictions in a seven-
to-two decision, finding that the boys were denied due process under
the Fourteenth Amendment because they were not adequately repre-
sented at trial.19 The Scottsboro Boys were all granted new trials in the
Alabama state courts. 20

Bates, the other alleged victim, was dubbed by many as “slow and stupid” because she was
unable to make her testimony fit with the testimony given by Price on the stand and could
not positively identify her alleged attackers. RANSDI1, supra note 5, at 6, 16.

11 RANSDELL, supra note 5, at 5; Scottsboro Timeline, supm note 9.
12 Scot I snoRo: AN AMERICAN TRAGEv, supra note 2. As thejudge read the first guilty

verdict sentencing Clarence Norris to death by electrocution, the courtroom erupted in
cheers. RANSDELL, supra note 5, at 5, 7-8.

1s Landsman, supra note 1, at 1740; Linder, supra note 3, at 552-53. Notwithstanding
the prosecution’s request for life imprisonment because of the child’s “tender age,” eleven
of the twelve jurors held out for the death sentence. Landsman, supra note 1, at 1740;
Linder, supra note 3, at 552-53. Roy Wright spent the following six years in jail awaiting
retrial before the charges against him were dropped in 1937. Douglas 0. Linder, Biogra-
phies of Key Figures in “The Scottsboro Boys” Trials, UMKC Scn. L., http://law2.umkc.edu/
faculty/ projects/FTrials/ scottsboro/ SBbiog.html (last visited May 16, 2013).

14 See Duru, supra note 2, at 1334.
15 SeeACKER, supra note 7, at 35-36; RANSDELL, supra note 5, at 8.
16 See CAR I ER, supra note 3, at 158; RANSD 1, supra note 5, at 9.
17 CARIER, supra note 3, at 158.

I Powell, 287 U.S. at 49-50.
19 Id. at 45, 71, 73, 77. This was the first time that the Supreme Court recognized that

the Due Process Clause of the Fourteenth Amendment applied to poor criminal defen-

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7
456 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

Following a change of venue, the second round of trials for the
Scottsboro Boys took place in Decatur, Alabama. 21 Despite what ap-
peared to be powerfiul exculpatory testimony-including Bates’s testi-
mony for the defense that she and Price lied about the alleged rapes-
three of the Scottsboro Boys were again found guilty and sentenced to
death by all-white juries.2 2

The defendants again appealed to the Supreme Court, this time
claiming that they were denied equal protection of the laws under the
Fourteenth Amendment due to the “long-continued, systematic, and
arbitrary exclusion of qualified negro citizens from service on juries,
solely because of their race and color . . . .”23 In a unanimous decision,
the Supreme Court agreed with the defense and again saved the
Scottsboro Boys from the electric chair.24 The Supreme Court noted
that although there was evidence of a substantial number of African
American citizens who were eligible for jury service in the county
where the trials were held, no African American had ever served.25 The
Supreme Court’s 1934 ruling in Norris v. Alabama did not just impact

dants in state courts, guaranteeing them competent counsel appointed on their behalf. See
id.

20 Id. at 73.
21 Landsman, supra note 1, at 1740.
22 CARIER, supra note 3, at 239;JAMES GooDMAN, SIORIES oF Sco ISBORO 134 (1994);

Landsman, supra note 1, at 1741; ScoI Issono: AN AMERICAN TRAGEDY, supra note 2.
Bates, who was missing in the weeks leading up to the trial, appeared at the close of trial,
confessing that her conscience had gotten the best of her. CARI UR, supra note 3, at 231-33;
GOODMAN, supra, at 131-32; ScoirsSoRO: AN AMERICAN TRAGEDY, supra note 2. She testi-
fied that both she and Price had lied about the alleged rapes. See GOODMAN, supra, at 132.

23
Norris v. Alabama, 294 U.S. 587, 588 (1934).

24 Id. at 599.
25 Id. at 591-92. The State of Alabama set forth the following eligibility requirements

for jurors:

The jury commission shall place on the jury roll and in the jury box the
names of all male citizens of the county who are generally reputed to be hon-
est and intelligent men, and are esteemed in the community for their integ-
rity, good character and sound judgment, but no person must be selected
who is under twenty-one or over sixty-five years of age, or, who is an habitual
drunkard, or who, being afflicted with a permanent disease or physical weak-
ness is unfit to discharge the duties of a juror, or who cannot read English, or
who has ever been convicted of any offense involving moral turpitude. If a
person cannot read English and has all the other qualifications prescribed
herein and is a freeholder or householder, his name may be placed on the
jury roll and in the jury box.

Id. at 590-91 (quoting 1931 Ala. Acts, 59).

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 457

the hotly contested Scottsboro trials; it served as a basis for the integra-
tion of many Southern courtrooms for decades to come. 26

Amid national scrutiny, the Scottsboro Boys were once again tried
before Judge Callahan in Decatur.27 Haywood Patterson, now being
tried for the fourth time, was again convicted, this time receiving a sen-
tence of seventy-five years imprisonient.28 Three more of the Scotts-
boro Boys were tried and again convicted.2 9 Then, on July 24, 1937, in a
shocking turn of events, the State of Alabama dropped the charges
against the other four defendants, who had already spent six years in
jail.30 The State explained that they were releasing these boys because
at the time of the incident one of the boys was practically blind and an-
other one suffered from a serious venereal disease that would have
made it excruciatingly painful to commit the crine.3 1 The other two
defendants were said to be released because at the time of the crime
they were only twelve and thirteen years old, and after six and a half
years in jail, the “ends of justice” would not be met by further prosecu-
tion. 3 2

Not until 1950, almost twenty years after that fateful train ride, was
the last of the Scottsboro Boys released on parole by the State of Ala-
barna.33 After eleven jury trials and two favorable decisions by the
United States Supreme Court, the Scottsboro Boys spent a combined
total of 104 years in prison for a crime they did not commit.34

The plight of the Scottsboro Boys is nothing short of a legal trav-
esty.35 The boys’ trials were a guise; the citizens of Alabama had con-
denned them to death upon hearing the accusations against them. 3 6

Racial prejudices were rampant in the courtroom, where many of the

judges clearly favored the prosecution and disparaged the defense

26 Id. at 599; see SCOTTSBORO: AN AMERICAN TRAGEDY, supra note 2.
27 Landsman, supra note 1, at 1742.
28 Id.; Scottsboro Timeline, supra note 9.
29 Landsman, supra note 1, at 1742; Scot ITsioo: AN AMERICAN TRAGEDY, supra note

2. Clarence Norris was again convicted and sentenced to death. CAR I ER, supra note 3, at
369-70. Andy Wright was again convicted and sentenced to ninety-nine years imprison-
ment. Id. at 372-73. Charlie Weems was again convicted and sentenced to seventy-fiNe years
imprisonment. Id. at 375.

3 Landsman, supra note 1, at 1742; SCOTTSBORo: AN AMERICAN TRAGEDY, supra note

2; Scottsboro Timeline, supra note 9.
31 Associated Press, Prosecutors’ Statement: The Explanation of the Freeing ofFour Defendants,

N.Y. TIMES, July 24, 1937, at 4.
32 Id.

– Duru, supra note 2, at 1337; Landsman, supra note 1, at 1742.
3 Duru, supra note 2, at 1337; Landsman, supra note 1, at 1742.
– Duru, supra note 2, at 1337.
36 RANSDII1, supra note 5, at 18.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7
458 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

counsel in front of the jury.37 Jury selection procedures in the case
were also a shan as the courts continually excluded African Ameri-
cans from the panel, but included whites who openly admitted that
they regarded African Americans as an “inferior race.”SS

The Scottsboro Boys’ story highlights the struggle of African
Americans to secure the basic rights afforded to all by the Constitution;
a struggle that continues today.39 Now, more than eighty years later, we
pride ourselves on the progress we have made, yet often forget that
much remains to be done. 40

Some of the most shocking evidence of racial discrimination in the
twenty-first century can be seen in the jury selection process. 41 Efforts
have been made to increase jury representativeness, however, that goal
has yet to be filly realized. 42 For example, in a series of decisions in the
1970s, the Supreme Court mandated that jury venires-the pool of
prospective jurors from which jurors are selected-represent a “fair
cross section of the community.”43 Although more African Americans
appeared in jury venires following these decisions, this achievement was
quickly undercut through the proliferation of discriminatory peremip-
tory challenges. 44

In aJune 2010 report, the EqualJustice Initiative (EJI) studied jury
selection procedures in eight southern states and uncovered wide-
spread discrimination that posed a serious threat to the “credibility and
reliability of the criminal justice system.” 45 The EJI study found that
prosecutors in Houston County, Alabama, have used peremptory chal-
lenges to remove from jury service eighty percent of qualified African

3 Duru, supra note 2, at 1337-38.
as Id.
3SeeLandsman, supra note 1, at 1743.
40 See EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DisCRIMINATION IN JURY SELECTION:

A CONIINUING LEGACY 11-14 (2010) [hereinafter IJI REPORT].
41 See id. at 4.
42

See id. at 11-14.
43 See Duren v. Missouri, 439 U.S. 357, 370 (1979); Taylor v. Louisiana, 419 U.S. 522,

537-38 (1975) (finding Louisiana’s jury selection procedures, which excluded women
from service unless they had previously filed a declaration opting in, violated the Sixth
Amendment’s guarantee of a jury drawn from a pool representative of the community); see

also Strauder v. West Virginia, 100 U.S. 303, 306-07 (1879) (finding exclusions from jury
service based on race violate the Equal Protection Clause of the Fourteenth Amendment),

abrogated on other grounds by, Taylor . Louisiana, 419 U.S. 522 (1975).
44 See F]l REPoR1, supra note 40, at 11-14.
45 Id. at 2, 4. The following eight states’ jury selection procedures were examined by

the Equal Justice Initiative: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi,
South Carolina, and Tennessee. Id. at 4.

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2013] Eliminating Racial Discrimination injury Selection Procedures 459

Americans. 46 The study likewise found that in felony cases in Jefferson
Parish, Louisiana, prosecutors are three times more likely to strike Afri-
can American jurors than white jurors. 47

Although procedures are in place whereby one can object to the
discriminatory removal of minorities from the jury pool, these proce-
dures have proven ineffective. 48 After a defendant raises a claim that
the prosecutor has used peremptory challenges discriminatorily, the
prosecutor is given an opportunity to offer a “race-neutral” explanation
for the strike. 49 The Supreme Court has articulated that this is a low
burden and that the reason offered “need not be plausible, let alone
persuasive.”50 As a result, courts have accepted “race-neutral” dismissals
of African American potential jurors for reasons such as: alleged lack of
intelligence or low education; living in an area with a high crime rate;
“look[ing] like a drug dealer;” chewing guin; wearing sunglasses in
court; or having a child out of wedlock.51 Because almost any proffered
explanation is accepted, the procedure does little to eliminate racial
discrimination from jury selection procedures; consequently, minorities
continue to be denied their constitutional right to sit on juries at alarm-
ingly high rates.52

This Note will examine the concept of a trial by a ‘Jury of one’s
peers” throughout American history. Part I examines the development
of the jury trial and shows how the interpretation of “peers” has evolved
from its original appearance in the Magna Carta to the Supreme Court’s
interpretation today of a “fair cross-section of the community” Part II
examines how the fair cross-section guarantee applies to selection pro-
cedures for the initial jury pool. Part II also examines the impact of ex-
cusals and exemptions from jury service on the representativeness of
the jury. Part III studies the selection of the petit jury and the use of dis-
criminatory peremptory challenges. Finally, Part IV argues that the pro-
cedures utilized to seat a jury seriously diminish the Supreme Court’s
guarantee of an impartial jury representing a “fair cross-section of the
coninunity.” In response to this problem, Part IV articulates ways that
representativeness can be improved at each of three levels where juror
exclusion takes place: (1) the initial drawing of the jury pool; (2) ex-

46 See i. at 14.
47 Id.
48 Id. at 14-16.
49 Id. at 15.
o EJl REPORT, supra note 40, at 15.
51 Id. at 17-18.
52 Id. at 14, 17-18.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

460 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

emptions and excusals fron jury service; and (3) the use of peremptory
challenges in empanelling the petit jury. This Note will focus both on a
defendant’s right to be tried by a fair cross-section of the conmntunity
and on every citizen’s right to participate in the legal system.

I. WHAT IS A ‘JURY OF ONE’S PEERS”?

The common law principle of a jury of one’s peers has existed for
centuries and even appears in Article 39 of the Magna Carta, which
states that “[nlo freeman shall be captured or imprisoned or disseised
or outlawed or exiled or in any way destroyed, nor will we go against him
or send against him, except by the lawful judgment of his peers or by
the law of the land.”13 Although the word “peer” does not appear in the
United States Constitution, the Sixth Amendment’s mandate of trial by
“an impartial jury” has been interpreted by the Supreme Court to re-
quire a trial by a jury drawn from a fair cross-section of the commnunity.54

The right to a trial by jury is of great import in the American legal
system. 5 5 Its participatory nature is rooted in the concept of democracy,
and as such it aspires to protect individual liberty.5 6 The jury trial has
been praised as “the only anchor ever yet imagined by man, by which a
government can be held to the principles of its constitution.”5 7 It is a
symbol of both democracy at its best and democracy at its worst.5 8

5 DANIEL R. COQUILLETTE, TIIE ANGLo-AMERICAN LEGAL HERITAGE: INTRODUCTORY
MAIERIAIs 85,160-62 (2d ed. 2004).

54 U.S. CONST. amend. VI; Taylor v. Louisiana, 419 U.S. 522, 537-38 (1975); VALERIE P.
HANS & NEII VIDMARJUDGING TIHIEJRY 49 (2001).

55 See HANS & VIDMAR, supra note 54, at 31; 1 AMERICAN BAR AssocIA I ION DIvIsIoN
FOR PUBLIC EDUCATION, Part 1: The History of Trial by Jury, in DIALOGUE ON TILE AMERICAN

JURY: WE THE PEOPLE IN AcTlION 1, 1 (2005), available at http://www.americanbar.org/
content/dam/aba/migrated/jury/moreinfo/dialoguepartl.authcheckdam [hereinaf-

ter ABAJury History]. Outside the United States, the civil jury trial is rarely used. HANS &
VIDMAR, supra note 54, at 31. In fact, the United States accounts for around eighty percent
of all jury trials worldwide. Id.

56 See HANS & VIDMAR, supra note 54, at 36; ABA jury History, supra note 55, at 1. The
importance of a trial by jury was expressed by Thomas Jefferson when he wrote: “[w] ere I
called upon to decide, whether the people had best be omitted in the legislative orjudiciary
department, I would say it is better to leave them out of the legislative. The execution of the
laws is more important than the making of them.” HANS & VIDMAR, supra note 54, at 36.

57 ABAJury History, supra note 55, at 1.
5
8
JEFFREY ABRAMSON, WE, TIIE JURY: TIE JURY SYSTEM AND TILE IDEAL OF DEMOCRACY

I (1994); Kenneth W. Starr, furies andjustice, in 9 THE GAnER DISTINGUISHED LECT URE IN
LAW AND PumIac PoLICY 9, 9 (2000).

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A. Historical Evolution of Trial by fury

The concept of a trial by jury stems from English common law and
dates back as far as King Henry II’s “self-informing juries” of the twelfth
century.5 9 A “self-informing jury” is one that is formed from members
of the commnunity who are familiar with the parties and have personal
knowledge of the dispute.60 The “self-informing jury” therefore makes
its decision without the presentation of evidence. 61

Brought to America by the English colonists, the right to a jury
trial was present in every colony as a symbol of freedom and a protec-
tion against oppression.6 2 The colonies used juries to resist England’s
unpopular laws. 63 In the eighteenth century juries were comprised of
members of the defendant’s coninunity because local residents were
presumed to have the most thorough knowledge of the neighborhood,
social norms, the parties themselves, and the facts surrounding the dis-
pute. 64 Whereas in the eighteenth century jurors who knew the parties
and the dispute were sought out, in the twenty-first century informed

jurors are kept off juries because of a belief that they may be unfairly
biased. 65 This belief stems from the notion that jurors have a tendency
to interpret evidence based on their underlying values and opinions; as
humans, they tend to “see what [they] want to see.” 66

59 LEONARD W. LEvy, Tm PAL LAnIUM 01 justiic 11-13 (1999);JAMES OLDHAM, TRIAl
BY JURY: TiIr SEVENTH AMENDMENT AND ANGLo-AMERICAN SPECIAL JURIES 115 (2006);
Starr, supra note 58, at 18; ABAJury History, supra note 55, at 1.

60 RANDOLPH N. JONAKAIT, THE AMERICAN JURY SYSTEM 107 (2003); OLDHAM, supra
note 59, at 115.

61 JONAKAIT, supra note 60, at 107; OLDHAM, supra note 59, at 115.
62 SeeJONAKAIT, supra note 60, at 21; Starr, supra note 58, at 16, 31. Prior to the enact-

ment of the United States Constitution, the jury trial was the only right common in all twelve
state Constitutions. JONAKAIT, supra note 60, at 21; LEvy, supra note 59, at 85; Rights of the
People: Individual Freedom and the Bill of Rights, U.S. I)EPARIMFN o SFATE INt’l INtO. PRO-
GRAM, http://www.4uth.gov.ua/usa/english/society/rightsof/jury.htm (last visited May 16,
2013) [hereinafter Rights of the People].

63 ABAJury History, supra note 55, at 4.
64 SeeJONAKAIT, supra note 60, at 107; Starr, supra note 58, at 18; Rights of the People, su-

pra note 62.
65 Compare JuDE NANCY GERI NR &JUDITH H. MIZNER, THE LAW 01 JU RIEs 66 (6th

ed. 2012) (noting that a party may exercise a for cause challenge against jurors who have
connections to the case or the parties), withJONAKAI t, supra note 60, at 107 (noting that
early jurors were chosen because of their knowledge of the parties or the dispute, and were
asked to deliver a verdict on the basis of this knowledge alone).

