Balancing the Scales of Justice

For the bulk of American history, juries have been white, male, and affluent. A new S.F. pilot program would seek to change that.

In the runup to the trial of Derek Chauvin, the former Minneapolis police officer charged with the murder of George Floyd, prosecutors and defenders alike were extremely concerned with seating a jury. The court set aside three weeks just for the selection process.

Determined not to repeat the mistakes of earlier, racially charged and highly publicized trials, they set out to assemble a pool of prospective jurors who could truly be considered impartial and reflective of the surrounding community. Finding a group of men and women who had no strong feelings regarding the very public case was sure to be a challenge. But finding a racially representative jury would prove just as difficult.

Minneapolis is about 64 percent white and 20 percent Black. But according to figures from the State Court Administrator’s Office, the jury pool in Hennepin County — where Minneapolis is located — was 80 percent white and only 8 percent Black in 2020. In fact, looking at the demographics of Minneapolis juries in the years leading up to Chauvin’s day in court, it is clear  balanced cross-sections of locals were rare, and predominately white juries were far more common.

Analyzing these data — and crunching the numbers from courthouses around the country — it is clear that while the Sixth Amendment to the United States Constitution compels state and federal courts to assemble impartial juries in criminal cases, in practice, the individuals occupying the jury box tend to live in a very different world than the defendants upon whom they pass judgement.

In the end, Chauvin’s jury comprised six white people, four Black people, and two people who identified as multicultural. By local standards, the group was considered remarkably diverse, and the verdict the jury delivered after 10 hours of deliberation was historic. Chauvin became the first Mineeapolis police officer charged with the murder of a Black man. 

However, those Minneapolis jurors — and the verdict they handed down — look more like the exception that proves an unfair norm. Reversing this historic trend will not be easy, but that isn’t stopping lawmakers and activists from pushing for more consistently fair and representative American juries.

One initiative aimed at balancing the scales of justice is working its way through the California legislature; if passed, it would go on trial in San Francisco beginning in 2022.

BE THE JURY

“This is something that defenders and our clients have been noticing for a long time,” says San Francisco’s Public Defender Mano Raju, “It’s very difficult to get a jury of your peers.” 

While California’s courts do not collect information on jurors’ race, gender, ideology or income, the lack of racial representation in the state’s juries has been hard for public defenders to ignore, Raju says.

In an effort to turn the tide on the trend of off-balance juries, San Francisco Assemblymember Phil Ting introduced AB 1452 earlier this year. The bill would authorize a first-of-its- kind pilot program in the city called Be the Jury, which would compensate qualified, low-income jurors $100 a day for service. Championed by the city’s treasurer, public defender, and district attorney, the goal is to make San Francisco’s juries more racially and economically diverse. 

Although our state boasts the highest minimum wage in the country — $13 per hour for small employers and $14 per hour for larger employers — California jurors are compensated just $15 per day beginning the second day of service. That puts the state on the lower end of the scale of juror compensation rates nationwide. By contrast, several states pay jurors less than $10 a day, while many pay $30 to $50 per day. State law requires employers give time off for jury duty, but nowhere does it state that they must pay employees while they serve. 

California’s per diem jury duty rate would barely cover lunch in San Francisco, to say nothing of other costs, like parking or childcare.

To their credit, California judges understand this. Approximately 3,800 low-income San Franciscans were excused from service for financial hardships in 2018 and 2019, according to data provided by the Financial Justice Project, the organization funding Be the Jury. Unfortunately, dismissing large numbers of prospective jurors because it is economically infeasible for them to serve has other consequences.

A survey conducted by the Administrative Office of the Courts of California found that 35 percent of jurors reported that having to serve on a jury would deal a serious blow to their monthly budget. And considering that 59 percent of Black families and 53 percent of Latino families qualified as “very low income” last year, it’s not hard to connect the dots.

