By Bethany O’Neill, Cresston Gackle, and David Schultz
Individuals accused of crimes are entitled to a trial before an impartial jury of their peers.1 This is a bedrock principle of American law, with origins that date to medieval England. The idea is embodied in the Sixth Amendment, which requires the pool from which a jury is drawn to reflect a representative cross-section of the community.2 Yet what if the jury pool is not racially diverse enough to be representative of the community? This is the problem across Minnesota. Changing racial demographics in the state, coupled with the practices currently used to determine jury pools, are empaneling juries that are not racially representative. The result is that trials often fail to produce justice and perhaps even violate the Sixth Amendment.
Minnesota has a race problem. The murder of George Floyd brought to the fore of the public conversation again the racial disparities in education, income, and health care that plague Minnesota.3 There are also racial disparities in the criminal legal system, among them incarceration rates and police stops.4 Disparities also extend to the racial composition of juries.
At one time in American history, people of color were simply barred from serving on juries. This resulted in all-white juries convicting Black defendants of crimes.
Traditionally the focus on race and juries has come at the voir dire stage, where peremptory challenges were historically used to exclude prospective jurors on the basis of race. The U.S. Supreme Court ruled in Batson v. Kentucky5 that such practices violate the Constitution. Yet despite this ruling, studies point to continued racial discrimination and underrepresentation in juries across the nation.6 This problem extends too to Minnesota.
Juries in Minnesota underrepresent people of color
Nearly 30 years ago, the Minnesota Supreme Court’s Task Force on Racial Bias in the Judicial System wrote that “[t]he ethnic, racial and sexual makeup of a jury affects the outcome of cases” and that “grand and petit juries need people of color to truly reflect the whole community if the jury’s verdict is to reflect the community’s judgment.”7 At that time, the task force concluded:
“People of color are overrepresented in the number of individuals arrested and prosecuted and imprisoned, as well as in the number of individuals who are victims…. People of color waiting for justice or judgment abound. Yet somehow, people of color on the other side of the courtroom—in the jury box—are very hard to find. In fact, jury pools rarely are representative of the racial composition of our communities.”8
Over 25 years ago, Justice Alan Page recognized the systemic exclusion of Black people from juries in Minnesota. In a special concurrence in Hennepin County v. Perry, Justice Page outlined the county’s racially discriminatory practices and identified corrective actions that could be taken to combat the systematic, harmful, and dangerous exclusion of people of color from jury service. He wrote:
“While, on its face, the process used by Hennepin County to select grand jurors appears to be race-neutral, it has, for some time, disproportionately excluded people of color from participating in one of the most important and fundamental activities of our representative government. At some point, a purportedly race-neutral process that perpetuates and reinforces inequality of opportunity… is no different than a race-based process intended to produce the same result….”9
In the most recent assessment of jury diversity and representativeness in Minnesota, the Minnesota Supreme Court’s Committee for Equality and Justice studied data from jury trials in 2018 and 2019 and found that white, non-Hispanic Minnesotans are represented at a higher rate in jury pools than most other racial groups.10 Black and African-American Minnesotans made up 5.5 percent of the adult population yet only 3.3 percent of jury pools statewide, a comparative disparity of about 40 percent. Nearly half of all juries statewide in 2018 and 2019 were all-white.11 In Hennepin and Ramsey Counties—the busiest in the state in terms of filings and trials—the situation is similarly poor.12 Nationally, a 2018 national assessment of jury pool data in the federal courts determined that “underrepresentation of the Latin and African American population is ubiquitous.”13
How juries are selected in Minnesota
Title IX of the Minnesota General Rules of Practice governs the jury-selection process in Minnesota. The jury commissioner of each county, ordinarily the judicial district court administrator or their designee, is responsible for compiling and maintaining a list of prospective jurors called the “source list.”14 The Minnesota Statewide Jury Management Rules require each jury commissioner to create the source list for each county from two major databases: (1) the Department of Public Safety’s database of licensed drivers and Minnesota State ID card holders and (2) the Secretary of State’s database of registered voters.15
While, historically, jury source lists based on licensed drivers and registered voters may have been representative of the state’s population when it was 90 to 95 percent white Caucasian, it no longer is. People of color are underrepresented in jury pools because they are often underrepresented in the voter registration databases used to create the pools. Socioeconomic, historical, and geographic obstacles to voter registration mean that many racial and ethnic groups are not fully represented on voter registration lists.16 While Minnesota does not have statistics regarding the racial composition of those who hold driver’s licenses or who are registered to vote, there is evidence that people of color are underrepresented in both.
