Full opinion text
MEMORANDUM AND ORDER RE: DEFENDANTS’ CHALLENGE TO THE COMPOSITION OF THE JURY VENIRE GERTNER, District Judge. TABLE OF CONTENTS I.INTRODUCTION.35 II. BACKGROUND.40 A. Step One: Choice of a Federal Forum — from 20% African-American Representation in Suffolk County to 7% African-American Representa- tion in the Eastern Division of the District of Massachusetts.40 B. Steps Two Through Four: From 7% African-American Representation in the Eastern Division to 3% on the Available Jury Wheel .42 1. Step Two: From Source Lists to the Master Jury Wheel.42 2. Steps Three and Four: Determining the “Available Pool” or the “Qualified Wheel” .43 C. Steps Five and Six: Jury Impanelment — Venire to Petit Jury Selection from 3% to Nil.45 D. History of Minority Underrepresentation in Massachusetts and Related Federal Litigation.46 1. The 1993 Boston Litigation.46 2. 1994 Supreme Judicial Court Gender and Race Bias Report.47 3. Federal Litigation Between 1984 and 1999 .'.47 E. Defendants’ Case.47 III. DISCUSSION....,. ^ fQ A. Fair Cross-Section Challenge . tn 1. Fair Cross-Section Framework. w a. Second Prong: Underrepresentation. cn i — i (1) By What Statistical Means Shall the Exclusion of Members of a Cognizable Group Be Measured?. cn v-i (2) How Much Exclusion of Members of a Cognizable Group Is Significant for Constitutional Purposes?. or b. Third Prong: Systematic Exclusion. or en (1) Is the Disparity Found under the Second Prong Caused by Happenstance (Which Is Not Actionable) or Is it Caused by Official Action or Inaction of Some Sort (Which May Be Actionable)?. Ol cn (2) Even if Official Misfeasance Contributes Somewhat to the Disparity in Representation, Do the Defendants Have to Show Precisely How Much of the Disparity Is Attributable to Such Factors?. cn CJi c. Hybrid Approach. cn -O 2. Defendants’ Case. Or a. First Prong: Distinctiveness. cn b. Second Prong: Underrepresentation. en —3 c. Third Prong: Systematic Exclusion. Or CO (1) Shortcomings of The Resident Lists — Undercounting and Overcounting. cn co (2) Shortcomings of Summonsing — Demographics, Logistics and Nonresponses. © (a) Undeliverables. 2 b. Section 1863(b)(2)’s Duty to Supplement. (b) Nonrespondents. rH ZD (3) Inactive Voter Lists . Cm ZD 3. Conclusion: Defendants Have Not Made Out A Constitutional Violation. B. Statutory Challenge. 1. The JSSA’s Proportionality Requirement. to Comply” with the JSSA. a t Act?_ (1) The Statutory Language. (2) Legislative History. (3) The District of Massachusetts Resident List Exception. c. Defendants Proven a “Failure to Comply” Without Supplementation?. So Failure to Supplement the Resident Lists Amount to a Substantial Statutory Violation?. CO Cr- e. Supervisory Powers. ^ t- ID Cr- g. Afterward: The Government’s Objections to the Proposed Remedy. IV. CONCLUSION. .79 I. INTRODUCTION Darryl Green (“Green”) and Branden Morris (“Morris”) are African-American men who are likely to be tried before all white, or largely white, juries. Such an outcome should be profoundly troubling, to say the least. Indeed, the District of Massachusetts has wrung its collective hands over the problem of minority underrepre-sentation on its juries for over a decade. However significant the lament before, the prospect is uniquely chilling here: Green and Morris face the death penalty. Their all white, or largely white, juries could well decide whether they will live or die. Morris and Green, along with three co-defendants, are charged with participating in a racketeering enterprise — the “Es-mond Street Posse” — through which they allegedly sold crack cocaine and marijuana, protected their sales turf, and carried on a violent dispute with a rival gang. That dispute led to a number of murders and attempted murders during 2000 and 2001. The death of Terrell Gethers prompted the government to charge Morris and Green with murder in aid of racketeering under 18 U.S.C. § 1959(a)(1) and to seek the death penalty against them. Defendants claim that the racial composition of the jury wheel for the Eastern Division of the District of Massachusetts (“Eastern Division”) violates the Sixth Amendment and the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. (the “Act” or “JSSA”). They allege that the federal officials use state resident lists that are inaccurate and out of date, particularly from the cities and towns with the highest percentage of African-Americans. They move to dismiss the charges against them, or, in the alternative, to stay the case until a jury can be assembled that comports with the Constitution and the JSSA. Defendants’ claims are ironic: Massachusetts pioneered the use of resident lists in place of voting lists for jury selection precisely to maximize minority participation. But the duty to prepare and update these lists has remained an unfunded mandate, fulfilled with varying success across the District. According to defendants, the