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Monahan	1	
	
	
“Race-Qualified”	Juries?	Addressing	Racial	Bias	in	the	Jury	System	
by	Caroline	Monahan	
	
I.	Introduction	
	 America	is	in	the	midst	of	an	intense	moment	in	the	fight	for	minority	rights	in	the	
justice	system.	The	recent	spate	of	failures	by	juries	to	indict	police	officers	who	have	killed	
black	individuals	have	renewed	calls	that	many	have	been	making	for	years—that	the	
American	jury	system	is	inherently	biased	against	black	individuals	and	other	minorities.	
After	the	jury	decisions	were	handed	down	for	the	racially	charged	cases	of	Michael	Brown,	
Trayvon	Martin,	and	Eric	Garner,	thousands	of	protesters	filled	the	streets	in	cities	across	
America	to	echo	the	common	cry	spreading	across	the	United	States—“No	justice,	no	peace.”	
As	the	grand	jury	proceedings	for	many	of	the	black	men	and	women	killed	at	the	hands	of	
police	came	to	a	close	and	new	similar	cases	emerged,	calls	of	racism	and	unfair	jury	
processes	have	continued	to	resound	throughout	the	US.		
While	American	political	scientists	and	politicians	extol	our	white	“Founding	Fathers”	
and	principles	of	democracy,	equality,	liberty,	mutual	obligation,	and	respect	as	set	forth	by	
white	Enlightenment	thinkers,	many	argue	an	entire	section	of	the	population	is	being	treated	
with	the	exact	opposite	of	these	ideals	by	biased,	largely	white	juries.	The	immense	
consequences	of	failing	to	craft	a	more	inclusive,	representative	justice	system	should	be	
noted.	The	United	States	needs	a	jury	system	that	reflects	the	diverse	views	and	experiences	
of	its	citizens	and	ensures	all	its	citizens	feel	adequately	represented	and	protected.	A	failure	
to	address	the	issues	inherent	in	the	current	system	will	result	in	a	lack	of	trust	in	or	feeling	of	
legitimacy	of	the	justice	system,	which	is	the	bedrock	of	a	functioning	state.	The	current	jury	
system	needs	to	be	reformed	in	such	as	way	that	will	instil	trust	in	the	structures	of	justice,
Monahan	2	
allow	the	state	to	continue	legitimately	exist,	and	begin	to	create	an	environment	in	which	all	
members	of	the	community	receive	just	and	equal	sentencing.	In	this	paper,	I	will	explore	the	
extent	of	bias	in	the	American	jury	system	and	examine	possible	responses	to	curb	prejudice	
in	the	system,	considering	issues	of	representation	and	democratic	ideals.	I	will	find	that	the	
system	should	strive	for	a	“race-qualified”	jury	determined	in	the	voir	dire	process,	similar	to	
that	of	a	death-qualified	jury,	in	order	to	instil	a	sense	of	validity	and	fairness	in	the	system.	
This	will	achieve	a	jury	system	in	which	all	members	of	society	feel	represented	and	valued.	A	
valid,	impartial	judicial	system	is	key	to	the	functioning	of	a	legitimate	democratic	state.	By	
decreasing	the	effect	of	bias	and	its	existence	in	the	jury	in	crafting	a	“race-qualified”	jury,	the	
United	States	will	cement	the	legitimacy	that	had	been	brought	into	question	by	many	in	
minority	communities.		
	
II.	Implicit	Bias	and	the	Jury	
	 Implicit	biases	permeate	every	level	of	public	and	private	level.	Much	research	has	
been	conducted	that	details	the	extent	to	which	individuals	have	implicit	biases,	which	jurors	
are	not	impervious	to.	A	Harvard-run	study	of	general	implicit	biases	through	an	online	
Implicit	Association	Test	(IAT)	found	that:		
“-	Implicit	biases	are	pervasive.	They	appear	as	statistically	“large”	effects	that	
are	often	shown	by	majorities	of	samples	of	Americans.	
-	People	are	often	unaware	of	their	implicit	biases.	Ordinary	people,	including	
the	researchers	who	direct	this	project,	are	found	to	harbor…	implicit	biases…	
even	while	honestly…	reporting	that	they	regard	themselves	as	lacking	these	
biases.
Monahan	3	
-	Implicit	biases	predict	behavior...	[T]hose	who	are	higher	in	implicit	bias	have	
been	shown	to	display	greater	discrimination...		
-	People	differ	in	levels	of	implicit	bias.	Implicit	biases	vary	from	person	to	
person—for	example	as	a	function	of	a	person’s	group	memberships,	the	
dominance	of	a	person’s	membership	group	in	society,	consciously	held	
attitudes,	and	the	level	of	bias	existing	in	the	immediate	environment.	This	last	
observation	makes	clear	that	implicit	attitudes	are	modified	by	experience.”1	
Implicit	biases	thus	influence	many	aspects	of	day-to-day	interactions.	The	IAT	has	shown	
that	“seventy-five	percent	of	those	who	have	taken	the	[test]	have	demonstrated	implicit	
racial	bias	in	favor	of	Whites.”2	Racial	biases	thus	surface	in	many	spheres	of	public	life—and	
the	jury	is	no	exception.	Justin	D.	Levinson	notes	the	presence	of	racial	bias	in	capital	cases,	
saying,	“death	qualification	may	activate	jurors’	implicit	racial	stereotypes	by	indirectly	
priming	racial	constructs.”3	Similarly,	Anna	Roberts	highlights	that	the	Supreme	Court	has	
acknowledged	the	existence	of	racial	bias	in	pointing	to	Justice	Brennan’s	dissenting	opinion	
in	Turner	v.	Murray:	“[I]t	is	certainly	true,	as	the	Court	maintains,	that	racial	bias	inclines	one	
to	disbelieve	and	disfavor	the	object	of	the	prejudice,	and	it	is	similarly	incontestable	that	
subconscious,	as	well	as	express,	racial	fears	and	hatreds	operate	to	deny	fairness	to	the	
person	despised…”4	Justice	O’Connor	also	notes	in	a	dissent	in	Georgia	v.	McCollum	that	“It	is	
by	now	clear	that	conscious	and	unconscious	racism	can	affect	the	way	white	jurors	perceive	
																																																								
