380 U.S. 202 (1965), 64, Swain v. Alabama

Docket Nº:No. 64
Citation:380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759
Party Name:Swain v. Alabama
Case Date:March 08, 1965
Court:United States Supreme Court
 
FREE EXCERPT

Page 202

380 U.S. 202 (1965)

85 S.Ct. 824, 13 L.Ed.2d 759

Swain

v.

Alabama

No. 64

United States Supreme Court

March 8, 1965

Argued December 8, 1964

CERTIORARI TO THE SUPREME COURT OF ALABAMA

Syllabus

Petitioner, a Negro, was indicted and convicted of rape in the Circuit Court of Talladega County, Alabama, and sentenced to death. Of those in the county eligible for jury selection for grand and petit juries, 26% are Negroes, while the jury panels since 1953 have averaged 10% to 15% Negroes. In this case, there were four or five Negroes on the grand jury panel, and two served on the grand jury. Although petit jury venires in criminal cases include an average of six to seven Negroes, no Negro has served on a petit jury in the county since about 1950. Here, of the eight Negroes on the venire, two were exempt, and six were peremptorily struck by the prosecutor. Petitioner's motions to quash the indictment, to strike the trial jury venire, and to void the trial jury, all based on discrimination in the selection of jurors, were denied, and his conviction was affirmed by the Alabama Supreme Court.

Held:

1. A defendant in a criminal case is not constitutionally entitled to a proportionate number of his race on the trial jury or the jury panel. P. 208.

2. Purposeful racial discrimination is not satisfactorily established by showing only that an identifiable group has been underrepresented by as much as 10%. P. 208.

3. There is no evidence in this case that the jury commissioners applied different jury selection standards as between Negroes and whites. P. 209.

4. An imperfect system of selection of jury panels is not equivalent to purposeful racial discrimination. P. 209.

5. The prosecutor's striking of Negroes from the jury panel in one particular case under the peremptory challenge system, which permits a challenge without a reason stated, does not constitute denial of equal protection of the laws. P. 221.

6. Even if a State's systematic striking of Negroes in selecting trial juries raises a prima facie case of discrimination under the Fourteenth Amendment, the record here is insufficient to establish such a systematic striking in the county. Pp. 222-228.

(a) Petitioner has the burden of proof, and he has failed to meet it. P. 226.

Page 203

(b) Total exclusion of Negroes from venires by state officials creates an inference of discrimination, but this rule of proof cannot be applied where it is not shown that the State is responsible for the exclusion of Negroes through peremptory challenges. Pp. 226-227.

275 Ala. 508, 156 So.2d 368, affirmed.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The petitioner, Robert Swain, a Negro, was indicted and convicted of rape in the Circuit Court of Talladega County, Alabama, and sentenced to death. His motions to quash the indictment, to strike the trial jury venire and to declare void the petit jury chosen in the case, all based on alleged invidious discrimination in the selection of jurors, were denied. The Alabama Supreme Court affirmed the conviction, 275 Ala. 508, 156 So.2d 368, and we granted certiorari, 377 U.S. 915.

In support of his claims, petitioner invokes the constitutional principle announced in 1880 in Strauder v. West Virginia, 100 U.S. 303, where the Court struck down a state statute qualifying only white people for jury duty. Such a statute was held to contravene the central purposes of the Fourteenth Amendment:

exemption from unfriendly legislation against (Negroes) distinctively as colored, -- exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy. . . .

100 U.S. at 308. Although a Negro defendant is not entitled to a jury containing members of his race, a State's purposeful

Page 204

or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause. Ex parte State of Virginia, 100 U.S. 339; Gibson v. Mississippi, 162 U.S. 565. This principle was further elaborated in Carter v. Texas, 177 U.S. 442, 447, where, in respect to exclusion from grand juries, the Court said:

Whenever, by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied. . . .

And it has been consistently and repeatedly applied in many cases coming before this Court.1 The principle of these cases is broadly based.