66 SeeJONAKAIT, supra note 60, at 261-62. Jonakait offers the illustrative example of
watching a football game with friends who are cheering for opposing teams. Id. If there is a
close call, say a receiver catches the ball very near the sideline, the friends will likely dis-
agree on whether or not the ball was caught in-bounds. Id. It is only natural to interpret
the play in a way that will most benefit one’s team. Id.

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462 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

The American concept of a defendant’s right to a trial by jury is
embodied in Article III of the United States Constitution, which pro-
vides that “[tfhe Trial of all Crimes, except in Cases of Impeachment;
shall be by jury . . . .”67 Silencing the Anti-Federalists who were not con-
vinced that the Constitution should be read to extend the right to a
jury trial to all citizens, the Sixth and Seventh Amendments were rati-
fied in the Bill of Rights in 1791.68 The Sixth Amendment grants de-
fendants local trials by an impartial jury “in all criminal prosecutions,”
while the Seventh Amendment assures the right to have juries in com-
mon-law civil cases. 69

B. The Inpartiality Doctrine & the Cross-Sectional Requirement

The Sixth Anendient’s requirement of trials by an “impartial

jury” aspires to ensure that a defendant will not be tried by a jury who
harbors biases against him or her.70 Though the Constitution does not
set forth any guidelines for impartiality, the Supreme Court has inter-
preted an “impartial” juror as one who is “indifferent” to the case at
hand.7 ‘ For this reason, the parties are allowed to question potential

67 U.S. CoNSi. art. III, § 2, cl. 3; GERINFER & MIZN:R, supra note 65, at 2-3; LEvy, supra
note 59, at 14-15. Many states have also provided the right for both criminal defendants
and civil litigants to be tried by jury in their state Constitutions. GERINFER & MIZNER, supra
note 65, at 2.

61 See LEVY, supra note 59, at 14-15; Starr, supra note 58, at 14-15; ABA jury History,
supra note 55, at 4. The Anti-Federalists argued that Article III’s jury provision was not
specific enough to safeguard a defendant’s rights. Starr, supra note 58, at 14. They argued
for jury trials to be conducted in the county where the crime was committed, rather than
the state. Id. In addition, they did not believe that the right to ajury was conferred for civil
cases. Id. at 14-15.

69 U.S. CONST. amends. VI-VII; Starr, supra note 58, at 15. The Sixth Amendment
guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime shall have
been committed . . . .” U.S. CONST. amend. VI. The Supreme Court has interpreted the
Sixth Amendment to guarantee the right to a jury in all criminal cases, except those for
“petty offenses.” District of Columbia x. Clawans, 300 U.S. 617, 624-25 (1937); Callan x.
Wilson, 127 U.S. 540, 548-52 (1888). The Seventh Amendment provides “[i]n Suits at
common law … the right of trial by jury shall be preserved . . . .” U.S. CONS i. amend. VII.
The Seventh Amendment right to a jury trial in civil cases extends to private torts, con-
tracts, and property cases where legal, rather than equitable, rights are at issue. GERTNER &
MIZNE R, supra note 65, at 6-7.

7o Swain v. Alabama, 380 U.S. 202, 219-20 (1965), overruled in part by Batson v. Ken-
tucky, 476 U.S. 79 (1986); Donna J. Meyer, A New Peremptory Inclusion to Increase Representa-
tiveness and Impartiality injury Selection, 45 CASE W. REs. L. REv. 251, 259-60 (1994).

71 Irvin x. Dowd, 366 U.S. 717, 722-23 (1961) (stating that the Sixth Amendment
guarantees defendants the right to be tried by “a panel of impartial, ‘indifferent’ jurors
…. [whose] verdict must be based upon the evidence developed at the trial”), superseded
ly statute as recognized in Casey x. Moore, 386 F.3d 896 (9th Cir. 2004); GERINER & MIZNER,

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jurors in a process known as voir dire in an attempt to reveal prejudices
that might affect a juror’s ability to impartially consider the evidence
and ultimately decide a defendant’s guilt or innocence.7 2 Parties are
then given the opportunity to remove jurors using challenges, either
with or without cause.73

Although the Sixth Amendment requires an impartial jury, not
every member of the commiunity was immediately allowed to serve on
juries. 74 Early in America’s history, most states only permitted jury ser-
vice by white men who owned property and paid taxes.7 5 By the late
nineteenth century, jury qualifications were loosened in some states,
but the issue was not fully addressed until after the enactment of the
Fourteenth Amendment in 1868.76

1. The Fourteenth Amendment

The Fourteenth Amendment guarantees all citizens equal protec-
tion under the laws and has been used to make many of the rights guar-
anteed in the Bill of Rights applicable to the states.77 The Fourteenth
Amendment provides that “[n]o State shall make or enforce any law
which shall abridge the privileges or iimimunities of citizens of the
United States; … nor deny to any person within its jurisdiction the equal
protection of the laws.”7S The Amendment guaranteed citizenship to

supra note 65, at 62; see Toni M. Massaro, Peremptories or Pers?-RetIinking Sixth Amendment
Doctrine, Inages, and Procedures, 64 N.C. L. Riv. 501, 544 (1986); Meyer, supra note 70, at
259-60. An impartial juror does not have to be completely ignorant of the circumstances
surrounding the case so long as they feel they can put their opinions aside and make a
decision based on the evidence presented at trial. Irvin, 366 U.S. at 722-23.

72 GERTNER & MIZNER, supra note 65, at 58-59; HANS & VIDMAR, supra note 54, at 67;
David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and
EmpiricalAnalysis, 3 U. PA.J. CONST. L. 3,11-12 (2001); Meyer, supra note 70, at 263.

7 Baldus et al., supra note 72, at 11-12; Meyer, supra note 70, at 264-65; see also infra
notes 140-187 and accompanying text.

7 SeeJONAKAITii, supra note 60, at 114; ABAJury History, supra note 55, at 4.
7 GERTNER & MIZNER, supra note 65, at 36 n.8; JONAKAIT, supra note 60, at 114; ABA

Jury History, supra note 55, at 4. The first African Americans to serve on a jury in the United
States were Francis U. Clough and William H. Jenkins who served in 1860, in Worchester,
Massachusetts. EJI REPORT, supra note 40, at 9; Long Road to justice: The African American Ex-
perience in the Massachusetts Courts, MASs. Hist. Soc’v, http://www.masshist.org/longroad/
03participation/jury.htm# (last visited May 16, 2013).

76 SeeJONAKAIT, supma note 60, at 115.
7 U.S. CONst. amend. XIV, § 1; Duncan . Louisiana, 391 U.S. 145, 149-50 (1968) (in-

corporating the Sixth Amendment’s right to ajury trial to the states); Rachel Hartje, A Jury
of Your Peers?: How fury Consulting May Actually Help Trial Lawyers Resolve Constitutional Lin-
tations Imposed on the Selection of furies, 41 CAL. W. L. Rv. 479, 487 (2005).

7 U.S. CONsti. amend. XIV, § 1.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7
464 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

recently emancipated African Americans and gave Congress the power
to enforce these provisions against states that refused to provide all races
equal protection of the laws. 7 The Amendment has been interpreted by
the Supreme Court to bestow various rights to both litigants and jurors,
ensuring citizens of all races the right to serve on juries.o

2. Strauder v. West Virginia: The Right to a Jury of One’s Peers

In 1897, the Supreme Court issued its first ruling on racial dis-
crinination in jury service.8 1 In Strauder v. West Virginia, the Court held
that West Virginia’s law banning African Americans from serving as ju-
rors was unconstitutional under the Equal Protection Clause of the
Fourteenth Anendient.8 2 Strauder, an African American male, was
convicted of murder by an all-white jury.8 3 Reversing Strauder’s convic-
tion, the Supreme Court held that West Virginia could not prohibit Af-
rican Americans from participating in jury service because the Four-
teenth Amendment declared that the laws in the United States must be
applied equally without regard to race. 84

The Strauder Court articulated the right to a jury of one’s peers,
noting that the “very idea of a jury is a body of men composed of the
peers or equals of the person whose rights it is selected or suninoned
to determine . . . .”85 A defendant’s right to a jury by his “peers” does
not mean he is tried by friends, but rather by people with whom he
shares important characteristics. 86 Commonalities such as race, gender,
occupation, and socio-economic status ensure that jurors can enipa-

79 Strauder. West Virginia, 100 U.S. 303, 306-07 (1879), abrogated on other grounds by,
Taylor v. Louisiana, 419 U.S. 522 (1975).

go U.S. CONsT. amend. XIV, § 1; Hartje, supra note 77, at 488.
s1 Strauder, 100 U.S. at 304, 310; JONAKAIT, supra note 60, at 115; SEAN G. OVERLAND,

THEJIuROR FAc oR: RACE AND GENDER IN AMERICA’S CiviL COURTs 85-86 (Melvin I. Urof-
sky ed., 2009).

82 Strauder, 100 U.S. at 304, 310;JONAKAIT, supra note 60, at 115; OvERLAND, supra note
81, at 85-86. The statute provided “[a]ll white male persons who are twenty-one years of
age and who are citizens of this State shall be liable to serve as jurors, except [state offi-
cials].” Strauder, 100 U.S. at 305.

83 Id. at 304-05.
84 Id. at 308, 310; Debra L. Dippel, Holland v. Illinois: Sixth Amendment Fair Cross-Section Re-

quirement Does not Preclude Racially-Based Peremptory Challenges, 24 AKRON IL. RE v. 177, 179
(1990). The Court in Strauder pronounced that African Americans have “the right to exemp-
tion from unfriendly legislation against them distinctively as colored-exemption from legal
discriminations, implying inferiority in civil society, lessening the security of their enjoyment
of the rights which others enjoy, and discriminations which are steps towards reducing them
to the condition of a subject race.” Straude; 100 U.S. at 307-08.

85 Strauder, 100 U.S. at 308.
86 Massaro, supra note 71, at 552; Meyer, supra note 70, at 261.

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thize with the defendant and take into account common experiences
that may be helpful in determining witness credibility, deciding guilt or
innocence, and in making sentencing decisions. 7 Clarifying its deci-
sion, the Court stated that a denial of equal protection would only be
found where members of a defendant’s race were purposefully excluded
from the panel of prospective jurors, often called the ‘jury venire.” 88

The Strauder Court specifically pronounced that it was not guaranteeing
defendants the right to a petit jury comprised in whole or in part of
members of his or her race. 89

While holding that a state could not legally exclude a juror based
on race, the Court recognized the state’s power to set “the qualifications
of its jurors, and in so doing make discriminations.””o The Court ac-
knowledged that requirements limiting jurors to men, freeholders, citi-
zens, persons within a specific age range, or those who met certain edu-
cational qualifications would not violate the Equal Protection Clause. 91

Despite the fact that the Supreme Court’s decision in Strauder pro-
fessed to eliminate discriminatory intent in jury selection procedures, it
was easily circuinvented through the use of facially neutral eligibility re-
quirements.92 Southern states quickly realized that because voting re-
quirenents were an issue of state law, they could keep African Ameri-
cans from sitting on juries by keeping them off voting lists.93 For
example, education and property ownership were common, facially
neutral voting requirements that were used to exclude African Ameri-
cans from juries. 94

The Court has since elaborated and expanded the principles ar-
ticulated in Strauder95 Over the next seventy years, the Supreme Court
declared state laws unconstitutional when the effective result of a facially
neutral eligibility requirement was a racially discriminatory jury selec-
tion process.9 6 Though the Court granted all races the equal right to

Si Massaro, supra note 71, at 552; Meyer, supra note 70, at 261-62.
88 Strauder, 100 U.S. at 305; Meyer, supra note 70, at 263; Jennifer Lee Urbanski, Geor-

gia . McCollum: Protecting fuaors from Race-Based Peremptory Challenges but Forcing Criminal
Defendants to Risk Biased Juries, 24 IAc. L. J. 1887, 1930 (1993).

8 Strauder, 100 U.S. at 305.
90 Id. at 305, 310.
91 Id. at 310.
92 See id.;JONAKAIT, supra note 60, at 115; Rights of the People, supra note 62.
93 SeeJONAKAIT, supra note 60, at 115; Rights of the People, supra note 62.
94 Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 T MP. I..

Riv. 369, 382 (1992).
95 Hartje, supm note 77, at 489.
96 Sims v. Georgia, 389 U.S. 404, 407-08 (1967) (striking down the use of juror lists

based on segregated tax returns); Whitus . Georgia, 385 U.S. 545, 548-49, 551-52 (1967)

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

466 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

serve on juries, it nevertheless refused to expand this right to mean that
a defendant had a right to ajury that matched his or her own race. 97

3. The Jury Selection and Service Act: Fair Cross Section Requirement
in Federal Courts

In an effort to afford all citizens an equal opportunity to serve on
juries, Congress enacted the Jury Selection and Service Act (JSSA) in
1968.98 The Act declares that “all litigants in Federal courts entitled to
trial by jury shall have the right to grand and petit juries selected at
random from a fair cross section of the commnunity in the district or
division wherein the court convenes.” 99 The Act prescribes specific pro-
cedures for randomly drawing the names of qualified citizens who are
not excused or exempt from service. 100 The JSSA mandates that voter
registration lists be used as the primary source for compiling federal
juror lists. 101

The JSSA’s random selection procedures were enacted to put an
end to the “blue ribbon juries,” which at that time were utilized by al-
most sixty percent of the federal courts.102 Under the “blue ribbon”
system, the jury commissioner chose jurors who had an above average
level of education or experience in the matter and thus were deemed
“specially able” to decide the case.103 At that time, many thought that

jurors should possess “above average levels of intelligence, morality, and
integrity” in order to serve justice. 104

(striking down the use of color-coded tax returns that designated taxpayer’s race to com-
pile juror lists); Avery v. Georgia, 345 U.S. 559, 560, 562 (1953) (striking down the use of
colored tickets to “randomly” select names forjury duty).

97 See Thomas v. Texas, 212 U.S. 278, 282 (1909); Virginia v. Rives, 100 U.S. 313, 322-23
(1879); OVERLAN), supra note 81, at 87-88.

9 28 U.S.C. § 1861 (2006); HANS & VIDMAR, supra note 54, at 53.
9 § 1861.
100 1866. The JSSA states that randomly selected citizens should be deemed qualified

to serve on a jury if they are a U.S. citizen over the age of eighteen who has lived in the
judicial district for at least one year and can speak and understand English. § 1865. A per-
son who meets the above qualifications, however, will not be allowed to serve if they have a
mental or physical illness that would interfere with their ability to serve, or if they have
been charged with or convicted of an offense punishable by imprisonment of one year or
more. Id.

101 § 1863.
102 SeeABRAMSON, supra note 58, at 99.
103 Id.;JONAKAIT, supra note 60, at 123.
104 ABRAMSON, supra note 58, at 99.

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4. Extension of the Cross-Sectional Obligation to State Courts in Taylor
v. Louisiana

In the 1975 landmark decision Taylor v. Louisiana, the Supreme
Court extended the cross-sectional obligation to state courts. 105 Taylor,
a male, appealed his conviction alleging that he was deprived of his
right to be tried by a jury that was representative of the comninnity be-
cause women were systematically excluded from the jury pool. 106 The
Supreme Court found that though Taylor was male, he had standing to
challenge the constitutionality of Louisiana’s jury-selection procedure,
which required women to file a declaration for inclusion in jury ser-
vice.107 Although women who wished to serve were included, the pro-
cedure had the effect of greatly reducing the number of women in the
venire, thereby excluding fron jury service an identifiable class of citi-
zens in the coninunity.108 Declaring representative juries as “funda-
mental to the jury trial guaranteed by the Sixth Amendment,” the
Court deemed the procedure unconstitutional. 109

Acknowledging that states would need leeway in application of the
cross-sectional mandate, the Court specified that states could fashion
their own process for selection of the jury venire. 110 The Court clarified
that though juries must be chosen from a group that is “fairly represen-
tative” of the coninunity, the jury enpanelled in a case does not have
to accurately depict the demographics of the commiunity.1 1 Therefore,
the Court held that it was constitutional for states to use reasonable ex-
emptions or challenges in the selection process.112

105 419 U.S. 522, 530, 538 (1975); ABRAMSON, supra note 58, at 100. The State of Lou-
isiana required women to file a declaration stating their desire to be included in the jury
venire. Taylor, 419 U.S. at 523-24. As a result, only ten percent of the eligible jury pool was
comprised of women in a district where fifty-three percent of the residents were women
otherwise qualified for service. Id. at 524.

106 Id.
107 Id. at 523, 526. In 1898, Utah was the first state to give women the right to sit on ju-

ries. HANS & VIDMAR, supra note 54, at 51. The right became more prominent after the
enactment of the Nineteenth Amendment in 1920 which gave women the right to vote
because many states used voting rights as a requirement forjury service. See id. at 51-52. It
was not until 1972 that women were allowed to sit on juries in all state and federal jurisdic-
tions. Id. at 52. Alabama, Mississippi, and South Carolina were the last states to grant
women the right to sit on juries. Id.

10s Taylo; 419 U.S. at 525-26.
109 Id. at 525, 530.
110 Id. at 537-38.
nI1 Id.
112 Id. at 538.The Court elaborated that States can “grant exemptions from jury service

to individuals in case of special hardship or incapacity and to those engaged in particular

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468 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

II. DISCRIMINATION IN COMPOSITION OF THE JURY POOL

Both the impartiality requirement in the Sixth Amendment and
the Equal Protection Clause of the Fourteenth Amendment provide
protection against discriminatory jury selection procedures, albeit in
slightly different ways.”13 The Fourteenth Amendment forbids inten-
tional discrimination against protected groups, while the Sixth
Amendment’s focus is not just on eradicating discrimination, but also
on the broader goal of ensuring a body that is representative of the
community.114 In addition, to claim an Equal Protection violation, the
defendant is usually required to be part of the same group as the ex-
chided juror.115 Conversely, a Sixth Amendment representativeness
challenge can be claimed by any defendant, regardless of whether they
are a member of the excluded juror’s group.1 6

A. The Sixth Amendment’s Representativeness Requirement

Despite the Supreme Court’s mandate that jurors be selected from
a pool that is fairly representative of the community, many groups are
still underrepresented on jury venires.” 7 The Supreme Court formu-
lated a three-prong test for determining whether the fair-cross section
requirement has been violated in choosing ajury venire.11s A petitioner
must prove: (1) that the allegedly excluded group is a distinctive group
in the community; (2) that this group’s representation in jury venires is
not fair and reasonable in relation to its composition in the commu-
nity; and (3) that this group’s underrepresentation is due to the sys-
tematic exclusion of it in the jury selection process.119 According to the
Supreme Court, a group with identifiable commonalities does not con-
stitute a distinctive group; rather, the group must share “some imnuuta-

occupations the uninterrupted performance of which is critical to the community’s wel-
fare.” Id. at 534.

