Appellants, Negro citizens of Greene County, Alabama, who
alleged that they were qualified to serve as jurors and desired to
serve, but had never been summoned, brought this action seeking (1)
a declaration that qualified Negroes were systematically excluded
from Greene County grand and petit juries, that the Alabama jury
selection statutes were unconstitutional on their face and as
applied, and that the jury commission was a deliberately segregated
agency; (2) a permanent injunction forbidding the systematic
exclusion of Negroes and requiring that all eligible Negroes be
placed on the jury roll, and (3) an order vacating the jury
commissioners' appointments and compelling the Governor to select
new members without racial discrimination. The three-judge District
Court found that, although the 1960 census showed that
three-fourths of the county's population were Negroes, the largest
number of Negroes on the jury list from 1961 to 1963 was about 7%
of the total. Following a 1964 declaratory judgment decree and a
1967 statutory amendment adding women to the list, the percentage
of Negroes on the jury roll increased to 32%, but the 1967 county
population was about 65% Negro. The jury commissioners appointed by
the Governor for the past 12 years were white. The District Court
found an "invalid exclusion of Negroes on a racially discriminatory
basis," and directed the jury commissioners and their clerk "to
take prompt action to compile a jury list . . . in accordance with
the laws of Alabama and . . . constitutional principles," and to
submit a compliance report. The court declined to enjoin the
enforcement of the challenged statutes or to direct the Governor to
appoint Negroes to the jury commission, and it is from these
rulings that appellants took a direct appeal.
Held:
1. There is no jurisdictional or procedural bar to an attack
upon systematic jury discrimination by way of a civil suit such as
this. Pp.
396 U. S.
329-330.
2. The provision of the Alabama Code (Title 30, § 21) requiring
the jury commissioners to select for jury service those persons
Page 396 U. S. 321
who are
"generally reputed to be honest and intelligent. . . and . . .
esteemed in the community for their integrity, good character and
sound judgment. . ."
is not unconstitutional on its face. Pp.
396 U. S.
331-337.
(a) The Constitution does not forbid the States to establish
relevant qualifications for jurors, and most States have enacted
similar juror requirements. Pp.
396 U. S.
332-335.
(b) Although here the jury commissioners and their clerk abused
the statutory discretion in the preparation of the jury roll, that
does not mean that § 21 is necessarily and under all circumstances
invalid. The statute was "capable of being carried out with no
racial discrimination whatsoever."
Smith v. Texas,
311 U. S. 128,
311 U. S.
130-131. Pp.
396 U. S.
334-337.
3. Apart from the problems involved in a federal court's
ordering a Governor to exercise his discretion in a specific way,
it cannot be said on the record here that the absence of Negroes
from the jury commission amounted, in itself, to a
prima
facie showing of discriminatory exclusion. Nor can appellants'
present contention that the absence of Negroes from the commission
compelled the District Court to order the appointment of Negro
commissioners be upheld, as appellants are no more entitled to
proportional representation by race on the jury commission than on
any particular grand or petit jury. Pp.
396 U. S.
337-339.
4. The District Court must consider whether the new jury roll
prepared pursuant to its order complies therewith and whether other
and further relief is appropriate. Pp.
396 U. S.
339-340.
298 F.
Supp. 181, affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The appellants, Negro citizens of Greene County, Alabama,
commenced this class action against officials charged with the
administration of the State's jury
Page 396 U. S. 322
selection laws: the county jury commissioners and their clerk,
the local circuit court judge, and the Governor of Alabama. The
complaint alleged that the appellants were fully qualified to serve
as jurors and desired to serve, but had never been summoned for
jury service. It charged that the appellees had effected a
discriminatory exclusion of Negroes from grand and petit juries in
Greene County -- the Governor in his selection of the county jury
commission, and the commissioners and judge in their arbitrary
exclusion of Negroes. The complaint sought (1) a declaration that
qualified Negroes were systematically excluded from Greene County
grand and petit juries, that the Alabama statutes governing jury
selection were unconstitutional on their face and as applied, and
that the jury commission was a deliberately segregated governmental
agency; (2) a permanent injunction forbidding the systematic
exclusion of Negroes from Greene County juries pursuant to the
challenged statutes and requiring that all eligible Negroes be
placed on the jury roll, and (3) an order vacating the appointments
of the jury commissioners and compelling the Governor to select new
members without racial discrimination.
Alabama's jury selection procedure is governed by statute.
Ala.Code, Tit. 30, § 1
et seq. (1958 and Supp. 1967). The
Governor appoints a three-member jury commission for each county.
§§ 8-10. The commission employs a clerk, § 15, who is charged with
the duty of obtaining the name of every citizen of the county over
21 and under 65 years of age, together with his occupation and
places of residence and business. § 18. The clerk must
"can the registration lists, the lists returned to the tax
assessor, any city directories, telephone directories and any and
every other source of information from which he may obtain
information. . . ."
§ 2. He must also "visit every precinct at least once a year
Page 396 U. S. 323
to enable the jury commission to properly perform the duties
required of it. . . ."
Ibid. [
Footnote 1] Once the clerk submits his list of names, the
commission is under a duty to prepare a jury roll and jury box
containing the names of all qualified, nonexempt citizens in the
county, §§ 20, 24, who are
"generally reputed to be honest and intelligent and are esteemed
in the community for their integrity, good character and sound
judgment. . . ."
§ 21. [
Footnote 2]
Page 396 U. S. 324
A three-judge District Court, convened pursuant to 28 U.S.C. §§
2281 and 2284, conducted an extensive evidentiary hearing on the
appellants' complaint. The record fully supports the trial court's
conclusion, set out in its detailed opinion, that the jury
selection process as it actually operated in Greene County at the
outset of this litigation departed from the statutory mandate in
several respects:
"The clerk does not obtain the names of all potentially eligible
jurors as provided by § 18, in fact, was not aware that the statute
directed that this be done, and knew of no way in which he could do
it. The starting point each year is last year's roll. Everyone
thereon is considered to be qualified, and remains on the roll
unless he dies or moves away (or, presumably, is convicted of a
felony). New names are added to the old roll. Almost all of the
work of the commission is devoted to securing names of persons
suggested for consideration as new jurors. The clerk performs some
duties directed toward securing such names. This is a part-time
task, done without compensation, in spare time available from
performance of her duties as clerk of the Circuit Court. She uses
voter lists, but not the tax assessor's lists. Telephone
directories for some of the communities are referred to, city
directories not at all, since Greene County is largely rural."
