Should Statisticians Be Excluded From Juries to Prevent Racism?

By Hans Bader April 22, 2022

Statisticians know different racial groups have different crime rates. In homicide crimes, “the offending rates for blacks were more than 7 times higher than the rates for whites” between 1976 and 2005, according to the federal Bureau of Justice Statistics. (See BJS, Homicide Trends in the United States).

Does this mean that statisticians are racist, and should not sit on juries? A dissent by three liberal Supreme Court justices suggests that question may come up in the future.

On April 18, those three justices dissented from the Supreme Court's refusal to hear a challenge to a death sentence, in Love v. Texas. The challenge was based on the failure to exclude a juror who cited crime statistics showing that "more violent crimes are committed by certain races" in response to a questionnaire.

The dissent, authored by Justice Sonia Sotomayor, argued that Texas judges hadn't adequately considered claims of racial bias based on a juror's answering "yes" to a voir dire question, "Do you believe that some races and/or ethnic groups tend to be more violent than others?":

"In 2018, a jury convicted Love of capital murder in the course of a robbery that occurred in 2015. Prior to trial, prospective members of the jury filled out a questionnaire that included the following questions:

"'68. Do you sometimes personally harbor bias against members of certain races or ethnic groups?

"'69. Do you believe that some races and/or ethnic groups tend to be more violent than others?'

"To the first question, No. 68, the prospective juror at issue answered, 'No.' But to the second question, No. 69, he answered, 'Yes.' He explained that '[s]tatistics show more violent crimes are committed by certain races. I believe in statistics.'

"During the voir dire proceeding that followed, both Love and the State questioned the prospective juror about his response to question No. 69. He explained that he understood '[n]on-white' races to be the 'more violent races.' He claimed that he had seen statistics to this effect in '[n]ews reports and criminology classes' he had taken.

"He stated that his answer to question No. 69 was based on these statistics, rather than his 'personal feelings towards one race or another,' and he indicated that he did not 'think because of somebody's race they're more likely to commit a crime than somebody of a different race.' He told defense counsel that he would not feel differently about Love 'because he's an African American.'"

But the dissent argued that Texas judges hadn't delved into the issue of racial bias enough. As law professor Eugene Volokh notes, the dissent felt "that the Texas courts were mistaken in their harmless error analysis, which focused on the availability of peremptory challenges earlier in the process (the challenges were apparently used up by the time the juror was being questioned). The Texas courts apparently never reached the merits of the argument that the juror was biased and therefore should have been excluded for cause."..........To Read More....

ressives now refuse to admit that there are gender-based differences in behavior. In a May 24, 2021 letter, progressive state attorney generals asked the Biden Administration to impose racial and gender quotas for school discipline and school suspensions. Those progressive officials complained that school-discipline "data has long documented disparities based on sex, with male students facing exclusionary discipline at significantly higher rates than female students."

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.