1	Judge	Mark	W.	Bennett,	“Unraveling	the	Gordian	Knot	of	Implicit	Bias	in	Jury	Selection:	The	Problems	of	Judge-
2	Cynthia	Lee,	“Making	Race	Salient:	Trayvon	Martin	and	Implicit	Bias	in	a	Not	Yet	Post-Racial	Society,”	North	
Carolina	Law	Review	91	(2013):	1555,	1572	
3	Justin	D.	Levinson,	“Race,	Death	and	the	Complicitous	Mind,”	DePaul	Law	Review	58	(2009):	599,	623	
4	Turner	v.	Murray,	476	U.S.	28,	42	(1986).	Also	note	Crawford	v.	United	States,	212	U.S.	183,	196	(1909)	(Anna	
Roberts,	“(Re)	Forming	the	Jury)	Connecticut	Law	Review	Vol.	44	(2012):	827,	837)
Monahan	4	
minority	defendants	and	the	facts	presented	at	their	trials,	perhaps	determining	the	verdict	of	
guilt	or	innocence.”5		
Kang	et.	al	provide	an	in-depth	summary	of	the	many	studies	conducted	to	affirm	juror	
bias	in	trials—they	emphasize	findings	by	researchers	Justin	Levinson	and	Danielle	Young	
that	concluded	that	skin	color	influenced	how	jurors	analyzed	the	evidence	for	mock	cases	
and	affected	their	responses	to	the	question,	“How	guilty	is	the	defendant?.”	Participants	
graded	guilt	levels	on	a	scale	of	100,	and	there	was	a	10.6	point	difference	in	mean	ratings	of	
guilt	for	the	defendants	of	color.6	Kang	et.	al	note	that	while	this	may	seem	in	theory	like	a	
relatively	small	difference,	in	practice,	this	results	in	huge	differences	in	conviction	rates	of	
white	defendants	as	opposed	to	black	defendants.	They	highlight	another	study	by	Tara	
Mitchell,	who	found	that	a	defendant’s	race	affected	both	verdicts	and	sentencing,	although	
the	magnitude	of	effect	sizes	was	small.	Kang	conducts	an	analysis	of	the	seemingly	small	
effect	size,	however,	and	finds	that	if	white	juries	issued	guilty	verdicts	in	eighty	percent	of	
their	convictions,	then	the	rate	of	conviction	for	black	defendants	would	be	83.8%,	as	opposed	
to	76.2%	for	white	defendants.	While	this	may	not	seem	like	a	large	difference,	Kang	indicates	
that	in	a	group	of	one	hundred	otherwise	identical	trials,	eight	more	black	than	white	
defendants	would	be	ruled	guilty.7	Implicit	bias,	then,	is	clearly	extremely	prevalent	in	juries.	
It	results	in	higher	rates	of	conviction	for	defendants	of	color	in	identical	cases	and	
permanently	alters	the	lives	of	defendants	of	color	simply	because	of	their	skin	color.	This	
presents	an	immense	issue	for	a	system	of	justice	that	is	intended	to	be	blind	and	thus	
legitimate.				
	
																																																								
5	Georgia	v.	McCollum,	505	U.S.	42,	68	(1992)	
6	Kang	et.	al,	“Implicit	Bias	in	the	Courtroom,”	UCLA	Law	Review	59	(2012)	
7	Kang	1143
Monahan	5	
III.	A	“Jury	of	One’s	Peers”—Representation	and	Juries	
	 The	role	of	the	jury	is	typically	seen	as	providing	defendants	with	a	group	of	
individuals	from	their	society	that	is	able	to	be	an	impartial	entity	to	judge	the	severity	of	
one’s	actions.	Amendment	VI	of	the	Constitution	guarantees	citizens	a	trial	by	jury,	stating	“In	
all	criminal	prosecutions,	the	accused	shall	enjoy	the	right	to	a	speedy	and	public	trial,	by	an	
impartial	jury	of	the	state	and	district	wherein	the	crime	shall	have	been	committed,	which	
district	shall	have	been	previously	ascertained	by	law…”8	The	Amendment	ensures	that	all	
citizens	have	a	right	to	enjoy	an	impartial	jury—but	as	the	above	scholarship	illustrates,	bias	
permeates	the	jury	system	at	every	step.	Many	point	to	the	non-representative	nature	of	
juries	in	the	US	to	condemn	their	credibility,	and	assert	that	the	legitimacy	of	the	justice	
system	lies	in	the	ability	to	remedy	the	homogeneity	in	juries.	Justice	Powell	affirms	this	need	
for	representation	in	order	for	the	system	to	hold	any	public	esteem—he	notes	in	Batson	v	
Kentucky	that	intentional	discrimination	against	a	group	in	the	jury	selection	process	
“undermine[s]	public	confidence	in	the	fairness	of	our	system	of	justice.”9			
This	assertion	of	a	need	for	a	representative	jury	has	played	a	prominent	role	in	
arguments	that	highlight	the	failures	of	the	current	system—many	argue	that	the	lack	of	
decisions	seen	as	fair	or	just	by	juries	lies	in	the	system’s	inherent	inability	to	take	jurors	from	
a	pool	of	like-minded	individuals	from	defendants’	communities	who	can	adequately	pass	
judgment	on	the	defendant.	The	Magna	Carta	enshrines	the	importance	of	a	representative	
jury	in	article	39,	stating	that	“no	freeman	shall	be	taken	or/and	imprisoned,	or	disseised	or	
outlawed	or	exiled	or	in	any	way	destroyed,	nor	will	we	go	upon	him	nor	will	we	send	upon	
																																																								
