October 20, 2003
Racially mixed juries would provide checks
and balances in criminal justice system, sociologist Hiroshi Fukurai
By Jennifer McNulty
With jury selection just completed in the trial of John Allen Muhammad,
accused of masterminding the Washington-area sniper slayings a year
ago, sociologist and jury expert Hiroshi Fukurai says it is time for
the United States to revitalize its criminal justice system by requiring
that juries be racially representative of the communities in which they
|Jury expert Hiroshi Fukurai
uncovered three jury models designed to increase the representation
of racial minorities. Photo: Jennifer McNulty
Mandating racially mixed juries would help ensure fair trials by discouraging
race-based prosecutions, said Fukurai, an associate professor of sociology
at UCSC, who found strong historical precedent in England and the United
States for requiring diversity among jurors.
Racially mixed juries would ensure that investigations are done
in a nonracially discriminatory manner and that evidence is gathered,
presented, and argued without racial discrimination, said Fukurai,
coauthor with Richard Krooth of the new book Race in the Jury Box:
Affirmative Action in Jury Selection (Albany, NY: State
University Press, 2003)
With minorities on the jury, prosecutors cant rely on racially
stereotyped arguments and nuances. The jury is a very important form
of checks and balances in the criminal justice system.
Fukurai, coauthor of the 1993 book Race and the Jury: Racial Disenfranchisement
and the Search for Justice, uncovered three jury models designed
to increase the representation of racial minorities:
Jury de medietate linguae, or jury of the half
tongue. The so-called split jury, in which half of
the jurors come from the majority population and the other half from
minority groups, was developed in medieval England when Jews were routinely
discriminated against in court. The reform mandated that six of 12 jurors
hearing cases against Jewish defendants must be of Jewish descent. Early
settlers in the northeastern United States brought the system with them
from England, requiring that Native Americans make up half the jurors
in cases against Native American defendants.
The Hennepin jury model mandates that the jurys racial
representation reflect the proportion of majority and minority groups
in the general population.
The social science model requires at least three minority jurors,
because researchers have identified that number as the threshhold at
which minorities successfully resist the group pressure of the majority
in the jury decision-making process.
A fourth strategy is what Fukurai calls preemptory inclusion, which
would give prosecutors and defense attorneys a fixed number of prospective
jurors they could select who would be protected from challenge, leaving
the remaining slots to be filled through the regular jury selection
As recently as 1990, the Hennepin model was in use in Minnesota, but
it was rejected in 1999 as a racial quota. Anticipating similar criticism,
Fukurai points out the widespread use of racial quotas in trade, immigration,
and other policies.
This may require the action of one courageous judge who says
yes, concedes Fukurai. In business and immigration,
quotas are everywhere. If there is no discrimination in the future,
we may get rid of the numerical goals.
African Americans and Hispanics are overrepresented as defendants and
underrepresented on juries, said Fukurai. There are 2 million
people in jail and prison in this country, and half of them are African
American males, who make up only 6 percent of the population,
Racial bias in police and court procedures makes verdicts suspect,
as in the highly charged criminal case against O. J. Simpson. The racially
diverse jury dismissed murder charges because the evidence was not credible
enough to convict, said Fukurai. Everybody thinks O. J. did it,
and perhaps he did, but you cant have racially biased evidence
collection, said Fukurai.
Racially and ethnically mixed juries would build in a system of checks
and balances, said Fukurai. If we have members of racial
minorities on juries, it affects the way the criminal justice system
operates. Theres a ripple effect, he said.
Fukurai compared the strong animosity that led to the selective prosecution
of Jews in medieval England to the treatment of members of the Arab
and Islamic communities following the September 11 terrorist attacks.
Detainees being held at the U.S. Naval Base at Guantanamo Bay have
been denied access to lawyers and have little chance of receiving a
fair trial in military court, where six-member juries are made up of
three military judges and three select lay members affiliated with the
military, trials are conducted out of public view, and trials require
only a two-thirds vote for conviction.
In the conclusion of their new book, Fukurai and Krooth write:
"In the great pendulum swing of history, the political denial of
civil liberties and judicial rights of those charged with crimes against
social order periodically reemerge. With increasing limitations on habeas
corpus and with authoritarian secret trials, those trying to maintain
trial fairness and verdict legitimacy need to fall back on tried methods
and structures. Juries mixed by race and ethnicity--juries de medietate
linguae--may become the prominent emblem of fairness and justice
in our time."
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