113 GERTNFR & MIzNER, supra note 65, at 34-37. The overlapping protections might be
due to the fact that the Sixth Amendment was not incorporated to the states until 1968, so
early claims of state’s discriminatory procedures had to be brought under the Fourteenth
Amendment’s Equal Protection Clause. GERTNE:R & MIzNER, supra note 65, at 37 n.9.

114 GERTNER & MIZNER, supra note 65, at 35-37; HANS & VIDMAR, SUPra note 54, at 49.
115 GER I NIR & MIzNER, supra note 65, at 34-35.
16 Id. at 35.
117 Taylorxv. Louisiana, 419 U.S. 522, 538 (1975); HANS & VIDMAR, supra note 54, at 49,

54-55; JONAKAIT, supra note 60, at 125.
118 Duren v. Missouri, 439 U.S. 357, 359-60, 364 (1979) (reinforcing its decision in Tay-

lor v. Louisiana that the systematic exclusion of women from jury venires denies a defen-
dant his right to ajury selected from a fair cross-section of the community).

119 Id. at 364.

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ble characteristic such as race, gender or ethnic background …. .”120
For example, African Americans, Mexican Americans, and women have
all been recognized by the Supreme Court as distinctive groups.121
Conversely, attempts to classify groups not sharing an immutable char-
acteristic, such as groups based on age, occupation or education level,
as distinctive groups have failed. 122

The cross-sectional requirement serves three important purposes:
First, when the racial composition of the jury generally reflects that of
the community, the jury’s verdict is likely to be viewed as a legitimate
expression of the comnmnunity.1 23 Second, broad coninunity participa-
tion on juries educates the public on the mechanisms of the criminal
justice system, and allows them to exercise some control over the proc-
ess, thereby increasing public confidence and respect for the govern-
nent.124 Third, a jury that is drawn from a fair cross-section of the
commiunity protects defendants’ rights because when jurors that span
racial, gender, and class lines are brought together, the result is a “dif-
fused impartiality.” 25 The emphasis on diffused impartiality is a recog-
nition that “in a heterogeneous society, no person [] is truly impartial,
unbiased, or unprejudiced.”126 Therefore, the focus is shifted from the

120 Lockhart v. McCree, 476 U.S. 162, 175 (1986); GERTNER & MIZNER, Supra note 65,
at 38; Meiring de Villiers, The Impartiality Doctrine: Constitutional Meaning and Judicial Impact,
34 AM.J. TRIAL ADvoc. 71, 76-77 (2010).

121 Duren, 439 U.S. at 364 (recognizing women as a distinctive group); Castaneda v.
Partida, 430 U.S. 482, 495 (1977) (recognizing Mexican Americans as a distinctive group);
Peters v. Kiff, 407 U.S. 493, 505 (1972) (recognizing African Americans as a distinctive
group); United States v. Cannady, 54 F.3d 544, 547 (9th Cir. 1995) (recognizing Asian
Americans as a “distinctive group”); de Villiers, supra note 120, at 77.

122 United States v. Fletcher, 965 F.2d 781, 782 (9th Cir. 1992) (noting that “college
students” are not a distinctive group); Anaya v. Hansen, 781 E2d 1, 6-8 (1st Cir. 1986)
(noting that neither “blue collar workers” nor “less educated individuals” are a distinctive
group); Barberxv. Ponte, 772 F.2d 982, 999-1000 (1st Cir. 1985) (holding that young adults
between the ages of eighteen and thirty-four are not a distinctive group because there is no
“common characteristic”); see also GERINER & MIZNER, supra note 65, at 37, 38 & n.8 (dis-
cussing groups that have been recognized by the Supreme Court as “distinctive” for Sixth
Amendment purposes).

123 HIROSHI FUKURAI & RICHARD KROOIH, RtACE IN THE JURY Box: A IRMA I IvE Ac-
lION INJURY SELECTION 133 (Austin T. Turk ed., 2003) (noting that jury diversity should
be valued because if all of the jurors, regardless of how varied the viewpoints are to begin
with, can come to an agreement, it increases the verdict’s legitimacy).

124 See FUKURAI & KROOTII, supra note 123, at 131, 133; see asoJ.E.B. v. Alabama, ex rel.
T.B., 511 U.S. 127, 140 (1994) (noting that “state-sanctioned discrimination in the court-
room” diminishes the public’s confidence in the justice system).

125 ABRAMSON, supra note 58, at 101; FUKULRAI & KROOTII, supra note 123, at 133;

Meyer, supra note 70, at 260.
126 FUKURAI & KROOTH, supra note 123, at 129; Meyer, supra note 70, at 260.

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470 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

impartiality of any one juror to that of the jury as a whole. 127 A diverse
jury is more likely to be impartial because the biases of any one nenm-
ber are balanced against those of the rest of the group. 128

B. State Qualifications, Exemptions, and Excusals from Jury Service

States are free to prescribe the qualifications for their jurors.129

Most states require that prospective jurors be United States citizens, be
over 18 years of age, have no previous felony convictions, and can un-
derstand English. 30 Some states, such as Texas, mandate that jurors be
“of sound mind and good moral character,” a requirement that has his-
torically been used to impermissibly exclude otherwise qualified citi-
zens.131

In addition to inininiuni qualifications for jury service that limit
the jury pool, many state legislatures provide outright exemptions or
excusals to certain groups of citizens.132 Exemptions and excusals serve
the same broad purpose, but exemptions are typically automatic dis-
missals from jury service, whereas excusals are granted on a case-by-case
basis. 3 3 The granting of either an exemption or an excusal recognizes
that jury service would pose a hardship on the prospective juror.134

The spectrum of state-created exemptions is vast, but the trend is
towards eliminating outright exeniptions-especially those based on
occupation, which have long served to undermine diversity on juries-
and instead focusing on excusals that must be approved by the court. 135
At one extreme of the spectrum are states such as Massachusetts that
do not grant any automatic exemptions; at the other extreme are states
such as Hawaii, which grants numerous automatic occupational exemp-

127 FUKURAI & KiROOTII, supra note 123, at 128-29; see Meyer, supra note 70, at 260.
128 ABRAMSON, supra note 58, at 101; FUKURAI & KRooTIH, supra note 123, at 128;

Meyer, supra note 70, at 260.
129 Taylor, 419 U.S. at 538.
1so HANS & VIDMAR, supra note 54, at 54; FJI REPORt, supra note 40, at 37; GREGORY E

MIZE ET AL., TIIE STATE-OF-TIIE-STATES SURVEY OF JURY IMPROVEMENT EFFORTS: A COM-
PE:NI)M REPORT 21 (2007), http://www.ncsconline.org/D_Research/cjs/pdf/SOSCom-
pendiumFinal [hereinafter SIAT-oF-TH:-SIATEs SuRVEv]. Qualifications for jury
service are easily met by the majority of citizens. OVERLAND, supmV note 81, at 2.

131 Trx. Gov” Coin ANN. § 62.102(4) (West 2005); lIJI REPoRT, supra note 40, at 10.
132 HANS & VIDMAR, supra note 54, at 54.
133 Anne Skove, fury Management: Exemptions from Jury Dut, NAT’L CENTER FOR STATE

Cis., http://www.ncsconline.org/WC/Publications/Memos/JurManExemptions Memo.
htm (last visited May 16, 2013).

134 See EJI REPORT, supra note 40, at 37.
135 See id. at 14; STATE-oI-I H-STAIEs SURVtY, supra note 130, at 15; PamelaJ. Wood,

Massachusetts’Leadership Role in the American jury System, 55 Bos. B.J. 13, 15 (2011).

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tions.136 Most states fall somewhere in the middle with few or no out-
right exemptions, but give local courts to excuse jurors on an individual
basis.’ 37 Excusals are only granted where jury service would pose undue
hardship or extreme inconvenience.13 8 For example, excusals are
commonly granted for jurors who are in financial straits and cannot
afford to miss a day of work, mothers who are nursing young children,
and jurors who live a great distance from the courthouse.139

III. DISCRIMINATION IN PETITJURY SELECTION: THE

PEREMPTORY CHALLENGE

Once the jury venire is established, potential jurors are questioned,
either by the judge or counsel, during a voir dire examination. 140 If the
judge feels that any of the potential jurors harbors biases against either
party or has knowledge of the facts of the case that might cloud the ju-
ror’s judgment, the juror may be dismissed for cause.141 Challenges for
cause are unlimited in number and are used only when the juror does
not meet the qualifications for service or where there is an articulable
reason to doubt the juror’s impartiality. 142 Commonly recognized chal-
lenges for cause are: disabilities that would interfere with the potential

juror’s ability to serve; connections to the case or the parities; biases
against a party on account of race, religion, or other status; and objec-
tions to issues presented by the case such as the death penalty or insanity
defense.143

136 Compare HAW. REv. STAT. § 612-6 (2010) (exempting the following occupations
from juror service: elected officials, judges, doctors, dentists, active members of the armed
forces, policemen, firemen, and emergency medical service personnel), with MASS. GIN.
LAWs ch. 234A, § 3 (2011) (stating “[n]o person shall be exempted or excluded from serv-
ing as a grand or trial juror because of race, color, religion, sex, national origin, economic
status, or occupation”). Massachusetts does, however, have statutory qualifications for jury
service). See MASS. GEN. LAWs ch. 234A, § 4.

137 See SIATE-o-IHE-SIATEs SRVny, supra note 130, at 14-15.
138 JlJ REPoRt, supra note 40, at 37.
139 Id.
140 HANS & VIDMAR, supra note 54, at 67.
141 GERINER & MIZNER, supra note 65, at 66-68; HANS & VIDMAR, supra note 54, at 67.

In Canada, it is assumed that jurors will take the oath, set aside any preconceived notions
or biases and decide a case exclusively on the evidence presented at trial. HANS & VIDMAR,
supra note 54, at 63. In the United States, however, prospective jurors are questioned at
length during voir dire in an attempt to expose general biases that may color the way they
view the evidence presented at trial. Id. at 63-64.

142 HANS & VIDMAR, supra note 54, at 67; Patricia Henley, Improving the jury System: Peremp-
toty Challenges, PUB. L. RES. INST., http://www.uchastings.edu/public-law/plri/spr96tex/

juryper.html (last visited May 16, 2013).
143 GERI NER & MIzNER, supra note 65, at 66-68.

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472 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

Conversely, a peremptory challenge gives litigants the ability to
remove potential jurors from the panel without providing an explana-
tion. 144 Peremptory challenges date back to Roman times, and have
always existed in the United States.145 Although the Constitution does
not explicitly provide for peremptory challenges, the Supreme Court
has recognized their importance in achieving an impartial jury under
the Sixth Amendment. 146

A. Discriminatory Use of Peremptory Challenges

Peremptory challenges are limited in number and give parties the
flexibility to remove jurors who they believe are biased when there is
not enough evidence to remove them for cause.147 The number of per-
emptory challenges each side is entitled to exercise varies with the ju-
risdiction and type of case being tried, but they exist for all trials, both
civil and criminal.148 Peremptory challenges are said to preserve fair-
ness and assure litigants that the verdict will be based solely on the ev-
dence placed before them at trial.149 In 1986, the Supreme Court ad-
dressed the use of discriminatory peremptory challenges in Batson v.
Kentucky.15 0

144 GE:RTNER & MIZN:R, supra note 65, at 118; HANS & VIIMAR, supra note 54, at 54;
OVERLAND, supra note 81, at 83.

145 Henley, supra note 142. Lex Servilia, a Roman statute enacted in 104 B.C., allowed
the prosecution and defense to each remove fifty jurors from a pool of two hundred. Bat-
son. Kentucky, 476 U.S. 79, 119 (1986) (Burger, J., dissenting); Urbanski, supra note 88,
at 1898.

146 Swain v. Alabama, 380 U.S. 202, 212 (1965), overruled in part by Batson v. Kentucky,
476 U.S. 79 (1986) (finding that the use of peremptory challenges is necessary to secure

juries “which in fact and in the opinion of the parties are fair and impartial”); Hayes v.
Missouri, 120 U.S. 68, 71-72 (1887) (stating that more peremptory challenges may be
needed in larger cities in order to ensure an impartial jury); GERTNER & MIZNER, Supra
note 65, at 122; Henley, supra note 142.

147 Urbanski, supra note 88, at 1888; Henley, supra note 142.
148 GERTNER & MIZNER, supra note 65, at 124. In federal cases, the number of peremp-

tory challenges each party may exercise fluctuates depending on the type of case. Id. at
122-24. For cases where the punishment is imprisonment for less than a year, each side
may exercise three peremptory challenges. Id. at 123. In cases where the punishment is
imprisonment for more than a year, the government gets six challenges and the defendant
receives ten. Id. at 122-23. In death penalty cases, each side may exercise up to twenty per-
emptory challenges. Id. at 122.

149 Swain, 380 U.S. at 219; Henley, supra note 141.
150 Batson, 476 U.S. at 84.

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1. Proving an Equal Protection Violation: The Batson Challenge

In Batson., an African American man appealed his conviction in the
State of Kentucky, claiming that the prosecutor’s discriminatory use of
peremptory challenges denied him equal protection of the laws.151 The
prosecutor used peremptory challenges to excuse the only four African
American jurors, thus leaving an all white jury. 152 The Supreme Court,
reaffirming the proposition that racially based peremptory challenges
violate the Equal Protection Clause, established a framework for prov-
ing purposeful discrimination.153 As with all Equal Protection claims,
the defendant carries the burden of proving a Batson violation. 154

There are three components to a Batson challenge. 55

First, the defendant must prove a prima facie case of discrinmina-
tion in the prosecutor’s use of peremptory challenges.15 6 This includes
proving that the defendant is a member of a cognizable racial group
and that there is a pattern of excluding members of this racial group
through the use of peremptory challenges.15 7 Expressing a necessity for
future courts to consider all relevant circumstances that may guide the
inquiry, the Supreme Court stated that a prosecutor’s questioning dur-
ing voir dire may give rise to an inference of discrimination. 158

After the defendant has proven a prima facie case of discrimnina-
tion, the burden shifts to the prosecutor to offer a race-neutral expla-
nation for the dismissals.15 9 Providing guidance for future courts, the
Supreme Court noted that this justification does not need to rise to the
level of a challenge for cause, but a prosecutor cannot merely state that
he believed the excused juror would be partial to the defendant be-
cause the juror and the defendant are of the same race. 160 In this sec-
ond step, courts should not assess the persuasiveness or plausibility of
the proffered explanation.161 It is in the third step of the Batson analysis
that the judge must determine whether to find purposeful discrimina-

151 Id. at 82-83.
152 Id.

153 Id. at 84, 96-98.
154 Id. at 93.
155 Id. at 96-98.
156 Batson, 476 U.S. at 96.
157 Id.

158 Id. at 97.
159 Id.

160 Id.

161 Purkett . Elern, 514 U.S. 765, 768 (1995) (per curiam);JONAKAIT, supra note 60, at
144.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7
474 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

tion or accept the race neutral reason for the dismissal, thereby reject-
ing the Batson challenge.162

2. Extension of Batson

The Batson framework has been extended and clarified multiple
times since the Supreme Court’s decision more than twenty-five years
ago.163 In 1991, just six years after Batson was decided, the Supreme
Court decided two cases in which it extended the prohibition on ra-
cially based peremptory challenges.164 First, in Powers v. Ohio, the Court
considered whether Powers, a white male, had standing to object to the
prosecutor’s use of peremptory challenges to dismiss seven African
American potential jurors.16 Affirming the notion that every defen-
dant has a Constitutional right to be tried by a jury whose members are
selected using nondiscriminatory criteria, the Court held that any de-
fendant, regardless of his or her race, may make a Batson objection.166

In the second case that year, Edmonson v. Leesville Concrete Company, the
Supreme Court extended the Batson framework to peremptory chal-
lenges exercised in civil trials.167

Just one year later, the Supreme Court again took up the issue of
race-based peremptory challenges. 168 In Georgia v. McCollum, Caucasian
defendants were charged with assaulting an African American cou-
ple.169 After counsel for the defense admitted that he planned to use
peremptory challenges to remove all African American prospective ju-
rors from the panel, the prosecution objected, citing Batson.170 The Su-
preie Court found that the Constitution prohibited such racial dis-
crinination, thereby extending the Batson framework to strikes made
by criminal defendants.171

In 1994, in JE.B. v. Alabama ex rel. TB., the Supreme Court’s most
recent extension of the Batson framework, the Court considered
whether gender-based peremptory challenges could be contested under

162 Batson, 476 U.S. at 98.
163 OVERLAND, supra note 81, at 92-94.
164 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991); Powersx. Ohio, 499

U.S. 400, 402-03 (1991).
165 Powers, 499 U.S. at 402-04.
166 Id. at 404, 415-16.
167 Edmonson, 500 U.S. at 631.
168 Georgia v. McCollurn, 505 U.S. 42, 44 (1992).
169 Id.
170 Id. at 44-45.
171 Id. at 45-46, 59.

