Alexander v. Louisiana/Concurrence Douglas

by William O. Douglas

[p634] MR. JUSTICE DOUGLAS, 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 cannot 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?

[p635] I believe the time has come to reject the dictum in Strauder v. West Virginia, 100 U.S. 303, 310, that a State "may confine" jury service "to males." I would here reach the question we reserved in Hoyt v. Florida, 368 U.S. 57, 60, and hold that Art. 402, La. Code Crim. Proc.,^[1] as applied to exclude women as a class from Lafayette Paris jury rolls, violated petitioner Alexander's constitutional right to an impartial jury drawn from a group representative of a cross-section of the community.^[2]

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 assets, however, that "federal concepts" of a grand jury do not obligate the States, and cites Hurtado v. California, 110 U.S. 516, 538. Ante, at 633. But Hurtado supports no such proposition. That case merely held that the Fifth Amendment grand jury requirement was not binding on the States. It said nothing as to the constitutional requirements which obtain once a State chooses to provide a grand jury, and we are directed to no other case which does speak to the subject. But this Court has said time and again, regardless of a State's freedom to reject the federal grand jury, and to reject even the petit jury for offenses punishable by less than six months' imprisonment, Baldwin v. New York, 399 U.S. 66, "Once the State chooses to provide grand [p636] and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria...." Carter v. Jury Commission, 396 U.S. 320, 330.^[3]

It is furthermore clear that just such a "federal constitutional criter[ion]" 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, 311 U.S. 128, 130, it defined the jury as "a body truly representative of the community." 396 U.S., at 330. The Court was speaking of grand and petit juries when it said in Brown v. Allen, 344 U.S. 443, 474: "Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty." (Emphasis supplied.) As Mr. Justice Black said, speaking for the Court in Pierre v. Louisiana, 306 U.S. 354, 359: "Indictment by Grand Jury and trial by jury cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races... are excluded as such from jury service." (Footnote omitted.)

The requirements 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, [p637] necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130; Glasser v. United States, 315 U.S. 60, 85." Thiel v. Southern Pacific Co., 328 U.S. 217, 220. Accord, Williams v. Florida, 399 U.S. 78, 100; Witherspoon v. Illinois, 391 U.S. 510, 520; Ballard v. United States, 329 U.S. 187, 192-193; Labat v. Bennett, 365 F. 2d 698, 722-724.^[4]

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 [p638] 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 composed 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.^[5]

[p639] The State relies on the fact that the automatic exemption it grants to women is the same as the one upheld in Hoyt v. Florida, 368 U.S. 57. In Hoyt, however, there were women on the jury rolls,m and the jury commissioners had made good-faith efforts to include women on the jury lists despite the fact that they had an automatic exemption unless they volunteered for service. Id., at 69 (Warren, C.J., concurring). Here, on the other hand, only the feeblest efforts were made to interest women in service,^[6] and there was testimony that only a single woman had filled out a jury service questionnaire.^[7] This, out of a parish population of 45,000 adults, 52% of whom were female.

The absolute exemption provided by Louisiana, and no other State,^[8] betrays a view of a woman's role which [p640] cannot withstand scrutiny under modern standards. We once upheld the constitutionality of a state law denying to women the right to practice law, solely on grounds of sex. Bradwell v. State, 16 Wall. 130. The rationale underlying Art. 402 of the Louisiana Code is the same as that which was articulated by Justice Bradley in Bradwell:

"Man 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 paramount destiny and mission of woman are to fulfill 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.

[p641] Classifications based on sex are no longer insulated from judicial scrutiny by a legislative judgment that "woman's place is in the home," or that woman is by her "nature" ill-suited for a particular task. See, e.g., Reed v. Reed, 404 U.S. 71. But such a judgment is precisely that which underpins the absolute exemption from jury service at issue.^[9] Insofar as Hoyt, supra, [p642] embodies this discredited stereotype, it should be firmly disapproved.^[10] See Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675, 708-721 (1971).

