As a space for democratic deliberation and decision-making, the jury box still has the potential to shift the criminal legal system – but first we must change who is able to serve on a jury.
“The legitimacy of the criminal legal system is in tatters, and rightfully so.”
Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?. . . If you participated, did you carry a sign? What did it say?
These questions were part of the questionnaire given to those summoned to serve as jurors in the trial of Derek Chauvin, the Minneapolis police officer accused of killing George Floyd. Provided that judges and attorneys are willing to take these questions up, they could hold the key for beginning more nuanced conversations about race and the criminal legal system.
As is well known, the jury selection process is one of the most consequential and contentious phases of the criminal trial. Attorneys from both sides attempt to empanel a jury sympathetic to their “side” and, thus, more likely to decide in their interest. However, the battle is just as much a defensive one as it is an offensive one: attorneys can exercise considerable discretion in rooting out jurors who might be disinclined to decide in their favor for reasons of personal prejudice or distrust of law enforcement. Jury consultants, who specialize in this process, represent a multi-million-dollar-a-year cottage industry.
One of the key tools in these consultants’ arsenals is the questionnaire. It is used to gauge biases and predispositions in a more candid way than is possible during voir dire, the questioning process conducted by judges and attorneys in the courtroom, usually in front of the other jurors. The recently released questionnaire for the Chauvin trial represents a notable development in the jury selection process, and also an opportunity. It suggests an evolution in the way that the court perceives supporters of Black Lives Matter (BLM) and a possibility for incorporating jurors who can bring knowledge of systemic racism into the legal system. These changes will not come easily—jury selection is compromised by some of the same structural forces of racism that led to the killings that necessitated BLM in the first place. Black jurors are less likely to be called for jury duty, less likely to be seen as qualified jurors, and more likely than their white peers to be dismissed. The legitimacy of the criminal legal system is in tatters, and rightfully so. The best path forward may be changing who is able to serve on a jury through a contextual understanding of impartiality—that is, shifting our notion of what an “impartial” juror should mean in a historically unequal criminal legal system.
“It suggests a possibility for incorporating jurors who can bring knowledge of systemic racism into the legal system.”
The questions posed to the Chauvin jury suggest that the norm of dismissing jurors who are critical of patterns of racism and police brutality might be shifting. Yet this can only be the case if judges and attorneys change their understanding of BLM, shifting their view that supporting BLM is an extreme position at odds with the responsibilities of being a juror. This view was put on display most recently in the case of Crishala Reed.
When Crishala Reed (then known as Juror 725) was called for jury duty in Contra Costa County in California in 2016, she was ready to serve. She was given a questionnaire, in which she stated that she was in support of BLM. Attorneys took the issue up, asking her if she agreed with the destruction of property (though the three defendants were charged with murder). She said she did not. Reed remained in the pool after questioning, but the prosecution used one of their peremptory strikes to dismiss her. They later defended her dismissal by saying that BLM was a fringe organization that condoned the destruction of property, thus making it impossible for her to apply the law as a juror. They also claimed that their dismissal was not racially motivated—they would have dismissed a white juror who expressed the same views.
Reed’s dismissal was not only a loss for the three Black defendants, but also a personal insult to Reed—the court effectively told her that she was not qualified to participate in the process of deciding justice because she supported BLM. She told the Marshall Project, “I felt targeted. It was a life-changing experience for me, personally. And I still talk about it to this day. I tell my kids about it. Not to scare them but to make them aware.” Her dismissal represented a check on her ability to participate in democratic life. Sure, she could vote, but the state did not trust her to help decide the fate of another person, supposedly solely because of her affiliation with BLM.
In an amicus brief filed at the California Court of Appeals, lawyers from the MacArthur Justice Center, the ACLU, and other civil rights organizations argued that Reed’s dismissal was in violation of the Constitution. They contended that her support for BLM could be considered a proxy for race, given that many more Black people than jurors of other races supported the movement at that time. Consistent with the precedent set in Batson v. Kentucky (1986) and affirmed in Flowers v. Mississippi (2019), it is unconstitutional to dismiss jurors on the basis of race. While the authors of the amicus brief framed their argument in racial terms to form the basis for a successful appeal, this angle ignores a critical issue: beyond race, there is value in including BLM supporters on juries—more broadly, there is value in including jurors who are critical of the criminal legal system and aware of its too often unequal and racist applications.
“The court effectively told Reed that she was not qualified to participate in the process of deciding justice because she supported BLM.”
After the summer of 2020, BLM can no longer be considered a fringe organization—a large and diverse group of people supports the movement. A Pew Research poll taken in September 2020 found that 55 percent of Americans supported the movement, including 16 percent of white people who considered themselves Republicans or Republican leaning. Protests occurred in all fifty states after the death of George Floyd, and the issue of police violence against Black citizens has been chronicled and supported in a variety of ways around the globe. A potential juror mentioning the documented unequal pattern of racial violence at the hands of police should not automatically lead to their dismissal. Rather, it should be understood as affirmation of just the type of civic awareness and attention to law that jurors should have.
