By Paula Z. Segal
This past March, the Supreme Court decided a case against an African-American man convicted of second-degree murder and possession of a firearm by an all-white jury in Kent Country, Michigan in 1993. The defendant, Diapolis Smith, challenged his conviction. He objected to the composition of the jury that found him guilty, arguing that the jury selection process unfairly eliminated African-Americans from the jury pool in violation of the U.S. Constitution.
The “fair cross-section requirement” that the Supreme Court has read into the Sixth Amendment to the U.S. Constitution for over half a century requires that all groups in a local population be fairly represented in the pool from which a jury is drawn. Mr. Smith asserted that the jury selection process used in his case deprived him of his Sixth Amendment guarantee to a jury drawn from a representative cross section of the community. The Supreme Court, in a unanimous opinion by Justice Ginsburg, decided that Mr. Smith’s “fair cross section” claim was without merit: The court held that the Kent County process did not systematically result in under-representation of African-Americans in the jury pool. But, Justice Clarence Thomas felt compelled to write a concurring opinion and question whether the “fair cross-section requirement” is really part of the “Sixth Amendment’s text and history.” Thereby, using this case to raise an issue that has grave implications for future defendants, jurors and the future of the jury pool’s role in the democratic process.
In a short opinion, Justice Thomas pointed out that “historically, juries did not include a sampling of persons from all levels of society or even from both sexes,” as a reason why the fair cross-section requirement should not be read into the Constitution. He did not, however, point out other historically acceptable practices -- a legalized slave trade, disenfranchisement for women, strict limits on property ownership -- that might provide a reason why the requirement is needed. Thomas concluded his opinion by saying that “in an appropriate case, [he] would be willing to reconsider our precedents articulating the ‘fair cross section’ requirement,” threatening to undo over 60 years of development towards a more fair and democratic legal system.The “fair cross section’ requirement has a long history. In its text, the Sixth Amendment of the United States Constitution guarantees all criminal defendants “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The “fair cross section requirement” is the measure that the Supreme Court has articulated for determining whether a jury is “impartial.” The first time the Supreme Court used this measure was in a 1946 criminal case in which the defendant challenged the exclusion of women from the criminal jury pool. That same year, in a civil case also challenging the systemic exclusion of women, the Court explained that;
The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.
In 1975, the Supreme Court further explained the importance of the “fair cross-section” requirement by saying;
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.
Justice Thomas’s concurring opinion clearly elucidates that he does not believe that the American tradition of trial by jury necessarily contemplates a jury drawn from a cross-section of the community. In questioning the foundation of the requirement itself, Justice Thomas suggests that he would undo the expansion of enfranchisement and access to the institutions of the democratic state that has occurred in the last 64 years. Justice Thomas seems to believe that a jury that systematically excludes women, or the landless, is fair and “democratic” and satisfies the requirement that a jury be impartial. His insistence suggests that he would be content with an American “democracy” that includes as its constituents only the original “We the people” -- white, propertied men.
Paula Z. Segal is a second year student at City University of New York School of Law and a Haywood Burns Fellow in Civil and Human Rights. Before law school, she taught English to Speakers of Other Languages and continues to develop materials for ESOL instructors to connect language and life skills. She is also working with the New York Civil Liberties Union to reduce the school to prison pipeline and coordinates the CUNY Street Law Team, which brings the law to New York City high school students and community groups. For more on the school to prison pipeline, go to http://www.nyclu.org/issues/
(Photo by JasonUnbound.)