According to 2020 US Census data, 83.7 percent of white non-Hispanics were registered to vote in Minnesota. This compares to 53.5 percent of Black persons, 51.2 percent of Asian persons, and 55.8 percent of Hispanic persons.17 These differences in registration patterns reveal clear racial disparities in voter registration. If jury pool selection is based simply on voter registration, it will likely fail to produce a jury pool that is racially representative of the adult Minnesota population.
There are also racial disparities in who holds driver’s licenses. Because of privacy laws, independent academic research regarding race and possession of a driver’s license is difficult. Moreover, Minnesota does not maintain, or at least does not publicly release, data regarding race and the possession of a driver’s license. However, several studies have found racial disparities nationally and in other states, and there is reason to believe that Minnesota may reflect similar trends.
A 2012 Survey of the Performance of American Elections (SPAE) found that while 93 percent of white Caucasians nationally possessed a driver’s license, only 79 percent of Blacks and 90 percent of Hispanics possessed a driver’s license. A 2012 American National Election Service (ANES) study done by Vanessa Perez found that 95 percent of white Caucasians possessed a valid government identification, whereas only 87 percent of Blacks and 90 percent of Hispanics did.
An Employment Training Institute (ETI) study from 2017, Research on Disparate Racial Impacts of Using Driver’s Licenses for Voter IDs, documented the racial disparities in race and possession of a driver’s license. The report noted federal judge Lynn Adelman’s decision in May 2014 finding Wisconsin’s state photo ID law unconstitutional due to its adverse impact on many Wisconsin citizens. In his 90-page decision, Judge Adelman cited the ETI research indicating that only 47 percent of Black adults and 43 percent of Hispanic adults (compared to 73 percent of white adults) in Milwaukee County held valid driver’s licenses, as did 85 percent of white adults in the rest of Wisconsin, compared to 53 percent of Black adults and 52 percent of Hispanic adults. While the studies cited above were not of Minnesota, there is no reason to think Minnesota is exempt from the same or similar racial disparities.
Overall, there is compelling evidence that there are racial disparities in who has driver’s licenses and registers to vote in Minnesota. If so, then relying upon these methods to select jury pools will consistently under-represent racial minorities.
Why diverse juries matter
Racially diverse juries are better and more deliberative than non-diverse juries. “Compared to all-White juries, racially mixed juries tended to deliberate longer, discuss more case facts, and bring up more questions about what was missing from the trial.”18 Racially diverse juries “were also more likely to discuss racial issues such as racial profiling during deliberations.”19
Social science also reveals that a racially mixed jury, regardless of whether it produces an acquittal or a conviction, leads observers to believe that the outcome is fairer.20 When the jury is all white, convictions are seen as less fair. This is hardly surprising, since 87 percent of Blacks and 61 percent of whites believe that Blacks are treated less fairly than whites by the criminal justice system.21
Diverse juries also produce less biased verdicts.22 In a study of 785 felony trials occurring over a 10-year period, “researchers compared conviction results when there was at least one African-American in the jury pool[] with the results when there were no African-Americans in the jury pool.”23 The all-white pool convicted Black defendants 81 percent of the time and white defendants 66 percent of the time.24 When the pool included at least one Black person, 71 percent of Black defendants were convicted compared to 73 percent of white defendants. Just one diverse juror can and does make a huge difference.