8	US	Constitution,	Amendment	VI	
9	Batson	v.	Kentucky,	476	US	79	(1986)
Monahan	6	
him,	except	by	the	lawful	judgment	of	his	peers	or/and	by	the	law	of	the	land.”10	Although	the	
Constitution	guarantees	no	such	right,	this	concept	of	a	“jury	of	one’s	peers”	derived	from	the	
Magna	Carta	has	been	often	referenced	as	inherent	in	and	key	to	the	idea	of	a	jury.	Though	
this	iteration	of	a	representative	jury	is	not	explicitly	laid	out	in	the	Constitution,	there	is	some	
precedent	in	the	US	that	affirms	the	importance	of	juries	representing	an	equal	portion	of	
society.	28	USC	1861	affirms	that	juries	must	be	from	a	pool	of	a	“fair	cross-section	of	the	
community	in	the	district	or	division	wherein	the	court	convenes,”	and	the	Supreme	Court	in	
Strauder	v	West	Virginia	held	that	the	jury	must	be	drawn	from	a	group	“composed	of	the	
peers	or	equals	[of	the	defendant];	that	is,	of	his	neighbors,	fellows,	associates,	persons	having	
the	same	legal	status	in	society	as	he	holds.”11	Peters	v.	Kiff	affirms	this	the	importance	of	
including	diverse	viewpoints	on	the	jury,	as	it	states	that	the	exclusion	of	certain	groups	
“deprives	the	jury	of	a	perspective	on	human	events.”12		
Representation	of	a	diverse	multitude	of	views	on	a	jury	thus	serves	to	reduce	bias	on	
juries	and	offer	alternative	ways	of	thinking	to	the	deliberative	body.	Jane	Mansbridge	sees	
the	power	in	including	a	collection	of	views	in	her	incisive	article	on	theory	of	representation	
entitled,	“Should	Blacks	Represent	Blacks	and	Women	Represent	Women?	A	Contingent	‘Yes.’”	
She	states,	“A	representative	body	should	ideally	include	at	least	one	representative	for	every	
group	that	might	provide	new	information,	perspectives,	or	ongoing	insights	relevant	to	the	
understanding	that	leads	to	a	decision.”13	The	court	and	many	scholars	have	thus	established	
the	need	for	the	jury	pool	to	represent	a	multitude	of	views	and	experiences	in	society,	then.	
How	one	conceives	of	a	“peer	group”	is	thus	key	to	arguments	for	affirmative	selection	on	
																																																								
10	Magna	Carta,	paragraph	39	in	W.	Holdsworth,	A	History	of	English	Law	Vol.	2	(London:	Meuthen,	1956),	59.	
11	28	USC	1861,	Strauder	v	West	Virginia	100	U.S.	303	(1880)	
12	Peters	v	Kiff	407	U.S.	493	(1972)	
13	Jane	Mansbridge,	“Should	Blacks	Represent	Blacks	and	Women	Represent	Women?	A	Contingent	‘Yes,’”	The	
Journal	of	Politics,	61,	no.	3	(1999):	634
Monahan	7	
juries,	and	the	divides	between	how	a	“jury	of	one’s	peers”	should	be	determined	are	
reflective	of	a	larger	debate	about	the	benefits	and	drawbacks	of	certain	kinds	of	
representation.		
It	is	crucial	here	to	examine	theories	of	democratic	representation,	in	order	to	better	
comprehend	the	arguments	for	different	forms	of	representation	on	juries.	Representation	
theory	often	splits	into	two	different	preferred	methods	of	representation—descriptive	
representation,	which	ensures	representatives	will	be	present	who	share	the	same	
background	as	constituents	(or	in	this	case,	the	defendant),	and	substantive	representation,	in	
which	representatives	reflect	the	interests	of,	and	not	necessarily	the	racial	background	of,	the	
[defendant].	These	two	forms	of	representation	can	be	seen	as	two	options	for	representation	
in	juries.	Many	argue	for	descriptive	representatives	in	the	form	of	quotas	or	other	methods,	
as	they	see	jurors	of	color	as	being	the	only	individuals	who	can	truly	understand	the	
background	of	defendants	of	color.	For	those	who	argue	this,	a	jury	of	one’s	peers	as	a	jury	of	
individuals	who	share	the	same	descriptive	characteristics	as	the	defendant	is	preferable.		
The	Black	Panther	Party	is	one	such	group	that	saw	the	benefits	in	and	advocated	for	
descriptive	representation	on	juries.	In	their	original	ten-point	plan,	the	BPP	demanded	that	
juries	include	their	peers	as	a	requisite	to	be	able	to	place	trust	in	the	justice	system	and	
resolve	the	many	injustices	black	folks	were	repeatedly	being	met	with.14	The	ninth	point	of	
the	plan	published	by	the	Black	Panther	Party	in	1966	defined	peer	group	in	stating	the	
following:	“We	want	all	Black	people	when	brought	to	trial	to	be	tried	in	court	by	a	jury	of	
their	peer	group	or	people	from	their	Black	communities	as	defined	by	the	Constitution	of	the	
																																																								
