October 20, 2003

Racially mixed juries would provide ‘checks and balances’ in criminal justice system, sociologist Hiroshi Fukurai says

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 are empaneled.

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 can’t 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 jury’s 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 process.

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,” he said.

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 can’t 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. There’s 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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