Lead Opinion
delivered the opinion of the Court.
Aftеr a jury trial in the District Court for the Fifteenth Judicial District of Lafayette Parish, Louisiana, petitioner, a Negro, was convicted of rape and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court,
According to 1960 U. S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service;
I
For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia,
This is not a case where it is claimed that there have been no Negroes cаlled for service within the last 30 years, Patton v. Mississippi,
In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro — a further reduction by one-half.
This Court has never announced mathematical standards for the demonstration of “systematic” exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potentiаl Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situa
Once a prima facie case of invidious discrimination is
Petitioner also challenges the Louisiana statutory-exemption of women who do not volunteer for grand jury service. Article 402, La. Code Crim. Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. Also, those groups arbitrarily excluded from grand or petit jury service are themselves afforded an appropriate remedy. Cf. Carter v. Jury Commission, supra. But there is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service. Although the Due Process Clause guarantees petitioner a fair trial, it does not require the Statеs to observe the Fifth Amendment’s provision for presentment or indictment by a grand jury. In Duncan v. Louisiana,
Against this background and because petitioner’s conviction has been set aside on other grounds, we follow our usual custom of avoiding decision of constitutional issues unnecessary to the decisiоn of the case before us. Burton v. United States,
Reversed.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Notes
Petitioner does not here challenge the composition of the petit jury that convicted him. The principles that apply to the systematic exclusion of potential jurоrs on the ground of race are essentially the same for grand juries and for petit juries, however. Pierre v. Louisiana,
The general qualifications for’jurors set by Louisiana law are that a person must be a citizen of the United States and of Louisiana who has resided in the parish for at least a year prior to jury service, be at least 21 years old,, be able to read, write, and speak the English language, “[n]ot be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity,” and “ [n] ot be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.” La. Code Crim. Proc., Art. 401 (1967).
Testimony at the hearing on the motion to quash the indictment also revealed that there were 40,896 registered voters in the parish. Of this total, 17,803 were white males, and 16,483 were white females; 3,573 were Negro males, and 3,037 were Negro females. App. 38.
One hundred and eighty-nine questionnaires had no racial designation. App. 15.
There are some inconsistencies in the record as to the total number of Negroes in this group. The State introduced a certification by the clerk of the court stating that there were 25 Negroes and four persons with no race shown. App. 15. A count of the actual list of jurors, however, shows 27 Negroes and five persons with no race shown. App. 16-24.
Section 4 of the 1875 Civil Rights Act, 18 Stat. 336, now codified as 18 U. S. C. § 243, affirms and reinforces this constitutional right: “No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not'more than $5,000.”
We take note, as we did in Whitus v. Georgia,
Concurrence Opinion
concurring.
While I join Part I of the Court’s opinion, I am convinced we should also reach the constitutionality of Louisiana’s exclusion of women from jury service. The issue is squarely presented, it has been thoroughly briefed and argued, and it is of recurring importance. The Court purports to follow “our usual custom” of avoiding unnecessary constitutional issues. But that cannоt be the sole rationale, for both questions are of constitutional dimension. We could just as well say that deciding the constitutionality of excluding women from juries renders it unnecessary to reach the question of racial exclusion.
It can be argued that the racial exclusion admits of the “easier” analysis. But this Court does not sit to decide only “easy” questions. And even when faced with “hard” constitutional questions, we have often decided cases on alternate grounds where a decision on only one would have been dispositive. See, e. g., Dunn v. Blumstein, ante, p. 330.
Petitioner complains of the exclusion of blacks and women from the grand jury which indicted him. Conceivably, he could have also complained of the exclusion of several other minority groups. Would he then be relegated to suffer repetitive re-indictment and re-conviction while this court considered the exclusion of each group in a separate lawsuit?
It is irrelevant to our analysis that Alexander attacks the composition of the grand jury that indicted him, not the petit jury which convicted him, for it is clear that a State which has a grand jury procedure must administer that system consonantly with the Federal Constitution. The Court asserts, however, that “federal concepts” of a grand jury do not obligate the States, and cites Hurtado v. California,
It is furthermore clear that just such a “federal constitutional criterion]” is that the grand jury, just as the petit jury, must be drawn from a representative cross-section of the community. The Court was speaking of both grand and petit juries in Carter v. Jury Commission, supra, when, quoting Smith v. Texas,
The requirement that a jury reflect a cross-section of the community occurs throughout our jurisprudence: “The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, "neces
This is precisely the constitutional infirmity of the Louisiana statute. For a jury list from which women have been systematically excluded is not representative of the community.
“It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim*638 that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composеd of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” Ballard v. United States, supra, at 193-194. (Emphasis supplied; footnotes omitted.)
The record before us, moreover, indisputably reveals that such a systematic exclusion operated with respect to the Lafayette Parish jury lists. There were no women on the grand jury that indicted petitioner, and there were no women on the venire from which the jury was chosen. While the venire was selected from returns to questionnaires sent to parish residents, not a single one of the some 11,000 questionnaires was even sent to a woman. This was done deliberately.
The absolute exemption provided by Louisiana, and no other State,
“Mаn is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .
“. . . The paramоunt destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.” Id., at 141-142.
