- Racial minorities make up a very small proportion of the lawyers and judges in the United States.
The legal profession is known for the predominance of white population and the relatively small representation of minorities. Accounting for that are factors such as history of the profession, racial bias, current low proportion that perpetuates disproportion, and low enrolment of minorities in law schools.
For centuries, women and African Americans in particular were prevented by entry into the legal profession by “legal and other restrictions” (Baum, 2001).These barriers account for the fact that the Supreme Court was composed exclusively of white males until 1967 (Baum, 2001). Talented African Americans youths have for years been intensely discouraged from entering the profession because of the apprehension of racial bias that would block their prospects. A notorious example is given in the Autobiography of Malcolm X where he shares with his school teacher intent to pursue a legal career and receives the reponse: “…. you’ve got to be realistic about being a nigger. A lawyer – that’s no realistic goal for a nigger” (Malcolm X). As is known, Malcolm X did not become a lawyer, choosing the path of a minority rights activist; the same reasons could have kept hundreds of even thousands of minority youngsters. The low incidence of minorities among lawyers and judges creates a vacuum of role models that further perpetuates the disproportion in racial representation.
Since attendance of the law school is a necessary pre-requisite for entry to the profession, the low numbers of minority students admitted also account for disproportion. For instance, in 1976, the total of the US law schools admitted only 1700 black and 500 Chicano students, representing “4.9% and 1.3%, respectively, of the total of 43,000 who were admitted” (Association of American Law Schools, 1978). This number included students who were accepted because the schools introduced special emphasis on admitting minority students. Without these special admission policies, the number would be around 700 and 300 respectively. The problem is that minority students tend to have lower LSAT results and in general demonstrate lower academic performance, partly stemming from their lower socioeconomic status.
The disproportion of the racial composition among jurors, judges, and lawyers has often been blamed for the racial bias supposedly present in the US criminal justice system. Overall, the legal profession is notable for an increased presence of individuals from wealthy backgrounds, as coming from a rich family makes acquisition of a degree in law easier. The result is the predominance of the high- or middle-class, white, male perspective in the courtroom.
Thus, speaking of the Supreme Court, consistently dominated by white males as women and minority candidates are not as likely to pass even the first barrier to selection, one can hypothesize that “it seems likely that the legal claims of racial minority groups and of women would have been taken seriously at an earlier time if members of these groups had sat on the Court, because these justices would have influenced their colleagues’ perceptions of discrimination” (Baum, 2001). Thus, it is discrimination patterns that can escape the attention of white judges even if they are present in certain cases, influencing people’s judgements. The cultural attitudes can also escape the judge’s or laywer’s attention as they differ across races. A white lawyer defending a minority defendant will be limited in the ability to understand and interpret the actions of the defendant that may be motivated by cultural factors or discrimination challenges.
- Peremptory challenge.
The peremptory challenge, originating in the British common law system, has for years been used to divert a certain proportion of the jurors without explanation of causes. In the US, the nation demonstrating significant population diversity and interracial and other tensions, the main argument in favor of elimination of such challenges has been one referring to bias. By receiving the right to manipulate the composition of the jury at will, parties to the lawsuit can use this right to generate biased juries that will forward the cause of one party and exclude, for instance, the interests of minorities.
Thus, the main thrust against peremptory challenges has been given on the ground that they can be used to forward racist agenda. The ruling given by the Supreme Court in 1986 in Batson v. Kentucky stipulated that “under the 14th Amendment, it was unconstitutional for prosecutors to exercise racial based peremptory challenges to exclude jurors where the excluded jurors and the criminal defendant shared the same race” (Jackson, 1998). Aside from race, the so-called Batson challenge refers to the exclusion of any cognizable group from participation in juries. This group can be formed on the basis of gender, age, socioeconomic status etc.
However, with this said, racism seems to be the main problem that can be addressed with the elimination of peremptory challenges. In many cases, it is argued, attorneys can give vague and seemingly race-neutral reasons for excluding African Americans from the jury box when their presence is undesirable. For example, in United States vs. Davis, the prosecutor’s arguments for the removal of Afro-American jurors was the nature of their jobs that did not require “independent thinking”, marital status (the prosecutor preferred married people to single ones), and “failure to answer questions on voire dire and place of residence” (Shaw, n.d., p. 8). In this way, prosecutors or defendants can get rid of undesirable jurors for reasons that do not need adequate justification, giving rise to the proliferation of prejudiced and biased juries.
The main argument in favour of the peremptory challenge is the right it gives to the defendant to choose, to a certain extent, one’s own jurors. This is taken to be yet another privilege that generates extra ‘layer’ of protection for the defendant. In Britain, where this procedure originated, Sir William Balckstone, for instance, believed that it was a “defendant’s privilege” and “a provision full of that tenderness and humanity for prisoners for which our laws are justly famous” (Shaw, n.d., p. 5).
At present, the main argument for the preservation of the peremptory strikes in their current form is the need to complement challenges for cause. As of now, defendants and prosecutors have a limited number of peremptory challenges; they can also remove other jurors from the jury box ‘for cause’, thus finding a reliable justification for why this or that juror may be biased in passing the verdict. This justification, it is claimed, is not always readily available; in fact, it may be hard to prove in many cases, and in this case, the attorney can exercise the right to the peremptory challenge removing such jurors. Thus, it is argued that “without the peremptory strike, an attorney will be unable to engage in an adequate search for cause for disqualification for fear of being struck with angry or alienated jurors” (Shaw, n.d., p. 37).
Other arguments in favor of peremptory challenges include their importance in preserving the fairness of litigations and the contribution they can make to upholding the impartiality of the process. Their role in the historical evolution of the legal system is also invoked. However, these arguments seem weaker than the role of peremptory challenges as complement to the challenges for cause.
Thus, basically the choice is whether to force parties to litigation document each challenge with reasons (making all challenges ‘for cause’) or allow them discretion in choosing their jurors without forcing them to provide adequate justification. The second can result in bias. However, the first places a heavy burden of the need to prove the juror’s bias on the parties willing to remove a potentially biased member of the jury.
Association of American Law Schools. (1978). Brief Amicus Curiae. In P.B. Kurland & G. Casper, Landmark Briefs and Arguments of the Supreme Court: Constitutional Law: Vol. 99 (pp. 591-664), University Publications of America.
Baum, L. (2001). Characteristics of Those Selected to Sit on the Court: An Overview. In The Supreme Court (7th ed.). Retrieved May 12, 2006, from CQ Electronic Library, CQ Supreme Court Collection at: http://www.cqpress.com/incontext/SupremeCourt/characteristics.htm
Jackson, S.S. (1998). The Use of Peremptory Challenges for Discrimination in The Administration Of Justice: Annotated Bibliography. Retrieved May 12, 2006, from University of Dayton School of Law website at: http://academic.udayton.edu/race/03justice/98jackso.htm
Malcolm X. Retrieved May 12, 2006, from http://www.spartacus.schoolnet.co.uk/USAmalcolmX.htm
Shaw. R.F. (n.d.). Looking with a Historical Eye: The Time Has Come to Eliminate the Peremptory Challenge. Retrieved May 12, 2006, from http://www.qualitylegalcounsel.com/PeremptoryChallenge.pdf