"The clerk goes into each of the eleven beats or precincts
annually, usually one time. Her trips out into the county for this
purpose never consume a full day. At various places in the county,
she talks with persons she knows and secures suggested names. She
is acquainted with a good many Negroes, but very few 'out in the
county.' She does not know the reputation of most of the Negroes in
the county. Because of her duties as clerk of the Circuit
Court,
Page 396 U. S. 325
the names and reputations of Negroes most familiar to her are
those who have been convicted of crime or have been 'in trouble.'
She does not know any Negro ministers, does not seek names from any
Negro or white churches or fraternal organizations. She obtains
some names from the county's Negro deputy sheriff."
"The commission members also secure some names, but on a basis
no more regular or formalized than the efforts of the clerk. The
commissioners 'ask around,' each usually in the area of the county
where he resides, and secure a few names, chiefly from white
persons. Some of the names are obtained from public officials,
substantially all of whom are white."
"One commissioner testified that he asked for names and that, if
people didn't give him names he could not submit them. He accepts
pay for one day's work each year, stating that he does not have a
lot of time to put on jury commission work. . . . He takes the word
of those who recommend people, checks no further and sees no need
to check further, considering that he is to rely on the judgment of
others. He makes no inquiry or determination whether persons
suggested can read or write. . . . Neither commissioners nor clerk
have any social contacts with Negroes or belong to any of the same
organizations."
"Through its yearly meeting in August, 1966, the jury commission
met once each year, usually for one day, sometimes for two, to
prepare a new roll. New names presented by clerk and commissioners,
and some sent in by letter, were considered. The clerk checked them
against court records of felony convictions. New names decided upon
as acceptable were added to the old roll. The names of those
Page 396 U. S. 326
on the old roll who had died or moved away were removed."
"At the August, 1966, meeting one commissioner was new, and
submitted no names, white or Negro, and merely did clerical work at
the meeting. Another had been ill, and able to seek names little if
at all. The third could remember one Negro name that he suggested.
This commissioner brought the name, or names, he proposed on a
trade bill he had received, and after so using it threw it away.
All lists of suggested names were destroyed. As a result of that
meeting the number of Negro names on the jury roll increased by 37.
. . . Approximately 32 of those names came from lists given the
clerk or commissioners by others. The testimony is that, at the
one-day August meeting, the entire voter list was scanned. It
contained the names of around 2,000 Negroes."
"Thus, in practice, through the August, 1966, meeting, the
system operated exactly in reverse from what the state statutes
contemplate. It produced a small group of individually selected or
recommended names for consideration. Those potentially qualified
but whose names were never focused upon were given no
consideration. Those who prepared the roll and administered the
system were white, and with limited means of contact with the Negro
community. Though they recognized that the most pertinent
information as to which Negroes do, and which do not, meet the
statutory qualifications comes from Negroes, there was no
meaningful procedure by which Negro names were fed into the
machinery for consideration or effectual means of communication by
which the knowledge possessed by the Negro community was utilized.
In practice, most of the work of the commission has been
devoted
Page 396 U. S. 327
to the function of securing names to be considered. Once a name
has come up for consideration, it usually has been added to the
rolls unless that person has been convicted of a felony. The
function of applying the statutory criteria has been carried out
only in part, or by accepting as conclusive the judgment of others,
and for some criteria not at all. [
Footnote 3]"
The District Court's further findings demonstrated the impact of
the selection process on the racial composition of Greene County
juries. According to the 1960 census, Negroes composed
three-fourths of the county's population. Yet, from 1961 to 1963,
the largest number of Negroes ever to appear on the jury list was
about 7% of the total. The court noted that, in 1964, a
single-judge federal district court had entered a declaratory
judgment setting forth the duties of the jury commissioners and
their clerk under Alabama law, instructing them not to pursue a
course of conduct operating to discriminate against Negroes,
forbidding them to employ numerical or proportional limitations
with respect to race, and directing an examination of the jury roll
for compliance with the judgment. [
Footnote 4] Thereafter, the situation had improved only
marginally. In 1966, only 82 Negroes appeared among the 471
citizens listed on the jury roll; 50% of the white male population
of the county found its way to the jury roll in that year, but only
4% of the Negro. [
Footnote 5]
In 1967, following a statutory amendment, the commission added
women to the jury roll. Upon the expansion of the list, Negroes
composed 388 of the
Page 396 U. S. 328
1,198 potential jurors -- still only 32% of the total, even
though the 1967 population of the county was estimated to be about
65% Negro. [
Footnote 6]
The District Court found that "there is invalid exclusion of
Negroes on a racially discriminatory basis." It enjoined the jury
commissioners and their clerk from systematically excluding Negroes
from the jury roll, and directed them "to take prompt action to
compile a jury list . . . in accordance with the laws of Alabama
and . . . constitutional principles"; to file a jury list so
compiled within 60 days, showing the information required by
Alabama law for each potential juror, together with his race and,
if available, his age, and to submit a report setting forth the
procedure by which the commission had compiled the list and applied
the statutory qualifications and exclusions.
The court declined, however, either to enjoin the enforcement of
the challenged Alabama statutory provisions or to direct the
Governor to appoint Negroes to the jury commission. From these
rulings the appellants took a direct appeal to this Court pursuant
to 28 U.S.C. § 1253. We noted probable jurisdiction. 393 U.S. 1115.