14	Michael	Martin	and	Marilyn	Yaquinto,	ed.	Redress	for	Historical	Injustices	in	the	United	States	(Duke	University	
Press:	2007)
Monahan	8	
United	States.”15	Here,	the	BPP	is	equating	“peer	group”	with	those	racially	similar	to	the	
defendant.	The	Party	goes	on	to	expand	on	this	idea,	asserting,	“We	believe	that	the	courts	
should	follow	the	United	States	Constitution	so	that	Black	people	will	receive	fair	trials.	The	
Fourteenth	Amendment	of	the	United	States	Constitution	gives	a	man	a	right	to	be	tried	by	his	
peer	group.	A	peer	is	a	person	from	a	similar	economic,	social,	religious,	geographical,	
environmental,	historical,	and	racial	background.	To	do	this	the	court	will	be	forced	to	select	a	
jury	from	the	Black	community	from	which	the	Black	defendant	came.	We	have	been,	and	are	
being	tried	by	all	White	juries	that	have	no	understanding	of	the	‘average	reasoning	man’	of	
the	Black	community.”16		
The	Black	Panthers	emphasize	a	crucial	benefit	of	descriptive	representation	
highlighted	above	by	Mansbridge	and	certain	court	cases	surrounding	the	idea	of	difference	of	
experience	that	has	an	effect	on	individuals’	ability	to	judge	others.	In	asserting	that	the	
average	reasoning	black	person	has	a	different	worldview	and	experience	with	the	state	and	
others	that	cannot	be	understood	by	white	people,	the	Party	highlights	what	is	seen	as	one	
major	benefit	of	descriptive	representation.	Although	some	individuals	can	reflect	the	
interests	of	a	group	without	necessarily	being	a	member	of	that	group,	there	are	instances	in	
which	only	members	of	a	certain	group	can	understand	an	experience.	Mansbridge	affirms	
this,	in	noting	that	the	benefits	of	descriptive	representatives	can	be	most	clearly	seen	in	
deliberation	processes.	“Although	a	representative	need	not	have	shared	personally	the	
experiences	of	the	represented	to	facilitate	communication	and	bring	subtlety	to	
deliberation,”	she	writes,	“the	open-ended	quality	of	deliberation	gives	communicative	and	
																																																								
15	Joshua	Bloom	and	Waldo	E.	Martin,	Black	Against	Empire:	The	History	and	Politics	of	the	Black	Panther	Party	
(University	of	California	Press:	2012)	
16	ibid
Monahan	9	
informal	advantages	to	representatives	who	are	existentially	close	to	the	issues”—	descriptive	
representatives.17		
Descriptive	representatives	are	also	seen	as	beneficial	due	to	their	ability	to	serve	as	
role	models	to	inspire	others	in	their	minority	group	who	may	feel	disenfranchised	to	engage	
in	the	system.	Their	inclusion	on	juries	in	making	important	decisions	indicates	the	value	that	
the	state	places	on	these	minority	groups’	inputs	and	views,	and	will	result	in	a	state	that	is	
viewed	as	more	legitimate.	Mansbridge	agrees,	noting	that	“seeing	proportional	numbers	of	
members	of	their	group	exercising	the	responsibility	of	ruling	with	full	status	[or	here,	serving	
on	a	jury]	can	enhance	de	facto	legitimacy	by	making	citizens,	and	particularly	members	of	
historically	underrepresented	groups,	feel	as	if	they	themselves	were	present	in	the	
deliberations.”18		
While	descriptive	representation	is	important	for	its	enhancement	of	legitimacy	of	the	
state	and	its	ability	to	ensure	group	experiences	can	be	represented	in	the	deliberation	
process,	many	criticize	descriptive	representation	for	its	essentialization.19	They	assert	that	
simply	including	a	representative	of	color	on	a	jury	or	in	the	legislature	does	not	ensure	that	
they	will	protect	or	represent	the	interests	of	their	descriptive	group,	nor	will	it	ensure	that	
they	will	not	reflect	any	bias—	indeed,	research	on	the	IAT	indicates	that	forty	percent	of	
African-Americans	have	a	pro-white	bias.20	Representation	on	juries	is	thus	widely	
acknowledged	to	be	important—how	to	go	about	this	in	a	manner	that	remains	constitutional	
and	allows	for	representation	in	the	best	interest	of	a	group	is	difficult	to	achieve.	We	will	
																																																								
17	Mansbridge	636	
18	Mansbridge	650	
19	See	Mansbridge,	Suzanne	Dovi,	“Preferable	Descriptive	Representatives:	Will	Just	Any	Woman,	Black	or	Latino	
Do?”	The	American	Political	Science	Review	96,	no.	4	(2002):	733,	Edward	S.	Adams	and	Christian	J.	Lane,	
“Constructing	a	Jury	that	is	Both	Impartial	and	Representative:	Utilizing	Cumulative	Voting	in	Jury	Selection,”	
New	York	University	Law	Review	73	(1998):703	
20	Lee	1572
Monahan	10	
examine	the	constitutionality	of	certain	proposed	solutions	that	attempt	to	eliminate	or	
reduce	implicit	bias	in	juries	in	utilizing	both	substantive	and	descriptive	representation,	and	
assess	their	feasibility	or	desirability	through	this	lens.	
	
