If you are accused of a crime in the U.S., you are guaranteed the right to a jury of your peers.
This promise dates to the signing of the Magna Carta, when people were assured that their peers — not the king or someone from a different class — would determine suitable punishment for misdeeds.
The ideal is noble enough in theory, but due to systemic racism, it is not always played out for African Americans. For African Americans in general, systemic racism creates a chain reaction that impacts virtually every area of life.
Both Black men and women face unique challenges. Black women are increasingly facing incarceration, and even when they are not, they are often in the position of supporting incarcerated family members and friends. According to an analysis by the Center for American Progress, their overall health suffers as a result.
Meanwhile, Black men carry a unique burden where the criminal legal system is concerned. A by-product of systemic racism is discriminatory policies and practices such as the war on drugs, stop-and-frisk policing and “three strikes” policies — all of which disproportionately impact Black men.
When you couple policies that have a disproportionate impact on Black women and men with the financial toil of serving on a jury (jury duty is unpaid and persons in non-salaried positions are at a financial disadvantage), the share of Black people available for jury selection is further diminished. Since people must take time off work to serve on juries, only people who can afford to miss a paycheck, or people with paid time off or flexible work arrangements can afford to serve on a jury. Keep in mind that trials for serious crimes are lengthy; a recent murder trial that I was a part of lasted one month. How many of us can afford to skip a month’s pay?
While a judge is not required to exempt someone from jury duty because the person can ill afford to go without a paycheck, defense attorneys reap no benefits by forcing a person to miss pay to be their juror. So, if a juror complains about the prospect of missing pay to serve on a jury, criminal defense attorneys must think long and hard about whether to strike the person from the pool or keep them, knowing they will face financial hardship.
Of course, this says nothing of the well-documented practice of prosecutors and other lawyers dismissing jurors for no other apparent reason than their race. Attorneys can strike up to six people from juror pools without cause and the rest must be for cause. While the Batson v. Kentucky case states that jurors can’t be dismissed on the basis of race, proving racial discrimination in jury selection is difficult because lawyers don’t have to always stipulate why they release a jury. The takeaway here is that when Black people are not included in juror pools, the consequences are dire.
When a person does not have a jury of their peers, they are unlikely to have jurors who understand the culture from which they hail, the experiences that shape their decisions or the critical choices a person who is desperate for resources may make.
In the article “How Racism Shapes Jury Selection,” author Ranjani Chakraborty noted that, “Study after study has shown that all-white juries are harsher on black defendants, make more errors, and discuss fewer of the case facts.”
Proximity is important. People who have never been poor and have no friends or relatives who are poor may struggle to understand what animates someone living in poverty to frequent payday lending stores or rent-to-own establishments.
If Black people are systemically missing from juror pools, and lawyers can dismiss potential jurors without explanation, are Black people really being guaranteed a trial by a jury of their peers? No, they are not.
This is highly problematic. Peers (from our socioeconomic background, community or religion) can relate to us in a way that most people cannot. For instance, I recently legally defended a man accused of murder. After speaking with a white male juror from his case, I learned that a lot of the jurors could not understand the defendant, and that the two people who could (Black women) were able to provide context that led the group to find the defendant guilty of second-degree murder vs. first-degree murder, which would have come with a life sentence. I wonder how different the outcome would have been if we had Black men from the same socioeconomic background as my client. I wonder how much not having a “jury of your peers” impacts case outcomes for other Black people who are accused of a crime.
Our nation’s tendency toward mass incarceration can only be solved by addressing the levers that contribute to locking people up. One of these levers has to be ensuring that people who are accused of crimes actually have jurors who look like them and come from similar socioeconomic backgrounds.
This is the new imperative for addressing mass incarceration. And we can’t say we don’t know how. Court systems could partner with the philanthropic sector to create funds to offset the pay jurors miss by serving on a jury. Legislatures could pass laws that forbid employers from withholding pay for persons serving on juries. There could be tighter rules on who is excused or passed over from jury selection to ensure that the person who stands accused has an opportunity to have a jury of their peers.
If we are serious about reducing mass incarceration, we must ensure all people have access to a jury of their peers. This only happens with intentionality and proximity.