[
Footnote 7]
Page 396 U. S. 329
I
This is the first case to reach the Court in which an attack
upon alleged racial discrimination in choosing juries has been made
by plaintiffs seeking affirmative relief, rather than by defendants
challenging judgments of criminal conviction on the ground of
systematic exclusion of Negroes from the grand juries that indicted
them, [
Footnote 8] the trial
juries that found them guilty, [
Footnote 9] or both. [
Footnote 10] The District Court found no barrier to such
a suit, and neither do we. Defendants in criminal proceedings do
not have the only cognizable legal interest in nondiscriminatory
jury selection. People excluded from juries because of their race
are as much aggrieved as those indicted and tried by juries chosen
under a system of racial exclusion. [
Footnote 11]
Page 396 U. S. 330
Surely there is no jurisdictional or procedural bar to an attack
upon systematic jury discrimination by way of a civil suit such as
the one brought here. The federal claim is bottomed on the simple
proposition that the State, acting through its agents, has refused
to consider the appellants for jury service solely because of their
race. Whether jury service be deemed a right, a privilege, or a
duty, the State may no more extend it to some of its citizens and
deny it to others on racial grounds than it may invidiously
discriminate in the offering and withholding of the elective
franchise. [
Footnote 12]
Once the State chooses to provide grand and petit juries, whether
or not constitutionally required to do so, [
Footnote 13] it must hew to federal
constitutional criteria in ensuring that the selection of
membership is free of racial bias. [
Footnote 14] The exclusion of Negroes from jury service
because of their race is "practically a brand upon them . . an
assertion of their inferiority. . . ." [
Footnote 15] That kind of discrimination contravenes
the very idea of a jury -- "a body truly representative of the
community," [
Footnote 16]
composed of
"the peers or equals of the person whose rights it is selected
or summoned to determine; that is, of his neighbors, fellows,
associates, persons having the same legal status in society as that
which he holds. [
Footnote
17] "
Page 396 U. S. 331
II
On the merits, the appellants argue that the District Court
erred in refusing to invalidate the Alabama statute requiring the
jury commissioners to select for jury service those persons who
are
"generally reputed to be honest and intelligent and . . .
esteemed in the community for their integrity, good character and
sound judgment. . . ."
Ala.Code, Tit. 30, § 21 (Supp. 1967). The appellants say § 21 is
unconstitutional on its face because, by leaving Alabama's jury
officials at large in their selection of potential jurors, it
provides them an opportunity to discriminate on the basis of race
-- an opportunity of which they have, in fact, taken advantage.
[
Footnote 18] Specifically,
the charge is that § 21 leaves the commissioners free to give
effect to their belief that Negroes are generally inferior to white
people, and so less likely to measure up to the statutory
requirements; [
Footnote 19]
to the commissioners' fear that white people in the community will
suffer if Negroes are accorded the opportunity to exercise the
power of their majority; [
Footnote 20] and to the commissioners' preference for
Negroes who tend not to assert their right to legal and social
equality. [
Footnote 21] The
appellants say the injunctive relief granted by the District Court
is inadequate because the history of jury selection in Greene
County demonstrates a practice of
Page 396 U. S. 332
discrimination persisting despite the federal court's prior
grant of declaratory relief. Moreover, so long as § 21 remains the
law, it is argued, Negro citizens throughout Alabama will be
obliged to attack the jury selection process on a county-by-county
basis, thereby imposing a heavy burden on already congested court
dockets and delaying the day that Alabama will be free of
discriminatory jury selection. [
Footnote 22]
While there is force in what the appellants say, we cannot agree
that § 21 is irredeemably invalid on its face. It has long been
accepted that the Constitution does not forbid the States to
prescribe relevant qualifications for their jurors. [
Footnote 23] The States remain free to
confine the selection to citizens, to persons meeting specified
qualifications of age and educational attainment, [
Footnote 24] and to those possessing good
intelligence, sound judgment, and fair character. [
Footnote 25]
"Our duty to protect the federal constitutional rights of all
does not mean we must or should impose on states our conception of
the proper source of jury lists, so long as the source reasonably
reflects a cross-section of the population
Page 396 U. S. 333
suitable in character and intelligence for that civic duty.
[
Footnote 26]"
Statutory provisions such a those found in § 21 are not peculiar
to Alabama, or to any particular region of the country. Nearly
every State requires that its jurors be citizens of the United
States, [
Footnote 27]
residents of the locality, [
Footnote 28] of a specified minimum age, [
Footnote 29] and able to understand
English. [
Footnote 30] Many
of the State require that juror be of "good character" or the like;
[
Footnote 31] some, that
they be "intelligent" [
Footnote
32] or "well informed." [
Footnote 33]
Page 396 U. S. 334
Provisions of similar breadth have been challenged here and
sustained before. In
Franklin v. South Carolina, [
Footnote 34] the Court rejected a
similar attack upon a jury selection statute alleged by the
plaintiff in error to have conferred arbitrary power upon the jury
commissioners. The pertinent law there provided that the
commissioners should
Page 396 U. S. 335
"prepare a list of such qualified electors under the provisions
of the constitution, between the ages of twenty-one and sixty-five
years, and of good moral character, of their respective counties as
they may deem otherwise well qualified to serve as jurors, being
persons of sound judgment and free from all legal exceptions, which
list shall include not less than one from every three of such
qualified electors. . . ."
In upholding the validity of these standards, the Court
said:
"We do not think there is anything in this provision of the
statute having the effect to deny rights secured by the Federal
Constitution. . . . There is nothing in this statute which
discriminates against individuals on account of race or color or
previous condition, or which subjects such persons to any other or
different treatment than other electors who may be qualified to
serve as jurors. The statute simply provides for an exercise of
judgment in attempting to secure competent jurors of proper
qualifications. [
Footnote
35]"
Again, in
Smith v. Texas. [
Footnote 36] we dealt with a statute leaving a wide
range of choice to the commissioners. [
Footnote 37] Yet we expressly upheld the validity of
the law. The statutory scheme was not, in itself, unfair; it was
"capable of being carried out with no racial discrimination
whatsoever." [
Footnote
38]
No less can be said of the statutory standards attacked in the
present case. Despite the overwhelming proof the appellants have
adduced in support of their claim
Page 396 U. S. 336
that the jury clerk and commissioners have abused the discretion
that Alabama law confers on them in the preparation of the jury
roll, we cannot say that § 21 is necessarily and under all
circumstances invalid. The provision is devoid of any mention of
race. [
Footnote 39] Its
antecedents are of ancient vintage, [
Footnote 40] and there is no suggestion that the law was
originally adopted or subsequently carried forward for the purpose
of fostering racial discrimination. [
Footnote 41] The federal courts are not incompetent to
fashion detailed and stringent injunctive relief that will remedy
any discriminatory application of the statute
Page 396 U. S. 337
at the hands of the officials empowered to administer it.
[
Footnote 42] In sum, we
cannot conclude, even on so compelling a record as that, before us,
that the guarantees of the Constitution can be secured only by the
total invalidation of the challenged provisions of § 21.