The solution
Minnesota can produce more racially representative juries. The jury that convicted officer Derek Chauvin of the murder of George Floyd was half-composed of people of color in a county where approximately 83 percent of the population was white Caucasian.
The simple solution is to change the way jury pools are created. California recently added its state tax filing list as another source from which to draw juror names. Minnesota could do the same, either by way of a state legislative mandate or by court action.
The Minnesota General Rules of Practice allow the source list to be supplemented “with names from other lists specified in the jury administration plan.”25 And if the chief judge, or designee, determines that improvement is needed in either the inclusiveness of the jury source list or the representativeness of the jury pool, he or she must order corrective action.26 Nevertheless, no such order requiring supplementation of the source list has ever been issued in Minnesota.
But the mere fact that it has not been done does not mean that it can’t be done. The state may argue that this would create a logistical hardship for court administration. However, logistical problems for court administration or overburdened judicial systems do not trump a defendant’s constitutional rights.27
There is movement by some to change how we select juries. In the state’s Third Judicial District,28 for example, the local Committee for Equity and Justice (CEJ)29 has taken concerted action aimed at eliminating long-standing racial disparities on juries. (See sidebar, p.19.) The counties of the Third District are rapidly diversifying30 by race, yet people identifying as Asian, Black, Hispanic, and multiracial or other are all underrepresented at the reporting, voir dire, and sworn stages of the juror selection process, with comparative disparities frequently exceeding 40 percent in individual counties.31
The Third District CEJ, noting the specific problems that exist in the district with county and district-specific data in hand, wrote a letter asking Third District Chief Judge Joseph A. Bueltel to take “corrective action” to reduce racial disparities on juries. The Third District CEJ recommended, among other things, requiring the jury commissioner of each county to update the master jury source list every six months and requiring the integration of public assistance and unemployment compensation source lists.
On July 18, 2022, Chief Judge Bueltel issued several orders regarding translation of summons and other documents, but he rejected the demand to incorporate additional source lists.
Two recent developments may affect jury pool composition in the future. In February 2023 the Minnesota Legislature voted to restore ex-felon voting rights upon completion of their incarceration, and Gov. Tim Walz subsequently signed the measure into law. Two, on January 18, 2023, Hennepin County Judge John L. Lucas issued an order raising questions regarding the racial representation of juries in the Fourth Judicial District and indicating that some changes are needed. Both events could potentially address the problem of racial disparities in juries across the state.
Conclusion
For 30 years, the problem of racially disproportionate juries has been identified and analyzed by the judicial branch in Minnesota. Our jury system has perpetuated the creation of jury pools and sworn juries that are substantially racially unrepresentative of their communities. It is reasonable, both as a philosophical matter and as shown by data, that many people of color would have no confidence in a jury to reach fair decisions unless they believe those serving have some of the same experiences they do. In our deeply flawed society, many experiences are defined by race. By allowing our jury system to continue operating without proper corrective action, we endorse a system that consistently generates racially disproportionate juries. As Justice Page observed in 1997, there is scant if any difference to a person of color facing a jury trial between a “selection system that produces a disproportionate number of single-race juries” and one that intentionally excludes people of color.32 Reform of our juror selection system is long overdue.