IV.	Proposed	Solutions	
		 Many	solutions	to	encourage	the	descriptive	representation	of	one’s	peers	have	been	
proposed,	such	as	racial	inclusion	quotas	and	required	representation	or	re-districting	for	
compiling	jury	selection	pools.	Many	point	to	descriptive	representation	achieved	through	
quotas	or	other	mechanisms	as	the	most	immediately	logical	solution,	given	the	
acknowledgment	by	the	courts	that	diverse	viewpoints	are	important	for	a	jury.	Many	of	these	
affirmative	selection	solutions	run	into	constitutional	difficulties	in	addition	to	the	
aforementioned	issues	with	descriptive	representation,	however,	and	do	not	adequately	serve	
to	diversify	the	jury	pool	or	the	jury	itself.		
“Racial	matching”	is	one	such	solution	that	seeks	to	diversify	the	jury	through	
descriptive	respresentation.	It	asserts	that	defendants	should	be	entitled	to	three	“racially	
similar”	jurors	on	their	jury.21	While	this	solution	works	to	allow	defendants	a	jury	of	one’s	
(racially	similar)	peers,	it	runs	into	several	difficulties--	as	Edward	S.	Adams	and	Christian	J.	
Lane	point	out	in	“Constructing	a	Jury	that	is	Both	Impartial	and	Representative:	Utilizing	
Cumulative	Voting	in	Jury	Selection,”	it	ensures	minority	representation	only	when	the	
defendant	is	a	minority,	and	not	when	the	defendant	is	a	white	person	accused	of	a	crime	
against	a	black	person,	and	it	runs	into	issues	with	constitutionality.22	Adams	and	Lane	note	
																																																								
21	Adams	and	Lane	728	
22	ibid
Monahan	11	
that	in	Virginia	v	Rives,	additionally,	the	Supreme	Court	ruled	that	the	right	to	an	impartial	
jury	does	not	constitute	the	right	to	a	member	of	any	distinct	race	on	the	jury.23			
Similarly,	there	have	been	arguments	that	assert	that	one	half	of	the	jury	should	be	of	
the	same	minority	background	as	the	defendant.24	This	approach	finds	its	roots	in	the	twelfth	
century,	when	English	charters	promised	half	Jewish,	half	English	juries	to	Jewish	defendants.	
This	approach	was	later	used	in	the	US	for	the	inclusion	of	Native	Americans	in	the	US	court	
system,	and	it	is	still	used	in	Canada	for	language	purposes—one	half	of	the	Canadian	jury	
must	speak	the	same	language	as	the	defendant.	Scholars	have	criticized	this	approach	for	
similar	reasons	to	racial	matching,	however--	minority	representation	is	not	assured	for	
minority	individuals	who	have	been	the	victims	of	crimes	carried	out	by	a	white	defendant,	
and	scholars	argue	it	is	not	more	constitutionally	defendable	than	similar	efforts	like	racial	
matching.25					
Some	might	assert	that	these	affirmative	selection	approaches	raise	issues	of	
prescriptive	identity.	Ensuring	racial	representation	would	require	individuals	to	self-identify	
as	a	particular	race	and	it	might	be	difficult	to	ensure	the	same	exact	race	be	represented	in	
the	jury	pool,	especially	given	those	who	identify	as	multiple	mixed	races.	This	argument	is	
related	to	the	assertion	that	affirmative	selection	and	other	forms	of	descriptive	
representation	are	essentializing.26		
There	would	also	be	significant	difficulty	in	employing	race	in	jural	districting,	as	some	
have	advocated	for.	The	Supreme	Court	has	previously	struck	down	using	race	in	the	
formation	of	districts,	which	many	highlight	as	the	downfall	of	any	argument	that	attempts	to	
																																																								
23	Virginia	v	Rives,	100	U.S.	313	(1880)	
24	Adams	and	Lane	729	
25	ibid	
26	Mansbridge	637
Monahan	12	
use	race	to	re-district	and	enforce	affirmative	selection	in	juries.27	In	his	article	“Jural	
Districting:	Selecting	Impartial	Juries	Through	Community	Representation,”	however,	Kim	
Forde-Mazrui	asserts	that	although	the	court	has	limited	racial	districting,	it	has	endorsed	
designing	districts	around	“communities	of	interest”	and	that	race	can	be	considered	in	these	
communities	of	interest	so	long	as	other	factors	have	been	considered	as	well.28	Forde-Mazrui	
recommends	dividing	the	jury	district	into	twelve	sub-districts	based	on	these	“communities	
of	interest,”	and	requiring	that	juries	include	jurors	from	each	of	the	sub-districts.29	Although	
this	effort	might	result	in	greater	inclusion	of	minority	jurors,	the	courts	have	not	dealt	with	
the	issue	of	racial	inclusion	in	communities	of	interest,	and	as	Forde-Mazrui	acknowledges,	
this	will	not	address	minority	venirepersons’	reluctance	to	attend	jury	duty	due	to	distrust	in	
the	system.30	This	argument	seems	unlikely	to	be	allowed	by	the	courts,	and	it	does	not	
address	many	of	the	aforementioned	issues	inherent	in	descriptive	representation.	
Many	point	to	peremptory	challenges	as	a	large	indicator	of	racial	bias	in	the	jury	
system,	and	a	means	through	which	prosecutors	and	defense	attorneys	alike	seek	to	remove	
opportunities	for	representation	for	minority	groups	when	it	might	help	or	detract	from	their	
case	to	have	such	representatives	present.	In	Batson	v.	Kentucky,	the	court	famously	ruled	that	
peremptory	challenges	could	not	be	utilized	to	exclude	certain	races	from	the	jury,	though	
many	argue	they	are	still	used	in	an	exclusionary	manner.31		
Adams	and	Lane	propose	one	such	solution	for	an	alternative	to	peremptory	
challenges	that	they	assert	will	increase	representation	on	juries.	They	posit	that	a	cumulative	
voting	system	can	resolve	all	issues	with	constitutionality	in	racial	matching	methods	or	jury	
																																																								