The founders instituted a jury system for criminal cases not only to check the tyrannical power of the state in prosecuting political enemies, but also to ensure that democratically sanctioned laws were enforced fairly. Today, as then, this is a mandate that requires lived experiences with law enforcement in particular communities. As countless civilian review board decisions have shown, it is impossible for law enforcement to monitor themselves, just as it is for representatives of law enforcement to determine what constitutes entrapment—they are too enmeshed in the process and invested in guilty verdicts.
For this reason a distinctive part of the jury system’s function is to bring in knowledge of the way laws are enforced in the lives of ordinary people. But this role is being undermined by what legal scholar Rachel Barkow calls the rise of the administrative state. In the administrative state, courts, instead of encouraging debate over different values and interpretations of justice, increasingly enforce regulatory decisions. Juries are the antithesis of this bureaucratic and regulatory vision of law—the variability of having twelve randomly selected people decide a case is the jury’s virtue as well as its shortcoming. Jury decisions are neither predictable nor consistent, but they are a laboratory for democratic deliberation. The jury should serve as a place where different communities reckon with what the guidelines for law enforcement should be. This means including individuals who understand the patterns of racism that BLM has brought to light.
“The jury should serve as a place where different communities reckon with what the guidelines for law enforcement should be.”
It is time to shift our collective understanding of who constitutes an “impartial” juror. The concept of impartiality is notoriously difficult to define, in part because it implies that a juror must be equally fair to the prosecution and defense, when in reality their task is to hold the prosecution to a high standard and presume innocence on the part of the defendant. Impartiality is also difficult to understand because it contradicts everything we know about human nature. Past experiences, political ideologies, and cultural priming shape how we understand events—no one can be truly impartial when asked to judge acts of intense violence and emotion.
In its distilled form, however, the Sixth Amendment right to an impartial jury can be understood as the defendant’s right to jurors who have not already determined guilt. Just as attorneys and judges can ask questions to determine a juror’s qualification, it is also significant that jurors understand the safeguards of the trial system for the defendant. It is here, between the poles of BLM and the constitutional ideals of the trial, that a new way of thinking about justice will emerge.
The questionnaire sent to potential jurors in the Chauvin case included questions pertaining to these safeguards, for example: “Under our system of justice, the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Would you have any difficulty following this principle of law?” While the statement may seem to dissuade jurors from convicting Chauvin, it is a critical aspect of the process that jurors cannot ignore. Of course a juror who supports BLM will not automatically find every member of law enforcement guilty; it is worth being explicit about this during voir dire and in broader discussions of the scope of the movement. A juror takes on a highly particular role, distinct from that of an activist, protester, Twitter agitator, or bystander. Serving on a jury requires interrogating one’s own biases, being open to the evidence presented, and understanding the jury’s role as a check on state power.
“No one can be truly impartial when asked to judge acts of intense violence and emotion.”
In the past defense attorneys have been disappointed that vocalizing support for BLM also occasioned a refusal on the part of a potential juror to acknowledge the responsibilities of serving on a jury, including openness to a consideration of the evidence. As the movement expands, there is an opportunity to articulate an ideological space for potential jurors to support BLM and critique the racialized patterns of law enforcement, while simultaneously remaining committed to the expectations of the trial and the protections for the defendant. Better questions from the court during voir dire are certainly necessary, but so are opportunities for different answers from potential jurors. The set of questions about BLM coupled with the more common questions about the trial process in the questionnaire for the Chauvin case are important—they demonstrate the need for a prolonged conversation about justice that holds the ideals of the law and the flawed reality of their application in delicate balance. Indeed, as these questions show, one does not need to maintain complete faith in the legitimacy of the criminal legal system to be a competent juror. In fact many judges and lawyers do not, electing to work in the system for that very reason.
A change in our understanding of impartiality may also have implications for grand jury trials in police brutality. The recent grand jury decisions declining to indict officers in Rochester and Cleveland reveal that the recent nationwide protests after the death of George Floyd will not change how police brutality cases are adjudicated. Even in situations where the prosecutor does want to go forward with the charge, the formulation of the law—with its emphasis on the officer’s subjective interpretation of threat—favors the officer. A change in an understanding of impartiality might lead jurors to show less deference to an officer’s subjective experiences of threat based on race, owing to jurors own lived experiences and understandings of how systemic bias might impact the events in question.
A juror in the trial of George Zimmerman for the killing of Trayvon Martin said that the jurors did not consider race at all during their deliberations, revealing what may have been seen as the epitome of impartiality then but has a different resonance today. In 2014 ignoring race was arguably the ideal when considering the “stand your ground” law in Florida. Today, however, understanding how racism persists despite racially neutral laws and purported claims to fairness is crucial to legal judgment. We are now painfully aware of how police target Black people in a way fatally different from the treatment they afford their white counterparts. In this climate we want jurors to be aware of race and the role that it plays in the legal system. Legal scholar Cynthia Lee has found that presenting jurors with “race-switching jury instructions,” where they consider how their thinking might change if the victim were another race, is one example of how we can uncover bias and aid deliberation.
