Racial Jurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action in Jury Selection

Abstract

Racial and ethnic minorities continue to be substantially underrepresented on criminal juries. At all stages of jury selection-venue choice, source list development, qualified list development, and jury panel and foreperson selection-traditional methods of selection exclude a disproportionate number of minorities. In response, a growing number of jurisdictions are employing race-conscious procedures to ensure that minorities are represented in juries and jury pools in proportions that equal or exceed their percentages in local communities. At the same time, the Supreme Court's most recent pronouncements on affirmative action and standing suggest that these reforms may be short-lived. Professor King suggests that the Court's current strict scrutiny standard can and should accommodate limited uses of racial classifications in jury selection. Specifically, Professor King contends that racially representative juries are essential to the appearance of fairness in criminal jury proceedings, and that maximizing the appearance of legitimacy is a compelling governmental interest She claims that not all types of jurymandering further this interest, however, and proposes several features with which to distinguish measures which are likely to improve public confidence in the impartiality of the system from measures that are not likely to have this effect.