Petitioner was convicted of crimes in a Missouri State court
notwithstanding his contention that his right to trial by a jury
chosen from a fair cross-section of his community was denied by
provisions of Missouri law granting women who so request an
automatic exemption from jury service. Under the challenged jury
selection system, before the jury wheel is filled, women may claim
exemption in response to a prominent notice on a jury selection
questionnaire, and, prior to the appearance of jurors for service,
women are afforded an additional opportunity to decline service by
returning the summons or by simply not reporting for jury duty.
Petitioner established that 54% of the adults in the forum county
were women; that, during 8 of the 10 months immediately prior to
his trial, only 26.7% of those summoned from the jury wheel were
women; and that only 14.5% of the persons on the post-summons
weekly venires during this period were women. For the month in
which petitioner's jury was chosen, the weekly venires averaged
15.5% women. Petitioner's all-male jury was selected from a panel
of 53, of whom 5 were women. The Missouri Supreme Court questioned
aspects of petitioner's statistics, but held that the
underrepresentation of women on jury venires in the forum county
did not violate the fair cross-section requirement set forth in
Taylor v. Louisiana, 419 U. S. 522,
under which a defendant, in order to establish a
prima
facie violation of that requirement, must show (1) that the
group alleged to be excluded is a "distinctive" group in the
community; (2) that the group's representation in the source from
which juries are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) that this
underrepresentation results from systematic exclusion of the group
in the jury selection process.
Held: The exemption on request of women from jury
service under Missouri law, resulting in an average of less than
15% women on jury venires in the forum county, violates the
"fair-cross-section" requirement of the Sixth Amendment as made
applicable to the States by the Fourteenth. Pp.
439 U. S.
363-370.
(a) If women, who "are sufficiently numerous and distinct from
men," are systematically excluded from venires, the fair
cross-section requirement cannot be satisfied.
Taylor,
supra at
419 U. S. 531.
P.
439 U. S.
364.
(b) There is no evidence to show that the 1970 census data on
which
Page 439 U. S. 358
petitioner relied distorted the percentage of women in the forum
county at the time of trial, and the court below erred in
concluding that jury venires with approximately 15% women are
"reasonably representative" of the relevant community. Pp.
439 U. S.
364-366.
(c) Petitioner's proof showed that the underrepresentation of
women, generally and on his venire, was attributable to their
systematic exclusion in the jury selection process at both the jury
wheel and summons stages, resulting in the low percentage (14.5%)
at the final, venire, stage. Pp.
439 U. S.
366-367.
(d) Respondent did not satisfy its burden of showing any
significant state interest justifying the infringement of
petitioner's constitutional right to a jury drawn from a fair
cross-section of the community. It did not how that exemptions
other than that for women caused the underrepresentation of women.
Nor does exempting all women because of preclusive domestic
responsibilities of some women constitute sufficient justification
for the disproportionate exclusion of women on jury venire
permitted in Missouri. Pp.
439 U. S. 367-370.
556 S.W.2d
11, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART MARSHALL, BLACKMUN, POWELL, and STEVENS,
JJ., joined. REHNQUIST, J., filed a dissenting opinion,
post, p.
439 U. S.
370.
MR. JUSTICE WHITE delivered the opinion of the Court.
In
Taylor v. Louisiana, 419 U.
S. 522 (1975), this Court held that systematic exclusion
of women during the jury selection process, resulting in jury pools
not "reasonably
Page 439 U. S. 359
representative" of the community, denies a criminal defendant
his right, under the Sixth and Fourteenth Amendments, to a petit
jury selected from a fair cross-section of the community. [
Footnote 1] Under the system
invalidated in
Taylor, a woman could not serve on a jury
unless she filed a written declaration of her willingness to do so.
[
Footnote 2] As a result,
although 53% of the persons eligible for jury service were women,
less than 1% of the 1,800 persons whose names were drawn from the
jury wheel during the year in which appellant Taylor's jury was
chosen were female.
Id. at
419 U. S.
524.
At the time of our decision in
Taylor, no other State
provided that women could not serve on a jury unless they
volunteered to serve. [
Footnote
3] However, five States, including Missouri, provided an
automatic exemption from jury service for any women requesting not
to serve. [
Footnote 4]
Subsequent to
Taylor,
Page 439 U. S. 360
three of these States eliminated this exemption. [
Footnote 5] Only Missouri, respondent in this
case, and Tennessee [
Footnote
6] continue to exempt women from jury service upon request.
[
Footnote 7] Today we hold that
such systematic exclusion of women that results in jury venires
averaging less than 15% female violates the Constitution's fair
cross-section requirement.
I
Petitioner Duren was indicted in 1975 in the Circuit Court of
Jackson County, Mo., for first-degree murder and first-degree
robbery. In a pretrial motion to quash his petit jury panel, and
again in a post-conviction motion for a new trial, he contended
that his right to trial by a jury chosen from a fair cross-section
of his community was denied by provisions of Missouri law granting
women who so request an automatic exemption from jury service.
[
Footnote 8] Both motions were
denied.
