Social De-Construction of Race and Affirmative Action in Jury Selection

Abstract

Recent race riots offer powerful and disturbing images and evidence of the cost of ignoring the apparent unfairness of court decisions made by all white juries. In the eyes of many marginalized segments of the community, the conviction of a black defendant or acquittal of a white defendant by an all white jury, against overwhelming evidence of his guilt, is deeply disturbing. The fact that a jury is all white has the powerful effect of racializing the jury proceeding. In the post-Civil War south, a series of similar atrocities occurred when the Ku Klux Klan's frenzy of violence and lynching, targeting blacks and white Republicans, went unpunished by all white juries. "It is notorious that practically never have white lynching mobs been brought to court in the South, even when the killers are known to all in the community and are mentioned in name in the local press," Gunnar Myrdal's 1944 work on race relations once declared.

Today, issues of racially mixed juries and racial balance in cases involving inter-racial crimes pose unique challenges to our judiciary, our criminal justice system, and the community. This article examines possible applications of affirmative action in jury selection to create racially heterogeneous juries. Since race-conscious affirmative action must rely on the clear conceptualization of race and racial definitions, the article first presents critical analysis of the conceptualization and formulation of race and racial classification. Specifically, the first section of this article attempts to deconstruct racial identity as defined by government-defined racial categories, suggesting that race is a social construction and racial identity is subject to individual and societal manipulation. This allows many individuals to pass as members of different racial groups. The article then empirically examines public perceptions of the affirmative jury structures, focusing on the use of mandatory racial quotas to engineer racially heterogeneous juries in criminal trials, specifically the jury de medietate linguae, the Hennepin model, the social science model, and a peremptory inclusive selection method. The article finally argues that, given the strong endorsement for the Hennepin and social science models of affirmative juries, both legislative and court-initiated actions may be needed to energize the public debate concerning the importance of racially mixed juries, the size of mandated racial quotas, and implications regarding applications of affirmative action in jury proceedings.

Keywords: social construction of race, race, racial identity, jury selection, lay participation in the justice system, racial politics, legal construction of race, political construction of race, performative construction of race