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As the world’s eyes and ears focused on rhetoric from the White House, during the Trump Administration, about building a wall to keep Mexicans and other Latinos out, a wall of a different sort was under construction. This one wasn't to keep “outsiders” away. It was to keep “insiders” out. Often, the architects are found inside the clerk’s office at the local courthouse.
The Sixth Amendment guarantees the right of an accused to a trial by an impartial jury. Present-day litigation claims some courts violate the amendment by facilitating a jury selection process that excludes prospective jurors of color. Despite a documented disparity of minority presence on juries, some courts defend their practices, insisting that relying on voter registration records and random selection to find jurors satisfies their duty.
Use of only active voter registration records results in the exclusion of more than a third of eligible Black citizens from potential jury service and more than half of other eligible minority citizens, resulting in underrepresentation. You don't have to climb the wall or tumble it to see there is a better way.
For example, the Massachusetts Jury Commissioner compiles an annual resident list of each municipality and relays it to the district clerks at their request. By its very composition, a resident list of all persons in the district that are 17 years or older in the current year successfully minimizes the minority gap to ensure genuine representation. Without dependence on voter registration records, the district court will not compose jury wheels with outdated jurors, addresses or deceased persons.
Systemic racism exists when there are systems and structures in place to disadvantage a distinct racial group. The systematic process of predominately relying on voter registration lists contributes to the exclusion of people of color. People of color are disadvantaged by this process.
Exclusive reliance on voter registration lists and driver records creates holes within the jury wheel and impedes on the creation of a fair cross-section representation of the district, systematically failing to recognize jury service as a fundamental right towards Black Americans, and robs the accused of their right to an impartial jury. Changing the approach so supplemental lists are used along with or in place of voter registration records can remove this wall of systemic racism.
As guardians of the Sixth Amendment, courts must remain committed to ensuring a fair cross-section representation on juries. It’s time for these judicial architects to come to terms with the harm that systemic racism does to a country and the ways they contribute to it. As construction of the border wall designed to keep “outsiders” out has halted, the invisible wall keeping “insiders” out must also be demolished by courts to ensure people of color are properly represented on juries.
