Black to the Future: State Action Doctrine and the White Jury

Abstract

In 1967, Charles Black described the “the ‘state action’ problem” as “the most important problem in American law,” and in 2019, racial inequality is one of the most important problems in the American criminal justice system. This article asserts that Black’s critique of state action doctrine applies with equal force to courts’ analysis of claims that a criminal jury has not been selected from a fair cross-section of the community. The Sixth Amendment right to a jury selected from a fair cross-section of one’s community is a fundamental constitutional guarantee, essential to both the perception and reality of justice. Jury pools across the country, however, fail to include sufficient numbers of African-Americans and Latinos, even as those same groups are disproportionately overrepresented among criminal defendants. But when defendants argue that their constitutional right to a fair cross-section has been violated, courts almost always deny their claims. This article exposes one reason for those denials: courts are applying the wrong legal standard. Specifically, courts are importing state action doctrine from the Fourteenth Amendment into fair cross-section analysis. State action doctrine is not only a poor fit with the affirmative rights guaranteed by the Sixth Amendment, its application to fair cross-section cases is plagued by the same incoherence that has engendered such scathing critique in the equal protection context. As a result, courts are undermining the government’s constitutional obligation to produce racially representative jury pools by sidestepping the substantive task of balancing constitutional values. Courts are replacing this necessary balancing with a formalist emphasis on drawing lines between categories (public vs. private, action vs. inaction) that are porous and imprecise. The courts’ failure to engage with the hard constitutional questions underlying Sixth Amendment fair cross-section claims has produced – just as Charles Black observed fifty years ago in the Fourteenth Amendment context – an incoherent doctrine that deprives people of a remedy for constitutional injuries. And although the constitutional injury is visited on African-American and Latino defendants who face all-white jury pools, the damage done to the public’s faith in the justice system has repercussions for us all.