III
The appellants also attack the composition of the Greene County
jury commission. They urge that the record demonstrates the causal
relation between the conceded absence of Negroes from the
commission for at least the past decade and the systematic racial
discrimination in the selection of potential jurors established
before the District Court. It is argued that even the
best-intentioned white jury commissioners are unlikely to know many
Negroes who satisfy the statutory qualifications, and that white
jury officials in Alabama generally regard Negroes as incapable of
satisfying the prerequisites for jury membership. Having shown a
course of continuing and consistent disregard of statutory and
constitutional standards on the part of the Greene County jury
commissioners and the clerk, the appellants contend that, if the
discretionary provisions of § 21 are to remain the law, it is
essential that the jury commission be representative of the
community in which it functions, particularly in an area such as
Greene County, where Negroes constitute a majority of the
population. The District Court erred, the appellants say, in not
ordering the Governor of Alabama to appoint Negroes to the Greene
County jury commission.
Page 396 U. S. 338
The claim was not presented to the District Court in precisely
these terms. There, the appellants did not urge that white
commissioners could not perform their statutory task in an unbiased
manner in a predominantly Negro county. Rather, they contended that
the Governor of Alabama had deliberately appointed a segregated
jury commission in exercising the discretion conferred upon him by
statute. The argument, in short, went to the alleged racial
discrimination in the appointment of the commission, not to the
biases inherent in a commission composed entirely of white people,
without regard to claimed discriminatory selection by the
Governor.
For present purposes, we may assume that the State may no more
exclude Negroes from service on the jury commission because of
their race than from the juries themselves. But the District Court
found the appellants had shown only that, for many years, the jury
commission had been composed entirely of white men, and concluded
that, without more, the appellants' attack failed for want of
proof. We think that ruling was correct. Quite apart from the
problems that would be involved in a federal court's ordering the
Governor of a State to exercise his discretion in a particular way,
we cannot say on this record that the absence of Negroes from the
Greene County jury commission amounted, in itself, to a
prima
facie showing of discriminatory exclusion. The testimony
before the District Court indicated that the Governor had appointed
no Negroes to the Greene County commission during the 12 years
preceding the commencement of suit. But the appellants' trial
counsel conceded that he could not prove his charge of
discriminatory selection without the testimony of the Governor.
[
Footnote 43] Whether or not
such a concession was necessary,
Page 396 U. S. 339
the statement may well have led counsel for the appellees to
conclude that they were not obliged to produce witnesses on the
State's behalf with respect to this phase of the appellants'
case.
Nor can we uphold the appellants' present contention that, apart
from the question of discrimination in the composition of the jury
commission, the absence of Negroes from the commission compelled
the District Court to order the appointment of Negro commissioners.
The appellants are no more entitled to proportional representation
by race on the jury commission than on any particular grand or
petit jury. [
Footnote
44]
IV
There remains the question of the propriety of the relief
afforded the appellants by the District Court. The court, as we
have noted, enjoined the jury clerk and commissioners from
systematically excluding Negroes from the Greene County jury roll,
and directed them "to take prompt action to compile a jury list . .
. in accordance with the laws of Alabama and . . . constitutional
principles. . . ." [
Footnote
45] Pursuant to the court's order, the commission submitted a
new jury roll, dated November 6, 1968. The clerk stated she had
been into each of the precincts of Greene County and had contacted
people of both races by personal visit, letter, or telephone; with
their recommendations and with the help of the voting list and
telephone directory, the commission compiled
Page 396 U. S. 340
a new jury roll. Whether this roll complies with the terms of
the District Court's decree is a matter for that court to consider
in the first instance. The court properly recognized that other and
further relief might be appropriate. For that court
"has not merely the power but the duty to render a decree which
will, so far as possible, eliminate the discriminatory effects of
the past, as well as bar like discrimination in the future.
[
Footnote 46]"
Accordingly, the judgment below is affirmed, without prejudice
to the right of the appellants to seek modification of the District
Court's decree as circumstances may require.
It is so ordered.
Page 396 U. S. 341
[
Footnote 1]
"The sole purpose of these requirements is to insure that the
jury commissioner will have as complete a list as possible of
names, compiled on an objective basis, from which to select
qualified jurors."
Mitchell v. Johnson, 250 F.
Supp. 117, 123.
[
Footnote 2]
The commission may not select any person who is under 21, a
habitual drunkard, unfit to discharge a juror's duties because
afflicted with a permanent disease or physical weakness, or unable
to read English, nor anyone who has been convicted of an offense
involving moral turpitude. A person who would be disqualified only
because he cannot read English is still eligible for jury service
if he is a freeholder or householder. A person over 65 may not be
required to serve, but is eligible if he is willing to do so. § 21.
The commission is also required to exempt various classes of
persons, based on their occupation, unless they consent to serve. §
3. In addition, the court may excuse any person who appears to be
unfit to serve on a jury, or who is disqualified or exempt, "or for
any other reasonable or proper cause. . . ." §§ 4, 5.
Until 1966, only men were eligible for service. The blanket
exclusion of women was declared unconstitutional in
White v.
Crook, 251 F.
Supp. 401, 408-409; thereafter, Alabama amended its statutes to
render women eligible. § 21(1). The trial judge may, however,
excuse them from jury duty for good cause shown. § 21.
The requirement that the commission place the name of every
qualified, nonexempt person on the jury roll is permissive, not
mandatory, in that the jury commission's failure to do so does not,
absent fraud or denial of constitutional rights, compel the
quashing of the indictment or venire.
Fikes v. State, 263
Ala. 89, 95,
81 So. 2d
303, 309,
rev'd on other grounds, 352 U.
S. 191;
see Swain v. Alabama, 380 U.
S. 202,
380 U. S. 207
n. 3;
White v. Crook, supra, at 403 n. 6;
Mitchell v.
Johnson, supra, at 119 n. 5.
[
Footnote 3]
Bokulich v. Jury Commission of Greene
County, 298 F.
Supp. 181, 187-188. (Footnotes omitted.)
[
Footnote 4]
Coleman v. Barton, No. 63-4 (N.D.Ala.1964). The opinion
is unreported.
See 298 F. Supp. at 184.