Sidebar: A Third Judicial District update
After the state-level Committee for Equality and Justice issued its report, the Third District CEJ analyzed the comparative disparities and inclusivity rates of jury pools in Third District counties. Based on that review, the Third District CEJ sent a letter to Chief Judge Bueltel recommending corrective action, specifically:
- sending jury qualification questionnaires and summonses to non-responding persons at least twice;
- requiring redrawing of the venire for voir dire if the proportion of people of color is underrepresented until the proportion of people of color is adequately or overrepresented and requiring draws from the master source list to overdraw from communities, neighborhoods, and/or zip codes where people of color are overrepresented;1
- ordering that jury questionnaires and summonses be sent in multiple languages, including Spanish and Somali, and plainly indicate that English proficiency is not a requirement of jury service. Order that English-as-a-second-language speakers be provided an appropriate interpreter for simultaneous interpretation of all proceedings, including sworn jury service, if requested.2
On July 18, 2022, Chief Judge Bueltel ordered:
- the Third District’s chief court administrator and jury commissioner to work with the statewide Consolidated Jury Unit to translate the jury summons and questionnaire form into Spanish, Somali, Hmong, and Karen languages and to make these available online, at courthouses, and whenever requested;
- amendment of both documents (as well as the failure-to-respond notice) to notify recipients that translated versions of those documents are available online, at courthouses, and by mail;
- translation of the online jury summons questionnaire to allow answers in Spanish, Somali, Hmong, and Karen;
- amendment of Question 4 of the jury summons and questionnaire form to substantively convey that “[w]hile no exact level of English language skill or proficiency is required, you should be able to understand the evidence, the lawyers’ arguments, and the court’s instructions, and be able to discuss the case with other jurors in English. If you are unsure or concerned about your ability to communicate in English, you should come to court and tell the judge about your concerns, and the judge will decide if you are able to serve.”
The court denied the committee’s remaining recommendations.3
In September 2022, the Judicial Council authorized a pilot project in the Third District to implement most of the court-ordered changes. On January 20, 2023, Chief Judge Bueltel confirmed by email to justice partners that as of April 1, 2023, judges would be performing English proficiency screenings in the voir dire process if deemed necessary. The Judicial Council will review the pilot project in one year to consider expansion of the project to other districts.
Additionally, the Minnesota Supreme Court asked the Rules of General Practice Advisory Committee to review the jury management rules in September 2022. In late December 2022, that committee recommended wholesale changes to the jury management rules that would, if adopted, remove the authority of any chief judge to order corrective action in their districts to address inclusivity and representativeness issues in jury selection, including amendment of the source lists. The Minnesota State Bar Association’s appointed rules advisory committee members voted to endorse these changes with an exception, specifically to modify the proposed amendments so that a chief judge may still identify an issue with the jury selection process and raise it with the Judicial Council for discussion.
BETHANY O’NEILL is a former assistant public defender in the Second District Public Defender’s Office.
CRESSTON GACKLE is assistant public defender in the Third District Public Defender’s Office and a sole practitioner at Cresston Law LLC.
DAVID SCHULTZ is a Hamline University distinguished professor of political science and legal studies and University of Minnesota professor of law.
Notes
1 U.S. Const. amend. VI; Minn. Const. art. I, §6.
2 Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975); see also Minn. Stat. §593.31 (“It is the policy of this state that all persons selected for jury service be selected at random from the broadest feasible cross section of the population of the area served by the court…”).
3 David Schultz, “How We Got Here: Race, Police Use of Force, and the Road to George Floyd,” INEQ. INQUIRY (Apr. 2021), available at: https://lawandinequality.org/?s=how+we+got+here [perma.cc/76CV-EFPN].
4 Andy Mannix, Black drivers make up majority of Minneapolis police searches during routine traffic stops, Star Tribune, 8/7/2020, available at: https://www.startribune.com/black-drivers-make-up-majority-of-minneapolis-police-searches-during-routine-traffic-stops/572029792/; Andy Mannix, Minnesota sends minorities to prison at far higher rates than whites, Star Tribune, 4/14/2016, available at: https://www.house.leg.state.mn.us/comm/docs/b930ba62-979e-4714-9c4d-d9c708dddcf7.pdf
5 476 U.S. 79 (1986).
6 Equal Justice Initiative, Race and the Jury: Illegal Discrimination in Jury Selection (2021); see also Flowers v. Mississippi, 139 S.Ct. 2228 (2019).
