Benevolent Exclusion

53 Pages Posted: 3 Nov 2020 Last revised: 25 May 2021

See all articles by Anna Offit

Anna Offit

Southern Methodist University - Dedman School of Law

Date Written: 2020

Abstract

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet understudied problem, and it will only be exacerbated by the unevenly distributed economic fallout of the COVID pandemic. Like race and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but the diversity of ideas, experiences, and frames of interpretation that characterize the American population. By failing to make sure that the poor can serve, we impoverish our shared understanding of doing justice.

This Article offers a historical and empirical account of how socio-economic exclusion cuts prospective jurors from juries. It argues that the dominant rationale for such exclusion is a perception that poor and otherwise burdened prospective jurors should be excused from jury service for their own benefit. The effect of this superficially benevolent rationale, I argue, has been the concealment and reinforcement of class-based jury discrimination. The Article concludes that addressing this seemingly benign but exclusionary practice is an essential task for legal reformers. Further, it recommends instituting structural changes that would make it possible for any eligible person to serve, regardless of income or wealth.

Keywords: discrimination, poverty, juries, litigation, democracy, criminal procedure, race discrimination, poverty law, prosecution, judicial discretion, defense attorneys

Suggested Citation

Offit, Anna, Benevolent Exclusion (2020). Wash. L. Rev. (2021 Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 490, Available at SSRN: https://ssrn.com/abstract=3724467

Anna Offit (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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