“We’re a very diverse city and we want to make sure that folks from all walks of life, all colors of your skin, have access to this opportunity,” says Anne Stuhldreher, director of the Financial Justice Project, a department within the San Francisco treasurer’s office that evaluates how fees impact low-income residents. “We know that income highly correlates with race.” 

For this reason, Stuhldreher supports the idea behind Be the Jury. “This is a good test case for the state in terms of if this kind of compensation would make a difference in creating more economically and racially diverse juries,” she says.

Douglas Welch, a San Francisco deputy public defender, says mostly white juries are problematic because everyone interprets evidence through the lens of their own lived experiences. Juries composed of individuals with higher incomes, who have enjoyed the benefits of generational wealth and white privilege, have “less understanding of realities that some people live in,” he says.

Welch also notes poor juror pay is not the only underlying cause of whitewashed juries in San Francisco. An exodus of people of color from the city over the past few decades is also a major factor. 

The burgeoning cost of San Francisco real estate has pushed out middle class residents of all ethnicities, but disproportionately impacts people of color. Furthermore, gentrification driven and informed by the tastes of young tech workers has transformed vast swaths of the city — erasing cultural institutions and touchstones and changing the fabric of neighborhoods that were once predominantly Black, Latino, or Asian. 

The Fillmore District was transfigured by so-called “urban renewal” efforts in the 1950s and ’60s, and its historic jazz clubs have long since been replaced by posh retailers. The city’s Black population has fallen from a peak of about 15 percent of the city’s total, to just 5 percent. Valencia Street in the Mission has become a high-end shopping district, contributing to the 27 percent decline in the neighborhood’s Latino population over the past decade. According to the Bay Area Atlas, 54 percent percent of low-income households of color live in neighborhoods being gentrified or at risk of gentrification. 

The contraction of San Francisco’s communities of color is not reflected in the city’s jails, however. Although the city’s population is just 5 percent Black and 40 percent white, the jail population is 48 percent Black and 40 percent white, according to the District Attorney’s office. The majority of Welch’s clients are people of color. 

“The communities that are most overwhelmed by our criminal legal system certainly should be supported in participating in the most important part of it, which is serving on a jury,” says Welch. “So many people are kind of disenfranchised from the ability to do it. It’s often the very people who are going to be the best jurors, and have the best understanding of reality.”

A study conducted by the The Racial Equity & Diversity Lab at Tufts University on group decision-making indicates diverse juries spend more time deliberating over the facts of a case than homogenous juries and are less likely to rely on bias. That’s an all-too-important endeavor when jurors come together to analyze someone’s life experiences, Welch says. 

“There are realities that many people confront that are just not on the radar of people of privilege,” says Welch. ​​“We all come from different experiences. Understanding some of the challenges of somebody who lives in a much more challenging environment that you live in is really important. The relationship that somebody from a position of privilege might have with law enforcement is sometimes going to be dramatically different in a lot of cases from the experiences of a poor person or a person of color.”

San Francisco’s Be the Jury passed through the state Senate in late June and awaits Gov. Gavin Newsom’s approval. If signed, the pilot program would go into effect in January and run until 2023. It’s co-sponsors hope it will be a catalyst for state reform. But other reformers say paying low-income jurors for their time is just one piece of the puzzle.

THE SHALLOW POOL

Have you ever wondered how the courts track you down to issue your summons? At least once a year, each county’s jury commissioner compiles a list of eligible jurors by randomly choosing from source lists. Under current state law, these indexes are compiled from the Department of Motor Vehicles and voter registrations. This means that only those who have a valid driver’s licence or are registered to vote get their jury summons. 

This selection process means millions of people, including many low-income people of color, are never asked to serve.

Beginning in January another new piece of state legislation, SB 592, also known as the Fair Juries Act, will expand those lists by requiring jury commissioners to add Franchise Tax Board records as sources for jurors. This means anyone who files income taxes will be added to the index. The goal of this bill, as authored by San Francisco Democrat Sen. Scott Wiener, is to broaden and diversify jury pools.