more affluent and whiter communities can afford to properly maintain the lists; the poorer, more racially diverse communities cannot. Put simply, an Eastern Division resident has a better chance of getting on a jury if she hales from more racially and economically homogenous towns like Needham or Dover, than if she is from more racially and economically diverse towns like Lynn, Brock-ton or New Bedford. Residents of heavily African-American, poor, and urban communities, like Roxbury and Dorchester, may fare even worse than those from the latter towns. The government opposes defendants’ motion. It defends the lawfulness of its procedures for compiling the jury wheel, and, in effect, the overwhelmingly white juries those procedures are likely to yield. It denies that there is any official misfeasance, federal or state, or that misfeasance is responsible for the underrepresentation of African-Americans. The government argues that the reason for the underrepre-sentation is that substantial numbers of African-Americans choose not to return court questionnaires and that residents of poorer and heavily minority communities are so transient that their addresses are not easily captured on any resident list. The stakes could not be higher. Undermining the right to a representative jury casts a pall over all jury trials in our District. The issue is particularly important for the capital jury, not only because of the stakes, but also because of that jury’s unique role. It renders not simply a factual judgment — guilt or innocence — but “an ethical judgment expressing the conscience of the community.” Jeffrey Abramson, Death-Is-Different: Jurisprudence and the Role of the Capital Jury, 2 Ohio St. J.Crim. L. 117, 119 (2004) (citing Spaziano v. Florida, 468 U.S. 447, 469, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (Stevens, J., concurring in part and dissenting in part)). And, as Justice Marshall eloquently noted, “[w]hen any large and identifiable segment of the community is excluded ... the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (Marshall, J.). The result is not merely the appearance of bias; it may well be its reality. Id. Defendants do not raise the first constitutional challenge to the racial composition of the federal venire. There have been many such challenges, all unsuccessful, largely because of the rigorous standards imposed by the courts, including the First Circuit. While others have criticized those standards, including judges on this Court, I have no choice but to apply them. In doing so, I conclude that defendants have not established a constitutional violation. But my analysis does not end here. The Constitution provides a floor, not a ceiling, to the Court’s obligation to provide representative juries. The JSSA imposes higher standards on public officials to supplement their source lists when necessary to “foster the policy and protect the rights” to a fair cross-section jury selection process. 28 U.S.C. § 1863(b)(2). I find that those standards have been violated here. In brief, my findings are: All, or nearly all, white juries are made much more likely by a single decision of the Executive: The United States Attorney’s office has opted to prosecute “street crime” in federal court, rather than in the courts of the Commonwealth of Massachusetts. With that decision, the available pool of African-American jurors plummets from 20% in Suffolk County, where defendants’ alleged crimes took place, to roughly 7% in the Eastern District of Massachusetts. And the punishment escalates from life imprisonment in the state courts to the death penalty in the federal courts. No matter how troubling the impact, the law gives the federal prosecutor the right to make this decision. Making matters even worse, however, the 7% African-American representation is diluted further before a single juror is sworn in federal court. African-American representation plummets to roughly 3% or less in the Eastern Division jury pool after jury summonses are returned, at least in part because of outdated and inaccurate resident lists. As a result, the vast majority of Eastern District juries will not have a single African-American member. As striking as it is, however, this data is still not enough to make out a prima facie case of a Sixth Amendment violation, at least under current standards. Defendants not only have to show that African-Americans are underrepresented in the jury pool in relation to their numbers in the population, they also have to show that the underrepresentation has reached a certain threshold percentage. That threshold percentage has been set so high by First Circuit precedent that it is virtually unreachable in this District. And, even if defendants prove underrepresentation of a certain degree, they must also show how that underrepresentation occurs — that it is attributable to something systemic, like