27	Adams	and	Lane	731	
28	Kim	Forde-Mazrui,	“Jural	Districting:	Selecting	Impartial	Juries	Through	Community	Representation,”	
Vanderbilt	Law	Review	Vol	52:353	(1999)	
29	Forde-Mazrui	382	
30	ibid	
31	Batson	v	Kentucky	476	US	79	1986
Monahan	13	
re-districting.	In	their	approach,	each	litigant	would	receive	a	number	of	votes	corresponding	
to	the	size	of	the	jury,	which	they	can	exercise	either	positively	or	negatively.	Each	side	would	
be	allowed	strikes	for	cause,	but	no	peremptory	challenges.	After	strikes,	each	side	would	
submit	a	voting	list	to	the	judge.	The	venirepersons	with	the	highest	total	number	of	votes	
would	serve	on	the	jury.	Any	ties	would	be	broken	by	a	legitimate	method	of	random	
selection.	Adams	and	Lane	acknowledge	here	that	the	prosecution	and	defense	have	to	
consider	their	votes	very	carefully,	as	they	could	easily	end	up	with	a	jury	that	completely	
favors	the	other	side.		
This	seems	to	be	the	main	issue	with	Adams	and	Lane’s	proposition—a	new	system	
such	as	this	allows	for	unexpected	results	and	is	very	strategic.	If	a	lawyer	does	not	play	her	
cards	right,	the	results	could	be	even	more	detrimental	to	representation	than	the	current	
system.	Additionally,	peremptory	challenges	can	allow	the	defense	to	remove	venirepersons	
they	think	will	be	actively	biased	in	their	approach	of	the	case	if	it	is	difficult	to	prove—while	
this	can	result	in	counsel	using	peremptory	challenges	to	remove	individuals	based	on	biased	
or	racist	presumptions,	the	defense	can	similarly	use	peremptory	challenges	to	remove	those	
they	believe	will	reflect	implicit	racial	bias.	While	it	is	important	to	address	when	these	
challenges	are	being	used	to	actively	exclude	a	minority	group	from	participating	in	the	jury,	
and	many	alternatives	to	peremptory	challenges	have	been	introduced,	other	opportunities	to	
ensure	descriptive	or	substantive	representation	that	are	not	detrimental	to	the	system	
should	be	simultaneously	explored.	While	it	is	important	to	consider	alternative	systems	such	
as	Adams	and	Lane’s	and	re-imagine	the	manner	in	which	we	conceive	of	the	current	jury	
system,	then,	this	approach	allows	for	too	harmful	results	if	lawyers	do	not	use	the	system	
correctly.	Instead,	perhaps	it	is	valuable	to	examine	how	the	current	system	can	be	employed	
to	reduce	bias	in	the	jury	through	various	tactics	in	the	selection	process	in	a	manner	that
Monahan	14	
avoids	the	issues	with	descriptive	representation,	but	still	ensures	members	of	minority	
groups	are	present	on	the	jury.				
	
