By Oscar Bobrow and Lois Heaney
We take issue with Research Fellow Michael Pressman’s analysis in the Civil Jury Project’s July newsletter that a challenge to under-representation based on race or sex stemming from the impact of post-COVID jury policies would fail because “courts have no control over the virus” and thus, such policies “would not be systematic exclusion.”
The theory is wrong and should fail. To the contrary, it is fully within courts’ control to devise responses to the coronavirus that do not result in exacerbating underrepresentation of already underrepresented groups.
Recent polls indicate that in the wake of the pandemic, young black and Hispanic women and older white women were among the most hesitant to appear in court in response to a summons while younger white politically conservative males were more likely to appear in court. 
Experts have been discussing juror-friendly policies courts might implement as they re-open and summon jurors. One recommendation is increased flexibility in granting postponements and excusals.  While such policies may appear reasonable in response to the COVID-19 crisis, they will increase unrepresentativeness in jury pools. Even in the absence of a pandemic, Black jurors are more likely than white jurors to request and receive temporary excusals from jury service.  The risk of increasing under-representation must be addressed as courts re-open and plan to conduct jury trials.
It is widely known that communities of color have suffered more severe impacts from COVID-19 than have white communities.  Accordingly, flexible excuse and postponement policies will surely have a disparate impact on summoned jurors from communities of color. The experts who recommend increased flexibility in excusal and postponement policies acknowledge that the net effect of such policies will be that “jury pools will be whiter, less diverse and younger.”
While the courts did not cause the pandemic, courts have the power to assure representativeness in jury pools, pandemic or not. States must protect the liberty of citizens. The right to a trial by a jury of one’s peers in our courts is one of the most important means of doing so. Moreover, many remedies are available to courts through executive, judicial or administrative action to avoid the unintended discriminatory impact of court policies.
First, courts must recognize the role of historic systemic racism, often implemented through government policies, in the disproportionate impact of COVID-19 on African American and Latinx communities. These include:
- lower access to health care, increasing the likelihood of high-risk underlying conditions;
- higher numbers working in “essential” jobs, increasing exposure to the virus; and,
- higher rates of arrest and imprisonment, again increasing possibility of exposure.
Even in the absence of a pandemic, African-American jurors who appear for service are more likely than whites to be excused. Temporary excusals are granted due to issues such as loss of income, lack of transportation or childcare, or underlying medical conditions. An increasingly flexible approach to excusals and postponements will certainly have a disparate impact on communities already excused in greater numbers. 
In the midst of the pandemic, courts can and should implement policies that help assure that each litigant gets a fair trial from a fair cross-section of the community. One obvious remedy is over-summoning from census tracts or zip codes with higher African American, Latinx and low-income populations. This approach to reducing the impact of higher undeliverable and non-response rates can equally help to minimize the discriminatory impact of higher excusal and postponement rates. In many jurisdictions, such stratified random sampling could be implemented through administrative order or policy changes.
Another approach to protecting fair trial rights in the face of a decrease in fair representation is for judges to allocate additional peremptory challenges to defendants in criminal cases faced with increasingly unrepresentative jury panels. Similarly, a time of crisis presents an opportunity to carefully evaluate and implement systemic changes that enhance representativeness including broadening source lists (to include, for example, tax files, unemployment records, and welfare recipients) and increasing juror pay.
We suggest that there are a number practical and achievable steps that can be taken now to increase jury representativeness.
1. Juror summons include a statement that the court seeks to a have a racially and economically diverse pool of jurors and an introduction that includes steps being taken by the court to ensure jurors’ safety through social distancing and providing masks.
2. Expand the source lists: reliance on voter registration and motor vehicle/state identification card lists has failed to provide representative jury pools and is not race neutral. Expand the source lists to include state taxpayer rolls, named person on utility bills, and persons who receive public assistance or unemployment benefits.
3. Require data collection by jury commissioners and publication of the demographic characteristics of the jury pool including the recognized cognizable groups – race, ethnicity and gender.