official action, rather than happenstance. Finally, even if they show that official misfeasance contributes to some degree to the problem but they cannot show precisely how much, their claim may still fail. The constitutional question should not simply be about numbers. The real question is: How much underrepresentation of African-Americans is constitutionally tolerable in a system that promises a representative jury? Does it matter that the choice of forum — the Executive’s choice— has already affected the nature of the deci-sionmaker, diluting the jury pool from 20% to 7% African-American? When the federal government opts to prosecute street crime, when it seeks extraordinary penalties, when a substantial percentage of those defendants are African-American and the overwhelming majority of jurors are white, perhaps even a 2 or 3% under-representation is far too much. Existing constitutional standards, however, say otherwise. Since on this record defendants 1) cannot prove the magnitude of the disparity that the First Circuit has thus far required, although they have proved substantial disparity, and 2) cannot prove the precise extent to which that disparity is attributable to flaws in the system itself, although they have proved that official action and inaction contributes to the problem, I am obliged to deny their constitutional challenges. The JSSA, however, sets the bar higher. The statute imposes an affirmative obligation on districts to use jury selection processes that ensure random selection from a “fair cross-section of the community.” 28 U.S.C. § 1863(b)(2). However, I find that the failure of the Court to direct the Federal Jury Administrator to supplement the existing flawed resident lists amounts to a statutory violation calling for remedial measures. Under the JSSA and my supervisory authority, I will order, among other things, that additional summonses be sent out in this case for each summons that is returned as “undeliverable,” signifying a bad address, as well as for each summons that is not responded to after a second mailing. I will also order that steps be taken to strike inaccurate addresses from the list, so that the same wrong addresses do not recur in case after case. The remedy is entirely justified, consistent with the statute, and the District’s Jury Plan as the Court’s expert and the Chief Judge of this Court have concluded. And I will go even further. My findings and the report of the court-appointed expert will be submitted to the appropriate court authorities for systematic district-wide attention. The goal is to make certain that everything that lawfully can be done to increase minority representation is done, including geographically-weighted mailings that take into account the historical data concerning jury response rates across the District, as described infra in Part III.B.2J. In addition, I will urge my state colleagues to address the fundamental problem- — an unfunded state mandate to produce accurate resident lists that is carried out inconsistently across the Commonwealth. Substantial resources have already been devoted to litigating this issue. The parties filed voluminous briefs; the Court held several days of hearings. Defendants sent questionnaires to the clerks of all cities and towns comprising the Eastern Division to determine how they compile their jury lists. They were also given funds for a jury expert, Professor Andrew Beveridge of Queens College (“Bever-idge”). Although the government did not hire an expert, the Court took the extraordinary step of appointing its own, Professor Jeffrey Abramson of Brandéis University (“Abramson”), pursuant to Fed. R.Evid. 706. In the subsequent sections, I will first outline the background of the jury selection processes and the defendants’ case. I will then address the legal arguments, answering the following questions: 1. The constitutional fair cross-section guarantee: Whether the evidence presented by defendants establishes any constitutional violation of defendants’ right to have petit jurors chosen from a fair cross-section of the community (Section III.A.); 2. The statutory substantial proportionality requirement: Whether the processes for selecting jurors, as delineated in the District Court’s Amended Jury Plan, violate the provision of the Jury Selection and Service Act requiring that political subdivisions within the Eastern Division be “substantially proportionally represented,” 28 U.S.C. § 1863(b)(3) (section III.B.l); 3. The statutory “substantial compliance” requirement: Whether the record establishes violations of the District Court’s Jury Plan or the Act, thereby entitling defendants to a remedy under 28 U.S.C. § 1867(d) for “substantial failure to comply with provisions” of the Act (Section III. B.2); 4. Supervisory jurisdiction: Even in the absence of specific findings under 1, 2 or 3 above, what steps can the Court take