V.	“Race-Qualified	Juries”		
	 The	current	established	jury	selection	process	could	work	to	strike	jurors	who	might	
exhibit	racial	bias	if	utilized	correctly.	In	developing	a	method	of	selection	that	would	enable	
lawyers	to	ensure	those	who	will	exhibit	more	intense	racial	bias	will	not	be	selected,	the	
current	system	can	be	used	to	curb	racial	bias	on	juries.	This	is	a	technique	currently	used	for	
“death-qualified”	juries,	in	which	venirepersons	go	through	the	selection	process	in	a	manner	
that	ensures	the	jury	would	be	willing	and	able	to	take	the	possibility	of	ruling	for	the	death	
penalty	into	account	if	the	penalty	is	a	possible	sentence	in	the	case.	The	selection	process	for	
death-qualified	juries	involves	requiring	jurors	to	reveal	through	questioning	in	voir	dire	
whether	or	not	they	would	be	able	to	impose	the	death	penalty	as	a	sanction	if	the	case	came	
to	that.	Many	would	argue	the	questioning	process	for	achieving	a	death-qualified	jury	does	
not	effectively	determine	a	venireperson’s	view	of	the	death	penalty,	though—one	lawyer,	
however,	has	created	a	method	selecting	a	death-qualified	jury	that	allows	counsel	to	
understand	venirepersons’	positions	on	the	death	penalty	and	select	accordingly.		
David	Wymore,	a	Colorado	defense	attorney,	has	proposed	a	technique	for	ensuring	
that	the	defense	obtains	accurate	views	of	a	juror’s	opinion	on	the	death	penalty,	and	thus	
asserts	he	can	craft	a	“life	positive”	jury—one	that	is	more	likely	to	rule	against	the	death	
penalty—by	using	this	method	of	selection.	The	Wymore	method	works	to	employ	creative	
questioning	to	reveal	underlying	biases	for	or	against	the	death	penalty.		This	Wymore	
technique,	also	known	as	the	“Colorado	method,”	purports	to	drastically	reduce	the	number	of
Monahan	15	
death	sentences	handed	down	if	carried	out	correctly.32	During	voir	dire,	defense	attorneys	
ask	questions	of	potential	jurors	in	such	a	way	that	reveals	their	underlying	opinions	without	
making	them	obvious	to	the	prosecution.	By	determining	the	weight	jurors	would	give	to	
mitigating	factors,	the	defense	is	able	to	uncover	how	the	juror	views	the	death	penalty,	
instead	of	simply	asking	flat	out	if	the	juror	would	be	able	to	rule	for	the	death	penalty.		
Wymore	achieves	this	deeper	understanding	of	biases	by	presenting	a	scenario	in	
which	a	defendant	has	no	legal	defense	in	the	eyes	of	the	law,	and	asking	the	potential	juror	to	
find	a	mitigating	circumstance.33	Through	follow-up	questioning	after	the	juror’s	response,	
predispositions	might	emerge.	The	Wymore	technique	suggests	the	defense	then	rank	the	
venirepersons	on	a	seven-point	scale,	with	one	exhibiting	the	least	proclivity	to	rule	for	the	
death	penalty	and	seven	exhibiting	the	most.	Where	possible,	Wymore	recommends	removing	
the	jurors	who	rank	on	higher	on	the	scale	with	challenges	for	cause,	or	if	this	is	not	possible,	
removing	them	with	peremptory	challenges.	Embedded	in	the	questioning	are	affirmative	
statements	meant	to	empower	jurors	to	voice	their	opinions	about	the	influence	other	jurors	
might	allow	race	to	have	on	their	deliberation	process	when	the	time	comes.34	This	same	
approach	could	be	transferred	to	race—studies	have	shown	that	simply	instructing	juries	to	
not	be	prejudiced	by	race	in	their	decisions,	or	asking	jurors	if	they	will	be	able	to	do	so,	does	
not	actually	affect	the	implicit	bias	prevalent	in	jury	decisions.35	By	instead	asking	more	
roundabout	questions	that	would	lead	individuals	to	reveal	how	deep	their	biases	lie,	
attorneys	could	address	bias	in	the	system	through	the	existing	selection	process,	and	thus	
avoid	the	many	issues	that	could	come	with	radically	changing	the	system	and	adopting	a	
																																																								
32	David	Wymore,	The	Life	Penalty,	Documentary	(2008;	Wild	Berry	Productions)	
33	Wymore	
34	ibid	
35	S.	Mendoza,	P.	Gollwitzer,	and	D.	Amodio,	“Reducing	the	Expression	of	Implicit	Stereotypes:	Reflexive	Control	
through	Implementation	Intentions,”	Personality	and	Social	Psychology	Bulletin,	36,	(2010).	512-523	and	D.	Kim,	
“Voluntary	Controllability	of	the	Implicit	Association	Test	(IAT),”	Social	Psychology	Quarterly,	66,	(2003)		83-96.
Monahan	16	
cumulative	voting	system,	as	Adams	and	Lane	propose.	This	process	could	be	enshrined	in	the	
current	selection	system,	as	a	required	set	of	questions	that	jurors	must	answer,	similar	to	
how	jurors	must	answer	questions	about	their	views	on	the	death	penalty	for	a	death-
qualified	jury.	If	not	included	in	the	official	process,	attorneys	should	utilize	this	method	of	
questioning	where	possible	to	assess	bias.	It	should	be	noted,	however,	that	judges	play	a	
discretionary	role	in	determining	the	how	much	race	is	focused	on	in	voir	dire.36	There	should	
be	increased	efforts	to	disseminate	information	to	judges	about	implicit	bias	in	juries	and	the	
importance	of	race-relevant	questioning	to	encourage	them	to	allow	race-relevant	
questioning,	then.			
A	jury	that	is	thus	“race-qualified”	by	the	Wymore	technique	would	address	the	issues	
inherent	in	descriptive	representation	and	affirmative	selection	processes,	and	David	Wymore	
has	asserted	that	a	jury	selected	through	this	method	of	selection	will	actually	result	in	many	
minority	groups	being	represented	(because	although	descriptive	representation	is	not	taken	
into	account	and	the	selection	method	is	more	focused	on	substantive	representation	of	
views,	many	of	those	who	hold	certain	less-biased	viewpoints	will	come	from	minority	
groups,	Wymore	posits).	In	this	sense,	a	race-qualified	jury	would	experience	the	benefits	that	
descriptive	representation	achieves,	but	avoid	the	negative	aspects,	and	it	would	reap	the	
benefits	of	substantive	representation	as	well.			
Some	could	argue	this	approach	does	not	ensure	a	fully	representative	jury,	however,	
as	lawyers	are	actively	attempting	to	restrict	some	views	(those	that	reflect	implicit	bias).	
While	these	criticisms	might	be	legitimate	when	the	technique	is	being	applied	to	the	more	
controversial	subject	of	the	death	penalty,	when	applied	to	racial	bias,	the	criticisms	do	not	
hold.	Mansbridge	asserts	that	“[a]	representative	body…should	not…simply	reproduce	all	
																																																								