Some violations of due process of law may be excused in the context of a criminal trial, if the error cannot be shown to have had an effect on the outcome. See, e. g., Giglio v. United States, ante, p. 150; Napue v. Illinois,
“We can never measure accurately the prejudice that results from the exclusion of certain types of qualified people from a jury panel. Such prejudice is so subtle, so intangible, that it escapes the ordinary methods of proof. It may be absent in one case and presеnt in another; it may gradually and silently erode the jury system before it becomes evident. But it is no less real or meaningful for our purposes. If the constitutional right to a jury impartially drawn from a cross-section of the community has been violated, we should vindicate*644 that right even though the effect of the violation has not yet put in a tangible appearance. Otherwise that right may be irretrievably lost in a welter of evidentiary rules.” Fay v. New York,332 U. S. 261 , 300 (Murphy, J., dissenting).
A statutory procedure which has the effect of excluding all women does not produce a representative jury, and is therefore repugnant to our constitutional scheme. Cf. White v. Crook,
Article 402, La. Code Crim. Proc.: “A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.”
The fact that Alexander is a male challenging the exclusion of females from the jury rolls is not of significance, for his claim rests, not on equal protection principles, but on the right of any defendant to an impartial jury, no matter what his sex or race.
While Carter arose under the Equal Protection Clause, and concerned the right of prospective jurors excluded from the venire solely by reason of their race, the analysis is the same in the instant case, where the question is the accused’s right to an impartial jury. Turner v. Louisiana,
The cases most precisely articulating the requirement that a jury reflect a cross section of the community arose under our supervisory power over the federal courts. See, e. g., Ballard v. United States,
Mr. LeBlanc, clerk of the court in Lafayette Parish, and a member of the parish jury commission, testified as to the process by which the venire was chosen at the hearing on the motion to quash Alexander’s indictment:
“A. The slips or list that are put in the general venire box are made from questionnaires that I mailed out.
“Q. Now, who is this questionnaire sent to? How is that determined?
“A. To the different people in the Parish by the registrar of voter’s list and the telephone book, city directory, differеnt lists that are*639 submitted by school board or any list that we can find that we think we got address [sic] for the mixed race one way or the other.
“Q. Was the questionnaire mailed to any women at all?
“A. We have received some that was filled in by some ladies. I think one.
“Q. Did you mail any to any women intentionally or did you intentionally exclude women when you mailed them?
“A. We didn’t mail any to the women.” App. 35, 53.
The only evidence in the record that any effort whatsoever was expended to encourage women to volunteer for jury service was a statement by Mr. LeBlanc that he had “discussed that with the Assistant District Attorney,” and that he had “sent her at [sic] different women’s clubs to explain to the women the possibility of being on the jury.” App. 54. He also averred that “we’re working on the women to submit names and intention to serve.” Ibid.
As indicated in n. 5, supra, however, these efforts produced but a single questionnaire from a woman. The 11,000 questionnaires sent to men, on the other hand, resulted in over 7,000 responses. App. 15.
Testimony of Mr. LeBlanc. See nn. 5-6, supra.
No State now prohibits women from service on juries altogether, Alabama’s prohibition having been found unconstitutional in White
Perhaps the purest articulation of the objection to woman jury service is that of Judge Turner, dissenting in Rosencrantz v. Territory, 2 Wash. Ter. 267,
“It is said that the rights of the weaker sex, if I may now call them so, are more regarded than in the days of Blackstone; and that the theory of that day, that women were unfitted by physical constitution and mental characteristics to assume and perform the civil and politiсal duties and obligations of citizenship, has been exploded by the advanced ideas of the nineteenth century. This may be true. No man honors the sex more than I. None has witnessed more cheerfully the improvement in the laws of the States, and particularly in the laws of this Territory, whereby many of the disabilities of that day are removed from them, and their just personal and property rights put upon an equal footing with those of men. I cannot say, however, that I wish to see them perform the duties of jurors. The liability to perform jury duty is an obligation, not a right. In the case of woman, it is not necessary that she should accept the оbligation to secure or maintain her rights. If it were, I should stifle all expression of the repugnance that I feel at seeing her introduced into associations and exposed to influences which, however others regard it, must, in my opinion, shock and blunt those fine sensibilities, the possession of which is her chiefest charm, and the protection of which, under the religion and laws of all countries, civilized or semi-civilized, is her most sacred right.
“If one woman is competent as a juror, all women having the same qualifications are competent. If women may try one case, they may try all cases. It is unnecessary to say more, to suggest the shocking possibilities to which our wives, mothers, sisters, and*642 daughters may be exposed .... These observations, however, are not pertinent here. The question is, What is the law?
“I say, that the laws now concerning the important incidents of a jury trial are, by express constitutional provision, what they were at the common law, and that under that law a jury was no jury unless it was composed of men.” Id., at 278-279,5 P., at 309-310 .
In Fay v. New York,
The “nose-counting” approach which led to the Fay Court’s refusal to recognize woman jury service as “part of the textual or customary law of the land” has, of course, been thoroughly undermined by subsequent events. See n. 8, supra. It has been suggested that the decision itself was overruled by Duncan v. Louisiana,