Call me a racist, but Connecticut does not do enough to assure that criminal defendants face a jury of their peers.
I’ve just finished jury selection in a murder case in Norwich. We finally picked a panel after six full days of jury selection. One hundred and fifteen men and women sat through some portion of voir dire. As near as I can tell, there was not a black-man among them. My client, charged with murder, is African-American. What am I to tell him about a jury of his peers?
One answer is that race doesn’t matter at all. We’re all Americans. We believe in equal protection of the law. Justice is color blind.
I just don’t believe it. That’s why I confess to being a racist.
If I were facing 60 years in prison and wanted a jury to hear my side of the story, I’d be uncomfortable pleading my case to a jury composed of all black souls. I feel guilty admitting this, as though I am confessing to a secret better left unconfessed. I don’t doubt for a moment that a person of color can be fair and impartial, but the prospect of an all black jury daunts me nonetheless. I would feel as if the jury weren’t fully representative, as if people who looked like me had been excluded.
In 2010, 11.1 percent of Connecticut’s population was black. (The national figure was 13.3 percent.) In New London County, where Norwich is located, 6.5 percent of the population was black in 2010.
I would therefore have expected to see at least a handful of young black men in the jury pool in Norwich. What explains their absence? There were plenty of young white men.
Jurors are drawn from lists of registered voters, licensed motor vehicle drivers, income tax payers, and unemployment compensation recipients. It may be that young black men are under-represented from these lists for socioeconomic reasons. If you don’t have the resources to own a car, why have a license? Unemployment among young black men is a huge problem, so don’t expect to see these fellows collecting unemployment. And if you are broke, you’re not filing a tax return.
And then there is the exclusion from service for those convicted of a felony. Incarceration rates for young black men are disproportionately high. Felons can’t vote, either – one study reports eight percent of African-Americans cannot vote because of felony convictions, compared to 1.8 percent of whites. So strike young black men from the list of potential jurors on that account as well.
The United States Supreme Court held long ago that "selection of a ... jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." We’re not doing more than paying lip service to this requirement in Connecticut.
Under state law, a defendant can only succeed in proving a violation of the fair cross-section requirement if he or she can show "systemic exclusion" in the jury selection process. It is an almost impossible barrier for defendants facing a Lilly white jury to overcome. Why the complacency about de facto Jim Crow jury pools?
I’ve heard rumblings in courtrooms throughout the state about the unrepresentative character of juries. I’ve had young black men turn to me in anger during jury selection to ask where their peers were. I suspect that if more white folk were facing all black juries something would be done about this failure to produce representative jury pools.
Perhaps we need to require jury administrators in the various courthouses throughout the state to pay more attention to the lists they administer. When a person does not show up for jury duty, how often is a summons really sent to the no-show requiring them to come to the courthouse to explain their dereliction of civic duty? Do we have any data on who is not showing up to court? Is the court system letting people opt out of the system simply by ignoring a summons. Are those who feel disenfranchised permitted to stay at home? And do we really need to exclude felons from jury service?
We build communities by providing equal opportunity and requiring participation in civic life. We’ve marginalized young black men in our economy. We’re keeping them out of the jury room. We’re putting them in prison. Is all this truly mere coincidence? I don’t think I am the only racist out there.
FEW THINGS TERRIFY ME AS MUCH as the thought of being kept alive, indefinitely — hooked to machines, monitored, maintained and held in the land of the living long past the point at which the joy of living has ceased.
I worry less about death than I do about pain. It may be appointed unto us once to die, but needless suffering seems avoidable. Hence, my support for assisted suicide, an issue that strikes at the root of how and why we govern ourselves, and whether there is any collective response to an individual’s death that seems just.
Connecticut lawmakers are poised to consider legislation making physician-assisted suicide legal. Three states permit it: Oregon, Washington and Montana. In November, voters in Massachusetts narrowly rejected a ballot initiative in favor of assisted suicide.
The U.S. Supreme Court has decided there is no federal constitutional right to end one’s own life.
The jurisprudence is mystifying. On the federal level, we are told we have no right to die — that right isn’t in the Constitution. No surprise. The federal government was supposed to be one of limited powers. Transforming government into the moral equivalent of Victor Frankenstein, Mary Shelley’s mad scientist dabbling in the dark art of creating something from nothing, spirit from matter, was far from the minds of the Framers.
The states, however, have a general police power, the ability to make laws governing the health, education and welfare of their citizens. Much of this law was smuggled into this country by British colonists, carrying lock, stock and barrel such medieval conceits as sovereign immunity, and the notion that life is a gift from God that no person can reject: How dare the pot say to the potter, why makest me thus?
My heavens are star-filled, mysterious, infinite, but silent. Neither God nor gods nor the fates have decreed some destiny that I am duty bound to accept. If I am wrong, and I find myself on the wrong side of the eternal once I pass through death’s door, I am willing to face that without the humdrum hand of the state leading me along the path of righteousness.
Suffering isn’t a civic duty. We yield too much to the state when we give it the power to tell us we must live. The state does not share the scent of the divine or the immortal. It is a necessary evil, our most enduring fiction.
I’ve appeared in court countless times on behalf of an individual facing allegations made by the state. But I have never met this entity on whose behalf we prosecute, and even kill, one another. Yes, there are prosecutors, police, judges, lawmakers, and all the paraphernalia of this thing we call the state. But search for it all you like; you will never find it. It does not breathe, it has no pulse. It is a symbol through which others act.
We need this abiding fiction for the sake of roads, education and public safety — the mundane affairs of the living. But, in a republic, the state has no priestly function: I don’t want it policing the boundaries between life and death.
Yes, there should be laws against murder, and murderers deserve punishment — although I doubt justice requires the institutionalized savagery of the lengthy sentence we now routinely impose. I don’t mind paying taxes to support a police force that will keep me safe.
But the state does not own my soul. When my body fails, when my spirit wanes, I don’t want to be kept tethered to a civil weal. Let me go if I am prepared to leave. Life is not a prison from which only God can free us.
Powerful instrumental reasons support limits on physician-assisted suicide. We value individual life and fear that assisted suicide might yield an embrace of euthanasia. So long as the barrier between life and death is kept absolute, with the law presuming that all suicides are irrational and therefore prohibited as a matter of law, no door is opened to the too easy conclusion that an unwilling person should be compelled to die.
It is appointed unto us once to die, the good book says. The Greeks were prosaic: all men are mortal, the syllogism goes. And it is so. We come, we go, and the space between our coming and going is this thing we call life. It is glorious, not to be shunned lightly.
But life is no gift of the state.
Connecticut should pass legislation permitting physician-assisted suicide. No compelling state interest requires gratuitous suffering. A physician oath-bound to do no harm does not violate that oath by serving the inevitable end of life. A law requiring careful and cautious review of a decision to seek assisted suicide can honor the value we place on life, while paying homage to autonomy and respect for individuals.
The point, Socrates once said, is not merely to live, but to live well. The state has no business policing the boundaries of life and death once a person decides it’s time to go.