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Benevolent Exclusion

By June 1, 2021July 22nd, 2022No Comments

Abstract: The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity of ideas, experiences, and frames of interpretation that characterize the American population. By failing to make sure that people who are poor can serve, we impoverish our shared understanding of doing justice.

This Article offers a historical and empirical account of how socio-economic exclusion cuts prospective jurors from juries. It argues that the dominant rationale for such exclusion is a perception that poor and otherwise burdened prospective jurors should be excused from jury service for their own benefit. The effect of this superficially benevolent rationale, I argue, has been the concealment and reinforcement of class-based jury discrimination. The Article concludes that addressing this seemingly benign but exclusionary practice is an essential task for legal reformers, recognizing the relationship between race and class-based exclusion. Further, it recommends instituting structural changes that would make it possible for any eligible person to serve, regardless of income or wealth.

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