Last week, the US Supreme Court heard oral arguments in the case of Berghuis v. Smith. Smith, who had been convicted in Kent County, Michigan of second-degree murder, objected to the pool from which his jury had been chosen. Of the 60 to 100 potential jurors, at most 3 were African American, despite the relevant county having 8% African American population. Smith objected to a local practice of assigning prospective jurors to courthouses near their homes, rather than randomly assigning them within the county. He argued that a trial in a rural courthouse would almost certainly result in a jury pool lacking an appropriate proportion of African Americans, since most of them lived in or near Grand Rapids. Smith also objected to the court's liberal dismissal of jurors for childcare or transportation hardship reasons, which, he argued, disproportionately applied to African American jurors.
The specific practices identified by Smith are important for the Court's evaluation of "systematic exclusion" of minority jurors. These practices, however, are not the focus of this entry. Rather, I am more interested in the Court's revisiting of an old, established and logically bankrupt standard for measuring the representativeness of a jury pool: the absolute disparity test.
The Twisted Logic of the Absolute Disparity Test
Since Swain v. Alabama, the Supreme Court has endorsed a particular formula for determining whether a jury pool is sufficiently representative. Calculate the baseline percentage of a minority group in the county's population. Subtract from this the percentage of minority representatives in jury pools (averaged over some period of time). This is the measure of "absolute disparity." Typically, if this absolute disparity is less than 10%, the jury selection scheme, on its face, does not violate the 6th Amendment's "fair cross-section" requirement.
Smith points out in his brief that it is not possible for a jury selection system to violate the provision unless the minority population of the county is at least 10%. Los Angeles County, for instance, only has a 9.45% black population. As such, under the absolute disparity test, the complete absence of any African Americans on any of LA's jury panels would still be Constitutionally acceptable.
Consider the following county level map of the United States, color-coded for African American population:
Only the counties that are orange or red could ever run afoul of the 6th Amendment cross-section requirement, regardless of their treatment of potential African American jurors. (Of course, any jurisdiction caught with a smoking gun policy of discriminating against minorities in jury selection would still run into 14th Amendment difficulties.) The rest of the country would seem to be free to completely ignore whether minorities ever get called for jury duty.
A True Measure of Representativeness
The alternative to the absolute disparity test is, unsurprisingly, the comparative disparity test. As with the absolute test, the first step is to calculate the percentage of the county that is African American. The next step, however, is to calculate the percentage of African Americans on jury panels as a proportion of the percentage in the general population. For instance, if a county is 8% black and only 3% of people on jury panels are black, the comparative disparity measure is 5/8 or 62.5%. The comparative disparity test is capable of calculating equivalently underrepresentation in both heavily minority counties and those with relatively few minorities.
Any statistician will tell you that a 5% variation in black representation might be caused by any sort of sampling error in a population that is 60% black, but such an absolute variation in a population that is only 10% black is almost certainly the result of systematic forces. The absolute disparity metric can mask what is really going on while the comparative one is more likely to alert interested parties when systemic underrepresentation is taking place.
Justice Scalia is flummoxed by the binomial distribution
After the case went back and forth in the Michigan state courts, Smith brought his case to Federal court. The Sixth Circuit Court of Appeals reasoned that the comparative disparity measure was more appropriately applied in cases like this one, where minority representation in the general population is relatively low.
In oral arguments at the Supreme Court, Justice Breyer seemed to understand the fundamental flaw in the previously controlling formula. He tried to enlighten his brethren by citing an example of an urn with two different colored balls in it. If there were 8% red balls, what are the chances that one would randomly only choose 3 red balls out of 100? This use of the binomial theorem seemed to annoy Scalia, who was unable (or unwilling) to conceive of the problem on this abstract level. He quipped, "But we don't have an urn, do we?"
With logic firmly shoved onto the back burner, most of the other justices seemed content to grill the litigants about the particular procedures (assignment to local courthouses and liberal hardship excuses) highlighted in respondent's brief. Justices Kennedy and Stevens did press Eric Restuccia, the Michigan Solicitor General, to explain when one formula should be used over another. He declined on the grounds that the only question before the court was whether the trial court's interpretation was inherently unreasonable.
Will common sense prevail?
It so rarely does. In this case, however, I don't think that supporters of the comparative disparity test need despair. I expect that the Court will find some way to decide this case on narrow, procedural grounds, upholding the general deference principal articulated in the AEDPA. This does not preclude, however, the justices from speaking to the issue of the correct test in dicta. If enough of the court's members come to appreciate the perverse results that emanate from application of the absolute disparity metric, we might just see a sea change in representativeness analysis for future cases.
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