By Dr. Ken Broda Bahm:
With mounting frustration over the duration and human cost of the Coronavirus pandemic, along with the sluggish pace of vaccinations in many parts of the country, President Joe Biden, this past week, threw down the gauntlet and announced a sweeping new policy of mandating vaccines for federal employees and for businesses with more than 100 employees. The move will affect as many as 100 million American workers, and also reprises a question that has been hanging over courthouses across the country: Should jurors similarly have a vaccination requirement?
The combination of the close quarters of a jury box and deliberation room combined with full days being spent in the company of the same group, makes the risks obvious. Masking, attempted distancing, disinfectants and plexiglass all have their limitations. Given that widespread vaccinations have allowed many large events to go forward and workplaces to operate, why not require it in the courts? The main reason, so far, is that vaccine resistance is a trait that is not evenly distributed across the demographics of the population. Not even close, actually. The gap between Democratic and Republican vaccination rates is more than 30 points, and there is a fair likelihood that Joe Biden’s policy announcement will serve to harden and expand that partisan divide. So, if liberals are more likely to show up in a vaccinated courtroom (they are), and if that political leaning is known to have an influence on both criminal and civil cases (it is), then does it make sense to impose the same workplace vaccination requirements on juries? In this post, I provide my answer: It does.
It’s True, Representation Would Take a Hit
Certainly, few things say “government authority” like a letter arriving at your house and ordering you to report downtown to provide nearly-free services in resolving a dispute. But while the “Live Free or Die” folks may have already been suspicious of jury duty, that suspicion will be dialed up to 11 when that duty also requires a proof of vaccination or a recent negative test. Even though it would likely be easy in many to most venues for unvaccinated individuals to simply defer their service into the future (as they now often can due to work, leisure, or family circumstances), we can count on the likelihood that some would refuse to comply with a vaccine mandate simply because it has become a common partisan posture. And if the resulting panels then leaned in a more liberal direction, we could also assume that they would be more suspicious of the police and of corporations, and more supportive of a collective responsibility for health and personal safety. It would likely have a measurable effect on the jury pool. JurorSearch CEO Dan Johnson recently said in a Bloomberg Law article, “Something as salient in 2021 as the decision to intentionally remain unvaccinated is telling no matter the type of case.”
Representativeness Shouldn’t Be a Deal Breaker on Vaccines
I think there are a few reasons why.
Citizens Shouldn’t Risk Their Lives for Jury Duty
With the pandemic now in a wearying second year, it simply isn’t civic or reasonable for jury duty to represent a significant risk to the health and the survival of the serving jurors. Vaccination has been the one measure so far that has brought back some measure of normalcy, but as we have seen across the country, acting as though everything is normal, while a sizable chunk of the population remains unvaccinated, is a recipe for more deaths and for the incubation of more variants that could potentially outrun the vaccine.
Representation Is Never Perfect (or Even Very Good in Many Cases)
Another reason is that in-person pools are already far from a perfect snapshot of the communities they are drawn from. Research shows that minorities and those with lower income are unrepresented in most panels. Clearly, that is a problem that courts ought to move to address. But it is also a reminder that it isn’t the end of the world if there is one additional factor of unrepresentativeness. Ultimately, I believe the quality of jury composition has more to do with what you do with the pool, in managing cause challenges and strikes, than with who walks in the door.
Not Asking for Vaccinations Carries Its Own Skew
Clearly, the question of personal health measures is politicized in both directions. Many on the liberal side of the spectrum are uncomfortable going into situations where vaccine status is mixed or unknown, particularly when guidelines like masking and distancing are increasingly likely to be soft-pedaled or ignored. Those uncomfortable with that situation might also opt-out of service in court. So it could be a question of which skew we are more comfortable with. For my part, I’d break the tie in favor of public health.
Online Trials (or at Least Jury Selections) Would Solve the Problem Anyway
Maybe that tie does not have to be broken at all. The one time in trial with the greatest amount of in-person crowding is clearly the day for jury selection. If that day, or the entire trial, was moved online, then the question of mandating vaccines would be moot. I have shared in recent posts that experiments and early tests have shown that the online trial is workable. While it has some downsides (less drama and immediacy), it also has some upsides (better visibility and less drama). If courts are not willing to require vaccines, and maybe even if they are, it makes sense to move portions of the litigation process to an online environment.
Other Posts on Jury Representativeness:
- Treat Online Trials as an Access-to-Justice Issue
- Respect Your Jurors (Especially in a Pandemic)
- Account for Social Media Distortion