36	Peter	A.	Joy,	“Race	Matters	in	Jury	Selection,”	Northwestern	University	Law	Review	Vol.	109:80	2015.
Monahan	17	
views	in	the	polity.	The	process	of	choosing	representatives	should	select	to	some	degree	
against	those	views	that	are	useless	or	harmful	to	the	polity	as	a	whole.”37	Attempting	to	limit	
views	that	reflect	symbolic	racism	will	help	result	in	a	jury	that	does	not	discriminate	against	
defendants	and	make	judgments	influenced	by	or	based	on	the	color	of	their	skin.	“Limiting”	
these	views	or	“influencing	the	jury”	in	this	way	results	in	a	more	fair,	equitable	justice	system	
that	serves	all	communities	in	the	United	States.		
While	employing	the	Wymore	technique	to	racial	bias	and	requiring	“race-qualified”	
juries	will	not	serve	to	completely	eradicate	implicit	bias	from	juries,	particularly	as	this	
approach	works	to	remove	venirepersons	who	exhibit	the	worst	bias	on	the	seven	point	scale	
(and	the	studies	in	section	II	detail	the	implicit	bias	many	individuals	hold	on	some	level),	by	
informing	venirepersons	of	implicit	bias	in	this	way	and	in	such	a	manner	that	works	to	
empower	them	to	challenge	other	jurors	who	may	be	reflecting	racial	bias,	this	technique	is	a	
valuable	start	to	addressing	implicit	bias	in	juries.	A	jury	that	is	race-qualified	using	the	
Wymore	technique	will	ensure	a	both	substantively	and	descriptively	representative	jury	that	
will	serve	as	a	first	step	in	reducing	implicit	bias	in	the	justice	system.	By	requiring	“race-
qualified”	juries,	or	allowing	attorneys	to	employ	a	Wymore-similar	technique	in	selection,	
courts	will	begin	to	take	on	the	intricate	and	complicated	system	of	racial	injustice	in	the	
United	States	justice	system.			
	
	
	
	
	
																																																								
37	Mansbridge	634
Monahan	18	
Works	Cited	
	
Adams,	Edward	S.	and	Lane,	Christian	J.	“Constructing	a	Jury	that	is	Both	Impartial	and	
Representative:	Utilizing	Cumulative	Voting	in	Jury	Selection.”	New	York	University	Law	
Review	73	(1998):703	
	
Batson	v.	Kentucky,	476	US	79	(1986)	
	
Bennett,	Judge	Mark	W.	“Unraveling	the	Gordian	Knot	of	Implicit	Bias	in	Jury	Selection:	The	
Problems	of	Judge-Dominated	Voir	Dire,	the	Failed	Promise	of	Batson,	and	Proposed	
Solutions.”	Harvard	Law	and	Policy	Review	4	(2010)	
	
Bloom,	Joshua	and	Martin,	Waldo	E.	Black	Against	Empire:	The	History	and	Politics	of	the	Black	
Panther	Party	(University	of	California	Press:	2012)	
	
Crawford	v.	United	States,	212	U.S.	183,	196	(1909)		
	
Dovi,	Suzanne.	“Preferable	Descriptive	Representatives:	Will	Just	Any	Woman,	Black	or	Latino	
Do?”	The	American	Political	Science	Review	96,	no.	4	(2002):	733		
	
	
Forde-Mazrui,	Kim.	“Jural	Districting:	Selecting	Impartial	Juries	Through	Community	
Representation.”	Vanderbilt	Law	Review	Vol	52:353	(1999)	
	
Georgia	v.	McCollum,	505	U.S.	42,	68	(1992)	
	
Holdsworth,	W.	A	History	of	English	Law	Vol.	2	(London:	Meuthen,	1956),	59.	
	
Joy,	Peter	A.	“Race	Matters	in	Jury	Selection.”	Northwestern	University	Law	Review	Vol.	109:80	
2015.	
	
Kang	et.	al.	“Implicit	Bias	in	the	Courtroom.”	UCLA	Law	Review	59	(2012)	
	
Kim,	D.	“Voluntary	Controllability	of	the	Implicit	Association	Test	(IAT).”	Social	Psychology	
Quarterly,	66,	(2003)		83-96.	
	
Lee,	Cynthia.	“Making	Race	Salient:	Trayvon	Martin	and	Implicit	Bias	in	a	Not	Yet	Post-Racial	
Society.”	North	Carolina	Law	Review	91	(2013):	1555,	1572	
	
Levinson,	Justin	D.	“Race,	Death	and	the	Complicitous	Mind.”	DePaul	Law	Review	58	(2009):	
599,	623	
	
Mansbridge,	Jane.	“Should	Blacks	Represent	Blacks	and	Women	Represent	Women?	A	
Contingent	‘Yes.’”	The	Journal	of	Politics,	61,	no.	3	(1999):	634	
	
Martin,	Michael	and	Yaquinto,	Marilyn	ed.	Redress	for	Historical	Injustices	in	the	United	States	
(Duke	University	Press:	2007)
Monahan	19	
	
Mendoza,	S,	Gollwitzer,	P	and	Amodio,	D.	“Reducing	the	Expression	of	Implicit	Stereotypes:	
Reflexive	Control	through	Implementation	Intentions.”	Personality	and	Social	Psychology	
Bulletin,	36,	(2010).	512-523		
	
Peters	v	Kiff	407	U.S.	493	(1972)	
	
Roberts,	Anna.	“(Re)	Forming	the	Jury)	Connecticut	Law	Review	Vol.	44	(2012):	827,	837	
	
Strauder	v	West	Virginia	100	U.S.	303	(1880)	
	
Turner	v.	Murray,	476	U.S.	28,	42	(1986).		
	
US	Constitution,	Amendment	VI	
	
Virginia	v	Rives,	100	U.S.	313	(1880)	
	
Wymore,	David.	The	Life	Penalty.	Documentary	(2008;	Wild	Berry	Productions)

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