For the foreseeable future, in the absence of a universal vaccine mandate, a large minority of U.S. citizens will likely remain unvaccinated. As courts across the country impose vaccine requirements for juries — requiring jurors to show proof of vaccination and dismissing them if they do not — we are faced with an important constitutional question. Does requiring vaccines violate the Sixth Amendment right to a trial by a jury of one’s peers?
The Sixth Amendment explicitly grants criminal defendants the right to a “speedy and public trial, by an impartial jury.” The Supreme Court has ruled, most famously in Taylor v. Louisiana, that an impartial jury is one that is representative of the community, often what they refer to as a representative “cross-section.” Juries that exclude women or racial minorities have failed to pass this “cross-section” test. Today, amid the ongoing Covid-19 pandemic, we are faced with the question of whether excluding the unvaccinated fails the “cross-section” test? In other words, can a jury composed only of vaccinated jurors truly be said to be a “jury of one’s peers?”
In most communities, the answer is no. Surely in a jurisdiction where there is a near-universal vaccination rate, you could say that a vaccinated jury is representative, but in reality, few if any of these such jurisdictions exist. Even in Marin County, CA, which has one of the highest vaccination rates of any U.S. county, only 90% of eligible residents are fully vaccinated. And the remaining 10% is not a random selection. Just as Covid-19 cases, hospitalizations, and deaths have disproportionately affected low-income people and people of color, these groups are also disproportionately unvaccinated. In most states, the percentage of vaccinated people who are black is lower than the percentage of the population that is black. An analysis of socioeconomic status reveals even more stark distinctions. People with lower income, regardless of race, are far more skeptical of the Covid-19 vaccine and thus have far lower vaccination rates. In addition, there are political considerations. On average, Republicans are far less likely to be vaccinated than Democrats.
With this recognition of vaccine disparities, it is easy to understand how a vaccinated jury would be an inherently whiter, wealthier, more educated, and more liberal jury than one composed of a random subsection of the population. It is clear then that vaccine mandates for juries violate the “cross-section” test. Vaccinated juries are, generally speaking, not wholly representative of real communities.
The question then becomes one of how to maintain representative juries while still protecting the health and safety of jurors, judges, attorneys, and others who interact with the judicial system. Some obvious answers may include masks, social distancing, or holding trials virtually. The latter alternative though raises its own complications and questions of access and representation. If only those jurors with internet access were selected, we would see many of the same disparities reflected. Further, if we held in-person trials and dismissed those who felt unsafe sitting on a jury alongside an unvaccinated juror, we might risk the same issue of disproportionate representation in the reverse direction, seeing more unvaccinated, younger, and more politically conservative juries.
It is rare that something is so clearly unconstitutional, and simultaneously so difficult to address as is this problem. Still, it raises interesting questions about due process and forces an important analysis of both the historic and new racial, socioeconomic, and educational disparities present in our jury pools.