[p643] Louisiana says, however, that women are not totally excluded from service; they may volunteer. The State asserts it is impractical to require women affirmatively to claim the statutory exemption because of the large numbers who would do so. This argument misses the point. Neither man nor woman can be expected to volunteer for jury service. Hoyt, supra, at 64-65. See L. Kanowitz, Women and the Law 30 (1969). Thus, the automatic exemption, coupled with the failure even to apprise parish women of their right to volunteer, results in as total an exclusion as would obtain if women were not permitted to serve at all.

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, 360 U.S. 264, 272. But the right to a representative jury is one which would be trivialized were a similar requirement imposed:

"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 present 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 [p644] 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, 251 F. Supp. 401, 408-409 (MD Ala. 1966). For these reasons, I would hold Art. 402, La. Code Crim. Proc., to be unconstitutional.

Notes

1. 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."
2. 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.
3. 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, 379 U.S. 466.
4. 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, 329 U.S. 187; Thiel v. Southern Pacific Co., 328 U.S. 217; Glasser v. United States, 315 U.S. 60. The detail with which these cases were written, however, simply reflects our obligation to provide guidelines for the federal system. It is consistent with our principle of federalism that the States be permitted greater latitude in fashioning their jury-selection procedures, but to avoid constitutional infirmity the result must be designed to produce a representative cross section of the community. Brown v. Allen, 344 U.S. 443, 474; Carter v. Jury Commission, 396 U.S. 320, 322, 333.
5. 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, different lists that are 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.

6. 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.

7. Testimony of Mr. LeBlanc. See nn. 5-6, supra.
8. No State now prohibits women from service on juries altogether, Alabama's prohibition having been found unconstitutional in White v. Crook, 251 F. Supp. 401 (MD Ala. 1966). Most States afford equal treatment to men and women, although exemptions are frequently provided for women who are pregnant or who have children under 18 at home. Five States now allow women an absolute exemption, based solely on their sex, but they must affirmatively request it. Ga. Code Ann. § 59-124 (1965); Mo. Const., Art. I, § 22 (b); N.Y. Judiciary Law § 507 (7) (1968); R.I. Gen. Laws Ann. § 9-9-11 (1970); Tenn. Code Ann. § 22-101, § 22-108 (1955).
9. 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, 5 P. 305 (1884), a case in which a female defendant challenged the grand jury which indicted her on the ground that it included married women living with their husbands. The challenge was rejected over Judge Turner's dissent:

   "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 political 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 obligation 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 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.

10. In Fay v. New York, 332 U.S. 261, there is also a dictum approving the constitutionality of excluding women from jury service. Relying solely on the proposition that: "Until recently, and for nearly a half-century after the Fourteenth Amendment was adopted, it was universal practice in the United States to allow only men to sit on juries," the Court opined that "woman jury service has not so become a part of the textual or customary law of the land that one convicted of crime must be set free by this Court if his state has lagged behind what we personally may regard as the most desirable practice in recognizing the rights and obligations of womanhood." Id., at 289-290. This dictum was totally irrelevant to the holding in Fay, approving New York's special "blue-ribbon" jury system, for the Court stated flatly that: "The evidence does not show that women are excluded from the special jury." Id., at 278. Indeed, there were women on the very jury which was at issue in the case. Ibid.

    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, 391 U.S. 145. Id., at 185 n. 25, and text following (Harlan, J., dissenting). And what little there may be left after Duncan, is, like Strauder v. West Virginia, 100 U.S. 303, and Hoyt v. Florida, 368 U.S. 57, based on an obsolete view of woman's role which does not square with reality. "[The Fay] dictum... calls to mind-in its total reliance on historical practice as justification for sex discrimination—the... observation... that attitudes can be more formidable than arguments." Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675, 715 (1971). See State v. Emery, 224 N.C. 581, 601, 31 S.E. 2d 858, 871 (1944) (Seawell, J., dissenting). See also Rosencrantz v. Territory, supra (Turner, J., dissenting).