Page 439 U. S. 361
At hearings on these motions, petitioner established that the
jury selection process in Jackson County begins with the annual
mailing of a questionnaire to persons randomly selected from the
Jackson County voter registration list. Approximately 70,000
questionnaires were mailed in 1975. The questionnaire contains a
list of occupations and other categories which are the basis under
Missouri law for either disqualification [
Footnote 9] or exemption [
Footnote 10] from jury service. [
Footnote 11] Included on the questionnaire is a
paragraph prominently addressed "TO WOMEN" that states in part:
"Any woman who elects not to serve will fill out this paragraph
and mail this questionnaire to the jury commissioner at once.
[
Footnote 12] "
Page 439 U. S. 362
A similar paragraph is addressed "TO MEN OVER 65 YEARS OF AGE,"
who are also statutorily exempt upon request. [
Footnote 13]
The names of those sent questionnaires ar placed in the master
jury wheel for Jackson County, except for those returning the
questionnaire who indicate disqualification or claim an applicable
exemption. Summonses are mailed on a weekly basis to prospective
jurors randomly drawn from the jury wheel. The summons, like the
questionnaire, contains special directions to men over 65 and to
women, this time advising them to return the summons by mail if
they desire not to serve. The practice also is that even those
women who do not return the summons are treated as having claimed
exemption if they fail to appear for jury service on the appointed
day. [
Footnote 14] Other
persons seeking to claim an exemption at this stage must make
written or personal application to the court.
Petitioner established that, according to the 1970 census, 54%
of the adult inhabitants of Jackson County were women. He also
showed that, for the periods June-October, 1975, and January-March,
1976, [
Footnote 15] 11,197
persons were summoned, and that 2,992 of these, or 26.7%, were
women. Of those summoned, 741 women and 4,378 men appeared for
service. Thus, 14.55 (741 of 5,119) of the persons on the
post-summons weekly venires during the period in which petitioner's
jury was chosen were female. [
Footnote 16] In March, 1976, when petitioner's
Page 439 U. S. 363
trial began, 15.5% of those on the weekly venires were women
(110 of 707). [
Footnote 17]
Petitioner's jury was selected from a 53-person panel on which
there were 5 women; all 12 jurors chosen were men. [
Footnote 18] None of the foregoing
statistical evidence was disputed.
In affirming petitioner's conviction, the Missouri Supreme Court
questioned two aspects of his statistical presentation. First, it
considered the census figures inadequate because they were six
years old, and might not precisely mirror the percentage of women
registered to vote. Second, petitioner had not unequivocally
demonstrated the extent to which the low percentage of women
appearing for jury service was due to the automatic exemption for
women, rather than to sex-neutral exemptions such as that for
persons over age 65.
The court went on to hold, however, that, even accepting
petitioner's statistical proof, "the number of female names in the
wheel, those summoned and those appearing were well above
acceptable constitutional standards."
556 S.W.2d
11, 15-17 (1977). [
Footnote
19] We granted certiorari, 435 U.S. 1006 (1978), because of
concern that the decision below is not consistent with our decision
in
Taylor.
II
We think that, in certain crucial respects, the Missouri Supreme
Court misconceived the nature of the fair cross-section inquiry set
forth in
Taylor. In holding that "petit juries must be
drawn from a source fairly representative of the community," 419
U.S. at
419 U. S. 538,
we explained that
"jury wheels, pools of names, panels, or venires from which
juries are drawn must not systematically exclude
Page 439 U. S. 364
distinctive groups in the community, and thereby fail to be
reasonably representative thereof."
Ibid. [
Footnote
20] In order to establish a
prima facie violation of
the fair cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a "distinctive" group in
the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community; and (3)
that this underrepresentation is due to systematic exclusion of the
group in the jury selection process.
A
With respect to the first part of the
prima facie test,
Taylor, without doubt, established that women "are
sufficiently numerous and distinct from men" so that, "if they are
systematically eliminated from jury panels, the Sixth Amendment's
fair cross-section requirement cannot be satisfied."
Id.
at
419 U. S.
531.
B
The second prong of the
prima facie case was
established by petitioner's statistical presentation. Initially,
the defendant must demonstrate the percentage of the community made
up of the group alleged to be underrepresented, for this is the
conceptual benchmark for the Sixth Amendment fair cross-section
requirement. In
Taylor, the State had stipulated that 53%
of the population eligible for jury service [
Footnote 21] was female, while petitioner Duren
has relied upon a census
Page 439 U. S. 365
measurement of the actual percentage of women in the community
(54%). In the trial court, the State of Missouri never challenged
these data. Although the Missouri Supreme Court speculated that
changing population patterns between 1970 and 1976 and unequal
voter registration by men and women [
Footnote 22] rendered the census figures a questionable
frame of reference, [
Footnote
23] there is no evidence whatsoever in the record to suggest
that the 1970 census data significantly distorted the percentage of
women in Jackson County at the time of trial. Petitioner's
presentation was clearly adequate
prima facie evidence of
population characteristics for the purpose of making a fair
cross-section violation. [
Footnote 24]
Given petitioner's proof that in the relevant community slightly
over half of the adults are women, we must disagree with the
conclusion of the court below that jury venires containing
approximately 15% women are "reasonably representative"
Page 439 U. S. 366
of this community. If the percentage of women appearing on jury
pools in Jackson County had precisely mirrored the percentage of
women in the population, more than one of every two prospective
jurors would have been female. In fact, less than one of every six
prospective jurors was female; 85% of the average jury was male.