[
Footnote 5]
In 1966, Alabama still limited jury service to males.
See n 2,
supra.
[
Footnote 6]
The District Court rejected the appellees' contention that an
emigration of younger and better-educated Negroes from the county
in the 1960's accounted for the disparity between the racial
composition of the county in 1960 and of the jury rolls during the
succeeding years of the decade. 298 F. Supp. at 188.
See
Coleman v. Alabama, 389 U. S. 22,
389 U. S.
23.
[
Footnote 7]
Other plaintiffs in the suit sought similar relief, as well as
an injunction to prevent the grand jury from considering charge of
grand larceny then outstanding against them. The District Court
denied relief with respect to those plaintiffs, and they took a
separate appeal. We affirmed that portion of the District Court's
judgment last Term, and those plaintiffs are no longer before us.
Bokulich v. Jury Commission of Greene County, 394 U. S.
97 (per curiam).
[
Footnote 8]
Arnold v. North Carolina, 376 U.
S. 773 (per curiam);
Eubanks v. Louisiana,
356 U. S. 584:
Reece v. Georgia, 350 U. S. 85,
350 U. S. 87;
Cassell v. Texas, 339 U. S. 282;
Hill v. Texas, 316 U. S. 400,
316 U. S. 404,
316 U. S. 406;
Smith v. Texas, 311 U. S. 128,
311 U. S.
129-130;
Pierre v. Louisiana, 306 U.
S. 354,
306 U. S.
356-358,
306 U. S. 362;
Rogers v. Alabama, 192 U. S. 226,
192 U. S. 231;
Carter v. Texas, 177 U. S. 442,
177 U. S. 447;
Bush v. Kentucky, 107 U. S. 110,
107 U. S.
121.
[
Footnote 9]
Avery v. Georgia, 345 U. S. 559;
Hollins v. Oklahoma, 295 U. S. 394 (per
curiam).
[
Footnote 10]
Sims v. Georgia, 389 U. S. 404,
389 U. S.
407-408;
Whitus v. Georgia, 385 U.
S. 545;
Swain v. Alabama, 380 U.
S. 202;
Coleman v. Alabama, 377 U.
S. 129;
Patton v. Mississippi, 332 U.
S. 463;
Hale v. Kentucky, 303 U.
S. 613 (per curiam);
Norris v. Alabama,
294 U. S. 587,
294 U. S. 589;
Martin v. Texas, 200 U. S. 316,
200 U. S. 319;
Neal v. Delaware, 103 U. S. 370,
103 U. S.
396-397;
Strauder v. West Virginia,
100 U. S. 303.
[
Footnote 11]
Billingsley v. Clayton, 359 F.2d 13, 16 (en banc);
Jewell v. Stebbins, 288 F.
Supp. 600, 604-605;
White v. Crook, 251 F.
Supp. 401, 405-406;
Mitchell v.
Johnson, 250 F.
Supp. 117, 121.
See Kuhn, Jury Discrimination: The
Next Phase, 41 S.Cal.L.Rev. 235, 247-249; Note, The Congress, The
Court and Jury Selection: A Critique of Titles I and II of the
Civil Rights Bill of 1966, 52 Va.L.Rev. 1069, 1084-1094 (1966).
[
Footnote 12]
Cf. Carrington v. Rash, 380 U. S.
89,
380 U. S. 91;
Lassiter v. Northampton County Board of Election,
360 U. S. 45,
360 U. S. 50-51;
Pope v. Williams, 193 U. S. 621,
193 U. S.
632.
[
Footnote 13]
Compare Duncan v. Louisiana, 391 U.
S. 145,
with Hurtado v. California,
110 U. S. 516.
[
Footnote 14]
See Ex parte Virginia, 100 U.
S. 339,
100 U. S.
346-347;
Virginia v. Rives, 100 U.
S. 313,
100 U. S.
321.
[
Footnote 15]
Strauder v. West Virginia, supra, at
100 U. S.
308.
[
Footnote 16]
Smith v. Texas, supra, at
311 U. S.
130.
[
Footnote 17]
Strauder v. West Virginia, supra. Congress, recognizing
such a right, has long provided a criminal sanction for its
violation:
"No citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State on
account of race, color, or previous condition of servitude, and
whoever, being an officer or other person charged with any duty in
the selection or summoning of jurors, excludes or fails to summon
any citizen for such cause, shall be fined not more than
$5,000."
18 U.S.C. § 243.
[
Footnote 18]
Cf. Whitus v. Georgia, supra, at
385 U. S.
552.
[
Footnote 19]
Cf. Witcher v. Peyton, 405 F.2d 725, 727.
[
Footnote 20]
Cf. Gray v. Main, 309 F. Supp. 207, 224.
[
Footnote 21]
Cf. Brook.s v. Beto, 366 F.2d 1, 27 (Wisdom, J.,
concurring in result),
cert. denied, 386 U.S. 975.
[
Footnote 22]
According to the appellants, civil suits challenging alleged
racial discrimination in jury selection have been commenced in
federal district courts throughout Alabama.
[
Footnote 23]
Brown v. Allen, 344 U. S. 443,
344 U. S. 473
(opinion of Mr. Justice Reed, announcing judgment);
Cassell v.
Texas, supra, at
339 U. S. 291
(Frankfurter, J., concurring in judgment);
Virginia v. Rives,
supra, at
100 U. S.
334-335 (Field J., concurring in judgment);
Strauder
v. West Virginia, supra, at
100 U. S.
310.
[
Footnote 24]
Neal v. Delaware, supra, at
103 U. S. 386;
Strauder v. West Virginia, supra.
[
Footnote 25]
Gibson v. Mississippi, 162 U.
S. 565,
162 U. S. 589.
The federal courts have upheld similar qualifications in reviewing
their own jury selection system.
See, e.g., United States v.
Flynn, 216 F.2d 354, 388 (C.A.2d Cir.) (Harlan, J.),
cert.
denied, 348 U.S. 909;
United States v. Dennis, 183
F.2d 201, 220 (C.A.2d Cir.) (L. Hand, J.),
cert. granted,
limited to other grounds, 340 U.S. 863.
[
Footnote 26]
Brown v. Allen, supra, at
344 U. S. 474
(opinion of Mr. Justice Reed, announcing judgment).
