Looking Beyond the 12 Angry Men: Why the Jury System Needs Reform

Juries occupy a curiously outsized space in popular culture; movies such as 12 Angry Men (1957) dramatize the jury selection process, personalizing the often cold world of criminal justice. And yet, despite their significance in the American consciousness, juries have been the object of great scrutiny as of late. What drives this criticism, and is there a solution?

The problem with juries starts at the very first step of the selection process: the creation of jury pools. Potential jurors are picked from a list the respective county keeps of eligible adults, usually taken from a list of registered voters in the district. While the picking itself is random, the list is already skewed by virtue of voter registration restrictions that target low income and minority communities. For example, procuring a government-issued ID is often expensive, even if the ID itself is free of cost. For one, the underlying documents required to get this ID, such as birth certificates, often cost money. Moreover, additional travel is a burden, especially for people in rural areas and people with disabilities. All this amounts to minority citizens disproportionately lacking ID, and therefore making up a disproportionately small portion of the jury pool.

Even if people of colour and those of lower socio-economic status were to make it into the jury pool, they can then be ‘struck’ and thus prevented from serving on the jury by either of the attorneys. One way this is done is through the peremptory challenge, i.e. an objection to a proposed juror that requires no evidence, and is often used to strike people of colour and women from jury pools. An attempt to solve the issue of discriminatory use of the peremptory challenge was made via the establishment of the Batson challenge, following Batson v. Kentucky where the practice of dismissing jurors based solely on their race, ethnicity, or gender, was determined to be in violation of the Equal Protection Clause of the Fourteenth Amendment. However, the ineffectiveness of this mechanism is well known. As long as an attorney can posit that the the juror was struck for reasons other than purely their race, ethnicity, or gender, the strike is allowed.

What this leads to is a “middle class, all-white jury.” Not only does this undermine the legitimacy of the jury, a system necessarily founded upon the principle of being judged by one’s peers, it also has real, concrete consequences. The tendency of white jurors to “convict black defendants in instances in which white defendants would be acquitted” is well documented. In the state of Washington, for example, jurors are “three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case,” despite the fact that prosecutors were actually more likely to seek the death penalty in cases with white defendants.

The system works against people of colour, even when they are the victims of a crime. A well-known example is the case of Emmett Till, a 14-year-old boy from Chicago who was murdered by two white men in 1955. The men were acquitted by a jury of twelve white men that deliberated for less than an hour. Till was murdered after one of the men’s wife accused him of harassing her, a statement she later recanted.

Aside from the systemic issues with jury selection, there also exist individual cases involving misuse of power. For example, it has been alleged that since grand juries in New York rely on the Assistant District Attorney for any information, they can be misinformed or manipulated at his or her discretion.

Of course, all of this is contingent on a case making it to trial in the first place. Public attorneys are notoriously overworked and overburdened. Last month, the New York Times reported on a public defender in Louisiana working 194 felony cases in one day, and some cover even more. Given the sheer volume of cases to get through, it is hardly surprising that so many defenders push plea bargains onto clients. This is exacerbated by the lengthy jury selection process. Overworked defenders don’t want to expend time they don’t have fighting with prosecutors over potential jurors, and thus are more likely to encourage their clients to take the prosecutor's deal. Plea bargains themselves can also disproportionately harm defendants of colour in those cases where race is used as a proxy for a person’s likelihood to reoffend.

All the issues raised by misrepresentation within juries are further magnified given the conditions under which jurors operate. Federal jurors are paid $50 a day, and employers are not required to continue an employee’s salary during jury service. This imposes a harsh financial burden on jurors, which just adds to the already high psychological burden of being on a jury. In a legal system that relies on the relatively uninformed decisions of jurors, lawyers often resort to graphic images and descriptions to gain attention. As a result, many jurors report symptoms of Post Traumatic Stress Disorder (PTSD), especially following criminal trials.
Given the systemic problems with juries, many attorneys have begun taking unconventional approaches to the selection process. For example, as we saw in the highly publicized trial of Martin Shkreli, lawyers have started favouring uninformed jurors to avoid any chance of bias by simply circumventing a potential juror who might have information not just on the specifics of the case, but also on the general area of discussion.

Obviously, there are many problems with the jury system as it exists in America, and no easy solutions. The most obvious way out seems to be expanding voter registration, especially in minority communities, and having stricter criteria for peremptory strikes. And yet, this is but one more area of necessary reform within a deeply broken criminal justice system.