Carter v. Jury Commission of Greene County/Dissent Douglas

Mr. Justice DOUGLAS, dissenting in part.

There comes a time when an organ or agency of state law has proved itself to have such a racist mission that it should not survive constitutional challenge. The instances are not numerous in our history. But they have appeared. One was present in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, where a state constitution required every voter who applied to register to 'be able to understand' as well as 'give a reasonable interpretation' of any section of the State or Federal Constitution 'when read to him by the registrar.' Id., at 149, 85 S.Ct. at 820. This interpretation test had had a history of depriving 'otherwise qualified Negro citizens of their right to vote,' id., at 150, 85 S.Ct. at 820, and was deemed incapable of fair application through policing by injunction. Id., at 150, 85 S.Ct. at 821 n. 9. We therefore struck it down.

The District Court in the instant case held that '(t)he attack on racial composition of the (jury) commission fails for want of proof. No proof was adduced except that the commission in Greene County now is and for many years has been composed entirely of white men appointed by the governor.' 298 F.Supp. 181, 192. But, as the opinion of the Court states, the record shows much more: it demonstrates a systematic exclusion of Negroes from juries in Greene County even though the Negroes outnumber the whites by two to one. It shows (1) that the white jury officials consistent with southern racial patterns-had little, if any, contacts with Negroes; (2) that the officials knew very few Negroes and practically nothing about the black community; (3) that only a few Negroes were contacted to secure black names for jury listing; (4) that in applying the statutorily created subjective standards, the white jury officials relied, not only on their own subjective judgments, but also on the subjective judgments of other people; (5) that few Negroes could be expected to pass muster under these standards; and (6) that, as stated by the Court, '(i)n 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors-still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.' Ante, at 327-328.

I cannot see any solution to the present problem, unless the jury commission is by law required to be bi-racial. In the Kingdom of Heaven, an all-white or an all-black commission could be expected to do equal justice to all races in the selection of people 'generally reputed to be honest and intelligent' and 'esteemed in the community for their integrity, good character and sound judgment.' Ala.Code, Tit. 30, § 21 (Supp. 1967). But, where there exists a pattern of discrimination, an all-white or all-black jury commission in these times probably means that the race in power retains authority to control the community's official life, and that no jury will likely be selected that is a true cross-section of the community.

We have often said that no jury need represent proportionally a cross-section of the community. See Swain v. Alabama, 380 U.S. 202, 208-209, 85 S.Ct. 824, 829-830, 13 L.Ed.2d 759; Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631-632, 94 L.Ed. 839. Jury selection is largely by chance; and no matter what the race of the defendant, he bears the risk that no racial component, presumably favorable to him, will appear on the jury that tries him. The law only requires that the panel not be purposely unrepresentative. See Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599. Those finally chosen may have no minority representation as a result of the operation of chance, challenges for cause, and peremptory challenges.

The problem in the present case is to keep the selective process free of any racist influence. That implicates the jury commission that has continuing oversight over the operation of the jury system.

I expressed my doubts in Sellers v. Laird, 395 U.S. 950, 89 S.Ct. 2022, 23 L.Ed.2d 470, whether under the Selective Service System an all-white board could be expected to do equal justice to Negro registrants, at least as respects many problems. Those doubts are resolved here, because of the established pattern of racial discrimination which this all-white jury commission has credited to it. India has handled this type of problem by constitutional amendment. But our constitutional mandate against racial discrimination is sufficient without more.

Where the challenged state agency, dealing with the rights and liberties of the citizen, has a record of racial discrimination, the corrective remedy is proportional representation. Under our Constitution that would indeed seem to be the only effective control over the type of racial discrimination long practiced in this case.

I would not write a decree that requires a governor to name two Negroes out of three commissioners. I would go no further than to strike down this jury commission system, because it does not provide for proportional representation of the two races.