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Batson.172 Petitioner, the alleged father in a paternity suit, challenged
the State’s use of nine of its ten peremptory challenges to dismiss men,
resulting in an all female jury.173 The Court found gender-based dis-
missals violate the Equal Protection Clause and only “serv[ed] to ratify
and perpetuate invidious, archaic, and overbroad stereotypes about the
relative abilities of men and wonen.” 174 Stating that gender is a category
which is subject to heightened scrutiny, the Court held that peremptory
challenges can be used only to strike jurors based on classifications that
would survive rational basis review.175 For example, strikes can be used
to dismiss prospective jurors based on occupation, but they can never be
used to strike prospective jurors based on gender or race. 176

3. Batson in Action

In an attempt to preserve the historical use of peremptory chal-
lenges as an unexplained dismissal of potential jurors, courts have con-
tinually extended the acceptable range of race-neutral explanations.177

Commonly accepted race-neutral explanations are the juror’s age,
marital status, occupation, socio-economic status, demeanor, education,
religion, and prior experience with the criminal justice system.1 78 The
Supreme Court has upheld the right to exercise a peremptory chal-
lenge on the basis of a “silly or superstitious” theory, accepting as race-
neutral the dismissal of an African American juror due to his “long,
unkempt hair, a mustache and a beard.”179 Furthermore, excluding a

172J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 128-129 (1994).
173 Id. at 129. Of the original thirty-six member juror panel, twelve were males and

twenty-four were female. Id. Three jurors, two of which were male, were dismissed by the
court for cause, leaving only ten prospective male jurors. Id. The State then dismissed nine
of the male jurors using peremptory challenges and plaintiff dismissed one. Id.

174 Id. at 130-31.
175 Id. at 143, 146; GERTNER & MIZNER, supm note 65, at 129-30.
176 SeeJE.B., 511 U.S. at 143, 146; GERTNER & MIZNER, supra note 65, at 129-30.
177 See OveRIANo, supra note 81, at 96-97.
178 OVERLAND, supra note 81, at 97.
179 Purkett, 514 U.S. at 768-69; id. at 775 (Stevens, J., dissenting); OVERLAND, Supfa

note 81, at 97-100. The prosecutor’s accepted “race-neutral” reason in Purkett v. Elem now
serves as an infamous example highlighting the deficiencies in the Batson framework.
Purkett, 514 U.S. at 768-69; OVERLAND, supra note 81, at 97-100. The full explanation prof-
fered was:

I struck [juror] number twenty-two because of his long hair. He had long curly
hair. He had the longest hair of anybody on the panel by far. He appeared to
me to not be a good juror for that fact, the fact that he had long hair hanging
down shoulder length, curly, unkempt hair. Also, he had a moustache and a
goatee type beard. And juror number twenty-four also has a moustache and
goatee type beard. Those are the only two people on the jury … with the facial

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476 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

potential juror because he or she is bilingual has been found accept-
able by the Supreme Court. 180 If non-English speaking witnesses are
expected to testify and the lawyer believes a potential juror may substi-
tute their own translation for that of the interpreter, the challenge is
not considered one that is prohibited as racially based. 181 This decision
essentially allows lawyers to frame their prohibited race based chal-
lenges as permissible language based challenges.1 8 2

Additionally, while the Supreme Court in Batson cited two possible
remedies for a Batson violation, it failed to endorse either of them as
preferable. 183 One of these remedies requires replacing the entire jury
venire with new prospective jurors and repeating the exercise of dis-
missal using peremptory challenges.184 Critics argue that the use of this
remedy might give lawyers an incentive to discriminate based on race in
the hopes that the jury venire will be replaced with prospective jurors
who are more favorable to their case. 85 The second suggested remedy,
reinstatement of the struck juror, is also problematic because the rein-
stated juror might have difficulty being impartial after his or her dis-
crininatory disimissal.186 Because the Supreme Court did not articulate
the appropriate remedy for a Batson violation, lower courts have fash-
ioned their own remedies, which in turn has produced inconsistencies
among the States.’8 7

hair …. And I don’t like the way they looked …. And the moustaches and the
beards look suspicious to me.

Purkett, 514 U.S. at 766.
Is Hernandez v. New York, 500 U.S. 352, 356, 360-61 (1991) (accepting prosecutor’s

race-neutral explanation that dismissal of two Hispanic jurors was due to a concern for
their ability to defer to the translator’s official translation).

191 Id. at 360-61.
182 Id.; ABRAMSON, supta note 58, at xxVII.
183 Batson, 476 U.S. at 99-100 n.24; OVERLAND, supra note 81, at 95-96.
184 Batson, 476 U.S. at 99-100 n.24; OVERLAND, supra note 81, at 95.
185 See OVERLAND, supra note 81, at 95.
186 See Batson, 476 U.S. at 99 & n.24, 100; OvERIAN1), supra note 81, at 95-96.
187 Batson, 476 U.S. at 99; GERTNER & MIZNER, supra note 65, at 148-52; OVERLAND,

supra note 81, at 96; Kenneth J. Melilli, Batson in Practice: 1What We Have Learned About Bat-
son and Peremptory Challenges, 71 No tiRE DAME L. REv. 447, 471-72 (1996). A study per-
formed by Melilli found that lower courts utilized at least eight different standards for
determining whether a prima facie case of discrimination was proven under Batson’s first
prong. Melilli, supra at 471-72.

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B. Defendants’Right to an ImpartialJury vs. Jurors’Rights to Be Free from
Discrimination

In the peremptory challenge context, there is a considerable
amount of tension between the Sixth Amendment’s guarantee to an
impartial jury comprised of a cross-section of the defendant’s commnu-
nity, and the Fourteenth Amendment’s prohibition of discrimina-
tion. 188 The Sixth Amendment’s impartiality doctrine seeks to compile
a diverse jury that, in the aggregate, is free of biases or prejudices that
may affect its ability to impartially consider the evidence.189 The doc-
trine is premised on the assumption that each potential juror has views
and interests based on his or her race, gender, religion, and ethnic
background that subconsciously affect his or her perspective in a given
case.190 Therefore, the impartiality doctrine holds that it is necessary
that the parties have the ability to strike jurors that they believe might
harbor biases or are otherwise unable to consider evidence inpar-
tially. ‘9’

In contrast, the Fourteenth Amendment’s Equal Protection Clause
necessitates colorblindness in the selection of jurors. 192 The Supreme
Court has rejected the argument that commonalities between jurors
and defendants such as race and gender are indicative of bias, and has
found instead that demographics do not necessarily shape a juror’s
views.193 Emphasizing the necessity of colorblindness in the courtroom
during jury selection, the Court stated:

if race stereotypes are the price for acceptance of a jury panel
as fair, we reaffirm today that such a price is too high to meet
the standard of the Constitution. Defense counsel is limited to
legitimate, lawful conduct. It is an affront to justice to argue

1I See infra notes 189-199 and accompanying text.
189 GER I NER & MIzNER, supra note 65, at 58-59; HANS & VIDMAR, supra note 54, at 67;

Baldus et al., supra note 72, at 11-12; Meyer, supra note 70, at 263.
190ABRAMSON, supra note 58, at 100-01.
191 FUKU RAI & KROOTH, supra note 123, at 126-27.
192 McCollum, 505 U.S. at 57; Powers, 499 U.S. at 410.
193 SeeJ.E.B., 511 U.S. at 139 n.1I (“[G]ender classifications that rest on impermissible

stereotypes violate the Equal Protection Clause, even when some statistical support can be
conjured up for the generalization.”); McCollum, 505 U.S. at 59; Powers, 499 U.S. at 410;
Batson, 476 U.S. at 137-38; OVERLAND, supra note 81, at 53, 78 (noting that the empirical
results show that juror demographics such as “race in particular, but also gender, educa-
tion and income” do influence a juror’s perception of the case).

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

478 Boston CollegeJournal of Law & SocialJustice [Vol. 33:453

that a fair trial includes the right to discriminate against a
group of citizens based upon their race. 194

Thus, the Court has firmly stated that race cannot be used as a proxy for
determining juror bias; however, despite this mandate, peremptory chal-
lenges continue to be used seemingly on race alone, and the current
construction of the Batson challenge does little to curb this use. 195 The
peremptory challenge procedure as a whole is at odds with the notion
that a jury should be comprised of a fair cross-section of the comninu-
nity.196 Attorneys do not seek a fair and impartial jury; in fact, they seek
the exact opposite-a jury that is favorable to their position.’ 9 7 Peremp-
tory challenges are premised on the theory that they are necessary to
ensure that those with biases will not be impaneled; but in reality, they
allow attorneys to dismiss jurors based on arbitrary characteristics such
race, gender, age, occupation, education, and socio-economic status.198

IV. IMPROVING REPRESENTATIVENESS ONJURIES

Although the jury system is deeply embedded in America’s legal
system, its fairness is frequently questioned.’99 The jury system is said to
create unnecessary delays in litigation, impose unfair social costs on

jurors, and be overly expensive for courts and litigants alike. 200 It is also
criticized because it leaves a defendant’s fate in the hands of a ran-
domly chosen group of citizens with no special legal training. 201 Critics
of the jury system discredit jurors’ capability to understand the com-
plexities of the justice system, stating that juries are “at best, twelve
people of average ignorance.” 202 This group of average citizens then
deliberates in secret and presents its verdict with no explanation what-

194 McCollum, 505 U.S. at 57 (internal quotations and citations omitted).
195 See, e.g., Powers, 499 U.S. at 410 (“Race cannot be a proxy for determining juror bias

or competence.”); FUKURAI & KROOIH, supra note 123, at 170.

196 ABRAMSON, supra note 58, at xxiv; see OLDIAM, supra note 59, at 205-06.
197 GERINER & MIzNER, supra note 65, at 119 n.5; HANS & VIDMAR, supra note 54, at

74.
198 ABRAMSON, supra note 58, at xxv; see HANS & VIDMAR, supra note 54, at 72-74.
199 HANS & VIDMAR, supra note 54, at 31; OVERlAN1, supra note 81, at 1.
200 Phoebe A. Haddon, Rethinking theJury, 3 Wm. & MARY BItt Ris.J. 29, 62-63 (1994).
201 HARRY KALVEN, JR. & HANS ZEISEL, TiIEt AMERICAN JURY 3-4 (1966); OVERLAND,

supra note 81, at 1.
202 HANS & VIDMAR, supra note 54, at 19. Kalven & Zeisel argue that although jurors

are not always highly educated, “twelve heads are inevitably better than one.” KALVEN &
ZEISFI, supra note 201, at 8. Where the individual jurors may be lacking in experience,
they more than make up for it with their common sense and personal experiences. Id

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 479

soever. 203 Furthermore, jury verdicts are difficult to overturn because
the jury’s role is to determine the factS.204

Abandonment of the current jury system, however, is unlikely be-
cause it is deeply ingrained in America’s history, character, and Consti-
tutional underpinnings. 205 Juries make decisions based primarily upon
their own sense of values and equities and therefore the ‘Jury verdict is
more than a statement of fact; it is also an expression of the popular
will.”206 Diverse juries inject a sense of fairness into the judicial process
and therefore bolster confidence in the system as a whole. 207

Conversely, racially disproportionate juries reinforce the percep-
tion that our justice system is unfair to ininorities. 20s Great strides have
been taken to make juries more representative of the coninunity, but

there is still work to be done. 209 In order to adequately protect both the
right of defendants to be tried by a jury representative of a cross-section
of the commiunity and the right of citizens to participate in the legal

system, representativeness should be improved at each of the three lev-
els at which juror exclusion takes place: (1) the initial drawing of the
jury pool, (2) exemptions and excusals from jury service, and (3) and
the use of peremptory challenges when empanelling the petit jury. 210
States should follow Massachusetts’ lead in increasing diversity and rep-

2 0 3
JONAKAI, supra note 60, at 250; KAluvEN & ZisE:, supra note 201, at 3; OVERIAND,

supra note 81, at 1. Some claim that since juries do not usually provide the reasoning be-
hind their verdict, they have more flexibility than judges to “bend the law” in order to
reach a verdict that isjust. HANS & VIDMAR, supra note 54, at 155; JONAKAI I, supra note 60,
at 250.

204 JONAKAI 1, supra note 60, at 41, 265; OI)HAM, supra note 59, at 59. On appeal, a

judge can overturn a jury verdict if it is found that the verdict was unsupported by the
evidence. OLDIAM, supra note 59, at 59.

205 See Starr, supra note 58, at 12.
206 See KAILvEN & Zisri,, supra note 201, at 495; OVERIANo, supra note 81, at 5.Judges

usually agree with the verdict rendered by the jury. See KALVEN & ZEISEL, supra note 201, at
494-95. When the jury’s decision differs from what the judge would have found based on
the same evidence, it is often not because the jury erred or was careless, but because the
jury recognized values or gave weight to values outside the letter of the law. Id. at 495.

207 HANS & VIDMAR, supra note 54, at 19, 51; NancyJ. King, The Effects of Race-Conscious
jury Selection on Public Confidence in the Fairness of fury Proceedings: An Empirical Puzzle, 31 AM.
CRIM. L. RiEv. 1177, 1182 (1994).

208 Batson v. Kentucky, 476 U.S. 79, 87 (1986); see Michael Higgins, jury Makeup: Few
Are Chosen, AM. B. Ass’N J., Feb. 1999, at 50, 51. In Batson, the Supreme Court articulated
“[t]he harm from discriminatory jury selection extends beyond that inflicted on the de-
fendant and the excluded juror to touch the entire community. Selection procedures that
purposefully exclude black persons from juries undermine public confidence in the fair-
ness of our system ofjustice.” Batson, 476 U.S. at 87.

209 See lIii REPOT, supra note 40, at 11-14.
210 See id. at 7-8.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

480 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

resentativeness, for example by enacting an annual municipal census,
increasing the daily rate paid to jurors, and adopting the one day or
one trial approach.21 ‘ Furthermore, it is time for the Supreme Court to
reevaluate the use of peremptory challenges and the Batson framework
to eradicate discrimination in the jury selection process.212

A. Increasing Representativeness of the jury Venire

Although many states and municipalities randomly select potential

jurors from voter registration records, cognizable groups within the
community often are excluded.213 Many groups are underrepresented
due to the way jury venires are compiled because the disqualifying char-
acteristics have a higher probability of exempting them from service. 214

For example, minorities, young people, those who move residences of-
ten, and those who are less affluent are typically less likely to be regis-
tered voters.215 In order to improve representativeness at the initial
drawing of the jury venire, states and local municipalities should be re-
quired to draw from official records that represent a broader range of
citizens, not just those who are registered to vote. 216

Indeed, in an attempt to combat the lack of minority representa-
tion on jury venires, many states and municipal government agencies
have started using other means to supplement the voter registration re-
cords. 2 1 7 These sources include drivers’ license records, lists of state is-
sued identification cards, welfare rolls, state unemployment recipients,
and even telephone books or city directories. 218 Others municipalities
are considering measures such as allowing defendants to request the
more diverse “city-only” jury instead of one composed of members from
the larger cominunity, which typically include more affluent suburbs. 2 1 9

One courthouse in the Detroit area even went as far as subtracting ran-

211 See Wood, supra note 135, at 14-15; infra notes 222-226, 244-248 and accompany-
ing text.

212 See infra notes 249-267 and accompanying text.
213 See E REPORT, supra note 40, at 54; JONAKAIT, supra note 60, at 124-25.
214 See HANS & VIDMAR, supra note 54, at 54; JONAKAI T, supra note 60, at 124-25; Hig-

gins, supra note 208, at 51.
215 HANS & VIDMAR, supra note 54, at 54; JONAKAIT, supra note 60, at 125; Higgins, su-

pra note 208, at 51.
216 See HANS & VIDMAR, supra note 54, at 54; JONAKAI T, supra note 60, at 125; Joan

Biskupic, The Push Is on for More Diverse fures: Minorities Sue to Change Systems of Choosing
Pool, USA ToIAy, Aug. 28, 2001 at 1A.

217 Higgins, supra note 208, at 51; Biskupic, supra note 216.
218 HANS & VIDMAR, supra note 54, at 54; JONAKAIT, supra note 60, at 125; Biskupic, su-

pra note 217.
219 Biskupic, supra note 217.

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 481

donly selected non-ninorities from the jury venire in an effort to con-
struct a jury pool that mirrored the demographics of the commnunity. 220
Six years later, however, that practice was struck down by the U.S. Court
of Appeals for the Sixth Circuit for unconstitutionally discriminating
against nonminority jurors.221

Massachusetts has been particularly successful in compiling con-
prehensive, up-to-date lists. 222 It is unique in that it sends out a statuto-
rily-niandated yearly census that is used to create the master juror list
from which jurors are randomly suimmonsed. 223 As a result, Massachu-
setts has one of the highest “juror yield” rates-the percentage of
suimmoned potential jurors that show up at the courthouse-in the
country.224 Other states should follow Massachusetts’s lead and enact a
yearly census from which they can compile an accurate and up-to-date
juror list. 225 Though there is a cost associated with collecting census
data, it is largely offset by the time saved in compiling a juror list from
multiple sources, and the reduction in expenses incurred for printing,
mailing, and processing undeliverable suimmonses. 226

B. Increasing Representativeness Through Elimination ofExceptions

Exemptions and excusals further destroy jury representative-
ness. 227 For example, occupational exemptions, which were once very
common, grant automatic exemptions to persons in specific fields.2 2S
Thus, these exemptions eliminate large sections of the population
based on generalizations that these citizens are so indispensible in their
fields that they cannot miss time to serve on a jury.229 All citizens

220 United States. v. Ovalle, 136 F.3d 1092, 1095 (6th Cir. 1998); Higgins, supra note
208, at 51.

221 Ovalle, 136 E3d at 1100; Higgins, supra note 208, at 51.
222 See Wood, supra note 135, at 13-14. Massachusetts’s success in compiling an up-to-

date juror list is evidenced by the fact that the U.S. District Court for the District of Massa-
chusetts obtained permission to use the State’s annually-updated list, as opposed to the
more limited voter registration lists utilized by federal courts, for its random selection of

jurors. Id.
223 Id. at 14; see also MASS. GEN. LAWS CH. 51, § 4 (2011) (requiring the registrars of

each city and town to compile a list of each person residing there above the age of three).
224 Wood, supra note 135, at 14.
225 See id.
226 See id.
227 See FJI RipoiR, supra note 40, at 37; HANS & VIMAR, supra note 54, at 54; see also

supra notes 128-139 and accompanying text.
228 See Michael B. Mushlin, Bound and Gagged: The Peculiar Predicament o Professional fu-

rors, 25 YxE I. & PoL’Y Rv. 239, 246 (2007).
229 See id.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

482 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

should have an obligation to serve on juries and no one class should be
seen as too important or too busy to serve.230 Occupational exemptions
should be completely abolished and instead excusals should be made
on a case-by-case basis only when it can be shown that jury service
would be a burden.2 3 1

Hardship excusals can also dramatically affect the representative-
ness of ajury pool.2 3 2 Excusals based on hardship are given to those who
care full-time for another-such as small children or the elderly-or
those for whom missing time at work to serve on a jury would cause se-
vere financial hardship.2 33 Granting excusals based on financial hard-
ship disproportionally excludes those of a lower socioeconomic status. 234

In addition, requests for hardship excusals are not equally distrib-
uted across demographic lines in extended trials.23 5 In a trial lasting a
few weeks or more, financial-hardship excuses are routinely granted to
the self-employed or other workers whose employers will not compen-
sate them for time spent away from work performing jury service.23 6

Consequently, white males who tend to be privately employed are dis-
proportionally excused from service in prolonged trials. 237 Jurors on
prolonged trials are therefore “more likely to be unemployed or retired,
female, without a college education, and unmarried than are jurors who
serve on shorter trials.”238 Thus, the burden of serving on an extended
trial is unfairly placed on those who are of a lower socio-economic
status. 239

Some states and local governments are instituting a “one day, one
trial” policy that works to reduce hardships that typically exempt minor-
ity jurors from service. 240 Under the “one day, one trial” system, jurors
are only required to serve for one day or, if impaneled, for the length
of one trial.241 In fact, in Massachusetts, which utilizes the system, ap-

230 See id. at 246, 270.
231 See id. at 270.
232 See FIJI REPOR, supra note 40, at 37, 49.
233 Id.
234 See id.
235

JONAKAIT, supra note 60, at 241.
236 ABRAMSON, supra note 58, at xii.
237 Id.
238

JONAKAIT, supra note 60, at 134.
239 SeeABRAMSON, supra note 58, at XII; JONAKAIT, supra note 60, at 134.
240 See, e.g., Wood, supra note 135, at 15; jury Service System, DAI LAS COUN iY, http://www.

dallascounty.org/department/juryservices/juryserv system.php (last visited May 16, 2013).
241 Wood, supra note 135, at 15; Office of the Jury Commissioner for the Common-

wealth, Introduction, MAss.JuJnv Sys., http://www.mass.gov/courts/jury/introduc.htm (last
visited May 16, 2013) [hereinafter MAJunv SYSnEM].