Such a gross discrepancy between the percentage of women in jury
venires and the percentage of women in the community requires the
conclusion that women were not fairly represented in the source
from which petit juries were drawn in Jackson County.
C
Finally, in order to establish a
prima facie case, it
was necessary for petitioner to show that the underrepresentation
of women, generally and on his venire, was due to their systematic
exclusion in the jury selection process. Petitioner's proof met
this requirement. His undisputed demonstration that a large
discrepancy occurred not just occasionally, but in every weekly
venire for a period of nearly a year, manifestly indicates that the
cause of the underrepresentation was systematic -- that is,
inherent in the particular jury selection process utilized.
Petitioner Duren's statistics and other evidence also
established when, in the selection process, the systematic
exclusion took place. There was no indication that
underrepresentation of women occurred at the first stage of the
selection process -- the questionnaire canvass of persons randomly
selected from the relevant voter registration list. The first sign
of a systematic discrepancy is at the next stage -- the
construction of the jury wheel from which persons are randomly
summoned for service. Less than 30% of those summoned were female,
demonstrating that a substantially larger number of women answering
the questionnaire claimed either ineligibility or exemption from
jury service. Moreover, at the summons stage, women were not only
given another opportunity to
Page 439 U. S. 367
claim exemption, but also were presumed to have claimed
exemption when they did not respond to the summons. Thus, the
percentage of women at the final, venire, stage (14.5%) was much
lower than the percentage of women who were summoned for service
(26.7%).
The resulting disproportionate and consistent exclusion of women
from the jury wheel and at the venire stage was quite obviously due
to the system by which juries were selected. Petitioner
demonstrated that the underrepresentation of women in the final
pool of prospective jurors was due to the operation of Missouri's
exemption criteria -- whether the automatic exemption for women or
other statutory exemptions -- as implemented in Jackson County.
Women were therefore systematically underrepresented within the
meaning of
Taylor. [
Footnote 25]
III
The demonstration of a
prima facie fair cross-section
violation by the defendant is not the end of the inquiry into
whether a constitutional violation has occurred. We have explained
that
"States remain free to prescribe relevant qualifications for
their jurors, and to provide reasonable exemptions so long as it
may be fairly said that the jury lists or panels are representative
of the community."
Taylor, 419 U.S. at
419 U. S. 538.
However, we cautioned that "[t]he right to a proper jury cannot be
overcome on merely rational grounds,"
id. at
419 U. S. 534.
Rather, it requires that a significant state interest be manifestly
and primarily advanced by those aspects of the
Page 439 U. S. 368
jury selection process, such as exemption criteria, that result
in the disproportionate exclusion of a distinctive group. [
Footnote 26]
The Supreme Court of Missouri suggested that the low percentage
of women on jury venires in Jackson County may have been due to a
greater number of women than of men qualifying for or claiming
permissible exemptions, such as those for persons over 65,
teachers, and government workers. 556 S.W.2d at 16. Respondent
further argues that petitioner has not proved that the exemption
for women had "any effect" on, or was responsible for, the
underrepresentation of women on venires. Brief for Respondent
15.
However, once the defendant has made a
prima facie
showing of an infringement of his constitutional right to a jury
drawn from a fair cross-section of the community, it is the State
that bears the burden of justifying this infringement by showing
attainment of a fair cross-section to be incompatible with a
significant state interest.
See Taylor, 419 U.S. at
419 U. S.
533-535. Assuming,
arguendo, that the
exemptions mentioned
Page 439 U. S. 369
by the court below would justify failure to achieve a fair
community cross-section on jury venires, the State must demonstrate
that these exemptions caused the underrepresentation complained of.
The record contains no such proof, and mere suggestions or
assertions to that effect are insufficient.
The other possible cause of the disproportionate exclusion of
women on Jackson County jury venires is, of course, the automatic
exemption for women. Neither the Missouri Supreme Court nor
respondent in its brief has offered any substantial justification
for this exemption. In response to questioning at oral argument,
counsel for respondent ventured that the only state interest
advanced by the exemption is safeguarding the important role played
by women in home and family life. [
Footnote 27] But exempting all women because of the
preclusive domestic responsibilities of some women is insufficient
justification for their disproportionate exclusion on jury venires.
What we stated in
Taylor with respect to the system there
challenged under which women could "opt in" for jury service is
equally applicable to Missouri's "opt out" exemption:
"It is untenable to suggest these days that it would be a
special hardship for each and every woman to perform jury service,
or that society cannot spare any women from their present duties.
