Abstract
The “liberation” of slaves by President Lincoln’s Emancipation Proclamation in the course of the Civil War laid a new foundation for the legal rights of blacks that then had to be vindicated by political, military, and legal steps. As Union troops advanced into the South, the Proclamation brought freedom to slaves in all conquered regions not specifically exempted from it (Trefousse, 1987). When the dust of war settled and southern blacks were once more being controlled by reestablished, majority-dominant legislatures and the narrow economic structures of share-cropping and company towns, the courts became the only avenue for securing the most nominal human or civil rights case-by-case.
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Notes
Several Supreme Court decisions have cited the statistical significance of racial underrepresentation. However, judicial notice was taken on the basis of probability only, rather than statistical indices (Z scores from a bimodal distribution) as in Castaneda v. Partida. See Alexander v. Louisiana, 405 U.S. 1972 at 630 n.9 (probability 1 in 20,000) and Whitus v. Georgia, 385 U.S. 1967 at 552 n.2 (probability 6 in 1,000,000).
For a detailed discussion of expert testimony on jury decisions, see Tandon (1979), Hosch (1980), Hosch, Beck and McIntyre (1980), Morse (1982), and Poythress (1982).
Rowland (1979, p. 324) suggested that the nonrepresentation biases in the selection of grand juries and in discriminatory performance in Harris County, Texas, continued to persist between 1972 and 1975. The research points out that, 30 years after Smith v. Texas, Harris County grand juries were still typified by the pattern of homogeneous racial composition and rubber-stamp performance (also see Carp, 1974).
In reality, the black population was underrepresented in the jury pool by 42%–50%; that is, by using a statistical index called comparative disparities (see Table 4.3) there were approximately 50% fewer potential black jurors than if the jury had included a full cross-section of the community. The underrepresentation of black jurors in the Swain case will be reiterated in a later section (see Table 4-4).
The table figures are based on the statements from the Supreme Court Recorder, not from the actual case transcript from the lower court.
It is not surprising that, in 1967, the same year all four of these causes were decided, Carmichael and Hamilton coined the term “institutional racism” in their book Black Power: The Politics of Liberation in America (1967).
For example, in Castaneda v. Partida (430 U.S. 482 1977), the Supreme Court ruled that, once a prima facie case has been established, it is the State’s responsibility to rebut the presumption of discrimination by answering such questions as: How many Mexican-Americans listed in the census figures were not citizens of the State? How many were migrant workers and not residents? How many were illiterate? How many were not of sound mind and good moral character? And how many had been convicted of a felony or were under indictment for or legal accusation of theft or a felony? Traditionally, however, litigants emphasized representation more than they have attacked a discretionary selection scheme.
The footnote from the Supreme Court Reporter noted: “The reason given by the school superintendent for this segregation was that these children needed special help in learning English. In this special school, however, each teacher taught two grades, while in the regular school each taught only one in most instances. Most of the children of Mexican descent left school by the fifth or sixth grade” (Hernandez v. Texas, 347 U.S. 479 1954).
These two models appear to support the Court’s position, as the Court draws a dear racial demarcation for the function of discrimination.
The footnote says that men in Florida could have requested an exemption because of the following limitations: age, bodily infirmity, or being engaged in certain occupations (Hoyt v. Florida, 368 U.S. 62 1961). Underscores are added to highlight the Court’s view on women’s domestic role.
In the footnote, Justice Murphy stated, “See statement of Judge John C. Knox in Hearings before the House Committee on the Judiciary, 79 Cong., 1st Sess., on H.R.3379, H.R.3380, H.R.3381, Serial No. 3, June 12 and 13, 1945, p. 4. When jurors’ compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship.’ Id., P. 8.”
Of significance, of course, is how cases are selected for U.S. Supreme Court review. Despite our search of the research literature, our courtroom experience, and historical and contemporary court cases involving the underrepresentation of racial and ethnic minorities on juries, we still have not been able to ascertain, either historically or currently, why some cases are reviewed and others with virtually identical underrepresentation of minorities do not receive any recognition beyond the local superior court level.
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© 1993 Springer Science+Business Media New York
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Fukurai, H., Butler, E.W., Krooth, R. (1993). The U.S. Supreme Court, the Constitutional Background of Jury Selection, and Racial Representation. In: Race and the Jury. The Plenum Series in Crime and Justice. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-1127-8_4
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