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 483

proximately ninety percent of those who report for service are done in
one day, and ninety-five percent finish in three days or less.242 This rela-
tively short commitment lessens the burden on each person called for
jury duty and significantly reduces the need for exemptions or excusals
from jury service. 243

Further alleviating the burden of service, the Massachusetts system
allows suninonsed jurors to reschedule their service to a date of their
choosing so long as service is completed within a year from the date on
which they were originally scheduled to appear.244 Jurors who complete
their service are disqualified from serving for a period of three years as
an attempt to spread the burden of service equally among the commnu-
nity.2 45 In an effort to relieve some of the financial burden of missing
work, even if only for a few days, Massachusetts requires that employers
pay for the first three days of jury service, after which the state pays a
per diem rate of fifty dollars per day. 246

States should emulate the approach used in Massachusetts, where
comprehensive juror lists are created using a statutorily-mandated cen-
sus, nearly everyone is considered eligible to serve, and the number of
hardship claims is reduced because of the ability to select a service date,
short service periods, and increased juror compensation rate. 247 These
features make Massachusetts’s system an admirable one that “pro-
duce [s] jury pools that are diverse and representative, the cornerstone
of ‘ajury of one’s peers.'”

248

C. Increasing Representativeness by Limiting orAbolishing
Peremptory Challenges

Supreme Court rulings that prohibit discrimination against pro-
tected groups in the initial jury venire are ineffective in part because of
the great discretion afforded in the exercise of peremptory chal-
lenges. 249 Some describe the Supreme Court’s Batson line of cases as al-
lowing the Court to “have its cake and eat it, too.”250 The decisions allow
the Court to appear as if it is enumnerating procedures to end invidious

242 Wood, supra note 135, at 15.
243 Wood, supra note 135, at 14-16; see MAJ URY SYSnEM, supra note 241.
244 Wood, supra note 135, at 15.
245 Wood, supra note 135, at 14-16; see MA JURY SYSTEM, supm note 241.
246 Wood, supra note 135, at 15.
247 See id. at 14-16; see also supra notes 213-246.
248 See Wood, supm note 135, at 14.
249 See OLDHAM, supra note 59, at 205-06; OVERILAN), supra note 81, at 99-100.
250 OVERILAN), supra note 81, at 116.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7
484 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

discrimination, while at the same time not interfering with the day-to-
day use of the peremptory challenge. 25 1

Just as Justice Marshall predicted in his concurring opinion in Bat-
son v. Kentucky, the Batson framework has proved ineffective in abolish-
ing discriminatory uses of the peremptory challenge. 25 2 A Batson viola-
tion is difficult to prove; thus, challenges are rarely successful.253 One
study showed that only seventeen percent of Batson challenges were
successful, and that successful challenges were usually the result of an
attorney admitting discriminatory intent or offering no explanation at
all. 254 Surprisingly however, Batson challenges are successful fifty-three
percent of the time when an attorney claims discrimination based on
the complete removal of white jurors.255 In fact, in Tennessee and
North Carolina, there has never been a successful reversal based on
Batson.256

This lack of success in Batson challenges is due in large part to the
fact that courts generally accept the race-neutral reasons offered by at-
torneys, even when the attorney admits that race was one factor in seek-
ing dismissal.2 57 Justice Marshall highlighted the dileiinma that trial
judges face when they have to enforce an ethical rule that frequently
requires them to accuse lawyers of lying when they offer race-neutral
reasons for peremptory challenges. 258 Because courts frequently accept
almost any race neutral explanation, a prosecutor can easily conceal
discriminatory intent. 25 9

The Supreme Court must reevaluate the use of peremptory chal-
lenges, and at a mininunm, should adhere to the framework it espoused
in the Batson decision. 2 0 In Batson, the Court stated that once a party
makes out a case for purposeful discrimination at step one, the burden

251 Id.
252 Batson, 476 U.S. at 105 (Marshall,J., concurring); OVERLAND, supra note 81, at 84.
2 See OvERLANoD, supra note 81, at 96-97.
254 Id. at 96; Melilli, supra note 187, at 460-64.
255 See OVERLAND, supra note 81, at 96; Melilli, supra note 187, at 460-64.
256 Shaila Dewan, Study Finds Blacks Blocked fron Southern juries, N.Y. TIMrs, June 2,

2010, at A14.
257 OVERLAND, supra note 81, at 96-97.
258 Batson, 476 U.S. 106 (Marshall, J., concurring); ABRAMSON, supra note 58, at xxvi.
259 ABRAMSON, supra note 58, at xxvi; A. Hendrix, Reinforcing Batson Defining the Pecu-

liar: Racial Profiling as an Impermissible Ground for Peremptory Challenge, 44 CRIM. L. BULL.
691, 692-93 (2008); cf Michael H. Meidinger, Peeking Under the Covers: Taking a Closer Look
at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape, 32 BC J.L. & Soc.

JUST. 421, 422-24, 437-38 (describing the wide latitude afforded to prosecutors and con-
cealment of discriminatory intent in prosecuting statutory rape).

260 Batson, 476 U.S. at 96-98; see OvERLAND, supra note 81, at 84.

Weddell: A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

2013] Eliminating Racial Discrimination injury Selection Procedures 485

shifts to the proponent of the strike who “must give a ‘clear and rea-
sonably specific’ explanation” for the challenge that is “related to the
particular case to be tried.”261 Since the Batson decision the Court has
significantly altered the test, and now allows “any neutral explanation,
no matter how ‘implausible or fantastic,’ even if it is ‘silly or supersti-
tious.'” 262 In fact, the Court currently permits any explanation so long
as it is race-neutral-that is, it does not mention race-to satisfy the
burden of articulating a nondiscriminatory reason for the challenge.26 3

This construction allows attorneys to use strikes premised on stereo-
types, such as occupation, insufficient community ties, or socioeco-
nomic status, which do not mention race but have a disproportionate
effect of eliminating those of a certain racial group. 264 Instead, the
Court should return to the essence of the Batson decision and require
the explanation as to why they believe the stricken jurors exhibited
bias. 265 Although this may seem at odds with the use of the peremptory
challenge as an “unexplained excusal” it is appropriate to require a
heightened explanation after a prima facie case for discrimination has
been nade. 266 Unless something is done to rein in the use of pereip-
tory challenges, efforts to improve representativeness at other levels of
the jury selection process can easily be thwarted.2 67

CONCLUSION

Society should not tolerate discrimination in a justice system that
claims equal protection for all. Although the jury system is not perfect,
it should be preserved because it epitomizes America’s democratic val-
ues. The jury allows ordinary citizens to ensure that the government
abides by the spirit of the law, and not just the letter of the law. Stereo-
types should not be used to strip certain groups of their right to par-
ticipate on a jury. The notion of being tried by one’s peers is largely

261 Batson, 476 U.S. at 97-98 & n.20 (quoting Texas Dept. of Comty. Affairs v. Burdine,
450 U.S. 248, 258 (1981)).

262 Purkett, 514 U.S. at 768-69; id. at 775 (Stevens,J., dissenting).
263 Id. at 769 (“What it means by a ‘legitimate reason’ is not a reason that makes sense,

but a reason that does not deny equal protection.”).
264 See Melilli, supra note 187, at 497-502 & tbl.III-S (discussing group stereotypes

commonly used when exercising peremptory challenges).
265 See Batson, 476 U.S. at 97-98 & n.20.
266 See FU KU RAI & KROO I H, supra note 124, at 3-4; OvERLAN 1), supra note 81, at 83, 96-

97.
267 See OLDIAM, supra note 59, at 205-07. As late as the 1980s, some District Attorney

Office handbooks showed discriminatory intent, instructing DAs to strike African Ameri-
cans fromjuries in criminal trials. OvERLAN), supra note 81, at 90.

Boston College Journal ofLaw & Social Justice, Vol. 33, Iss. 2 [2013], Art. 7

486 Boston Collegejournal of Law & SocialJustice [Vol. 33:453

illusory, as groups of citizens are excluded from jury service at all three
stages of the jury selection process. Therefore, improvements should be
made to increase jury representativeness at the initial drawing of the

jury pool, statutory exemptions and excusals, and in the use of per-
emptory challenges when empanelling the petit jury. The jury should
be preserved as an institution because “twelve persons of diverse back-
grounds are capable of achieving a wisdom together that no one per-
son is capable of achieving alone.” 268 All Anericans-regardless of their
race, gender, age, occupation, or socioeconomic status-should be al-
lowed to participate in this democratic pursuit of wisdom.

268 ABRAMSON, supra note 58, at 140.

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“The Marvels of Modern Technology”:
Constitutional Rights, Technology, and Statutory
Interpretation Collide in United States v. Chiaradio
WilberA Barillas
Boston College Law School, wilber.barillas()bc.edu

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doi:10.1017/S135232521300013X

JURY NULLIFICATION AND THE
RULE OF LAW

Brenner M. Fissell∗

Georgetown University Law Center

Despite an intractable judiciary, there is widespread consensus within the legal
academy that jury nullification is compatible with the rule of law. This proposi-
tion is most strongly tested by “substantive nullifications,” where a jury nullifies
simply because it disagrees with the law itself. While some substantive nullifications
can comport with the rule of law, most commentators’ wholesale acceptance of the
practice is not justified. They err by ignoring the nonsubstantive, procedural nature
of the rule of law in favor of one determined by substantive “justice,” and also by
taking a naı̈vely undifferentiated view of a “community’s” morality (even though
jurisdictional and vicinage morality can diverge). In doing so, a healthy vision of
antityrannical nullifications is presented, but this leaves out many problematic cases.
Once these errors are rectified, a more nuanced picture emerges, and it becomes
apparent that localism will often disrupt the congruence feature of the rule of law.

I. INTRODUCTION

Rejecting long-standing critiques, recent literature on jury nullification
stresses the potential for its accommodation with the rule of law. The most
controversial type of nullification—and that which seems most at odds with
rule-of-law values—is when a jury acquits because of its substantive disagree-
ment with the law itself. While equitable and interpretive endeavors by the
jury seem like fulfillments of legislative intent or purpose, substantive re-
jections cannot be reconciled with the text or that which motivated it. Still,
accommodationists argue that these nullifications comport with the rule of
law. They discuss relatively recent advancements in jurisprudence (Dworkin,
Radin, Barnett, etc.), all of which put forward the quasi-natural-law-like posi-
tion that the rule of law, while incorporating positive law, must also take into
account the general public morality that is supposed to undergird that law.
Armed with this more robust conception, these commentators conclude
that nullification of an unjust law by a just community jury is unproblematic
for the rule of law.

∗The author thanks Lawrence Solum, Guyora Binder, Robin West, and Blake Harden. Thanks
are also due to all the members of Georgetown’s Constitutional Law Colloquium.

217

218 BRENNER M. FISSELL

In reaching this conclusion, these “accommodationist” commentators
make two crucial mistakes. First, despite the nonsubstantive, procedural
character of the rule of law itself, the accommodationists either make sub-
stantive morality determinative for their approval or ignore alternative sub-
stantive scenarios altogether. Second, they take a naı̈vely broad understand-
ing of the “community morality” that they believe should trump the positive
law, when in fact the determinative community morality is but a small,
geographically bound piece—the jury or “vicinage” area—of the larger sen-
timent that informs the legislation (the “jurisdictional” morality), and the
two can diverge.

When jury nullification is analyzed nonsubstantively as a procedure, and
when the possibility of different combinations of jurisdictional and jury-
pool morality is taken into account, a more complicated array of outcomes
is produced (the majority of which are harmful to the rule of law). These
outcomes are the result of localism, and they threaten the consistent appli-
cation of the general rule: they undermine the “congruence” aspect of the
rule of law. Substantive nullification of a positive law can be reconciled with
this congruence aspect only when the jury pool’s “morality” is aligned with
a settled jurisdictional morality, but this is only one possibility among many.

While the rule of law is not the only consideration to take into account
when assessing the acceptability of jury nullifications—and indeed, at times
this consideration ought to yield to others—we should not sacrifice concep-
tual precision for the sake of enhancing the justification of the practice. A
defense of jury nullification must be grounded in something other than the
rule of law,1 as the two can be accommodated in only a limited range of
cases.

II. BACKGROUND

A. Jury Nullification

There is some confusion as to what the precise definition of jury nullification
should be. It is generally understood that nullification takes place whenever
jurors refuse to apply the law to a given set of facts, but there are many
different circumstances in which this might occur, and different motivations
are at work in each. More precision is necessary.

By the time a law makes its way to a jury for application, it has gone
through many mediating layers. Most primordial is the “intent” or “purpose”
of the law that exists in the legislative body. Although these ideas—and their
import—are controversial, it is common to talk of them when analyzing what
statutes mean.2 Encapsulating intent and purpose is the text, but this text is

1. See, e.g., Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System,
105 YALE L.J. 677 (1995) (defending practice of jury nullification on the basis of substantive
justice and systemic change but not the rule of law).

2. See WILLIAM ESKRIDGE, PHILIP FRICKEY & ELIZABETH GARRETT, LEGISLATION (2007), at 689.

Jury Nullification And The Rule Of Law 219

also filtered by the time it reaches the jury: a judge’s instructions give a new
gloss. It is possible for a jury to reject intent and purpose, text, instructions,
or any combination of the three.

While some commentators disagree, jury nullification only really takes
place when intent and purpose, text, and instructions speak with one intel-
ligible voice: there must be agreement amongst these sources of “law,” and
it must be understandable by the jury. These requirements come from the
definition of the word “nullification” more generally: to nullify something
is to “render [it] of no value, use, or efficacy; to reduce to nothing, to cancel
out.”3 If the three sources of law noted above are not in alignment, then
exercises of jury power that seem like nullifications may be nothing more
than attempts to more truly fulfill or flesh out that law—vague or ambiguous
text might be rejected out of a jury’s desire to execute legislative purpose
or intent, and so on. In cases like these, where the exercise of jury power is
interpretive or equitable, the law is not “cancelled out” but is itself read to have
a different meaning. Some commentators uncritically include these types
of jury actions as instantiations of “nullification,” but this is imprecise.4

Jury nullification reflects a different, more rebellious disposition—it is
when a jury consciously puts itself at odds with the clear meaning of the
text and the intentions and purposes behind it. The archaic definition of
the verb captures this better: “To discredit, efface, or undermine.”5 When
the law’s intended meaning and application are clear (and the sources
of the law speak in agreement), a jury’s refusal to give it effect is prop-
erly called nullification—it unmistakably evinces the rebellious disposition
noted above.

This is possible in both civil and criminal actions, and in both convictions
and acquittals. However, most people discuss the concept only in the case of
criminal acquittals—this is the most interesting type, as in this instance the
jury’s decision is unreviewable.6 “Only when the jury nullifies and acquits in a
criminal trial does the jury’s act of nullification have serious consequences:
the judge cannot review the jury’s verdict and the defendant is set free,”
observes one commentator.7 Thus we limit our discussion here to this: “Jury
nullification, defined as a jury’s ability to acquit a criminal defendant despite
finding facts that leave no reasonable doubt about violation of a criminal
statute.”8

Within this category we find other distinctions; these mostly come
from the different motivations behind the jury’s action. First, a jury could
choose not to apply the clearly understood law to a particular defendant,

3. OXFORD ENGLISH DICTIONARY (online ed.), defn. 3.
4. See, e.g., Nancy S. Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877, 909 (1999).
5. OXFORD ENGLISH DICTIONARY (online ed.), defn. 1.
6. Darryl K. Brown, Jury Nullification within the Rule of Law, 81 MINN. L. REV. 1149, 1150 n.3

(1997).
7. Marder, supra note 4, at 882.
8. Brown, supra note 6, at 1150, citing KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY

360 (1989).