This may be the case with many, and it may be burdensome to sort
out those who should be exempted from those who should serve. But
that task is performed in the case of men, and the administrative
convenience in dealing with women as a class is insufficient
justification for diluting the quality of community judgment
represented by the jury in criminal trials."
"
* * * *"
"If it was ever the case that women were unqualified to sit on
juries or were so situated that none of them should be required to
perform jury service, that time has long
Page 439 U. S. 370
since passed."
419 U.S. at
419 U. S.
534-535,
419 U. S. 537
(footnote omitted).
We recognize that a State may have an important interest in
assuring that those members of the family responsible for the care
of children are available to do so. An exemption appropriately
tailored to this interest would, we think, survive a fair
cross-section challenge. We stress, however, that the
constitutional guarantee to a jury drawn from a fair cross-section
of the community requires that States exercise proper caution in
exempting broad categories of persons from jury service. Although
most occupational and other reasonable exemptions may inevitably
involve some degree of overinclusiveness or underinclusiveness, any
category expressly limited to a group in the community of
sufficient magnitude and distinctiveness so as to be within the
fair cross-section requirement -- such as women -- runs the danger
of resulting in underrepresentation sufficient to constitute a
prima facie violation of that constitutional requirement.
We also repeat the observation made in
Taylor that it is
unlikely that reasonable exemptions, such as those based on special
hardship, incapacity, or community needs, "would pose substantial
threats that the remaining pool of jurors would not be
representative of the community."
Id. at
419 U. S.
534.
The judgment of the Missouri Supreme Court is reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
So ordered.
[
Footnote 1]
See Taylor v. Louisiana, 419 U.S. at
419 U. S.
526-531,
419 U. S. 538;
Duncan v. Louisiana, 391 U. S. 145
(1968). A criminal defendant has standing to challenge exclusion
resulting in a violation of the fair cross-section requirement,
whether or not he is a member of the excluded class.
See
Taylor, supra at
419 U. S.
526.
[
Footnote 2]
See La.Const., Art. VII, § 41 (1921), and La.Code
Crim.Proc., Art 402 (West 1967), reproduced in 419 U.S. at
419 U. S. 523
nn. 1 and 2.
[
Footnote 3]
Two other States, New Hampshire and Florida, had recently
abolished similar provisions requiring otherwise qualified women to
volunteer for jury service.
See N.H.Rev.Stat.Ann. § 500:1
(1955), repealed by 1967 N.H.Laws. ch. 100, § 1; Fla.Stat. §
40.01(1) (1961), repealed by 1967 Fla.Laws, ch. 67-154, § 1. The
current provisions are at N.H.Rev.Stat.Ann. § 500-A:2 (Supp. 1977)
(providing exemption for women caring for children under age 12);
Fla.Stat. § 40.01(1) (1977) (providing exemption for pregnant women
and women with children under age 15).
[
Footnote 4]
Ga.Code § 59-124 (1965); Mo.Const., Art. 1, § 22(b),
Mo.Rev.Stat. § 494.031(2) (Supp. 1978); N.Y.Jud.Law §§ 507(7),
599(7), 665(7) (McKinney 1964); R.I.Gen.Laws § 9-9-11 (1969);
Tenn.Code Ann. § 22-101 (Supp. 1978), § 22-108 (1955). In addition,
Alabama did not allow women to serve on juries until 1966,
see Ala.Code, Tit. 30, § 21 (1958), in which year they
were provided an exemption "for good cause shown." 1966 Ala.Acts,
p. 429, § 4; Ala.Code, Tit. 30, § 21 (Supp. 1973).
[
Footnote 5]
1975 Ga.Laws, pp. 779-780; 1975 N.Y.Laws, chs. 4, 21 ; 1975
R.I.Pub.Laws, ch. 233, § 1. The current provisions relating to
qualification for jury service are at Ga.Code Ann. § 59-112 (Supp.
1978); N.Y.Jud.Law § 512 (McKinney Supp. 1978); R.I.Gen.Laws §§
9-9-1, 9-9-11 (Supp. 1977). Alabama has replaced its exemption of
women for cause,
see n
4,
supra, with a general provision setting out
qualifications for jury service. Ala.Code § 12-16-43 (1975).
[
Footnote 6]
The Tennessee Supreme Court has stated that the
constitutionality of the exemption for women is "highly suspect,"
but has declined to test the exemption "pursuant to the principles
announced in
Taylor until a record is presented that
reflects the consequences of [its] operation."
Scharff v.
State, 551 S.W.2d 671, 676 (1977). On at least one occasion,
the Tennessee House of Representatives has passed a bill that would
repeal that State's exemption for women,
see H.R. 105,
89th Assembly, 1st Sess. (1975).
See generally Daughtrey,
Cross Sectionalism in Jury Selection Procedures After
Taylor v.
Louisiana, 43 Tenn.L.Rev. 1, 49-50 (1975) .
[
Footnote 7]
In Massachusetts, the court may excuse any woman requesting not
to serve in a case involving sex crimes. Mass.Gen.Laws Ann., ch.
234, § 1A (West 1959).
