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4 Afr.-Am. L. & Pol'y Rep. 17 (1999)
Social De-Construction of Race and Affirmative Action in Jury Selection

handle is hein.journals/afamlpol4 and id is 25 raw text is: Social De-Construction of Race and
Affirmative Action in Jury Selection
Hiroshi Fukurait
Recent race riots offer powerful and disturbing images and evidence of the
cost of ignoring the apparent unfairness of court decisions made by all white juries.
In the eyes of many marginalized segments of the community, the conviction of a
black defendant or acquittal of a white defendant by an all white jury, against
overwhelming evidence of his guilt, is deeply disturbing. The fact that a jury is all
white has the powerful effect of racializing the jury proceeding. In the post-Civil
War south, a series of similar atrocities occurred when the Ku Klux Klan's frenzy of
violence and lynching , targeting blacks and white Republicans, went unpunished by
all white juries. It is notorious that practically never have white lynching mobs been
brought to court in the South, even when the killers are known to all in the
community and are mentioned in name in the local press, Gunnar Myrdal's 1944
work on race relations once declared.'
Today, issues of racially mixed juries and racial balance in cases involving
inter-racial crimes pose unique challenges to our judiciary, our criminal justice
system, and the community. This article examines possible applications of
affirmative action in jury selection to create racially heterogeneous juries. Since
race-conscious affirmative action must rely on the clear conceptualization of race
and  racial definitions, the  article  first presents  critical analysis  of the
conceptualization and formulation of race and racial classification. Specifically, the
first section of this article attempts to deconstruct racial identity as defined by
government-defined racial categories, suggesting that race is a social construction
and racial identity is subject to individual and societal manipulation. This allows
many individuals to pass as members of different racial groups. The article then
empirically examines public perceptions of the affirmative jury structures, focusing
on the use of mandatory racial quotas to engineer racially heterogeneous juries in
criminal trials, specifically the jury de medietate linguae, the Hennepin model, the
social science model, and a peremptory inclusive selection method. The article
finally argues that, given the strong endorsement for the Hennepin and social science
models of affirmative juries, both legislative and court-initiated actions may be
needed to energize the public debate concerning the importance of racially mixed
juries, the size of mandated racial quotas, and implications regarding applications of
affirmative action in jury proceedings.
t Associate Professor of Sociology, University of California, Santa Cruz. Ph.D. & M.A.,
University of California, Riverside, 1985 & 1982; B.A., California State University, Fullerton, 1979. 1
am very grateful to Ian F. Haney Lopez for his helpful comments on the social deconstruction of race as
well as John Brown Childs, G William Domhoff, and Richard Krooth for their critical comments on the
earlier version of this article.

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