“The state of California has, for decades, only used the Department of Motor Vehicles and voter registration to summon jurors,” says Oscar Bobrow, chief deputy public defender in Solano County and a co-sponsor of the bill. “When you only use those two lists, based on historical data, you get an under-representation.” 

One study, which surveyed 1,275 residents on a master list in Orange County, found that when both voter registration and DMV lists were used, African Americans were underrepresented by 18.92 percent relative to their population. Another study found that 41.3 percent of jury-eligible people in California are not on voter register lists; a disproportionate amount of individuals on that list are people of color. 

Bobrow has been pushing for legislation to expand the jury summons lists since he was a deputy defender in Contra Costa county over a decade ago. Non-representative juries have long been prevalent in both counties. 

“Panels that are brought into the room are hugely disproportionately Caucasian,” he says. “You get a panel of 100 people and you see two people of color in the room on a regular basis. It precludes people from getting a fair cross section.”

He says that prior to the legislation, the state’s Supreme Court had acknowledged on more than one occasion that the juries in his county are not representative, but that this has been ruled “non-intentional.” While it may not have been intentional, he says, something needed to change.

Although at least 17 other states already use tax filers to select jurors, according to the California Public Defenders Office, Bobrow says the legislation took years to gain traction in the Golden State. 

Bobrow believes, at least in part, that may be due to the fact that failed legislative attempts included clauses for collecting data on jury demographics. He says California Jury Commissioners will not collect this kind of information, which is both perplexing and frustrating for himself and others trying to ensure jury pools are reflective of their counties. 

In 2017, Weiner had proposed SB 576. The bill would have required jury commissioners to issue a short questionnaire detailing a juror’s race, gender, ethnicity and ZIP code. That bill died in 2018.

“This was part of what we pushed for in legislation and we get shut down every time. Jury commissioners don’t collect it, they don’t care. Jury commissioners are, by statute in the state of California, required to tell the judges that they work for whether or not they are getting a fair cross section with the community,” says Bobrow. “How do you know whether you’re getting a fair cross section if you’re not collecting data on who’s showing up?”

Juries composed of all white men have been the norm for much of America’s history.

Despite a constitutional mandate that jury pools in the United States need to be representative of their population, almost no data exists in California that can prove juries are living up to the rule. 

Bobrow says the few states that do collect this kind of information, such as New York, are able to identify areas where more juror outreach should be conducted. 

In 2010, New York Gov. David Patterson signed the Jury Pool Fair Representation Act. The act allows commissioners to collect and assemble race and other demographic data into an annual report designed to address the underrepresentation of minorities on New York juries.

The law had also expanded New York’s source lists of prospective jurors from DMV and voter registration lists to include payers of income and property taxes, students receiving financial aid, senior citizens subject to rent increase exemptions, recipients of workers’ compensation, public housing residents, and people subscribing to certain utility services. 

“They collect the data and they have a report every year. It says, ‘These are the number of people that are summoned and this is a percentage of that population that is African American, Hispanic, Asian,’” says Borbow, “​​New York has expanded the roles of who they summon. They use at least four lists, and they merge and purge duplicate names, and they have a way more diverse population of people that show up.”

Without data on juror demographics, Bobrow says it will be difficult to identify the means by which California can also expand its potential juror lists. But still, he’s eager to see California’s new legislation come into play.

“Hopefully we will be able to see more diverse panels showing up for service in all the courts in the state,” says Bobrow. “With the expansion of this new list as well as the legislation that passed the year before, the inclusion of people that have had prior felony convictions.” 

FORMER FELONS

James Binnall was a year into his career as a San Diego criminal defender in 2009 when he was summoned for jury service. He walked through the “attorney’s only” entrance of the court and into the jury room, where he proceeded to fill out a potential juror questionnaire. 

When one of the routine questions asked if he had ever been convicted of a felony, Binnall checked “yes.”

In 1999, Binnall caused a DUI car accident that claimed the life of his best friend in the passenger seat. He served more than four years in a maximum security prison in Pennsylvania. During that time, he became passionate about the law and took his first LSAT behind bars. Six months after his release, he enrolled in the Jefferson School of Law in San Diego. He graduated in 2007, the same week his parole was set to expire. 