7 Minnesota Supreme Court Task Force On Racial Bias in the Judicial System, Final Report, p. 36 (May 1993) (“1993 Racial Bias Task Force Report”), available at: https://www.mncourts.gov/mncourtsgov/media/scao_library/CEJ/1993-Minnesota-Supreme-Court-Task-Force-on-Racial-Bias-in-the-Judicial-System-Final-Report.pdf (citing Kenneth C. Vert, A Grand Jury of Someone Elses Peers: The Unconstitutionality of the Key-Man Selection System, 57 UMKC L.R. 505 (1989); Note, The Case for Black Juries, 79 Yale L.J. 531, 532 (1970)).
8 1993 Racial Bias Task Force Report at 32.
9 Hennepin Cty. v. Perry, 561 N.W.2d at 897-901 (Minn. 1997) (Page, J., concurring) (internal citations and quotation omitted).
10 See 2020-2021 Committee for Equality and Justice Study on Jury Race Data and Recommendations (2020-21 CEJ Report). This report was drafted by the Access and Fairness Committee, a subcommittee of the state-level CEJ.
11 Id. at 7.
12 Id. at 33, 36.
13 Mary R. Rose, Raul S. Casarez, & Carmen M. Gutierrez, Jury Pool Underrepresentation in the Modern Era: Evidence from Federal Courts, 15 J. OF EMPIRICAL LEGAL STUDIES 378, 379, 396 (June 2018) (finding 40% of African-Americans and 30% of Latinx people are not part of their community’s jury pools).
14 Minn. Gen. R. Prac. 806(a).
15 Minn. Gen. R. Prac. 806(b). In practice, the State Court Administrator’s Office compiles the list. See 2020-2021 Committee for Equality and Justice Study on Jury Race Data and Recommendations at p. 4.
16 Equal Justice Initiative, A History of Discrimination in Jury Selection, available at: https://eji.org/report/race-and-the-jury/a-history-of-discrimination-in-jury-selection/
17 2020 U.S. Census Data, U.S. Census Bureau, available at: https://www.census.gov/library/stories/state-by-state/minnesota-population-change-between-census-decade.html.
18 Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 CHI.-KENT L. REV. 997, 1028 (2003); see also Amanda Nicholson Bergold, What Psychology Says About Jury Diversity, Judges’ J., Spring 2022, at 6, 8–9 (2022).
19 Id. (researchers found that “more often than not, Whites on these heterogeneous juries were the jurors who raised [racial] issues”).
20 Leslie Ellis & Shari Seidman Diamond, Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 Chi.-Kent L. Rev. 1033, 1048-49 (2003); see Nina W. Chernoff, Black to the Future: The State Action Doctrine and the White Jury, 58 Washburn L.J. 103, 159 (2019).
21 John Gramlich, From Police to Parole, Black and White Americans Differ Widely in Their Views of Criminal Justice System, Pew Rsch. Ctr. (5/21/2019).
22 See Amanda Nicholson Bergold, What Psychology Says About Jury Diversity, Judges’ J., Spring 2022, at 6, 8 (2022).
23 Nina W. Chernoff, No Records, No Right: Discovery & the Fair Cross-Section Guarantee, 101 Iowa L. Rev. 1719, 1744 (2016) (citing Shamean Anwar, Patrick Bayer, Randi Hjalmarsoon, The Impact of Race in Criminal Trials, 127 The Quarterly Journal of Economics 1017 (2012)).
24 Id. at 1745.
25 Minn. Gen R. Prac. 806(b); 2020-21 CEJ Report at 3-4.
26 Minn. Gen. R. Prac. 806(f) (“if the chief judge, or designee, determines that improvement is needed in either the inclusiveness of the jury source list or the representativeness of the jury pool, appropriate corrective action shall be ordered” (emphasis added)); 2020-21 CEJ Report at 4.