[
Footnote 8]
Missouri Const., Art. 1, § 22(b), provides:
"No citizen shall be disqualified from jury service because of
sex, but the court shall excuse any woman who requests exemption
therefrom before being sworn as a juror."
This constitutional mandate is implemented by Mo.Rev.Stat. §
494.031(2) (Supp. 1978), providing:
"The following persons, shall, upon their timely application to
the court, be excused from service as a juror, either grand or
petit:"
"
* * * *"
"(2) Any woman who requests exemption before being sworn as a
juror."
See also § 497.030 (Supp. 1978) and
n 11,
infra.
[
Footnote 9]
Felons, illiterates, attorneys, judges, members of the Armed
Forces, and certain others are ineligible for jury service.
Mo.Rev.Stat. § 494.020 (Supp. 1978).
[
Footnote 10]
In addition to women, the following are exempted from jury
service upon request: persons over age 65, medical doctors, clergy,
teachers, persons who performed jury service within the preceding
year,
"any person whose absence from his regular place of employment
would, in the judgment of the court, tend materially and adversely
to affect the public safety, health, welfare or interest,"
and "[a]ny person upon whom service as a juror would in the
judgment of the court impose an undue hardship." § 494.031 (Supp.
1978).
[
Footnote 11]
The use and form of this questionnaire are prescribed by a state
statute applicable only to Jackson County. § 497.130 (Supp. 1978)
.
[
Footnote 12]
Ibid.; App. 43
[
Footnote 13]
See n 10,
supra.
[
Footnote 14]
This practice in Jackson County with respect to women not
appearing for service is not authorized by statute, and persons
failing to report for jury service are subject to contempt of
court, Mo.Rev.Stat. § 494.080 (1952). However, Mo.Const., Art. 1, §
22(b), allows a woman to claim exemption at any time "before being
sworn as a juror,"
n 8,
supra.
[
Footnote 15]
The record does not reveal whether any summonses were mailed in
November or December, 1975.
[
Footnote 16]
The smallest percentage of women appearing on a jury venire,
7.3%, occurred the first week in January, 1976 (12 women of 164
appearing), and the largest percentage of women appearing, 21.8%,
occurred in March, 1976 (32 women of 147 appearing). App. 8,
45.
[
Footnote 17]
556 S.W.2d
11, 16 (Mo.1977).
[
Footnote 18]
Brief for Respondent 5.
[
Footnote 19]
The decision below also rejected petitioner's challenge under
the Equal Protection Clause of the Fourteenth Amendment. This
challenge has not been renewed before this Court.
[
Footnote 20]
We further explained that this requirement does not mean "that
petit juries actually chosen must mirror the community," 419 U.S.
at
419 U. S.
538.
[
Footnote 21]
Under Louisiana law at the time of appellant Taylor's trial, all
persons not indicted for or convicted of a felony who were 21 years
of age or older and who were literate in English and physically and
mentally capable were eligible for jury duty. La.Code Crim.Proc.,
Art. 401 (West 1967).
[
Footnote 22]
This speculation is belied by the U.S. Dept. of Commerce, Bureau
of the Census, Current Population Reports: Voting and Registration
in the Election of November 1976, Table 5 (1978), showing that
69.9% of the women and 71.1% of the men in Missouri are registered
to vote.
[
Footnote 23]
The opinion below found additional fault with the census data in
that voter registration lists include persons aged 18 to 21, while
the census data included only persons 21 years of age and older.
See 556 S.W.2d at 16. However, the 1970 census data not
only included a summary row showing that 54% of persons 21 years of
age and older were women, but also included data showing that an
even greater percentage of persons between the ages of 18 and 21
were women. App. 39. In any event, the fair cross-section
requirement involves a comparison of the makeup of jury venires or
other sources from which jurors are drawn with the makeup of the
community, not of voter registration lists.
[
Footnote 24]
We have previously accepted 6-year-old census data as adequate
proof of the percentage of eligible jurors who are black.
Alexander v. Louisiana, 405 U. S. 625,
405 U. S. 627
(1972). That case involved an equal protection challenge to a jury
selection process. Although proof of such a claim is, in certain
respects, not analogous to proof of a cross-section violation,
see n 26,
infra
Alexander, like the case at hand, involved establishing as a
benchmark the percentage of the excluded group in the relevant
population.
[
Footnote 25]
The Federal District Court encompassing Jackson County does not
have an automatic exemption for women, but does provide
occupational exemptions similar to those provided by the State of
Missouri, and also has a child care exemption -- albeit one limited
to women.
See Amended Plans of the United States District
Court for the Western District of Missouri for Random Selection and
Service of Grand and Petit Jurors § 14 (1972). Fifty-three percent
of the persons on the master jury wheel and 39.8% of actual jurors
are women.
See 556 S.W.2d at 24, and nn. 3, 4 (Seiler, J.,
dissenting).
[
Footnote 26]
In arguing that the reduction in the number of women available
as jurors from approximately 54% of the community to 14.5% of jury
venires is
prima facie proof of "unconstitutional
underrepresentation," petitioner and the United States, as
amicus curiae, cite
Castaneda v. Partida,
430 U. S. 482,
430 U. S. 496
(1977);
Alexander v. Louisiana, supra at
405 U. S. 629;
Turner v. Fouche, 396 U. S. 346,
396 U. S. 359
(1970); and
Whitus v. Georgia, 385 U.