220 BRENNER M. FISSELL

viewing either him or the circumstances of his conduct as somehow worthy
of exoneration (even though the statutes provide for no such defenses).
Of course, this category of motivation can also be subdivided further, given
the array of reasons why a particular defendant would be sympathetic, or
why a particular law ought not be strictly applied.9 If this is done so as to
fulfill legislative intentions, say, in the case of unintended or unforeseen
consequences, then it falls into the category described above (interpretive
or equitable exercises of jury power), but in many cases the refusal to apply
the law to the particular defendant will be at odds with the clear meaning
of the text and with the intentions and purposes that gave rise to it; this is
nullification.

Nullification also occurs when the jury’s motivation comes from an oppo-
sition not to the specific law as applied to the particular defendant but to
the criminal justice enforcement system, either because of problems with
1) the individual case, or 2) the system more generally. In the first, a jury’s
nullification could function in the same way as the Exclusionary Rule of
the Fourth Amendment, refusing to convict when flagrant prosecutorial or
police misconduct had tainted the proceedings.10 The second type involves
the jury’s critical response to systemic problems; Paul Butler’s theory and
the example of the “Bronx juries” illustrate this.11

Finally, and the most radical, is the type of nullification that is the subject
of this article: a jury’s substantive rejection of a law, absent any concerns
outside that law’s content.12 History has given us a few salient examples
of this final species. Perhaps the earliest example noticed by scholars was
English juries’ rejection of the “Bloody Code” during the eighteenth cen-
tury: because the penalty for even minor crimes was death, prosecutions
under these laws were routinely nullified.13 The most popular example
of substantive nullifications, though, are the Northern abolitionist juries’
nullifications of Fugitive Slave Act cases.14 Immediately following the Civil
War, this phenomenon also occurred more discretely amongst Mormon-
dominated juries in Utah; within that jurisdiction, nullifications drained
the Morrill Anti-Bigamy Act of any real force.15 Finally, and more recently,

9. This is Brown’s first category. Brown, supra note 6, at 879. This could be like the creation
of an excuse or justification, or a de minimis defense.

10. Id. at 1172 (“a case in which a just law is justly applied to the defendant, but in the process
of which public officials violate important laws.”).

11. See generally Butler, supra note 1. On “Bronx juries,” see Marder, supra note 4, at 879.
12. See Marder, supra note 4, at 879; Brown, supra note 6, at 1178. Brown limits his discussion

to nullification of “unjust laws,” and the problems with this are discussed below.
13. See generally FRANK MCLYNN, CRIME AND PUNISHMENT IN EIGHTEENTH-CENTURY ENGLAND

(1991) (describing the “Bloody Code”); JEROME HALL, THEFT, LAW AND SOCIETY (2d ed. 1952),
at 126–132 (same). Again, we assume in these cases that the text, intent, and purpose of the
law all match up.

14. JEFFREY ABRAMSON, WE, THE JURY (1994), at 80–85 (describing Fugitive Slave Act nullifica-
tions).

15. See SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL
CONFLICT IN NINETEENTH-CENTURY AMERICA (2002), at 83; Jonathan Bressler, Reconstruction and
the Transformation of Jury Nullification, 78 U. CHI. L. REV. 1133, 1189 (2011) (“In 1867, Mormon

Jury Nullification And The Rule Of Law 221

the Prohibition laws of the 1920s were fiercely resisted by juries across the na-
tion, and this pronullification sentiment meant that successful convictions
were extremely hard to obtain.16 In all these cases, it was a jury’s substantive
disagreement with the law itself that led to the nullification.

B. The Rule of Law

We now know what substantive jury nullification is, but there is still much to
say about the “rule of law.” Obviously, legal scholars have written extensively
on the rule of law, and in what follows I highlight only the most famous
and salient presentations. Nearly all agree that the rule of law consists of
a constellation of ideal characteristics that all legal codes should strive to
attain. John Finnis writes that the rule of law is the “name commonly given
to the state of affairs in which a legal system is legally in good shape.”17
Joseph Raz helps to clarify the object of this “rule”: while it is certainly true
that the plain meaning of “rule of law” suggests that it concerns itself with
individual conduct, “in political and legal theory it has come to be read in
a narrower sense, that the government shall be ruled by the law and subject
to it.”18 What we are talking about, then, is some sort of desirable manner
in which the creation and application of law is undertaken.19 Lon Fuller lists
these desiderata as eight: generality, publicity, clarity, consistency, feasibil-
ity, constancy, prospectivity, and congruence.20 Matthew Kramer helpfully
fleshes these out:

1. [Law] operates through general norms;
2. its norms are promulgated to the people whose conduct is to be authoritatively

assessed by reference to them;
3. its norms are prospective rather than retrospective;
4. the authoritative formulation of its norms are understandable (at least by

people with juristic expertise) rather than opaquely unintelligible;
5. its norms are logically consistent with one another, and the obligations imposed

by those norms can be jointly fulfilled;
6. its norms do not require things that are beyond the capabilities of the people

who are subject to the norms;
7. the content of its norms, instead of being transformed sweepingly and very

frequently, remain mostly unchanged for periods of time long enough to
induce familiarity; and

leaders even petitioned Congress for the statute’s repeal, claiming that the absence of a single
conviction demonstrated its inefficacy . . . [and a] congressional report conceded that the
Morrill Act was a ‘dead letter.’”).

16. See HARRY KALVEN & HANS ZEISEL, THE AMERICAN JURY (1966), at 291.
17. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980), at 270.
18. JOSEPH RAZ, THE AUTHORITY OF LAW (1979), at 212.
19. Id. at 213 (“As we shall see, what the doctrine requires is the subjection of particular laws

to general, open, and stable ones. It is one of the important principles of the doctrine that the
making of particular laws should be guided by open and relatively stable general rules.”).

20. LON L. FULLER, THE MORALITY OF LAW (1969), at 38–39.

222 BRENNER M. FISSELL

8. its norms are generally effectuated in accordance with what they prescribe, so
that the formulations of the norms (the laws on the books) are congruent with
the ways in which they are implemented (the laws in practice).21

With some additions and subtractions, most major theorists agree.22 The
whole point of the desiderata, it should be noted, is to maximize law’s capa-
bility “of guiding the behaviour of its subjects,”23 giving some settled frame-
work of expectations within which human freedom can be maximized.24 As
said above, though, it is important to note that the rule of law is not the
sole consideration in assessing the actions of a legal system; in some cases
its value may be outweighed by other ideals.25

While many of the elements of the rule of law are relevant to the ques-
tion of jury nullification, throughout this article my focus is the outcome-
consistency aspect of that concept. This is really an amalgamation of Fuller’s
first and eighth desiderata: generality and congruence. Generality, because
we expect like cases to have the same outcomes. Congruence, because we
expect this consistency of outcomes to be determined by the authoritative
norm and not some other source. “[T]hose people who have authority
to make, administer, and apply the rules in an official capacity,” Finnis
states, “do actually administer the law consistently and in accordance with
its tenor.”26 Or as Kramer writes, the “laws on the books” must align with
the “laws in practice,” and if this happens, identical cases will have identical
results.27

III. ACCOMMODATIONIST LITERATURE

Given the above definitions of “jury nullification” and the “rule of law,” the
common objection to their reconciliation becomes obvious: nullification
can produce disparate outcomes in like cases and does so based upon
something other than the formal law. Recent scholarship, though, resists
this conclusion.

21. MATTHEW KRAMER, OBJECTIVITY AND THE RULE OF LAW (2007), at 104.
22. JOHN RAWLS, THEORY OF JUSTICE (1st ed. 2005), at 236–238; RAZ, supra note 18, at 216–218;

FINNIS, supra note 17, at 270–271.
23. RAZ, supra note 18, at 214.
24. Id. at 219; FINNIS, supra note 17, at 273 (“[The] fundamental point of the desiderata is

to secure to the subjects of authority the dignity of self-direction and freedom from certain
forms of manipulation.”); F.A. HAYEK, THE ROAD TO SERFDOM (1944), at 54 (“[S]tripped of
all technicalities this means that government in all its actions is bound by rules fixed and
announced beforehand—rules which make it possible to foresee with fair certainty how the
authority will use its coercive powers in given circumstances, and to plan one’s individual affairs
on the basis of this knowledge.”); RAWLS, supra note 22, at 235 (describing why the rule of law
is closely related to liberty and is in contradiction with the exertion of arbitrary power).

25. Think, for example, of the tradition of prosecutorial and police discretion in the United
States and other countries—this undermines the rule of law, but the alternative of a zero-
discretion system seems to sacrifice too much for the little it would provide.

26. FINNIS, supra note 17, at 271.
27. KRAMER, supra note 21, at 104.

Jury Nullification And The Rule Of Law 223

A. Darryl Brown

The most systematic attempt is made by Darryl Brown. Brown begins by
contrasting older formalist and textualist understandings of the rule of law
with newer theories. The former erred in their assumption that the sources
of law are purely positive and devoid of moral considerations.28 By contrast,
contemporary legal theory accounts for law’s “inextricable interaction with
its larger social context.”29 Brown highlights a few individual theorists.

Dworkin’s critique of Hartian positivism “broaden[s] the sources to which
legal decisionmakers . . . should turn” and includes the “general principles
. . . implicit in prior decisions.”30 Importantly, this allows for an importation
of “principles of personal and political morality,”31 and the necessary “in-
tegrity” of the law means that in the case of conflict, these principles will
trump a positive law.32 Brown also references the work of Margaret Radin,
who argues that the rule of law is a “pragmatic, normative activity” and
that “strong social agreement” determines a rule’s relevance to a particular
case.33 Also discussed are Randy Barnett and William Eskridge, all to sup-
port the idea that public morality, and not just positive text, is a foundation
of the rule of law.34

Brown applies his reading35 of these thinkers to the case of substantive
nullification and works toward a reconciliation. He begins by framing the
question as one of nullifying an “unjust law,” what he calls a “response
to norm violation.”36 His first answer is that “unjust” statutes are (or will
often be) products of flawed legislative processes or governmental structure:
if a positive law comes from “undemocratic” sources, it can and should
be nullified.37 After this, Brown appeals to Dworkin—an “unjust” statute
fails to have integrity, and by diverging from the deeper “personal and
political morality” of the community it loses its obligatory status.38 Radin
and Eskridge would agree, Brown thinks, because “the written statute . . .
contravenes widely held social conventions and norms.”39 Overall, the idea
is that an extratextual source—the morality of the community—informs
and can sometimes trump the actual text, but that this source is ultimately
more informative as to legal status than the latter.

28. Brown, supra note 6, at 1158–1159.
29. Id. at 1162.
30. Id. at 1163.
31. RONALD DWORKIN, LAW’S EMPIRE (1986), at 96.
32. Id. at 187–190.
33. Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 809–814 (1989).
34. Brown, supra note 6, at 1165.
35. He may be mistaken in his interpretation of these prior theories, but that is not of primary

concern to us. See DWORKIN, supra note 31, at 101–113 (discussing the case of a judge applying
an evil law).

36. Brown, supra note 6, at 1178 (mentioning all of the familiar historical examples).
37. Id. at 1180.
38. Id. at 1182.
39. Id.

224 BRENNER M. FISSELL

B. Nancy Marder

Nancy Marder gives another in-depth treatment of the topic. She mentions
the familiar historical “unjust law” examples discussed above40 but also draws
attention to contemporary cases, such as “three strikes” laws and abortion-
related nullifications.41 Marder takes a “process view” of nullification and
its place in the rule of law; in the context of “not applying a bad law,” she
sees nullification as an appropriate “feedback” mechanism that “informs
[other branches] when they have overstepped their bounds.”42 Beyond
this, substantive rejections have a salutary “moderating effect,” and ensure
that the law “fits more closely with local views.”43 Finally, she argues that
the system presupposes these nullifications, as the jury has always been
seen (and valued) as the “conscience of the community.”44 It would also
be particularly perverse, she thinks, to force jurors to serve, but to then
demand that they act against their own consciences.45 When discussing
traditional formalist objections to substantive nullifications, Marder notes
that judicial and prosecutorial discretion already creates a great deal of
“variation” in the substantive application of a law and that the effects of
a single nullification are very limited.46 Even when a community’s moral
stance on a given law is unsettled—as with abortion—Marder still thinks
that nullification is valuable as a “vehicle for expression” for a particular
viewpoint.47

C. Jenny Carroll

A very recent article by Jenny Carroll echoes these themes. She draws heavily
from Brown’s work and cites the same modern rule-of-law theorists that
enable Brown to achieve his own accommodation, arguing that when the
law “confounds the citizen’s notions of morality . . . [the citizen] will write
a new meaning in his resistance.”48 The content of this moral meaning, of
course, comes from the “community [law] commands” and “the citizen’s
own experience.”49 Thus, again we find the idea that the rule of law can
and should allow for the trumping of positive text by community morality:

40. Marder, supra note 4, at 892–894.
41. Id. at 895.
42. Id. at 925.
43. Id. at 929.
44. Id. at 932.
45. Id.
46. Id. at 935–936. She does admit that if they became systematic, this would be a problem,

but she offers no limiting principle that would prevent this.
47. Id.
48. Jenny Carroll, Nullification as Law, 102 GEO. L.J. (forthcoming, 2014), at 48, available

at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2190703&download=yes. An outline
of her arguments in this work is found in the section of her earlier article, Jenny E. Carroll,
The Jury’s Second Coming, 100 GEO. L.J. 657, 693–698 (2012).

49. Carroll, Nullification, supra note 48, at 54.

Jury Nullification And The Rule Of Law 225

We gather the meaning passed to us by the formal government, and we hold
this meaning side-by-side to our own understanding and expectation. There
may be little divergence between the two. We may accept the law as delivered,
thankful that some other force did the heavy lifting of law-creation. But other
times, this comparison may confound our sense of social norms. In these
moments when our nomos rings discordant with positive law, our social norms
likely provide a better guide to the “law in action” than the “law on the books.”50

Carroll also hints at the “feedback” and “expression” justifications noted
by Marder.51

D. Summary

All of these recent theorists endeavor to accommodate jury nullification
within the rule of law, and they do so by employing a version of the latter
concept in which community morality is essentially determinative. For all,
a direct conflict between positive law and settled community morality ends
with the latter as victor. The rule of law surely encompasses the “legality”
virtues that promulgated text provides, but for these theorists, this is less
important than the morality that first inspired the text and sustains its
legitimacy. They essentially expand what “law” is, construing a community
morality’s subversion of the text as an internal revision of law by law, and
not a defeat of law altogether. Armed with such a conception of the rule of
law, nullification of “unjust” laws seems to be no threat.

IV. CORRECTIONS

Let us assume that this is indeed true—that nullification of an “unjust” law
by a just jury is no problem. Even if community morality is determinative in
this way (used from here on to mean conventional community morality),52

the accommodationist theories have still missed out on a large part of the
picture. It is not enough to say that nullification of an “unjust” law by a just

50. Id. at 50 (emphasis added).
51. Id. at 52 (“[N]ullification is a warning that whatever the formal construct of the law, it exists

apart from the citizen’s own understanding of the law. It demands correction of constructs of
the law that do not account for the citizen’s lived experience and expectations of the law as
a result of those experiences…”); id. at 55 (“That the citizen juror’s sense of justice may be
inconsistent with or in direct conflict with a larger national sense does not undermine its value
or displace it as a possible source of law.”). She calls the jury a “forum for our dissent.” Id.

52. “Conventional” as opposed to some deeper “community morality” that might come from
the interpretations of an epistemically privileged observer (as in Dworkinian theory). See
DWORKIN, supra note 31, at 201 (describing level of concern needed for the four requirements
of associative obligations: “The concern they require is an interpretive property of the group’s
practices of asserting and acknowledging responsibilities—these must be practices that people
with the right level of concern would adopt—not a psychological property of some fixed
number of the actual members.”).

226 BRENNER M. FISSELL

“community” morality is acceptable—the question must be framed more
broadly.

A. Nonsubstantive, Process View of the Rule of Law

The problem is that these cases have been analyzed with the moral qualities
preassigned: an “unjust” law and a “just” community morality. Instead, the
phenomenon of nullification as substantive rejection of law must itself be
assessed without regard for the substance of the law at issue.

This is true because the rule of law is itself nonsubstantive; it is a vehicle
for producing outcomes in a certain manner, but the outcomes themselves
need not be defined. The rule of law really embodies process values, not sub-
stantive values. One look at its precepts makes this clear: a general, public,
clear, consistent, feasible, constant, prospective, and congruent system of
wickedness is entirely conceivable. As Raz notes, “[T]his conception of the
rule of law is a formal one. It says nothing about how the law is to be made:
by tyrants, democratic majorities, or any other way. It says nothing about
fundamental rights, about equality, or justice.”53 Rawls, too, concludes that
the rule of law is “compatible with injustice,”54 noting that the precepts
“impose rather weak constraints on the basic structure, but ones that are
not by any means negligible.”55 The rule of law, then, is a constellation of
procedural values—a set of means that can be used to serve both just and
unjust ends.

This has two implications for our discussion. First, it means that any
analysis of the rule of law’s compatibility with nullification cannot depend
upon the substantive quality of the law or the jury action at issue. The justice
or injustice of a law or a nullifying jury cannot be determinative—it is the
effect of the nullification on the eight procedural desiderata that matters,
not its effect on justice. Second, it means that we must conduct the rule
of law analysis in each and every possible type of substantive nullification,
regardless of the substance. We cannot limit our frame of reference to only
one case, as the rule of law will be affected in all of them. Because the rule of
law is nonsubstantive, the scope of inquiry must be widened to encompass

53. RAZ, supra note 18, at 214.
54. RAWLS, supra note 22, at 236. There is really only one continuing debate surrounding

the “internal morality” or inherent value of the rule-of-law precepts: the Kramer-Simmonds
debate. Compare Matthew Kramer, For the Record: A Final Reply to N.E. Simmonds, 56 AM. J.
JURIS. 115 (2011), with N.E. Simmonds, Kramer’s High Noon, 56 AM. J. JURIS. 135 (2011). Both
sides would agree that the “justice” or “injustice” of a given rule of law is determined by the
substantive content of the rules being promulgated—the debate is merely about the effect
(positive, negative, or neutral) that the rule of law has on the implementation of that given
substantive policy. Even if we agree with Simmonds that there is some “internal” justice or
morality in the rule of law, then, this is not to say that there can be no unjust rule of law. It
means only that a rule of law that on the whole implements an unjust system of norms is, by
virtue of the eight demands, made slightly less bad.

