Chief Justice Steven González put a renewed spotlight on Washington’s lack of jury diversity in a recent opinion for the state’s highest court.
In a unanimous decision last week, the state Supreme Court ruled that a Black man, Paul Rivers, was not denied a right to a fair trial when he was sentenced to life without parole by a non-Black jury. The court ruled that Rivers could not prove that there was systematic exclusion within the jury selection process.
But González called it a “nearly impossible burden” for Rivers to show there was systematic exclusion, writing in a concurring opinion that the “case starkly points out how jury pools in this state do not resemble” Washington’s population.
“We have failed,” González added. “We — judges, court clerks, and the legislature, must do more.”
The lack of jury diversity is tied to a host of America’s societal issues, many of which arise from structural racism. For instance, white Americans are much more wealthy than Black Americans — and researchers say the racial wealth gap stems from housing discrimination, slavery, Jim Crow segregation and other racist policies, both today and throughout history.
The Legislature and others have taken steps to address jury diversity in Washington. But given the deep and complicated factors involved, even those working on the issue acknowledge the state has a long way to go.
Why the courts ruled against Rivers
The problem Rivers’ case and the court faced, said Bill Bailey, a University of Washington law professor, is that there isn’t an “identifiable bad guy.”
Rivers’ non-diverse jury wasn’t the result of a prosecutor kicking off Black jurors during the selection process. It was because the juror pool that showed up at the start wasn’t diverse.
“A lot of attention over the years on jury diversity has been paid to bias and discrimination,” said Frank Thomas, analyst for the Washington State Minority and Justice Commission. “But we’re losing such a great bulk of our diversity and representative-ness before our prospective jurors even walk into the door of the courthouse.”
In the majority opinion in the Rivers case, Justice Debra Stephens made a strong argument for promoting jury diversity and said Rivers’ concerns were not “unfounded or trivial.”
“Research shows diverse juries spend more time deliberating, engage in more thorough and detailed deliberations, are more willing to discuss racial bias, and make fewer factual errors,” Stephens wrote.
The court, Bailey said, acknowledged that less diverse jury pools are the product of a range of racist policies that have set Black people and other people of color behind. But institutional racism can’t be fixed through court opinions, Bailey said.
“The opinion is about as supportive as it can be,” he said. “But they just have to stop short, because the nature of the problem is so broadly based.”
Why aren’t juries diverse?
The people who report for jury duty are often white, have higher incomes and higher levels of education.
People of color, particularly Black and Indigenous people, and those with lower incomes simply can’t afford to show up or stick around. Jurors are paid $10 to $25 per day, depending on which county they reside in. That hasn’t changed since 1959.
Women are also more likely to cite care of children and other dependents as an undue hardship preventing them from jury service, according to a recent survey by the state in partnership with Seattle University. Of all survey respondents, 64% said they were experiencing a conflict or hardship as an obstacle to jury service.
Judges ask at the beginning of trials if jury service will present an undue hardship to anyone.
“For long trials, there’s a lot of hands that shoot up,” Bailey said.
Bailey said he hasn’t seen jury diversity get better since he started practicing law in Washington in 1976. The majority of defendants have always been Black, he said, and the majority of jurors have always been white.
That amounts to a fundamental flaw in our justice system, said Sen. Yasmin Trudeau, D-Tacoma, who led efforts to increase jury diversity during the last legislative session.
Many people on trial are “not being judged truly by a jury of their peers,” Trudeau said.
Meanwhile, Black people are more likely to be wrongfully convicted of violent crimes than white people. Black and white Americans also use drugs at similar rates, but the imprisonment rate for drug crimes among African Americans is almost six times higher.
The state’s efforts to fix it
The state has made some progress on jury diversity. Washington’s Legislature made juror data collection a “permanent fixture” in 2021, said Thomas, the Minority and Justice Commission analyst. The aim is to get a better sense of what jury pools look like to inform policy.
But even just collecting that data presents challenges.
In Washington, the court system isn’t unified, and each court gets to decide whether to participate in juror data collection. While the state directed the Washington Administrative Office of the Courts to hand out electronic demographic surveys in 2021, the state had to change the requirement to allow paper surveys in 2023. That was because many smaller, rural counties don’t have the capacity for electronic surveys.
The state’s decentralized court system also means it’s difficult to get policies off the ground without studying each county’s individual needs, according to Trudeau.
Lawmakers passed legislation Trudeau sponsored this year to create a workgroup to study creating a child care assistance program for courthouses. However, the workgroup doesn’t launch until early 2024.
A new budget provision will also create a pilot program to increase juror pay in Pierce County to up to $50. Thomas said the hope was to increase it to $125, about equivalent to a day’s pay at Washington’s minimum wage. At least six states have increased jury duty pay in 2023. But Trudeau said it was difficult to convince her colleagues in the Legislature to foot the bill.
The Pierce County pilot program alone will cost the state $1.56 million. However, Trudeau said injustice costs the state already — in more ways than one.
“We’re going to pay through our carceral systems. It just ends up costing money to not do things right,” she said.
“It’s just difficult to say that we have access to fairness and justice when we continue to look past this issue,” Trudeau added.
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