S. 545,
385 U. S. 552
(1967). Those equal protection challenges to jury selection and
composition are not entirely analogous to the case at hand. In the
cited cases, the significant discrepancy shown by the statistics
not only indicated discriminatory effect, but also was one form of
evidence of another essential element of the constitutional
violation -- discriminatory purpose. Such evidence is subject to
rebuttal evidence either that discriminatory purpose was not
involved or that such purpose did not have a determinative effect.
See Castaneda, supra, at
430 U. S.
493-495;
Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274,
429 U. S. 287
(1977). In contrast, in Sixth Amendment fair cross-section cases,
systematic disproportion itself demonstrates an infringement of the
defendant's interest in a jury chosen from a fair community
cross-section. The only remaining question is whether there is
adequate justification for this infringement.
[
Footnote 27]
Tr. of Oral Arg. 28.
MR. JUSTICE REHNQUIST, dissenting.
The Court steadfastly maintained in
Taylor v.
Louisiana, 419 U. S. 522
(1975), when it "distinguished"
Hoyt v. Florida,
368 U. S. 57
(1961), that its holding rested on the jury trial requirement of
the Sixth and Fourteenth Amendments, and not on the Equal
Protection Clause of the Fourteenth Amendment. Today's decision
makes a halfhearted effort to continue �
1 and S. 371� that fiction in footnotes
1 and |
1
and S. 357fn26|>26, declaring that cases based on the Equal
Protection Clause, such as
Alexander v. Louisiana,
405 U. S. 625
(1972), are not "entirely analogous" to the case at hand. The
difference apparently lies in the fact, among others, that under
equal protection analysis
prima facie challenges are
rebuttable by proof of absence of intent to discriminate, while,
under Sixth Amendment analysis, intent is irrelevant, but the State
may show "adequate justification" for the disproportionate
representation of the classes being compared. We are reminded,
however, that disproportionality may not be justified "on merely
rational grounds," and that justification requires that "a
significant state interest be manifestly and primarily
advanced" by the exemption criteria resulting in the
disproportionate representation.
Ante at
1 and S. 367|>367 (emphasis supplied).
That this language has strong overtones of equal protection is
demonstrated in this Court's most recent application of the Equal
Protection Clause to distinctions between men and women:
"'[C]lassifications by gender must serve
important
governmental objectives, and must be
substantially related
to the achievement of those objectives.'"
Califano v. Goldfarb, 430 U. S. 199,
430 U. S.
210-211 (1977) (plurality opinion), quoting
Craig v.
Boren, 429 U. S. 190,
429 U. S. 197
(1976) (emphasis supplied). The Constitution does not require, and
our jurisprudence is ill-served by, a hybrid doctrine such as that
developed in
Taylor, and in this case.
Page 439 U. S. 372
Even if I were able to reconcile the Court's agile amalgamation
of the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment in deciding this case
Page 439 U. S. 373
and
Taylor; I have no little concern about where the
road upon which the Court has embarked will ultimately lead. In
Taylor, the Court relied upon cases dealing with outright
exclusion of racial groups,
Smith v. Texas, 311 U.
S. 128 (1940), and of women,
Ballard v. United
States, 329 U. S. 187
(1946), from jury service. Although, in
Smith, the
exclusion had been covert, in
Ballard, the exclusion had
been overt. The Court in
Taylor concluded, I assume on the
basis of these cases, that "women cannot be systematically excluded
from jury panels from which petit juries are drawn." 419 U.S. at
419 U. S.
533.
In
Taylor, as in
Hoyt v. Florida, 368 U. S.
57 (1961),
Page 439 U. S. 374
women had not been actually prohibited or excluded from serving
on juries. But requirements, inapplicable to men, that they
affirmatively make known to the jury commissioner their desire to
serve had, for all practical purposes, had that effect. Indeed, in
Taylor, not one woman appeared on a venire of 175 persons
drawn for jury service in the parish in question. 419 U.S. at
419 U. S. 524.
Taylor, by its language and on its facts, was an
"exclusion" case.
Here, on the other hand, the Court, in one sentence, both
asserts that it can, and admits that it cannot, treat the system
used in Jackson County, Mo., as one which "excludes" women,
saying:
"Today we hold that such systematic exclusion of women that
results in jury venires averaging less than 15% female violates the
Constitution's fair cross-section requirement."
Ante at
439 U. S. 360.
If there are indeed 15% women on the jury panels in Jackson County,
the Court uses the word "exclusion" contrary to any use of the word
with which I am familiar. Women are undoubtedly underrepresented as
compared to men on Jackson County juries, but therein lies the
difference between this case and
Taylor.