[
Footnote 27]
See e.g., Ariz.Rev.Stat.Ann. § 21-201 (1956);
Wis.Stat.Ann. § 255.01(1) (Supp. 1969).
[
Footnote 28]
See, e.g., Cal.Civ. Pro.Code § 198 (1954);
Wash.Rev.Code § 2.36.070(2) (1956).
[
Footnote 29]
E.g., Colo.Rev.Stat.Ann. § 78-1-1(1) (1963) (21 years
old); Md.Ann.Code, Art. 51, § 1 (1968 Repl. Vol.) (25 years);
Hawaii Rev.Stat. § 61(1) (1968) (20 years); Neb.Rev.Stat. §
251601(1) (1964) (25 years); R.I.Gen.Laws Ann. § 9-9-1 (1956)
(same).
[
Footnote 30]
See, e.g., Pa.Stat.Ann., Tit. 17, § 1322 (1962).
Vermont has delegated the function of determining qualifications to
court administrators. Vt.Stat.Ann., Tit. 4, § 902 (Supp. 1969).
[
Footnote 31]
Ariz.Rev.Stat.Ann. § 21-201 (1956); Ark.Stat.Ann. § 39206 (1962
Repl. Vol.); Conn.Gen.Stat.Rev. § 51-217 (1968); Fla.Stat. §
40.01(3) (1965); Hawaii Rev.Stat. § 61(3) (1968); Ill.Rev.Stat., c.
78, § 2 (1967) ("fair character"); Iowa Code § 607.1 (1966);
Kan.Stat.Ann. § 43-102 (1964); Ky.Rev.Stat. § 29.025 (1962)
("temperate, discreet, and of good demeanor"); Me.Rev.Stat.Ann.,
Tit. 14, § 1254 (1964); Neb.Rev.Stat. § 25-1601(1) (1964) ("fair
character"); N.Y.Judiciary Law § 504(4) (Supp. 1969);
Okla.Stat.Ann., Tit. 38, § 28 (Supp. 1969); S.C.Code Ann. § 382
(Supp. 1968); Tex.Rev.Civ.Stat.Ann., Art. 2133(2) (1964);
Wis.Stat.Ann. § 255.01(5) (Supp. 1969).
Another phrase frequently found is "approved integrity."
E.g., Conn.Gen.Stat.Rev. § 51-217 (1968); Fla.Stat. §
40.01(3) (1965); Ill.Rev.Stat., c. 78, § 2 (1-967); Kan.Stat.Ann. §
43-102 (1964); Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964);
Neb.Rev.Stat. § 25-1601(1) (1964).
See also
Ariz.Rev.Stat.Ann. § 21-201 (1956) ("sober"); Md.Ann.Code, Art. 51,
§ 9 (Supp. 1968) ("integrity"); Miss.Code Ann. § 1762-02 (Supp.
1968) (not a "habitual drunkard"); Mo.Ann.Stat. § 494.010 (Supp.
1969) ("sober"); Okla.Stat.Ann., Tit. 38, § 28 (Supp. 1969) (not a
habitual drunkard); Tenn.Code Ann. § 22-102 (1955) (same);
W.Va.Code Ann. § 52-1-2 (1966) (same);
cf.
N.H.Rev.Stat.Ann. § 500:29 (1968 Repl. Vol.) (disqualification on
account of "vicious habits"); Wash.Rev.Code § 2.36.110 (1959)
("unfit persons" must be excused).
[
Footnote 32]
Ariz.Rev.Stat.Ann. § 21-201 (1956); Cal.Civ. Pro.Code § 198
(1954); Fla.Stat. § 40.01(3) (1965); Hawaii Rev.Stat. § 609-1(3)
(1968); Md.Ann.Code, Art. 51, § 9 (Supp. 1968); Mo.Ann.Stat. §
494.010 (Supp. 1969); Mont.Rev.Codes Ann. § 93-1301(2) (1964 Repl.
Vol.); Neb.Rev.Stat. § 25-1601(1) (1964); N.Y.Judiciary Law §
596(5) (1968) (only for cities of one million in population);
Wyo.Stat.Ann. § 1-77(2) (Supp. 1969).
See also
Conn.Gen.Stat.Rev. § 51-217 (1968) ("sound judgment"); Fla.Stat. §
40.01(3) (1965) (same); Ill.Rev.Stat., c. 78, § 2 (1967) (same);
Iowa Code § 607.1 (1966) (same); Me.Rev.Stat.Ann., Tit. 14, § 1254
(1964) (same); N.D.Cent.Code § 27-09-01 (1960) ("sound mind and
discretion"); Okla.Stat.Ann., Tit. 38, § 28 (Supp. 1969) (same);
S.C.Code Ann. § 38-52 (Supp. 1968) ("sound judgment"); Utah Code
Ann. § 78-46-8(5) (1953) ("sound mind and discretion");
Wis.Stat.Ann. § 255.01(5) (Supp. 1969) ("sound judgment").
[
Footnote 33]
Ill.Rev.Stat., c. 78, § 2 (1967); Kan.Stat.Ann. § 43-102 (1964);
Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964); Neb.Rev.Stat. §
25-1601(1) (1964);
see Conn.Gen.Stat.Rev. § 51-217 (1968)
("fair education").
See Note, The Congress, The Court and
Jury Selection: A Critique of Titles I and II of the Civil Rights
Bill of 1966, 52 Va.L.Rev. 1069, 1072-1073 (1966) (collecting
references).
[
Footnote 34]
218 U. S. 161.
[
Footnote 35]
218 U.S. at
218 U. S.
167-168.
[
Footnote 36]
311 U. S. 311 U.S.
128.
[
Footnote 37]
See Akins v. Texas, 325 U. S. 398,
325 U. S.
402-403 and n. 3.
[
Footnote 38]
311 U.S. at
311 U. S.
130-131. (Footnote omitted.)
Cf. Hernandez v.
Texas, 347 U. S. 475,
347 U. S.
478-479, and
Cassell v. Texas, supra, at
339 U. S. 284,
where no challenge was made to the statutory scheme.
[
Footnote 39]
From the earliest consideration of racial discrimination in jury
selection, the Court has consistently distinguished, for purposes
of determining the removability of a state criminal proceeding to a
federal court, between a statute expressly excluding Negroes from
jury service and one neutral on its face with respect to race but
challenged as discriminatorily applied.