to address, at least in part, the problems revealed in this litigation (Section III.B.2.e). One final note: In an earlier decision, I considered whether defendants should be tried before one jury determining liability and a second determining punishment. Only the punishment jury would be “death-qualified.” United States v. Green, 343 F.Supp.2d 23 (D.Mass.2004), as amended, 348 F.Supp.2d 1 (D.Mass.2004). I made this decision as a matter of case management, to avoid the complex jury selection process death-qualification requires at the liability stage. I was reversed. United States v. Green, 407 F.3d 434 (1st Cir.2005). I now ask the parties to revisit the issue in the context of the jury selection issues raised in this opinion. Death-qualification of the jury may well further diminish African-American jury representation in this District from roughly 3% to nil. Thus, the following questions are raised: Whether the practice of death-qualification has a disproportionate impact on the already small numbers of African-Americans in the jury venire, whether this issue is cognizable under the Sixth Amendment, or the Due Process Clause of the Fifth Amendment, and whether there is another less burdensome means of accomplishing the government’s legitimate goal of seeking the death penalty before a jury that is amenable to such a punishment. The data presented by defendants raises grave concerns. Action is not only called for but imperative. As the court-appointed expert concluded: “Metaphorically speaking, there has to be a statute of limitations on how long a District can lament the undesirability of the underrepre-sentation of minorities in its jury pools without feeling compelled to act with imagination to do better.” Abramson, Report at 64-65. II. BACKGROUND Before examining the extent and causes of African-American underrepresentation on District of Massachusetts juries, I begin with an overview of the jury selection process in our district. The process involves six steps: 1) determination of federal district boundaries and selection of a forum (state/federal); 2) creation of a “master jury wheel” from resident lists; 3) random selection of potential jurors to receive summonses and questionnaires; 4) selection of the “available jury wheel” on the basis of questionnaire responses; 5) creation of the “jury venire” on the basis of qualified jurors who respond to the notice to appear; and 6) selection of the petit jury after voir dire and the peremptory challenge process. A. Step One: Choice of a Federal Forum — from 20% African-American Representation in Suffolk County to 7% African-American Representation in the Eastern Division of the District of Massachusetts Jury districts are created by statute, court rule, or both. The District of Massachusetts was created by federal statute; the Eastern Division was created by court rule. Pursuant to 28 U.S.C. § 1869(e) and the District of Massachusetts Jury Plan, the District of Massachusetts is divided into three divisions for petit and grand jury selection — the Eastern, Central and Western Divisions. While legislative districts are drawn with the representativeness of racial groups in mind, see Voting Rights Act, 42 U.S.C. § 1973, et seq., judicial districts are arbitrary, administrative contrivances. Law enforcement chooses the forum (federal or state) for prosecution of a crime. Taken together, administrative decisions with respect to district boundaries and the Executive’s choice of forum define the geographic areas within which potential jurors will reside, and what “representativeness” means in connection with jury pools drawn from those areas. The substantive crimes with which defendants are charged — homicide and street-corner narcotics trafficking — have traditionally been prosecuted in state courts. Had this case been brought in state court, the “community” for the purpose of determining what comprises a “fair cross-section” would be Suffolk County; in federal court, the relevant community includes all of eastern Massachusetts. In Suffolk County, defendants’ juries would be drawn from a voting-age population that is roughly 20% African-American. In the Eastern Division of Massachusetts, only roughly 7% of the voting-age population is African-American. Census data for Massachusetts, like most states, shows that minority populations are clustered in urban areas. By choosing federal court and thereby expanding the jury district to include the more racially homogenous suburbs, the government invariably dilutes minority' — ■ and even urban — representation in the pool from which defendants’ juries will be selected. While the Sixth Amendment demands representativeness, it does not require courts to second-guess the boundaries of the judicial district. Thus, when the government federalizes local crime in the more diverse cities of Lawrence, Lowell, or Boston, on this end of the state, or