55. RAWLS, supra note 22, at 236.

Jury Nullification And The Rule Of Law 227

all versions of the phenomenon being discussed, and not just one species
of it.

Some accommodationists commit an error with respect to the first
conclusion—they mistakenly allow for the moral qualities of the law to be
determinative in their rule-of-law analysis. This becomes clear when their re-
sponses to what I call the “inverse scenario” are juxtaposed alongside their
approbation of the paradigmatic case. That is, they express disapproval
when a just law is nullified by an unjust jury, but approval when an unjust
law is nullified by a just jury. How can they distinguish between the two,
though, without appealing to the moral qualities of the law—something
that we agree is extraneous?

Brown discusses the “inverse scenario” in the context of Southern juries’
refusal to convict white defendants accused of violence against blacks, but
his treatment is problematic.56 First, he attempts to avoid the question posed
above by framing the Southern juries’ actions as mere biased applications
and not substantive rejections, but this provides us with no real answers.57

When at last confronted by the problem, Brown’s answer is frank but deeply
unsatisfying:

The question may be a close enough one, though, or that distinction slim
enough, that the difference is ultimately one of moral viewpoint or substantive
principle: the southern acquittals were illegitimate because they were racist,
while the Slave Act or capital crime acquittals were lawful because they were
based on a moral commitment we agree should inform our law.58

Brown admits that the quality of the “morality” does all of the delineating
work. As we say above, though, a nullification’s moral quality has no bearing

56. Brown, supra note 6, at 1192.
57. These are unacceptable, he says, because they are applications skewed by “pure prejudice

or animosity.” Id. at 1193. Even if this is true, does the distinction between application and
rejection give us the principled delineator that we are searching for? It may mean that the
jury is not “disagreeing” with the law substantively, but if anything, this brings the action more
in line with the rule of law. Second, even if Brown is right, and race-based nullifications are
not substantive rejections, this means only that his treatment is ever more incomplete: it means
that he does not discuss the inverse scenario at all. Finally, in any case there is good reason to
doubt even this first attempt at delineation: these Southern nullifications are but another form
of substantive rejection of the law. Race-based nullifications are bias writ large—they proceed
from a negative view that the jury has about an entire subset of the population and not just
an individual. The racist juries object to the blanket prohibition of “assault” (or killing) of
“persons” because they believe that no blacks should count as “persons” and that the beatings
and lynchings of these people is entirely acceptable as a matter of public morality. To call this
a disagreement about “application” misses, or makes light of, the fundamental disagreement.
As Michal Belknap writes, “The slaying of a civil rights worker lay outside the boundaries of
that crime [of murder] as delineated ‘by the community conscience’ of Alabama.” MICHAL R.
BELKNAP, FEDERAL LAW AND SOUTHERN ORDER: RACIAL VIOLENCE AND CONSTITUTIONAL CONFLICT
IN THE POST-BROWN SOUTH (1987), at 189.

58. Brown, supra note 6, at 1194 n.176.

228 BRENNER M. FISSELL

on its comportment with the rule of law—the rule of law “says . . . nothing
about justice.”59

Other accommodationists do not attempt to distinguish between the
unjust-law nullification and the “inverse scenario”; instead, they seem to
take the more consistent (but more intuitively problematic) approach of
accepting the inverse scenario as compatible with the rule of law. They make
an error with respect to the second conclusion from above (that all possibil-
ities must be analyzed). Marder, for example, concludes that all substantive
nullifications serve as a valuable “vehicle for expression” for a particular
viewpoint.60 But what value is advanced by clearly immoral nullifications?
Why, say, should racism be afforded any vehicle by which it can be expressed?
Her theory depends upon an acceptance of all viewpoints as having at least
some value, but only the most committed moral relativist would go this far.
Carroll also raises the possibility of the inverse scenario but fails to appreci-
ate that her observation significantly undermines her larger thesis: “But we
are also a dangerous force when our own concept of justice is grounded in
prejudice or ‘cruel, cruel, ignorance.’”61 It is precisely this ability of individ-
ual communities (and juries) to define for themselves what “justice” is that
threatens most seriously the rule of law.

While it may seem as though these theorists are consistent in their ap-
proval of all substantive nullifications regardless of moral quality, their treat-
ment of the inverse scenario is really so light that it constitutes an evasion.
The vast majority of their discussions involve the palatable case of the unjust-
law nullification, with the inverse scenario addressed in only one or two
sentences. Because, like Brown, they forget that the rule of law is a procedu-
ral value and not a substantive one, they essentially limit their arguments to
one substantive possibility—the unjust law and the just community morality.
Recall, though, that the rule of law’s procedural character means that it can
be advanced or threatened in any substantive setting. Marder and Carroll
err by failing to account fully for all possible permutations of law quality
and jury quality. The accommodationists narrow the scope of the observed
phenomenon, cherry-picking one unobjectionable species from what is a
larger and more differentiated genus.

This is probably because no one could really believe that an unjust jury
nullifying a just law would be compatible with the rule of law; none of
the accommodationists’ theories make sense once the inverse scenario is
introduced. Their arguments rest upon an implicit assumption that the
community morality being stifled by the positive law is itself more salubrious.
If it is granted that the community is wicked, then the liberation of that
morality seems far less desirable, and appeals to Dworkinian “principle” and
“integrity” become inapposite. By incorporating this assumption, though
these theorists import considerations that are extraneous to the rule of law.

59. RAZ, supra note 18, at 214.
60. Marder, supra note 4, at 935–936.
61. Carroll, Jury Nullification, supra note 48, at 65.

Jury Nullification And The Rule Of Law 229

These considerations help to narrow the scope of the inquiry to only the
most palatable case, but do so mistakenly.

B. Bifurcated Morality

The accommodationists make a second major mistake: they take too simplis-
tic a view of “community” morality. A bifurcated understanding is necessary,
because the morality of the area bound by the law need not always align with
that of the area from which the jury panel will be selected, and, because
the morality of the jury is determinative, the possibility of nonalignment has
consequences for the rule of law.

With respect to nullification, one must speak of the “community morality”
in two senses and not only one: the conventional morality of the jurisdic-
tion that has input over and is affected by the legislation (jurisdictional
morality), and the conventional morality of the area from which a venire—
and ultimately a jury panel—will be selected (vicinage morality). These two
communities of morality need not always be in agreement. Interests, values,
and opinions can diverge between people and groups, often sharply and
often geographically. One need look no further than recent electoral maps,
where “red” and “blue” counties generally come in large, geographically
based clusters.62 There are many examples of this geographic moral diver-
gence, where different locales take opposing views on the acceptability of
conduct.63 The accommodationists err in their undifferentiated account
of “community” morality; their theory relies upon a somewhat naı̈ve as-
sumption of universal agreement that does not bear out in our pluralistic
society.

More seriously, this incorrect assumption leads them to miss out on the
highly problematic implications that divergent moralities can have for the
rule of law. Localistic nullifications can arise when a vicinage morality di-
verges sharply from that of the larger jurisdiction (aberrant localism) and
also when it takes an entrenched position on what is still an unsettled ques-
tion at the jurisdictional level (quasi-representative localism). Localistic nul-
lifications in these cases threaten the rule of law, and the accommodationists
have only weak replies to these objections.

In his discussion of race-based Southern nullifications, Brown notes that
these scenarios “seem to occur largely when local norms and sentiments
strongly conflict with statutes and principles reflecting the consensus of
the larger, national community.”64 After raising this possibility of localistic
divergence, though, and concluding that these nullifications violate the rule

62. See, e.g., the results from the 2012 presidential election. 2012 Presidential Elec-
tion Results, WASHINGTON POST available at http://www.washingtonpost.com/wp-srv/special/
politics/election-map-2012/president.

63. See, e.g., Joseph Bafumi & Joseph Parent, International Polarity and America’s Polarization, 49
INT’L POL. 1 (2012).

64. Brown, supra note 6, at 1193.

230 BRENNER M. FISSELL

of law, he refrains from abstracting any lesson from it beyond the specific
context of racism.65 Surely there are other pernicious types of localism be-
sides racism, many of which are equally threatening to rule-of-law values.
Moreover, it is not clear that the Southern United States example is a good
example of “localism.” As Brown himself admits, this was an extraordinary
case where a very large percentage of the population was living somewhat
outside of the rule of law.66 Localistic nullifications can arise in more ordi-
nary circumstances, but Brown’s theory does not address these.

Marder seems to equally miss out on the problematic implications of lo-
calism. She says that “this form of nullification may result in national or
state laws being tailored according to more regional or local views,” but
sees no problem with that.67 In fact, she calls it an “advantage,” and under-
stands this to be licensed by the Constitutional demand that juries be locally
composed.68 First, it is wrong to conclude that nullification will “tailor” the
implementation of a law; as discussed in the beginning, nullification totally
rejects or cancels that law. Beyond this, that the Constitution values juries’
local composition does not mean that it values local opinion with respect to
the substantive content of the law. Again, we are thrown back to the original
question: What is the role of the “jury,” decider of law or of fact, as written in
the Seventh Amendment? With what theory of Constitutional interpretation
would we decide this question—originalism, and so on? Marder’s invocation
of the Constitution introduces a host of questions that go unanswered, and
it may even work against her theory.69

Carroll, too, seems unaware of the problems of localism. “That the cit-
izen juror’s sense of justice may be inconsistent with or in direct conflict
with a larger national sense does not undermine its value or displace it as
a possible source of law,”70 she argues. It is unclear how she can support
this. Perhaps she believes that the “rule of law” can exist at a local level
and need not be uniform across the legislative jurisdiction, but this seems
highly improbable.71 How can a “rule of law” admit of private senses of

65. Id. at 1194 n.176 (“The question may be a close enough one, though, or that distinction
slim enough, that the difference is ultimately one of moral viewpoint or substantive principle.”).

66. Brown’s second answer is also unsatisfying. He admits that the localistic Southern nullifi-
cations violated the rule of law but notes that the rule of law had already broken down in those
circumstances—judges, police, and legislators all created a racist version of justice. Thus, nulli-
fication is not cause of the rule of law’s breakdown in that locality but is just another emanation
or effect: it is the larger “lack of a supportive, sustaining political and moral culture” that is the
problem. Id. at 1196. Again, this is simply not responsive. That nullification is a product—and
not the first cause—of a breakdown of the rule of law does not mean that this product does
not itself represent a continuing violation.

67. Marder, supra note 4, 898.
68. Id. at 929.
69. Say, if the Seventh Amendment were interpreted using a Living Constitution approach,

then the widely accepted contemporary view of juries as solely “finders of fact” would foreclose
her appeal.

70. Carroll, Jury Nullification, supra note 48, at 55.
71. It seems obvious for one reason: because the entire point or value of the constellation

of rule-of-law precepts is predictability. Law must guide behavior, and to do so, it must be
predictable. RAZ, supra note 18, at 214, 220; RAWLS, supra note 22, at 235 (“[Legal rules]

Jury Nullification And The Rule Of Law 231

justice that “direct[ly] conflict” with the national morality that has moti-
vated the promulgation of the text? Again, Carroll has committed the same
error that Brown candidly admits to—she limits her thinking to a palatable
example in which she agrees with the outcome, and does not consider less
salutary possibilities. If taken at face value, though, her proposition is really
“the passage that ate the rule of law.”72 Surely we would not allow private
“sense[s] of justice” to trump universal rules if these private senses directly
undermined the most basic presuppositions of liberal society.73

If we accept the possibility of a bifurcated and divergent local and juris-
dictional morality, then the determinative, unreviewable character of local
views (through the jury) means that nullification can threaten the rule of
law through localistic nullifications.

V. NEW POSSIBILITIES, REVISED CONCLUSIONS

Having identified these two major errors in accommodationist literature, it
is necessary to revisit the issue of substantive nullifications after taking into
account their correction. Once it is accepted that the phenomenon must
be analyzed nonsubstantively (as a procedural mechanism that can admit
of different substantive results), and with a bifurcated understanding of
“community morality,” the range of possible outcomes expands. The simple
case of a just jury nullifying an unjust law becomes but one species of a
larger genus, and not at all representative of the greater set—instead, it is
in the minority.

It is helpful to lay out the array of possible situations. Below, positive
law is signified by “PL,” with jurisdictional morality as “JM,” and vicinage
morality as “VM.” In surveying these possibilities, we assume that when a
vicinage morality aligns with the positive law, it will not nullify. Here are the
possibilities:

A. The Case of the Broken Compromise

PL but no settled JM

AND either

no settled VM

constitute grounds upon which persons can rely on one another and rightly object when their
expectations are not fulfilled.”); FINNIS, supra note 17, at 272. All this means that the “rule of
law” precepts must be measured at the level at which the content of the rules are promulgated
and apply: the jurisdictional level. It is the prospective promulgation of the rule content that
enables law’s strictures to be known and therefore allows them to guide conduct in a predictable
manner. If we allowed for localities to be the index of the rule of law, then we would destroy
this function—the morality or sentiment of the given community at a given time might never
be known in advance by a defendant, and passers-through would be especially helpless. Law
ceases to be knowable and thus predictable when it becomes divorced from the legal rule
that applies to the jurisdiction. For this reason, among others, the rule of law cannot admit of
localism. This is not to say that local jurisdictions are not compatible with it. See infra note 93.

72. Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting).
73. Say, an individual “sense” that human sacrifice is just and divinely approved.

232 BRENNER M. FISSELL

No nullification

OR

a settled VM

Problematic: settled local preferences trumping law’s settlement function in
context of larger contentious issue.

We can call this possibility the case of the broken compromise. When an issue
at the jurisdictional level is very contentious, law—as emanation of the
political process—settles that issue in some sort of a compromise, with the
disagreeing sides agreeing to abide by the outcome of that give-and-take
deliberation (or in any event they are forced to abide by it).74 If a vicinage
morality happens to be settled on the issue, though, jury nullification breaks
that jurisdictional compromise.

One could think of almost any hot-button issue. Americans are sharply
divided about the legal status of homosexuality, for example. Questions of
marriage, adoption, and criminal sentencing (for hate crimes) fail to garner
a substantial majority of opinion for a given position.75 Again, though,
certain propositions win out through the political process and become law.
Hate crime laws are perhaps the most successful (and most relevant to the
nullification context). Even though citizens may disagree about the morality
of homosexuality or about the distinctly different moral status of a “hate
crime,” once the law is passed all must accept the legislative outcome.

Law has settled these issues and prohibits us from acting according to
our private judgments about the permissibility of the conduct, despite our
deeply felt and widespread disagreement. Larry Alexander and Emily Sher-
win describe how “disagreements about moral rights and duties can pro-
duce considerable strife and turmoil, even among people of goodwill.”76

Even when basic norms are agreed upon at an abstract level, their de-
tailed implementation, as well as the standards that apply in determining
factual questions, can produce sharp disagreement.77 Only through author-
ity (normally law) can these problems of coordination and agreement be
settled—law chooses a common path, and all are obliged to follow.78 This
is especially necessary in a pluralistic nation.

74. See, e.g., Bd. of Governors of Fed. Reserve System v. Dimension Fin. Corp., 474 U.S. 361,
373–374 (1986) (“Congress may be unanimous in its intent to stamp out some vague social or
economic evil; however, because its Members may differ sharply on the means for effectuating
that intent, the final language of the legislation may reflect hard-fought compromises.”).

75. See, e.g., Bafumi & Parent, supra note 63, at 1.
76. LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES (2001), at 12.
77. Id.
78. Id. at 14; SCOTT SHAPIRO, LEGALITY (2011), at 171 (“Legal institutions are supposed to

enable communities to overcome the complexity, contentiousness, and arbitrariness of com-
munal life by resolving those social problems that cannot be solved, or solved as well, by
nonlegal means alone.”); FINNIS, supra note 17, at 231–232 (“There are, in the final analysis,
only two ways of making a choice between alternative ways of co-ordinating action to the com-
mon purpose of common good of any group. There must be either unanimity, or authority.”).

Jury Nullification And The Rule Of Law 233

This settlement function takes place at the jurisdictional level, and it is
obviously threatened by the broken compromise nullifications of a vicinage
morality: the congruence between promulgated law and actual outcomes
is destroyed. While nullification in these contexts will come from at least
quasi-representative localism (a substantial portion of the citizenry holds
the view of the settled vicinage morality), it still harms the rule of law if
the larger jurisdictional morality is unsettled and divided. If nullification is
accepted here, homophobic vicinage pools could acquit hate crime counts,
and strongly progay communities might refuse to enforce whatever criminal
sanctions might be leveled against willful violators of marriage or adoption
laws (say, contempt charges). All this ruins the settlement function of the
rule of law—settlement and compromise demand congruence between pro-
mulgation and application.

B. The Case of the Lone Believers

PL diverges from JM

AND either

VM aligns with JM (and diverges from PL)

Acceptable or congruent nullification; “Paradigmatic Case.”

OR

VM diverges from JM (and aligns with PL)

No nullification, but still problematic because presumably other VMs will be
in situation above, and will nullify.

When positive law diverges from the larger jurisdictional morality, there
are two possibilities: one acceptable (for the rule of law), and one prob-
lematic. If the vicinage morality itself aligns with the jurisdictional morality,
this might be nothing more than the “just” jury nullifying the “unjust”
law. This situation is what the commentators exclusively focus on in their
attempts to reconcile nullification with the rule of law. The common exam-
ples mentioned above are all sufficient to describe it: the universal rejec-
tion of the Prohibition laws by juries and the nullifications of the “Bloody
Code” in England.79 Of course, another manifestation might be the “in-
verse scenario”—a wicked jury nullifying a just law (say, the Southern racist
nullifications).

