Wednesday, October 17, 2018

Abstract

Excerpted from: Stacy L. Hawkins, Batson for Judges, Police Officers & Teachers: Lessons in Democracy from the Jury Box, 23 Michigan Journal of Race and Law 1 (2017-2018) (300 Footnotes) (Full Document)

 

Stacy L HawkinsThe stark contrast in voice reflected in the above quotes echoes the contrasting sentiments they embody. On the one hand, we guarantee that all persons are equal and, therefore, ought to have an equal share in the process of democratic self-government. That is the formal expression of our aspirational ideal for democratic equality. On the other hand, the lived experience for many racial minorities is one of exclusion from participation in our democracy. Historically that exclusion was total, but even people of color experience far from equal participation in the many institutions that comprise our democracy. Although we continue to fall short in realizing the promise of democratic equality, there is one democratic domain where we have fared better, and more importantly, tried harder, in realizing our aspirations for democratic equality than most others--the jury box.

This paper draws on lessons from the jury context to suggest how we ought to do democracy more broadly. Specifically, the focus here is on applying these jury insights to demands for increasing racial diversity among judges, police officers, and teachers as key democratic decision-makers not wholly unlike jurors in the extent to which they too ought to adequately reflect the communities they serve. Although there is a fairly wide legal literature calling for greater racial diversity among judges in particular, and to some lesser extent among police officers and teachers, this contribution to that literature is unique insofar as it draws an analogy between these contemporary calls for greater racial diversity among judges, police officers, and teachers as key democratic decision-makers, and a long history and tradition of pursuing increased racial diversity among a different set of key democratic decision-makers - jurors. This paper bridges the gap in the existing literature by first recounting the deep history and tradition of guaranteeing democratic equality in jury selection through efforts to ensure racial diversity among jurors, and then applying those jury insights to judges, police officers, and teachers.

The jury literature is extensive. Many scholars have extolled the democratic virtues of increased racial diversity among juries made possible by, among other things, doctrinal developments in the equal protection jurisprudence of jury selection. The jury selection system is by no means perfect, but it has improved dramatically over time to expand the racial diversity of jurors. A likely reason for this exceptional approach in jury context is that the jury is held up as emblematic of our highest ideals for democratic self-government. Underlying these efforts is an acknowledgment that the failure to ensure racial diversity among jurors betrays our fundamental commitment to democratic equality.

Despite this long history and tradition of valuing racial diversity in jury selection and service, and the concerns for democratic equality informing this tradition, we have largely failed to appreciate parallel concerns for democratic equality that might animate similar calls for greater racial diversity among judges, police officers, and teachers. The jury may be a unique feature of our democracy, but there are many other democratic institutions that serve as equally important sites of civic participation in our democracy. In a democracy โ€œof the people, by the people, and for the people,โ€ these institutions should similarly reflect a commitment to racial diversity as a guarantee of democratic equality. This paper suggests that how we treat jury selection, and in particular, our deliberate efforts to promote racial diversity in jury service, ought to be instructive for how we pursue racial diversity and approach selection for civic participation in these other democratic domains.

This paper is divided into three parts. Part I explains the democratic significance of juries and traces the deep, historic intersection between juries and race in America. Synthesizing political theory, social science research and the equal protection jurisprudence of jury selection, this Part first identifies why the jury is an exemplar of our democratic ambitions for self-government and then reveals why racial diversity in jury selection and service is critical to the realization of those democratic ambitions.

Borrowing from the theory of representative bureaucracy in the public administration literature, Part II extends the democratic lessons of the jury to the judiciary, law enforcement and public education. By demonstrating that each of these other civic domains also has great significance in our democracy and poses equal challenges to our aspirations for democratic equality when public decision-makers in these domains fail to adequately reflect the diversity of the citizens they serve, this Part suggests some basis for analogizing these domains with the jury. Part II offers both theoretical and empirical support for the claim that the lack of racial diversity among judges, police officers, and teachers not only betrays our commitment to democratic equality, but also undermines the legitimacy of our democracy.

Finally, Part III offers some preliminary ideas for how we might address the democratic dilemma posed by the existing lack of racial diversity among judges, police officers, and teachers without violating the constitutional on government uses of race. Borrowing lessons from the equal protection jurisprudence of jury selection, this Part suggests that we can similarly engage in deliberate, race-conscious efforts to promote greater diversity among judges, police officers, and teachers in constitutionally permissible ways. The equal protection jurisprudence of jury selection reveals that the democratic legitimacy attained when public decision-makers reflect the diversity of the communities they serve is undoubtedly a compelling government interest. By structuring these raceconscious efforts to mirror those that have been undertaken in the jury context, they can be narrowly tailored in ways that promote meaningful racial diversity within the judiciary, law enforcement, and public education while also ensuring their constitutionality.

. . .

The jury is rightly revered in America for reflecting our highest aspirations for representative democracy, and in particular for striving to realize the guarantee of democratic equality on behalf of minority citizens. Procedural justice theory helps explain why issues of race, and in particular attention to guaranteeing racial diversity, has always figured so prominently in our constitutional jury jurisprudence. Racially diverse juries foster the trust and accountability necessary to legitimize our judicial system in the eyes of a diverse citizenry. But these principles ought not be confined to the jury context. The jury is merely instructive for how we ought to do democracy more broadly. Representative bureaucracy theory helps extend the claim for racial diversity as a guarantee of democratic equality from the jury to other equally important sites of civic participation in our democracy. The research on representative bureaucracy demonstrates that racial diversity among judges, police officers, and teachers is equally critical to fostering trust and promoting accountability to minority citizens in the judicial, law enforcement, and public education domains.

Borrowing from the Supreme Court's jury jurisprudence, as embodied in Batson and its progeny, we can identify principles and strategies for achieving racial diversity that can be applied in these other domains. By adopting race-conscious efforts designed to achieve a fair cross-section of racial diversity among judges, police officers, and teachers, we can ensure โ€œ[e]ffective participation by members of all racial groups in the civic life of our Nation,โ€ and prevent the kinds of harms that political philosopher Denise Allen cautions would threaten the stability of our democracy and subvert our aspirations for government of the people, by the people, and for the people.


Associate Professor, Rutgers Law School

 

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