Eventually the Court either will insist that women be treated
identically to men for purposes of jury selection (which is
intimated in dicta,
ante at
439 U. S.
365-366,
439 U. S.
370), or, in some later sequel to this line of cases,
will discover some peculiar magic in the number 15 that will enable
it to distinguish between such a percentage and higher percentages
less than 50. But whichever of these routes the Court chooses to
travel when the question is actually presented, its decision today
puts state legislators and local jury commissioners at a serious
disadvantage wholly unwarranted by the constitutional provisions
upon which it relies. If the Court ultimately concludes that men
and women must be treated exactly alike for purposes of jury
service, it will have imposed substantial burdens upon many women,
particularly in less populated areas, without necessarily producing
any corresponding increase in the representative
Page 439 U. S. 375
character of jury panels. If it ultimately concludes that a
percentage of women on jury panels greater than 15 but
substantially less than 50 is permissible even though the State's
jury selection system permits women, but not men, to "opt out" of
jury service, it is simply playing a constitutional numbers
game.
The attorneys general and prosecuting attorneys in the various
States, sensibly concluding that a 15% representation of women on
jury venires cannot, in any rational legal system, be materially
different from a 20% representation, will press legislators and
jury commissioners to abolish all distinctions between men and
women for purposes of jury service. Understandably unhappy with the
prospect of having still more convictions for armed robbery or
murder set aside at the behest of male defendants claiming that
women were insufficiently represented on their jury panel, these
state attorneys will make their informed, but inevitably parochial,
views known in the halls of their respective legislatures. These
views will presumably be in harmony with those of the organized
women's groups that have appeared as
amici curiae in
similar cases, asserting that the Constitution prohibits women from
being given a choice as to whether they will serve on Juries when
men are required to serve.
Nor are distinctions between men and women in jury selections
likely to be the only casualties to result from today's opinion.
Apparently realizing the desirability of some predictability if
otherwise fairly tried defendants are to be freed on the basis of
such a constitutional numbers game, the Court ventures the view
that an "exemption appropriately tailored" to the State's interest
in ensuring that those members of the family responsible for the
care of children are available to perform such care would "survive
a fair cross-section challenge."
Ante at
439 U. S. 370.
It also repeats the "observation" made in
Taylor that it
is
"unlikely that reasonable exemptions, such as those based on
special hardship, incapacity,
Page 439 U. S. 376
or community needs, 'would pose substantial threats that the
remaining pool of jurors would not be representative of the
community.'"
Ibid. But the States are warned that the Constitution
requires them to "exercise proper caution in exempting broad
categories of persons from jury service," even though "most
occupational and other reasonable exemptions may inevitably involve
some degree of overinclusiveness or underinclusiveness. . . ."
Ibid.
The lot of a legislator or judge attempting to conform a State's
jury selection process to the dictates of today's opinion, and yet
recognize what may be very valid state interests in excusing some
individuals or classes of individuals from jury service, is surely
not a happy one. Will the Court's above-quoted dicta soon meet the
same fate that the decision in
Hoyt v. Florida, supra, met
in
Taylor, or will they survive longer?
There is more than adequate documentation for the proposition
that jury service is not a pleasant experience in many
jurisdictions, and that it tends to be time-consuming and often
seemingly useless from the point of view of the prospective juror.
To the extent that States may engage in the process of jury
selection by broad classifications, and by a system of exemptions
which require a minimum of administrative effort, the frustrations
of jury service will be at least in part alleviated, and perhaps
the Court's stated goal of a "fair cross-section" actually
advanced. On the other hand, to the extent that such forms of
selection are deemed constitutionally impermissible, and
case-by-case "opting out" required with respect to each prospective
juror, the ordeal of the prospective juror becomes more burdensome,
and the State's administrative task more time-consuming. Since most
States will undoubtedly wish to immunize otherwise valid criminal
convictions against reversal on the basis of the Court's most
recent exegesis of the Fourteenth Amendment's requirements on the
jury selection process, their natural tendency will be
Page 439 U. S. 377
to impose these burdens on citizen jurors and judicial
administrators in order to avoid any possibility of a successful
constitutional attack on the composition of the jury.
The probability, then, is that today's decision will cause
States to abandon not only gender-based, but also occupation-based,
classifications for purposes of jury service. Doctors and nurses,
though virtually irreplaceable in smaller communities, may
ultimately be held by the Court to bring their own "flavor" or
"indefinable something" to a jury venire.
See supra at
439 U.S. 372 n. If so, they
could then be exempted from jury service only on a case-by-case
basis, and would join others with skills much less in demand
whiling away their time in jury rooms of countless courthouses.
No one but a lawyer could think that this was a managerially
sound solution to an important problem of judicial administration,
and no one but a lawyer thoroughly steeped in the teachings of
cases such as
Taylor, Goldfarb, and
Craig could
think that such a solution was mandated by the United States
Constitution. No large group of people can be conscripted to serve
on juries nationwide, any more than in armies, without the use of
broad general classifications which may not fit in every case the
purpose for which the classification was designed. The alternative
is case-by-case treatment which entails administrative burdens out
of all proportion to the end sought to be achieved.