For present purposes, we can agree that these nullifications do not
threaten the rule of law—instead, the accommodationists are correct here
(although they ought to have incorporated the inverse scenario, which is

79. See supra, note 13.

234 BRENNER M. FISSELL

also compatible with it).80 When the positive law is completely at odds with
a settled jurisdictional morality, the system is not working as it should. In
a democracy or republic, this could be the result of a catastrophic failure
of the representative institutions, with a greedy or iniquitous minority de-
termining outcomes based on narrow self-interest. Alternatively (as with
the inverse scenario), it may be that an enlightened and active political
elite has managed to change the law so as to effect the common good in
the face of popular ignorance or prejudice. In either case, the widespread
moral consensus (for good or bad) will result in consistent nullifications
of the law and therefore congruence. This point has already been made,
though,(and made persuasively) by the accommodationists. Their error is
not in the making of this conclusion, but in giving it too much significance
for nullification generally.

Before moving on, it is worth noting that there may be some cases that
undermine the rule of law even when VM and JM align in nullifying a diver-
gent PL. This could happen when the positive law is the product of some
sort of countermajoritarian institutional arrangement. Madisonian checks
and balances, of course, allow for once-popular laws to survive even after
they have lost their public support. This could happen for other reasons as
well.81 In this case, a law that is set up for the protection of minority rights
would survive only because JM cannot muster enough backing to undo the
PL. This difficulty would be part of the point, and substantive nullifications
here would undo the countermajoritarian balance that had been struck.
While the democratic paradigm suggests otherwise, the American experi-
ence has ever affirmed that it is often the case that majoritarian sentiments
and morality should not directly correlate with political outcomes. The same
nuance should be remembered when giving our approval to jury nullifica-
tions. These cases might promise consistent outcomes but they would still
violate other rule of law precepts, in that these consistent outcomes are in-
consistent with the larger countermajoritarian institutional scheme at work.
The absence of congruence here takes place with respect to a higher frame
of reference—the structural principles of the Constitution.

Now we can turn to the second possibility when there is a divergence
between positive law and jurisdictional morality: when the vicinage morality
nevertheless aligns with positive law. We can call this the case of the lone
believers. Here, a particular geographic community finds itself at odds with
the larger national opinion, but the locality happens to have the law’s text
on its side. We will not dwell on how this might come about; the idea of a

80. The inverse scenario of an unjust jury nullifying a just positive law on the basis of
widespread jurisdictional consensus against the law does not itself create any congruence
problems. Although we should oppose this nullification because of its substantive moral iniq-
uity, it is not the rule of law that would ground our opposition (at least not if the nullifications
took place consistently across like cases).

81. For example, apathy of citizens and groups, or structural, financial, or other impediments
to implementing political views.

Jury Nullification And The Rule Of Law 235

powerful minority interest group is probably sufficient to describe the cause,
but it might also be that this locality is particularly wise or enlightened in
the context of an unjust national community. In this case, the problem does
not come from nullification—these local juries will agree with the law, after
all. Instead, the rule of law is undermined by the context of this obedience.
Because nearly all other juries in the jurisdiction will vote to nullify, the
lone believers’ obedience takes place amongst a backdrop of overwhelming
disobedience. Thus, in this rare case, faithfulness to the text actually creates
more uncertainty and inconsistency in legal outcomes.

It is not hard to think of examples. Surely there were certain juries
in Evangelical counties—perhaps those who initially led the Prohibition
movement—that voted to convict in alcohol cases. Even today there are
some “dry” counties in the United States (almost all made so by public
referendum), and in these bastions of temperance there would be little
resistance to Prohibition-type convictions, despite widespread national op-
position to such a view.82 There, we could impanel a jury that would con-
vict, but not so in Manhattan or Los Angeles. Think also of the colonial
experience: small and isolated pockets of obedience in the central capitals
were lost in a larger sea in which the colonizer’s laws were inefficacious.
We could also take note of contemporary drug laws, especially marijuana.
In certain western jurisdictions, a substantial majority of the population
might disagree with the purportedly moralistic ban on the drug, leading to
widespread nullification. Isolated, holdout communities of staunch conser-
vatives, though, would function as the lone believers. We need not make
assessments as to who is wrong or right in their judgments—the locality or
the nation—because what matters for the rule of law is not justice but con-
sistency. Random acts of enforcement in the context of nonenforcement
(no matter what is being enforced) threaten the rule of law.

C. The Case of the Aberrant Locality

PL aligns with JM
AND either

VM aligns with JM (and aligns with PL)

No nullification, no rule of law problem. (This is how it is supposed to
work!)

OR

VM diverges from JM (and diverges from PL)

Problematic: local outlier morality trumps majority morality and PL.

82. See Marcia Yablon, The Prohibition Hangover: Why We Are Still Feeling the Effects of Prohibition,
13 VA. J. SOC. POL’Y & L. 552, 588–592 (2006).

236 BRENNER M. FISSELL

The final scenario again presents two possibilities, one threatening the rule
of law and the other compatible with it. In the first, everyone agrees on
the issue, and the positive law reflects that agreement. This is how the rule
of law is supposed to work: widely held moral positions are codified in
the text and are applied without reservation. No one seriously disagrees
with the prohibition against premeditated murder, for example, and both
legislatures and juries are willing to enact and apply this law (in the abstract).

While total alignment presents the most unobjectionable scenario, the
other possibility is perhaps most worrisome for the rule of law. This is when
a local morality diverges from the larger, national morality, as well as the
text that codifies the latter. The cases of the broken compromise and the
lone believers are bad enough, but with the aberrant locality the otherwise
universally agreed-upon norm (and text) is supplanted and rejected. Just
as the rule of law exists to create settlement and compromise in the case
of contentiousness, so, too, does it exist to suppress antisocial outliers—
it makes obligatory certain widely held mores.83 In less extreme cases, it
suppresses those small minorities that have decisively lost in the political
process. What would that process mean, after all, if even the losers could
have their cake and eat it too? Again, it may even be that the aberrance of
the locality is something that we view as objectively good, with the majority
taking the mistaken position, but the congruence of the legal system (and
therefore the nullification’s comportment with the rule of law) depends not
on taking the right position but on everyone accepting the same position.

We could begin with a rather extreme hypothetical. Imagine a cult, the
core tenets of which demand that its acolytes regularly perform certain
conduct that is otherwise universally regarded as evil (say, sacrificing new-
borns). This cult garners a larger and larger following, and it decides that
it would like to incorporate a new municipality in an empty tract of land in
an American state.84 Murder, of course, is prohibited by the state, and one
presumes that the state’s population (and legislature) is fully supportive of
the laws against homicide. Still, it will be impossible to impanel a jury in
the cult city that will convict one of their own of murdering a child. Can
anyone seriously argue that these nullifications fit within the rule of law in
that state?

83. See SHAPIRO, supra note 78, at 175 (“[S]ocial deviance caused by vicious character is one
of the reasons why law is an indispensable social institution.”). He calls this the “problem of
bad character.” Id. at 169.

84. There are real-life examples of this phenomenon, although not as extreme, where a
minority group consciously sets up or takes over a locality and allows for its leaders to exert
de facto political control. The village of Kiryas Joel in New York is one such case, where a
sect of Hasidic Jews purchased empty land and began populating the area until municipal
incorporation was accomplished. See generally Bd. of Educ. of Kiryas Joel Village Sch. Dist. v.
Grumet, 512 U.S. 687 (1994). Another example involves a separatist community in Hancock,
New York, which the residents have renamed “Islamberg,” and where Islamic law is applied in
a de facto manner.

Jury Nullification And The Rule Of Law 237

Because it will be easy for some to dismiss this hypothetical as fanci-
ful, a less extreme example should also be mentioned. We could recall
the experience of the Morrill Anti-Bigamy Act after the Civil War. Despite
widespread moral support for the prohibition of polygamy at the national
level and positive law effecting that sentiment, Utah’s extremely high popu-
lation of Mormons led to near-uniform nullification of any prosecutions in
that state.85 We might still find examples of this type of aberrant localism
in small pockets of Fundamentalist Latter Day Saints churches.86 Can these
flagrant violations of the larger community’s norm (and its implementing
legal text) exist within the rule of law? Congruence seems manifestly absent
here.

Substantive nullifications allow for aberrant localism to undermine what
is otherwise the clear nomos of the community, both textually and extratex-
tually, and are thus a great threat to the rule of law. They are nothing more
than blatant refusals to submit to the law, and the niceties of a pluralistic
or interpretive legal theory can do nothing to change that. Accommoda-
tionist commentators do not account for this problematic possibility, and by
limiting their discussion to more palatable examples, they ignore that the
rule of law also has a suppression function.87 Even if the nomos has settled on
a position that is objectively unjust, courageous or heroic localism in this
context is still aberrant—it still destroys congruence.

D. Conclusion

After one removes substantive qualifiers from the law and the community
and also takes into account both jurisdictional and vicinage morality, a dif-
ferent and more complicated picture emerges. First, even when a jury does
not nullify (VM diverges from JM but aligns with PL), this can be problem-
atic in a larger context of nullifications that are themselves compatible with
the rule of law. Even if most juries are properly nullifying, the nonnullifiers
present a problem (these are the “lone believers”). Second, even though
there are a great many issues on which there is no settled jurisdictional
morality, numerous local, geographic pockets of retrenched consensus will
allow for a settled vicinage morality.88 Law’s settlement function is threat-
ened when the settlement can be rejected in certain areas (these are the
cases of “broken compromises”).

Finally, and most worrisome, is the nullification proceeding from a vici-
nage morality that trumps a larger jurisdictional morality that is generally

85. See supra, note 15.
86. The famous case of Warren Jeffs is instructive. See U.S. Polygamy Sect Leader Sentenced, BBC

NEWS, available at http://news.bbc.co.uk/2/hi/americas/7104832.stm.
87. See SHAPIRO, supra note 78, at 175.
88. There will always be cases of unsettled VMs—where moral division is not geographically

bound and can occur even within localities—but these are less relevant to the question of jury
nullification, as consensus is required for the unanimous votes necessary to nullify.

238 BRENNER M. FISSELL

in consensus and has codified that consensus in a positive law (these are the
“aberrant localities”). Here we have nothing more than a veto by those small
minorities that have failed in the political process or have entirely different
worldviews (perhaps they are correct, but this is irrelevant!). Law’s suppres-
sion function is therefore undermined. While the commentators present
us with an intuitively palatable example of a substantive nullification (a just
VM aligns with a just JM, both of which diverge from an unjust PL), they
are cherry-picking out of a constellation of generally problematic cases.

VI. THE PROBLEM OF LOCALISM

Substantive nullifications have one manifestation compatible with the rule
of law and three that undermine it. It is worth spending a bit more time
discussing what makes this the case. While much can be said about the pro-
priety or acceptability of the jury qua decision-maker—that is, whether the
institutional features of the jury make it an appropriate lawmaking body—
our analysis centers on a more basic problem: consistency or congruence.
Why will there be congruence in the one type but not in the other three?

As mentioned in the beginning, an essential feature of the rule of law
is uniform or consistent application. As Finnis writes, “[T]hose people who
have authority to . . . apply the rules in an official capacity . . . [must] actu-
ally administer the law consistently and in accordance with its tenor.”89 The
importance of this feature cannot be overstated: the need for consistency is
one of the primary reasons that law itself is instituted, whether it be for the
purpose of settling contentious disputes or deciding between neutral alter-
natives (as in coordination problems).90 Only through law, an imposition
of “authority” or “hierarchy,” will complex political communities be able
to act as one—“unanimity” or “consensus” is not a viable alternative.91 Law
is created so as to bring about common action, and because one of law’s

89. FINNIS, supra note 17, at 271.
90. Id. at 231 (describing how authority in a group is required because of “stupidity and in-

competence of its members, their infirmity of purpose and want of devotion to the group, their
selfishness and malice, their readiness to exploit and to ‘free ride,’” but also in communities
with members that have great intelligence and skill so as to solve “co-ordination problems”);
SHAPIRO, supra note 78, at 170 (“The circumstances of legality obtain whenever a commu-
nity has numerous and serious moral problems whose solutions are complex, contentious, or
arbitrary.”).

91. FINNIS, supra note 17, at 231–233:

There are, in the final analysis, only two ways of making a choice between alternative ways
of co-ordinating action to the common purpose of common good of any group. There
must be either unanimity, or authority. There are no other possibilities. . . . [U]nanimity
about the desireable solution to a specific co-ordination problem cannot in practice
be achieved in any community with a complex common good and an intelligent and
interested membership. Unanimity is particularly far beyond the bounds of practical
possibility in the political community.

SHAPIRO, supra note 78, at 163–164:

Jury Nullification And The Rule Of Law 239

raisons d’être is the need for consistent conduct, the rule of law requires
consistent application. The law must apply consistently to those who act
inconsistently with its dictates.

If we isolate this congruence feature of the rule of law, the difference
between the unjust-law nullification and the three problematic nullifica-
tions becomes more apparent. The unjust-law nullification highlighted by
the accommodationists achieves its favorable status because we implicitly
assume that the widespread and deeply held views of the community will
lead to consistent outcomes in similarly situated cases. These nullifications
will reject the unjust law but, more importantly, they will do so uniformly—
the morality of the community is taken as a constant and ensures regularity.
It is not the “justice” of the morality that comports this nullification with
the rule of law, then, but its universality. Thus, the threat to the rule of law
seems obviated by the consistency. The same is not true, of course, in the
broken compromise, lone believer, and aberrant locality scenarios. Here we
find precisely the opposite: the vagaries of a new and unauthorized lex loci
delicti commissi replace what should be consistent enforcement.

In recognizing this essential distinction between the cases of substantive
nullifications that are compatible or incompatible with the rule of law, the ac-
commodationists’ error becomes clearer. They posit a uniform, widespread
“community morality” that in some sense resembles the “unanimity” or
“consensus” that Shapiro and Finnis see as impossible; common and consis-
tent action in the jury box, they think, will flow naturally from the strongly
held conscience of the community. Who needs the “authority” or “hierar-
chy” of the law’s text if unanimity of opinion is achieved—especially if that
“authority” conflicts with said opinion? As Carroll blithely (but naı̈vely) puts
it:

Nullification requires that twelve citizens . . . come to a consensus about the
law that contradicts the one promoted by formal government. This suggests
a depth of feeling regarding the state of the law that is both intransient and
consistent among and across those individuals chosen as jurors on a particular
case.92

This observation is of course true but ignores that the intransience and
consistency is geographically bound—it represents merely the miniscule

The disadvantages of social planning via consensus nevertheless become apparent very
quickly. Not only is it time-consuming and emotionally draining, but it is extremely unsta-
ble. For the plans are useful only so long as they are accepted by almost everyone. As soon
as people start to reconsider their wisdom, the plans lose their ability to guide behavior
and settle conflict, and the group must start deliberating and negotiating once again.

SHAPIRO, supra note 78, at 170 (“Communities who face such circumstances, therefore, have
compelling reasons to reduce these associated costs and risks. And in order to do so, they will
need the sophisticated technologies of social planning that only legal institutions provide.”).

92. Carroll, Jury Nullification, supra note 48, at 61.

240 BRENNER M. FISSELL

“VM” and not the more important “JM” that VM may or may not reflect.
Although the assumption of a uniform, widespread “community morality”
may hold in some cases, it cannot be applied across the board—certainly not
in a pluralistic jurisdiction such as our own. Once this conceit is shattered
and one admits the possibility of divergent localism, jury nullification raises
the dangerous possibility of inconsistent and nonuniform application of law
(dangerous, at least, for the rule of law). The need for the “authority” and
“hierarchy” of the law’s text becomes salient so as to ensure the efficacy of
the community’s agreed-upon solutions to social living.

The problem with substantive nullifications, then, is essentially a problem
of subjurisdictional or intrajurisdictional localism,93 and is the product of
two empirical facts:94 (1) the Constitutional reality that juries must be locally
composed,95 and (2) the social reality that moral consensus often coalesces
geographically, even when it is at odds with larger consensus.96 Because of
these things, congruence will be threatened if all substantive nullifications
are permitted. Only in a limited range of cases will the rule of law be compat-
ible with the practice—there must be a settled jurisdictional morality, and
the nullifying vicinage morality must not be at odds with it—but otherwise
reconciliation is unlikely.

VII. CONCLUSION

Various scholars have attempted to accommodate substantive jury nullifica-
tion with the rule of law, but they make crucial errors in their reasoning.
They fail to analyze the rule of law as a nonsubstantive value, leading them
either to impute determinative status to the moral quality of a nullification
or to neglect those cases that are intuitively unpalatable. They also take
an undifferentiated view of the “community’s” morality, ignoring that ju-
risdictional moral sentiments can diverge from those of a jury community,
and that this is inimical to the rule of law. When all the possible cases of
substantive nullification are analyzed according to their effect on the non-
substantive rule of law value of congruence, and when the bifurcated na-
ture of the “community” is taken into account, problematic scenarios arise.

93. “Localism” that is explicitly recognized by jurisdictional boundaries and legislative power
(a locality that is a jurisdiction) presents no threat to the rule of law. This is the point of federal
systems but also of local governments that can legislate (as in Home Rule states). There is
no congruence problem here precisely because congruence is measured at the jurisdictional
level—the creation of the jurisdiction obviates the problem.

94. Of course, the unreviewable character of a jury’s verdict to acquit in a criminal case is an
important background assumption. Marder, supra note 4, at 882.

95. U.S. CONST. amend. VII. (“an impartial jury of the State and district wherein the crime
shall have been committed”) (emphasis added).

96. Again, this is not always or even often the case—many localities have internal division
on many moral questions—but this reality is less interesting for our current discussion about
the rule of law, as presumably vicinages that are internally divided will not themselves have
sufficient consensus to nullify (twelve random jurors would not be found to act unanimously
in opposition to the positive law unless there was more of a localistic consensus).

Jury Nullification And The Rule Of Law 241

Entrenched localities can violate settled disputes, lone believers can con-
tinue to support a law that has otherwise fallen into desuetude, and aberrant
localities can thwart otherwise agreed-upon norms. Even when a jury repre-
senting a large majority acts to cancel out a positive law, this works against a
countermajoritarian institutional scheme. The localism of substantive nul-
lifications threatens the congruence of the legal system and can comport
with the rule of law only when a jurisdictional morality is settled and in
alignment with the jury community’s morality. There may be other ways to
defend the practice of jury nullification, but because compatibility with the
rule of law is possible in only a limited range of cases, any defense of the
practice should find another grounding.

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