The Dilution Effect: Federalization, Fair Cross-Sections, and the Concept of Community

Abstract

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded by white suburban "collar" counties, in a way that dilutes minority participation in the jury system.

Keywords: community, federalization, fair cross-sections