The short of it is that the only winners in today's decision are
those in the category of petitioner, now freed of his conviction of
first-degree murder. They are freed not because of any demonstrable
unfairness at any stage of their trials, but because of the Court's
obsession that criminal venires represent a "fair cross-section" of
the community, whatever that may be. The losers are the remaining
members of that community -- men and women seeking to do their duty
as jurors and yet minimize the inconvenience that such service
entails, judicial administrators striving to make
Page 439 U. S. 378
the criminal justice system function, and the citizenry in
general, seeking the incarceration of those convicted of serious
crimes after a fair trial. I do not believe that the Fourteenth
Amendment was intended or should be interpreted to produce such a
quixotic result.
* That the majority is, in truth, concerned with the equal
protection rights of women to participate in the judicial process,
rather than with the Sixth Amendment right of a criminal defendant
to be tried by an "impartial jury," is vividly demonstrated by the
Court's crab-like movement from the equal protection analysis of
its early jury composition cases to the internally inconsistent
"fair cross-section" rationale of today's due process decision. As
early as 1880, this Court recognized that blacks, as a class, are
no less qualified to sit on juries than whites, and that a State
cannot, consistent with the Equal Protection Clause, compel a
criminal defendant
"to submit to a trial for his life by a jury drawn from a panel
from which the State has expressly excluded every man of
his race, because of color alone, however well qualified
in other respects. . . ."
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S. 309
(emphasis added). Likewise, as the majority recognizes,
ante at
439 U. S.
369-370, women, as a class, are every bit as qualified
as men to serve as jurors. If, then, men and women are essentially
fungible for purposes of jury duty, the question arises how
underrepresentation of either sex on the jury or the venire
infringes on a defendant's right to have his fate decided by an
impartial tribunal. Counsel for petitioner, when asked at oral
argument to explain the difference, from the defendant's point of
view, between men and women jurors, offered:
"It is that indefinable something -- . . . I think that we
perhaps all understand it when we see it and when we feel it, but
it is not that easy to describe; yes, there is a difference."
Tr. of Oral Arg. 15.
This Court resorted to similiar mystical incantations in
Peters v. Kiff, 407 U. S. 493
(1972). Because the white defendant lacked standing to raise an
equal protection challenge to the systematic exclusion of blacks
from jury duty, the Court was forced to turn to the Due Process
Clause of the Fourteenth Amendment. Noting that the effect of
excluding any large and identifiable segment of the community from
jury service
"is to remove from the jury room qualities of human nature and
varieties of human experience, the range of which is unknown and
perhaps unknowable,"
the Court held that a criminal defendant, whatever his race, has
standing to raise a due process challenge to the systematic
exclusion of any race from jury service.
Id. at
407 U. S. 503.
Similarly, in
Taylor v. Louisiana, 419 U.
S. 522,
419 U. S. 532
(1975), the Court based its reversal of a male defendant's
conviction largely on the transcendental notion that "a flavor, a
distinct quality" was absent from his jury panel due to the
underrepresentation of women.
Lacking the Court's omniscience, I would be willing to accept
its assurances as to the existence of "unknowable" qualities of
human nature, "flavor[s] ," and "indefinable something[s]." But
close analysis of the fair cross-section doctrine demonstrates that
the Court itself does not really believe in such mysticism. For if
"that indefinable something" were truly an essential element of the
due process right to trial by an impartial jury, a defendant would
be entitled to a jury composed of men and women in perfect
proportion to their numbers in the community. Yet in
Taylor,
supra at
419 U. S. 538,
the majority stressed:
"Defendants are not entitled to a jury of any particular
composition, . . . but the jury wheel, pools of names, panels, or
venires from which juries are drawn must not systematically exclude
distinctive groups in the community, and thereby fail to be
reasonably representative thereof."
Thus, a defendant's constitutional right to an impartial jury is
protected so long as "that indefinable something" supposedly
crucial to impartiality is adequately represented on the jury
venire; that the petit jury ultimately struck is composed of one
sex is irrelevant. Indeed, under the majority's fair cross-section
analysis, the underrepresentation of women on jury venires in
Jackson County, Mo., would entitle petitioner Duren to reversal of
his conviction even if the jury chosen in his case had been
composed of all women.
The Sixth and Fourteenth Amendments guarantee a criminal
defendant the right to be tried by an impartial jury. If
impartiality is not lost because a particular class or group
represented in the community is
unrepresented on the petit
jury, it is certainly not lost because the class or group is
underrepresented on the jury venire. It is therefore clear
that the majority's fair cross-section rationale is not concerned
with the defendant's due process right to an impartial jury at all.
Instead, the requirement that distinct segments of the community be
represented on jury venires is concerned with the equal protection
right of the excluded class to participate in the judicial process
through jury service. The reversal of concededly fair convictions
returned by concededly impartial juries is, to say the least, an
irrational means of vindicating the equal protection rights of
those unconstitutionally excluded from jury service. Nor is it a
necessary means to achieve that end, for, in
Carter v. Jury
Comm'n, 396 U. S. 320
(1970), this Court recognized that injunctive relief is available
to members of a class unconstitutionally excluded from jury
service.