For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but is at war with our basic concepts of a democratic society and a representative government.

Smith v. Texas, 311 U.S. 128, 130. Further, "[j]urymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race." Cassell v. Texas, 339 U.S. 282, 286 (opinion of Mr. Justice Reed, announcing judgment). Nor is the

Page 205

constitutional command forbidding intentional exclusion limited to Negroes. It applies to any identifiable group in the community which may be the subject of prejudice. Hernandez v. Texas, 347 U.S. 475.

But purposeful discrimination may not be assumed or merely asserted. Brownfield v. South Carolina, 189 U.S. 426; Tarrance v. Florida, 188 U.S. 519; Smith v. Mississippi, 162 U.S. 592; Bush v. Kentucky, 107 U.S. 110. It must be proven, Tarrance v. Florida, supra; Martin v. Texas, 200 U.S. 316, the quantum of proof necessary being a matter of federal law. Norris v. Alabama, 294 U.S. 587; Smith v. Texas, 311 U.S. 128. It is not the soundness of these principles, which is unquestioned, but their scope and application to the issues in this case that concern us here.

I

We consider first petitioner's claims concerning the selection of grand jurors and the petit jury venire. The evidence was that while Negro males over 21 constitute 26% of all males in the county in this age group, only 10 to 15% of the grand and petit jury panels drawn from the jury box since 1953 have been Negroes, [85 S.Ct. 828] there having been only one case in which the percentage was as high as 23%. In this period of time, Negroes served on 80% of the grand juries selected, the number ranging from one to three. There were four or five Negroes on the grand jury panel of about 33 in this case, out of which two served on the grand jury which indicted petitioner. Although there has been an average of six to seven Negroes on petit jury venires in criminal cases, no Negro has actually served on a petit jury since about 1950. In this case, there were eight Negroes on the petit jury venire, but none actually served, two being exempt and six being struck by the prosecutor in the process of selecting the jury.

Page 206

It is wholly obvious that Alabama has not totally excluded a racial group from either grand or petit jury panels, as was the case in Norris v. Alabama, 294 U.S. 587; Hill v. Texas, 316 U.S. 400; Patton v. Mississippi, 332 U.S. 463; Hernandez v. Texas, 347 U.S. 475; and Reece v. Georgia, 350 U.S. 85. Moreover, we do not consider an average of six to eight Negroes on these panels as constituting forbidden token inclusion within the meaning of the cases in this Court. Thomas v. Texas, 212 U.S. 278; Akins v. Texas, 325 U.S. 398; Avery v. Georgia, 345 U.S. 559. Nor do we consider the evidence in this case to make out a prima facie case of invidious discrimination under the Fourteenth Amendment.

Alabama law requires that the three jury commissioners in Talladega County place on the jury roll all male citizens in the community over 21 who are reputed to be honest, intelligent men and are esteemed for their integrity, good character and sound judgment. Ala.Code, Tit. 30, §§ 20, 21 (1958).2 In practice, however, the

Page 207

commissioners do not place on the roll all such citizens, either white or colored.3 A typical jury roll, at best, contains about 2,500 names, out of a total male population over 21, according to the latest census, of 16,406 persons. Each commissioner, with the clerk's assistance, produces for the jury list names of persons who in his judgment are qualified. The sources are city directories, registration lists, club and church lists, conversations with other persons in the community, [85 S.Ct. 829] both white and colored, and personal and business acquaintances.4

Page 208

Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. 313, 322-323; Gibson v. Mississippi, 162 U.S. 565; Thomas v. Texas, 212 U.S. 278, 282; Cassell v. Texas, 339 U.S. 282. Neither the jury roll nor the venire need [85 S.Ct. 830] be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.

Obviously, the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.

Cassell v. Texas, 339 U.S. 282, 286-287 (opinion of Mr. Justice Reed, announcing judgment). We cannot say that purposeful discrimination based on race alone is satisfactorily

Page 209

proved by showing that an identifiable group in a community is...

To continue reading

FREE SIGN UP