Springfield, on the other, it homogenizes the decisionmaker. And the law allows it to do so. B. Steps Two Through Four: From 7% African-American Representation in the Eastern Division to 3% on the Available Jury Wheel 1. Step Two: From Source Lists to the Master Jury Wheel The State Office of the Jury Commissioner (“OJC”) starts with a “source list” comprised of lists of names and addresses of potential jurors, and then randomly draws a percentage of the names to create a “master jury wheel” for the federal Jury Administrator. The JSSA defines the procedures for generating names for the master jury wheel, and also mandates the creation of a more specific district court jury selection plan. See 28 U.S.C. § 1861 et seq. Federal courts may draw the names of prospective jurors from either voter registration lists or the lists of actual voters within their districts. 28 U.S.C. § 1863(b)(2). But there is an alternative: Each federal district court “shall prescribe some other source or sources of names [of prospective jurors] in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title.” Id. A 1992 amendment to the Act specifically provided that the District of Massachusetts “may require the names of prospective jurors to be selected from the resident list provided for in chapter 234A, Massachusetts General Laws, or comparable authority, rather than from voter lists” as its source of names for the master jury wheel. 28 U.S.C. § 1863(b)(2). The Act was amended precisely because of serious concerns about the racial composition of jury pools drawn from voter lists. See, e.g., United States v. Levasseur, 704 F.Supp. 1158, 1164 (D.Mass.1989). Minorities did not vote in the same proportion as did their white counterparts. See Bernard Grofman et ah, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N.C. L.Rev. 1383, 1404 (2001) (citing Kimball Brace et al., Minority Voting Equality: The 65 Percent Rule in Theory and Practice, 10 Law & Pol’y 43, 47-48 (1988)). Using voter lists to compile juror lists effectively extended the gap in political participation between the races into the jury arena; resident lists represented a pioneering effort to produce jury wheels more closely reflecting the racial composition of the districts. For Massachusetts, the OJC compiles a single-numbered statewide resident list from the resident lists allegedly prepared annually by every Massachusetts city and town. Every city and town is required under M.G.L. ch. 234A to make such a list of all residents who resided in the town as of each January. Unfortunately, no state funds are appropriated to ensure that the statutory requirements are fulfilled. To construct the Eastern Division’s master jury wheel, the OJC randomly draws 1% of the names on that portion of the OJC resident list that represents the 190 cities and towns in the Eastern Division. 2. Steps Three and Four: Determining the “Available Pool” or the “Qualified Wheel» During step three, the federal Jury Administrator determines the approximate number of jurors needed in any given week or month according to the number of jury trials scheduled in the courthouse. He then randomly selects that number of potential jurors from the master jury wheel and mails them summonses and questionnaires. The questionnaire asks potential jurors several questions about their citizenship, occupation, and criminal history, principally to determine who is qualified to serve on a federal jury. The questionnaire also asks potential jurors information about their demographic characteristics, like age and race. During step four, potential jurors who complete and return questionnaires, and are not eligible for automatic disqualification, are placed in the “available jury wheel” — the pool of people who are qualified for federal jury service. Significantly, returned questionnaires provide the first opportunity to measure the racial composition of the Eastern Division jury pool. However, not all people who are mailed a summons and questionnaire return the questionnaire. Some never receive the summons; others receive the summons but fail to respond by returning the questionnaire. Summonses marked “undeliverable” are clearly in the former category. “Nonresponses” — summonses sent out and never returned — may include both individuals who did not receive summonses, because addresses were wrong, and those who chose not to respond. The thrust of defendants’ challenge is that the master resident list is plagued with inaccurate names and addresses, inaccuracies that stem from the failures of officials in certain cities and towns to generate accurate lists in the first instance and/or update them. Combining data from 2001 through 2003, approximately 88% of persons who returned their questionnaires identified their race. Despite some limitations in the data, it is abundantly clear that African-Americans are persistently underrepresented in