27 See generally, State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986) (“[t]he delay… appears to be the result of our overburdened judicial system…[,] [t]he reason for this delay must weigh against the state. The responsibility for an overburdened judicial system cannot, after all, rest with the defendant”); Strunk v. United States, 412 U.S. 434, 436 (1973) (systemic issues like overcrowded dockets are delays caused by the government); Barker, 407 U.S. at 531 (“the ultimate responsibility for such circumstances [as negligence or overcrowded courts] must rest with the government rather than with the defendant.”)
28 The Third Judicial District is a set of 11 counties in the southeastern corner of Minnesota with 25 judicial officers. Minnesota Judicial Branch Website, Third Judicial District, available at: https://www.mncourts.gov/Find-Courts/Third-Judicial-District
29 The Third District Committee for Equity and Justice (CEJ) is a district chapter organization of the statewide CEJ, which reports to the Minnesota Judicial Council.
30 2020 U.S. Census Data, available at: https://www.census.gov/library/stories/state-by-state/minnesota-population-change-between-census-decade.html. Third District counties have grown relatively slowly (1.8% compared to 7.6% statewide from the 2010 census to 2020 census), but have outpaced the state as a whole in the percentage population growth of those identifying as Hispanic or Latino (6.3% growth in the Third District counties versus 6.1% growth statewide), Black (63% versus 47.7%), Native American (212.5% versus 54.7%), Asian (66.1% versus 44.7%), and two or more races (242.3% versus 176.3%).
31 Third District Committee for Equity and Justice letter to the Honorable Joseph A. Bueltel dated 3/25/2022, at pp. 3-4. See also Molly Castle Work, How all-white juries taint confidence in Rochester and Minnesota’s courts, Post Bulletin, 5/26/2022. Analysis of comparative disparities on a state-wide basis tends to mask the far larger disparities occurring at the county level.
32 See Perry, 561 N.W.2d at 897 (J. Page, concurring).
Sidebar Notes
1 The Minnesota Supreme Court Task Force on Racial Bias in the Judicial System, in its Final Report on pages S-14 to S-15, recommended amending the Jury Management Rules to allow Hennepin and Ramsey County District Courts to adopt new jury selection procedures that would guarantee minority representation on grand juries, requiring redraws of the venire until proportionality consistent with the census data was reached. Subsequent reports by the Judicial Branch seem to suggest that this change occurred without addressing that it appears the pilot project was never implemented by the Hennepin or Ramsey County District Courts. See Minnesota Judicial Branch Action Following the 1993 Minnesota Supreme Court Task Force on Racial Bias in the Judicial System and Recommendations for Minnesota Judicial Branch Action in FY20-21 at pp. 9-10. Meanwhile, scholars outside the state seem to believe that this system was actually implemented when it was not. See e.g., Hiroshi Fukurai & Darryl Davies, Affirmative Action in Jury Selection: Racially Representative Juries, Racial Quotas, and Affirmative Juries of the Hennepin Model and the Jury De Medietate Linguae, 4 Va. J. Soc. Pol’y & L. 645, 658 (1997); Nancy J. King, Racial Jurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action in Jury Selection, 68 N.Y.U.L. Rev. 707, 726 (1993).
2 New Mexico has already implemented a jury system that accommodates non-English speakers. Chief Justice Edward L. Chávez, New Mexico’s Success with Non-English Speaking Jurors, 1:2 Journal of Court Innovation 303 (2008), available at: https://www.courts.wa.gov/subsite/mjc/docs/2017/New%20Mexico%27s %20Success%20with%20Non-English%20Speaking%20Jurors.pdf.
3 See Third District Order Regarding Corrective Action to Improve Jury Pool Inclusiveness dated 7/18/2022, at p. 2. See also Molly Castle Work, Rochester district judge issues ‘corrective action’ to improve jury pool formation, Post Bulletin, 7/24/2022.