Compare Murray v.
Louisiana, 163 U. S. 101,
163 U. S.
105-106;
Smith v. Mississippi, 162 U.
S. 592,
162 U. S. 600;
Gibson v. Mississippi, supra, at
162 U. S.
579-586;
Bush v. Kentucky, supra, at
107 U. S. 116;
Neal v. Delaware, supra, at
103 U. S.
386-393;
Virginia v. Rives, supra, at
100 U. S.
318-323,
with Strauder v. West Virginia, supra,
at
100 U. S.
310-312.
See City of Greenwood v. Peacock,
384 U. S. 808,
384 U. S.
827-828;
Georgia v. Rachel, 384 U.
S. 780,
384 U. S.
797-804.
[
Footnote 40]
See Ala.Pen.Code of 1841, c. X, §§ 1, 3.
[
Footnote 41]
Such considerations distinguish the present case from
Louisiana v. United States, 380 U.
S. 145, where we invalidated a provision of the
Louisiana Constitution that vested in the State's voting registrars
"a virtually uncontrolled discretion as to who should vote and who
should not," and that had been abused "to deprive otherwise
qualified Negro citizens of their right to vote. . . ." 380 U.S. at
380 U. S. 150.
The District Court found that the constitutional provision, as
written and as applied, was "part of a successful plan to deprive
Louisiana Negroes of their right to vote." 380 U.S. at
380 U. S. 151,
aff'g 225 F.
Supp. 353, 356, 363-381.
Cf. South Carolina v.
Katzenbach, 383 U. S. 301,
383 U. S.
312-313;
United States v. Mississippi,
380 U. S. 128,
380 U. S.
131-136,
380 U. S.
143-144;
Alabama v. United States, 371 U. S.
37, per curiam,
aff'g 304 F.2d 583, 584-589,
aff'g 192 F.
Supp. 677;
Schnell v. Davis, 336 U.S. 933, per curiam,
aff'g 81 F. Supp.
872, 876, 878-880.
[
Footnote 42]
In
Louisiana v. United States, supra, the District
Court held the challenged constitutional provision invalid
per
se on the basis of its finding that, in view of the
provision's "vote-abridging purpose and effect," its vices could
not be cured by an injunction prohibiting its unfair application.
225 F. Supp. at 391,
aff'd, 380 U.S. at
380 U. S. 150
and n. 9.
Cf. Davis v. Schnell, 81 F. Supp. at 877.
[
Footnote 43]
The District Court granted a motion to quash the subpoena served
on the Governor when it appeared that the appellant had failed to
tender him his fees.
See Fed.Rule Civ.Proc. 45(c).
[
Footnote 44]
Moore v. Henslee, 276 F.2d 876, 878-879;
cf. Swain
v. Alabama, supra, at
380 U. S. 208;
Cassell v. Texas, supra, at
339 U. S. 291
(Frankfurter, J., concurring in judgment);
Akins v. Texas,
supra, at
325 U. S. 403;
Martin v. Texas, supra, at
200 U. S.
320-321;
Gibson v. Mississippi, supra, at
162 U. S. 580;
Bush v. Kentucky, supra, at
107 U. S. 117;
Neal v. Delaware, supra, at
103 U. S. 394;
Virginia v. Rives, supra, at
100 U. S. 323;
see Hoyt v. Florida, 368 U. S. 57,
368 U. S. 59,
368 U. S.
69.
[
Footnote 45]
See 298 F. Supp. at 193.
[
Footnote 46]
Louisiana v. United States, 380 U.
S. 145,
380 U. S. 154.
Cf. Alabama v. United States, 304 F.2d 583, 590-591,
aff'd, 371 U. S. 37 (per
curiam). Of particular relevance is the decree drawn by District
Judge Johnson in
Mitchell v. Johnson, in the District
Court for the Middle District of Alabama,
250 F.
Supp. 117, 123-124:
"The relief to be afforded in this case will involve not only
the issuance of a prohibitory injunction, but an injunction
requiring immediate affirmative action by the jury commissioners by
their emptying the . . . County jury box, abandoning the present .
. . jury roll without any further use of either, and by their
compiling a jury roll and refilling the jury box in strict
accordance with the law of Alabama and the constitutional
principles herein set forth. . . . In remedying this wrong, the
defendants are cautioned that, if they apply Alabama's
qualifications for jury service -- particularly that qualification
relating to good character and sound judgment and that
qualification concerning the requirement that prospective jurors be
able to read English -- these qualification requirements must be
imposed fairly and objectively and administered to all regardless
of race, in a nondiscriminatory manner. . . ."
"
* * * *"
"Failure on the part of the defendants to comply immediately and
in good faith with the requirements of this opinion and order will
necessitate the appointment by this Court of a master or panel of
masters to recompile the jury roll and to empty and refill the . .
. jury box."
(Footnotes omitted.)
Accord: Pullum v. Greene, 396 F.2d
251, 257;
Turner v. Spencer, 261 F. Supp. 542, 544;
White v. Crook, 251 F.
Supp. 401, 410.
MR. JUSTICE BLACK, concurring.
I concur in the judgment and opinion of the Court except insofar
as it may leave an implication that this Court has the power to
vacate a state governor's appointment of jury commissioners or the
power to compel the governor of a State to appoint Negroes or any
other persons to the office of jury commissioner. In my judgment,
the Constitution no more grants this Court the power to compel a
governor to appoint or reject a certain individual or a member of
any particular group than it grants this Court the power to compel
the voters of a State to elect or defeat a particular person or a
member of a particular group.
MR. JUSTICE DOUGLAS, dissenting in part.
There comes a time when an organ or agency of state law has
proved itself to have such a racist mission that it should not
survive constitutional challenge. The instances are not numerous in
our history. But they have appeared. One was present in
Louisiana v. United States, 380 U.
S. 145, where a state constitution required every voter
who applied to register to "be able to understand" as well as "give
a reasonable interpretation" of any section of the State or Federal
Constitution "when read to him by the registrar."
Id. at
380 U. S. 149.
This interpretation test had had a history of depriving "otherwise
qualified Negro citizens of their right to vote,"
id. at
380 U. S. 150,
and was deemed incapable of fair application through policing by
injunction.
Id. at
380 U. S. 150
n. 9. We therefore struck it down.
