If you’re Hispanic, Asian or African-American, you’ll have a tougher time in Dane County Court being judged by a jury of your peers. Dane County officials say, like other parts of the justice system, racial disparity is a problem when it comes to seating eligible jurors and believe the selection process is part of the problem.
Jury make-up is important because the recent Race to Equity report found the county arrest rates for black juveniles were six times greater than those of white juveniles. Black adults were arrested eight times more than whites. Hispanics and Asians are also the largest growing population in the county.
According to 2013 census reports, Dane County’s population over age 18 is 89.1 percent white, 4.4 percent African-American, 4.9 percent Asian and 4.9 Hispanic (the census allows people to self-identify themselves as Hispanic, regardless of race), accounting for the higher 100 percent.
But in 2014, jurors summoned in the county were 88.1 percent white, 4 percent African-American, 3.8 percent Asian and 3.3 percent Hispanic.
Carlo Esqueda, Dane County Clerk of Circuit Court, says the county has been focusing on getting more racially representative jurors, from the summons to those actually seated.
“The numbers are getting a little better over the last five years but we need to look a little farther through the process,” Esqueda said.
Problems in the process
The Director of State Courts office derives its lists of eligible jurors from Wisconsin Department of Transportation driver’s license and state ID lists. Esqueda said voter lists, DNR license lists, child support payors and payees, and those receiving unemployment benefits, but Esqueda said none of those are used.
“Currently the director’s office uses none of those, it is all very DOT-centric, and it has been for as long as I remember,” Esqueda said.
The county sends out an average of 300 juror summons per week—usually more than needed to account for undeliverables and disqualifications. On average, six to 14 jurors per case survive the voir dire or juror questioning selection process.
Last year, roughly 32 percent of juror summoned were deemed ineligible and unavailable because the summons were undeliverable, they were not a U.S. citizen, not proficient in English, or were convicted of a felony, and currently on supervision.
The majority of these (72) percent were Hispanic, followed by Asian (54 percent) and African-American (51 percent) compared with 29 percent for whites.
“You can see right away that there is a certain disparity there, especially the Hispanics, the big things that are disqualifying for the Hispanic population; is not being a U.S. citizen and not proficient in the English language,” Esqueda said.
The demographic breakdown of those who went through the process and were sworn to a jury in 2014 were: 91.7 percent white, 3.9 percent African-American, 2.4 percent Asian and 1.2 percent Hispanic.
Finding a solution to the problem hasn’t been so easy.
Milwaukee County tried to improve its jury racial disparity by over-summoning people from a certain ZIP code that had higher proportions on minorities.
But the effort was stopped after the Attorney General ruled that didn’t comply with the law requiring a random jury selection process. Esqueda said that if Dane County tried that, it would likely get the same response from the AG.
Esqueda recognized that using other DOT lists to find eligible candidates has some problems when it comes to finding a more racial representation of jurors. He says using other lists may just have as many problems.
However, he has asked the Director of State Courts Office (DSCO) to use lists of child support payors and payees and those receiving unemployment benefits. He said state officials said those lists could not be used because of costs involved, limited resources and database interface problems.
Tom Sheehan, court information office for the DSCO, said the office was granted the permission to use other list by the Supreme Court in 2009, with hopes to improve jury demographic breakdowns. But he said there were problems weeding out duplicates and merging the DOT data with other lists.
"To weed out duplicates, the lists need to use a common unique identifier, like a Social Security number, but federal and state confidentiality laws limit the use of such identifiers," Sheehan said. "So, confidentiality concerns stand in the way of accurately merging names from other departments list."
The DOT list has been the primary source for identifying potential jurors since 1991 and Sheehan said it continues to be the most representative, reliable and useful source.
What's the county doing?
At the county level, Esqueda said his office has taken steps to cut down on undeliverables by requesting names from the director’s office more frequently because they are scrubbed through the national change of address database.
Research shows that people move more frequently at the lower end of socio-economic level, which Esqueda says could possibly correlate with race.
“The more we can accurately be with the addresses, the more success we are going to have with people being reached and we have seen some improvements with that,” Esqueda said.
When Esqueda presented his juror demographics information at the June 4 Dane County Board of Supervisors meeting, some supervisors thought the county could do better job.
Supervisor Sheila Stubbs (District 23), the board’s only African-American member, said minorities in her district say that they have never been summoned for jury duty even though they are longtime county residents and have lived at the same address for years.
“I think it is quite disturbing to be on trial and there is no one demographically by age, sex, gender or race that looks like you and understands you,” Stubbs said. “We have made some improvements but that’s not enough.”
Supervisor Heidi Wegleitner asked if undeliverables could be followed up on, but Esqueda said he doesn’t have the staff to do that.
Esqueda said inter-agency cooperation is needed to make major improvements but he is satisfied that the county is making progress.
“All we can really do is work along the edges to make sure that we are reaching all the people we can reach,” Esqueda said, “but if we want whose sitting in the juror box to be comparable to the county’s demographic, it doesn’t look like we have that much farther to go.”