“We want jurors to be aware of race and the role that it plays in the legal system.”
Judges may now be more inclined to include jurors who recognize the tension between acknowledging racism in the legal system and adhering to the system’s ideals of protections for the defendant. Indeed, judges are being asked to do the same thing. Recognizing bias is currently a pressing issue for judges, who are having to confront evidence of their own implicit biases despite their professional obligations to combat partiality. For example, federal district judge Mark W. Bennett recently took the Harvard Implicit Association Test (IAT), one of the most well-known psychological experiments for identifying implicit bias. He reports finding the experience “deeply unnerving,” stating, “I knew I would ‘pass’ with flying colors. I didn’t.” Judge Bennett, however, used this knowledge of his own biases for good—he advocated for an end to peremptory strikes (which are often the result of implicit biases), as well as training for attorneys and jurors about the ubiquity of these biases and what might be done in the decision-making process to offset their effects. Unfortunately, his suggestions have not yet been widely implemented.
While there are many reasons for BLM supporters to experience legal estrangement, a sense of detachment, and skepticism toward legal institutions and their capacity to achieve justice, serving on a jury may cultivate a different aspect of legal consciousness. As the most democratic institution in the legal system, it is the only one that respects the capacity of laypeople to make difficult decisions about punishment and forgiveness and respects those decisions as final, an ideal that is important to preserve even if many other aspects of the legal system are overhauled in the service of racial equity and a turn away from retributive punishment.
In 2014, after the grand jury in St. Louis declined to indict Officer Darren Wilson for the killing of Michael Brown, local organizers and community members led by a group called the International People’s Democratic Uhuru Movement in Ferguson convened “The Black People’s Grand Jury” (BPGJ). The BPGJ examined the evidence and witness statements from the case in a mock version of the formal process. A small number of community members were also asked to recall their experiences with the Ferguson police, supplementing the testimony of Dorian Johnson, Michael Brown’s friend who was him at the time of his death. The leaders of the Uhuru Movement, which is grounded in the ideals of African internationalism and the need for the self-governance of Black communities, saw a chance for the BPGJ to manifest these aspirations. The formal grand jury was, from the Uhuru Movement’s perspective, skewed by racist language meant to influence jurors—such as Darren Wilson stating that when he placed a hand on Brown’s arm he felt like a five-year-old trying to hold onto the Incredible Hulk. But the concept of a deliberative body convened to adjudicate decisions about guilt and punishment remained an aspiration to the community. The BPGJ reflects that, even in light of community disappointment and deep skepticism about the legal system, community members still want to participate in a meaningful legal process and help change the way that future crimes are understood.
Even though the BPGJ’s 11-1 jury decision to indict could not be enforced, going through the process of the trial was a critical part of the local reckoning that happened in the aftermath of violence. It engaged community members while gathering information in a central location, akin to a rudimentary truth commission. While the law is fundamentally linked to racist practices in this country, the idea that there could be fair procedures and democratic participation in the most important decisions of punishment lives on.
“Community members still want to participate in a meaningful legal process and help change the way that future crimes are understood.”
Indeed, “procedural justice” refers to perceptions of fairness in all the processes associated with the legal system. To cooperate with the system, citizens want reassurance that defendants will be treated fairly and able to access all the protections to which they are entitled. Innumerable studies have shown that people have an easier time accepting a decision that is not in their favor if they feel they were treated fairly in the process. Revitalizing the jury as a critical node of procedural justice through changing the way Black jurors and jurors who support BLM are included could open a path to civic trust.
For many people serving on a jury is the most demanding form of civic participation that they will engage in. It also reflects an ambitious version of enfranchisement where citizens have the capacity to determine the course of justice. In an era where consensus about shared facts is hard to come by, the jury process demands that an individual set aside preconceived notions and do their best to listen and contribute to a verdict that all can endorse. Despite the very real ways racial discrimination has marred the jury process, it remains one of our best hopes for a democratic society that takes the participation of all people, randomly selected, as central to the administration of justice.
Black leaders from William F. Butler to Frederick Douglass have understood the right to be on a jury as a significant part of enfranchisement. As Butler, the Kentucky-born political leader, said in 1867, “First we had the cartridge box, now we want the ballot box, and soon we will get the jury box.” Just as the tens of thousands of new voters in Georgia and elsewhere were able to shape the election of 2020, we are in the middle of a period of notable legal changes that could expand the number of jurors called for service and those allowed to serve. This may even affect whether or not defendants choose to go to trial—they may opt to more frequently if they can be confident that they will have jurors who represent a fair cross section of the population, especially in racial and ethnic terms. Changing our expectations of who should be allowed to serve on a jury shows us that the march for freedom does not tarry at the ballot box, but rather proceeds forward into the heart of the justice system and to the jury box itself.
Sonali Chakravarti is an associate professor of Government at Wesleyan University and the author of Sing the Rage: Listening to Anger after Mass Violence and Radical Enfranchisement in the Jury Room and Public Life.
This article previously appeared in Boston Review.
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