The District Court in the instant case held that
"[t]he attack on racial composition of the [jury] commission
fails for want of proof. No proof was adduced except that the
commission in Greene County now is and for many years has been
composed entirely of white men appointed by the governor."
298 F.
Supp. 181, 192.
Page 396 U. S. 342
But, as the opinion of the Court states, the record shows much
more: it demonstrates a systematic exclusion of Negroes from juries
in Greene County even though the Negroes outnumber the whites by
two to one. It shows (1) that the white jury officials --
consistent with southern racial patterns -- had little, if any,
contacts with Negroes; (2) that the officials knew very few Negroes
and practically nothing about the black community; (3) that only a
few Negroes were contacted to secure black names for jury listing;
(4) that, in applying the statutorily created subjective standards,
the white jury officials relied, not only on their own subjective
judgments, but also on the subjective judgments of other people;
(5) that few Negroes could be expected to pass muster under these
standards, and (6) that, as stated by the Court,
"[i]n 1966 only 82 Negroes appeared among the 471 citizens
listed on the jury roll; 500 of the white male population of the
county found its way to the jury roll in that year, but only 40 of
the Negro. In 1967, following a statutory amendment, the commission
added women to the jury roll. Upon the expansion of the list,
Negroes composed 388 of the 1,198 potential jurors -- still only
32% of the total, even though the 1967 population of the county was
estimated to be about 65% Negro."
Ante at
396 U. S.
327-328.
I cannot see any solution to the present problem, unless the
jury commission is by law required to be biracial. In the Kingdom
of Heaven, an all-white or an all-black commission could be
expected to do equal justice to all races in the selection of
people "generally reputed to be honest and intelligent" and
"esteemed in the community for their integrity, good character and
sound judgment." Ala.Code, Tit. 30, § 21 (Supp. 1967). But, where
there exists a pattern of discrimination, an all-white or all-black
jury commission in these times probably means that the race in
power retains authority to control the
Page 396 U. S. 343
community's official life, and that no jury will likely be
selected that is a true cross-section of the community.
We have often said that no jury need represent proportionally a
cross-section of the community. [
Footnote 2/1]
See Swain v. Alabama,
380 U. S. 202,
380 U. S.
208-209;
Cassell v. Texas, 339 U.
S. 282,
339 U. S.
286-287. Jury selection is largely by chance, and no
matter what the race of the defendant, he bears the risk that no
racial component, presumably favorable to him, will appear on the
jury that tries him. The law only requires that the panel not be
purposely unrepresentative.
See Whitus v. Georgia,
385 U. S. 545,
385 U. S. 550.
Those finally chosen may have no minority representation as a
result of the operation of chance, challenges for cause, and
peremptory challenges.
The problem in the present case is to keep the selective process
free of any racist influence. That implicates the jury commission
that has continuing oversight over the operation of the jury
system.
I expressed my doubts in
Sellers v. Laird, 395 U.
S. 950, whether under the Selective Service System an
all-white
Page 396 U. S. 344
board could be expected to do equal justice to Negro
registrants, at least as respects many problems. Those doubts are
resolved here, because of the established pattern of racial
discrimination which this all-white jury commission has credited to
it. India has handled this type of problem by constitutional
amendment. [
Footnote 2/2] But
our
Page 396 U. S. 345
constitutional mandate against racial discrimination is
sufficient without more.
Where the challenged state agency, dealing with the rights and
liberties of the citizen, has a record of racial discrimination,
the corrective remedy is proportional representation. Under our
Constitution, that would indeed seem to be the only effective
control over the type of racial discrimination long practiced in
this case.
I would not write a decree that requires a governor to name two
Negroes out of three commissioners. I would go no further than to
strike down this jury commission system, because it does not
provide for proportional representation of the two races.
[
Footnote 2/1]
The Civil Rights Act of 1964, § 703, 78 Stat. 255, 42 U.S.C. §
2000e-2(a), makes it unlawful for an employer on a federally
financed project "to limit, segregate, or classify" his employees
because of race. In commenting on the Philadelphia Plan, regulating
employment on federally financed construction jobs, the Washington
Post stated:
"Quotas are understandably abhorrent to those seeking to do away
with discrimination. A quota in this context means a ceiling. Some
years ago, when colleges were accused of discriminating against
religious minorities in their admission policies, they fixed quotas
in percentage terms for these minorities based upon their ratio to
the general population, and not upon their ability to meet
competitive entrance tests; these quotas then became a maximum for
the admission of minority group students. The goals embodied in the
Philadelphia Plan constitute a floor, not a ceiling, a minimum,
rather than a maximum; they constitute an agreement to enlarge job
opportunities for minority workers, not restrict them, and so they
are in complete conformity with the essential spirit and purpose of
the Civil Rights Act."
Jan. 14, 1970, p. A18.
[
Footnote 2/2]
The Constitution of India contains provisions for her
economically and educationally deprived classes, including the
untouchables. Article 15(4) provides:
"Nothing in this article or in clause (2) of Article 29 shall
prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes."
This provision was added to the Constitution by a 1951
amendment, the object of which was to override the decision in
State of Madras v. Dorairajan, All India Rptr.1951 Sup.Ct.
226, and to make it constitutional for the State to reserve seats
for backward classes of citizens and Scheduled Castes and Tribes in
public educational institutions, or to take other similar action
for their advancement.
Article 16(4), relating to public employment, provides:
"Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State,
is not adequately represented in the services under the State."
The objective of "adequate representation" applies not merely to
lower government positions, but to all levels of government office.
See General Manager, S.R. Co. v. Ranachari, All India
Rptr.1962 Sup.Ct. 36.
Articles 330 and 332 provide for the reservation of seats for
Scheduled Castes and Scheduled Tribes, except for the Scheduled
Tribes in the tribal areas of Assam, in the House of the People and
the legislative assembly of every State. Article 331 provides for
the nomination of not more than two members of the Anglo-Indian
community if the President is of the opinion that the community is
not adequately represented in the House of the People. The
reservation of seats mentioned above and the nomination of members
of the Anglo-Indian community is to cease after 20 years,
viz., January, 1970. A constitutional amendment extending
that time is now before the national parliament and the
legislatures of the several States.
See Indian &
Foreign Review, Jan. l, 1970, p. 7.