It was Binnall’s first time being summoned for service in California since he passed the bar in 2008. And it wasn’t until that day, moments later when he was dismissed from the court, that he learned his prior felony conviction meant he couldn’t serve on a jury.

“It was ironic to me and sort of hypocritical,” says Binnall. “You could go through the entire sort of vetting process for becoming an attorney and then also be summarily dismissed from jury service because they assume that because you have committed a felony that you’re just unfit to serve.”

Thus began Binnall’s decade-long project of researching and advocating for felons’ rights. His work was highly influential in the passing of California Senate Bill 310. The bill, authored by Assemblymember Nancy Skinner, restored the right to serve on a jury for people with past felony convictions who are not under state supervision or have a sexual violence record. Before January, anyone with a former felony conviction was barred for life from the juror box. 

“SB 310 was so crucial. It’s needed in California, in terms of the size of California, the diversity of California, and the size of the criminal justice system. It impacted a ton of people,” says Binnall, now an associate professor of law, and criminal justice at California State University, Long Beach, and the author of Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System. “Folks who were excluded missed out on this entire civic experience.” 

The legislation was passed in the wake of a broader ongoing discussion surrounding rights of those with criminal conviction records. Between 2016 and 2020, at least 13 states had expanded the right to vote for people with felony convictions, allowing millions of individuals once barred from that civic practice to join in democracy. California has allowed former felons who are not under state supervision to vote since 1974. 

When Newsom signed SB 310 in 2019, More than 20 other states, including Colorado, Illinois, and Maine, had already allowed people with past felony convictions to serve on juries, although restrictions on people under state supervision and the type of crime vary per state. Over 20 states continue to permanently deny anyone with a prior felony conviction. 

Resistance in allowing former felons to serve on juries was, and still is, palpable across the United States, says Binnall. Attempts in 2019 to pass bills to allow convicted felons to serve on juries recently failed in New York and Louisiana

“When it comes to folks with convictions across the country this is a very pervasive exclusion, far more so than voting,” says Binnall. “And obviously, this has a dispatrive impact on racial minorities because they are overrepresented in our criminal justice system.”

According to his research, an estimated 19 million Americans have felony convictions. Of that group, nearly 7 million were African American, despite comprising 13 percent of the U.S. population. Nationwide, approximately one-third of African American men have felony convictions. 

Even after California’s bill went into effect this year, Binnall noticed a prevalent issue: How would people with past felony convictions know they were now eligible to serve on a jury?

Months after the law went into effect, Binnall studied how each county in California was sounding the alarm bell to their former felons. He learned that 22 of 58 counties provided misleading, incorrect or insufficient information about eligibility. He says that only one county, to his knowledge, had a mechanism for getting former felons back on those potential jury lists if they had been removed. 

“Notification is crucially important if we want this legislation to have any effect at all on making jury pools more diverse,” says Binnall, adding that legislation was implemented to ensure notification to former felons regarding their right to vote in California. Jury service, he says, should be held to the same standard.

But Binnall has high hopes in activism for the rights of felons. Nearly 60 percent of Californians who voted in the 2020 election supported Prop 17, which extended voting rights to people with felonies who are under state supervision, lifting the disenfranchisement of an estimated 50,000 people.

“I think now that Prop 17 passed with respect to folks on supervision who could vote, it sort of undercuts the carve out for the jury system and its role. If folks are responsible enough to vote when they’re on supervision, why are they not responsible enough to serve, or at least to be put into the jury pool when they’re on supervision?” says Binnall. “I think that’s the next step in the evolution of this.”

BIAS BOX

Even if these legislative measures accomplish the goal of a broader, more representative jury pool, they still fail to address a major component in the lack of diverse juries around the nation: how ingrained racism, whether intentional or unconscious, continues to infect juror selection. 

