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Excerpted From: Nina W. Chernoff, Black to the Future: The State Action Doctrine and the White Jury, 58 Washburn Law Journal 103 (Winter, 2019) (521 Footnotes) (Full Document)


In 1967, Charles L. Black described “the ‘state action’ problem” as “the most important problem in American law.” In 2019, racial inequality is one of the most critical problems in the American criminal justice system. This article demonstrates that Black's critique of state action doctrine applies with equal force to modern courts' analysis of claims that a criminal jury has not been selected from a fair cross-section of the community.

The right to a jury selected from a fair cross-section of the community is guaranteed by the Constitution, a federal statute, and the laws of all fifty states. There is a significant amount of evidence, however, that jury pools do not reflect a fair cross-section of their communities, in that they underrepresent African-Americans and Latinos. But despite the gap between the robust right to representation and the consistent evidence of underrepresentation, defendants who raise fair cross-section claims almost always lose them. One study of fair cross-section claims in federal and state courts between 2000 and 2010 found that of 167 claims, defendants prevailed in exactly none.

One possibility, of course, is that none of those claims had merit. Another possibility is that courts are rejecting legitimate fair cross-section claims by applying the wrong legal standard. This article explores the second possibility, that courts are confusing the standard for evaluating violations of the fair cross-section right (under the Sixth Amendment) with the standard for evaluating violations of the equal protection right (under the Fourteenth Amendment). The two rights are very different. Drafted almost eighty years apart, the rights were established in response to different threats and provided distinct protections. As a result, the Supreme Court has articulated different requirements for establishing violations of the two rights. But over the years, judges have mixed them up, importing the requirements of the (better known) equal protection standard into that of the (less familiar) fair cross-section right. As a result, courts are failing to enforce the Sixth Amendment's unique entitlement to a racially representative jury pool.

This article reveals and critiques one of the most problematic equal protection imports: state action doctrine. Specifically, courts are employing the state action doctrine from equal protection analysis as a tool for determining when racial underrepresentation in a jury system violates the Sixth Amendment. Not only is state action doctrine incongruent with the fair cross-section right, the extensive critique of the doctrine's incoherence in the equal protection context is just as applicable here. State action doctrine is based on incoherent distinctions between government action and the choices of private citizens, and between governmental action and inaction. The resulting judicial line-drawing is therefore not a principled way to distinguish conduct covered by the Constitution from conduct that is not.

Part I provides the baseline for this article's critique by explaining the differences between the standards for fair cross-section and equal protection violations.

Part II identifies the components of state action doctrine and asserts that courts are using a functional equivalent of that doctrine to decide fair cross-section claims.

In Part III, the article demonstrates how the incoherence of state action doctrine (as critiqued in the equal protection context) is similarly unsound as applied to fair cross-section claims. Part IV identifies the harm of importing a flawed doctrine into fair cross-section analysis.

The article concludes, in Part V, with recommendations for an analytical approach that is more coherent than state action doctrine and more consistent with the Sixth Amendment.

[. . .]

The underrepresentation of African-Americans and Latinos in jury pools is ubiquitous, and those unrepresentative jury pools imperil criminal defendants and engender public distrust. In a country where police officers, prosecutors, and judges are disproportionately white, and criminal defendants are disproportionately people of color, it is untenable for states to turn a blind eye to the problem of disproportionately white jury pools. And it is indefensible for courts to hide behind the formalism of functional state action doctrine to deny the claims of criminal defendants who have been deprived of the protection of impartial juries.

If the Supreme Court is right and the “methods we employ in the enforcement of our criminal law [are] the measures by which the quality of our civilization may be judged,” then the persistent disparities in American juries place us in jeopardy. Functional state action doctrine must therefore be replaced with “doctrines actually fitted for this work,” and we should adopt Charles Black's admonition to make “every prudent ... use of law” to remedy the racial and ethnic inequality in the jury system.