Group Wants Michigan Juries to be Selected Based on Race

In the Ann Arbor News, it is reported that the group People of Diversity United for Equality want to place on the November 2004 ballot a "proposal that would allow plaintiffs or defendants in civil and criminal trials to request that 50 percent of a jury be identical to the plaintiffs' or defendants' own race. "

PODUE [Is that a horrid acronym or what?] President Roderick Casey, 46, said the purpose of the drive is to "empower disenfranchised" individuals, particularly the poor and people of color, involved in the judicial system.

This is simply insane, an affirmative action scheme for juries. Why only make the jury racially similar to the defendant? How about class, gender, hobbies, political beliefs and support of the same sports teams? After all two Detroit Red Wings fans have much more in common than, for example a Red Wings fan and a supporter of the Nashville Predators. Indeed, it is well known that supporters of the Nashville Predators are horribly under-represented in the Michigan jury pool and likely to suffer discriminatory effects from Red Wings fans (especially during this year's playoff season).

One would think this measure would be unconstitutional on its face. We already have good Supreme Court law that preemptions peremptory challenges (Thank you for the correction Prof. Volokh!) cannot be based on race (Batson v. Kentucky, 476 U.S. 79 (1986); Powers v. Ohio, 499 U.S. 400 (1991) and others) or gender (J.E.B. v. Alabama, 511 U.S. 127 (1994) and others).

One would think a requirement that 50% of the jury must be a certain race would also offend the Equal Protection Clause.