Beginning next year, the final step of the juror selection process — known as voir dire — will undergo major reform in California. In September 2020, Newsom signed AB 3070, the Anti-Discrimination Jury Selection Act. The bill will amend an existing law said to enable wide-spread discrimination in jury selection. 

During voir dire, judges and prosecutors question the background of potential jurors for biases. Since the dawn of modern criminal cases, lawyers have been allowed to exclude a certain number of jurors without stating reason by issuing a peremptory challenge, also known as a peremptory strike. 

These strikes are intended to exclude jurors who may have bias that would impede their ability to have an impartial view on the facts of a case. Intentional discrimination in these strikes is against the law — both the California Supreme Court in 1978 and the U.S. Supreme Court in 1986 issued rulings, known together as Batson, against using race as the only reason to strike a prospective juror.

But a growing number of states, including California, have begun to acknowledge that what happens in the name of impartiality often disgueses discrimination.

A highly influential study led by UC Berkeley law professors and students set out to prove what was witnessed for quite some time. The study, “Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors,” analyzed almost 700 cases in which the California Courts of Appeal heard objections to peremptory challenges from 2006 to 2018. They found prosecutors tried to remove Black jurors nearly 75 percent of the time and Latinx jurors almost 28 percent of the time. Potential white jurors accounted for just 1 percent of these peremptory challenges.

“This is a process of exclusion that goes back to the very moment that this country allowed Black people to exercise the right to sit as jurors,” says Elisabeth Semel, director of the Berkeley Law Death Penalty Clinic and co-author of the study. “This is a long, long history. I came into this story as a lawyer in the mid 1970s and saw what other people had seen for generations.” 

Under current law, prosecutors who are challenged under Batson for removing a juror must state “race-neutral” reasoning. But Semel says stereotypes, often correlated with race, have been consistently used to justify striking jurors for decades. 

Her study revealed prosecutors in these cases successfully argued their peremptory challenges against African Americans because “they had dreadlocks, were slouching, wore a short skirt and ‘blinged out’ sandals, visited family members who were incarcerated, had negative experiences with law enforcement.” The report also found prosecutors had kicked potential jurors solely because they “lived in East Oakland, Los Angeles County’s Compton, or San Francisco’s Tenderloin.”

Judges rarely find that these kinds of answers constitute intentional racism, she says. In the last 30 years, the California Supreme has reviewed 142 cases with discrimination claims yet found just three violations. 

This new legislation takes a deeper approach. Prosecutors who are challenged under Batson will now have to provide clear and convincing evidence that their strikes weren’t related to an individual’s protected group, such as race or class. And AB 3070 goes as far as to provide a list of presumptively invalid reasons to exclude jurors, which are based on the findings in Semel’s report that are often used to strike people of color. 

A juror’s clothing, demeanor, employment status or neighborhood will no longer be a pretext for dismissal without grounds that these factors will hinder the impartiality of a juror. And notably, Semel says, expressing distrust in the criminal legal system or admitting to a negative experience with law enforcement is high on that list.

“It’s meant to address discrimination in a realistc way,” Semel says. “Much of discrimination is not purposeful or concious but it is the result of stereotypical thinking. It is intended to greatly reduce the reliance on stereotypes.”

This kind of progressive reform to a long held practice has not gone unchallenged, she says. Both the Alliance of California Judges and the Association of Deputy District Attorneys criticized the report and the legislation that followed, saying this new process is “unworkable” and will undoubtedly make the juror selection process longer and more difficult.

But to Semel and advocates around the state, it’s necessary. For too long, the jury system around the nation has been biased against minorities, she says. Furthermore, Semel contends it is the legislature’s mandate to ensure fairness to communities in their right to serve — and the trustworthiness, efficacy, and morality of the justice system hinges upon this effort.

“It matters to the integrity of the system,” she says of initiatives like Be the Jury and AB 3070. “It matters to people’s willingness to serve and people’s belief that the system actually is doing justice, as opposed to just chewing people up and spitting them out.”

Tags: , ,

Related Stories