Eastern Division available juror pools. In 2001, African-Americans comprised 6.75% of the Eastern Division population according to United States Census (“U.S.Census”) estimates, but only 3.08% of those who identified race on returned questionnaires. In 2002, African-Americans comprised 6.84% of the Eastern Division population but only 3.17% of those who identified race on returned questionnaires. In 2003, African-Americans comprised 6.96% of the Eastern Division population but only 3.17% of those identified race on returned questionnaires. C. Steps Five and Six: Jury Impan-elment — Venire to Petit Jury Selection from 3% to Nil Once questionnaires are returned and the available jury wheel is compiled, the federal Jury Administrator sends notices to appear to individuals on the available wheel randomly and at a pace consistent with the district’s need for jurors in any given month. Marking the fifth step in the jury selection process, the notice to appear directs potential jurors to report to the courthouse on a specified day for selection to a petit jury. Those jurors who appear at the courthouse on the date specified comprise the “jury venire.” Judges and parties then select citizens from the jury venire to serve on the trial jury (also referred to as the “petit jury”) the final step of the process. Certain features of jury impanelment in capital cases are likely to aggravate any preexisting minority underrepre-sentation on the jury venire, an issue that will be dealt with more fully in a subsequent memorandum. For instance, evidence from previous federal capital trials in Massachusetts suggests that the process of death-qualifying jurors depletes the already small number of African-American potential jurors. Concerns about the impact of death-qualification may well be unique to this state; Massachusetts has no death penalty, and public opposition to it runs high. See, e.g., Frank Phillips, Support for Gay Marriage: Mass. Poll Finds Half In Favor, Boston Globe, April 8, 2003, at A1 (Massachusetts public opinion poll finds 41% opposition to capital punishment). My November 4, 2004, decision ordering the impanelment of two juries, one to decide guilt and the other to decide punishment, was entered as a matter of case management to avoid the very complex death-qualification process. On May 12, 2005, the First Circuit Court of Appeals found jury bifurcation contrary to the plain language of the Federal Death Penalty Act. See United States v. Green, 407 F.3d 434, 2005 WL 1119791 (1st Cir.2005). However, neither my decision nor the First Circuit’s opinion addressed potential constitutional issues stemming from death-qualification, particularly in light of an already underrepresented jury venire. In the context of the findings of this decision — the decline in African-American representation from 20% to 7% (through the choice of a federal forum) and then from 7% to 3% (through the jury summonsing process) — the parties are ordered to brief whether death-qualification is likely to exclude minorities at such a high level as to raise renewed constitutional concerns not addressed by Supreme Court precedent; whether the Sixth Amendment applies at this stage of the proceeding at all; and if it does, whether there is a means less violative of defendants’ rights than the current approach to accomplish the government’s goals (namely, a bifurcated jury). D. History of Minority Underrepre-sentation in Massachusetts and Related Federal Litigation Scant minority representation on Massachusetts jury venires is not a new problem. Neither is the charge that the resident lists are not being updated annually, although it has never before been litigated as fully as in the instant case. While the problem has been recognized at the highest levels of government, all remedial efforts — judicial and extra-judicial- — that have been pursued over the years have apparently failed. 1. The 1993 Boston Litigation In 1993, the OJC sued Boston over its refusal to comply with chapter 234A’s requirement to compile annual comprehensive resident lists for use by federal and state jury officials. See Jury Commissioner of the Commonwealth of Massachusetts v. Mayor of the City of Boston, et al., Suffolk Sup.Ct. No. 93-04718 (Mass. Dist. Ct. filed August 9, 1993). The litigation ended with the City’s agreement to employ “aggressive” and “diligent” efforts at compliance with the annual resident list requirement, including conducting door-to-door canvassing and follow-up mailings, as well as cross-checking public school enrollment, parking permits, and multiple-dwelling buildings. See id., Stipulation and Memorandum of Understanding, dated November 23,1994. In the questionnaire defendants circulated pursuant to this litigation, see infra, Boston reported that it was fully complying with its obligations under the 1994 agreement. Defendants, however, suggest that precisely the opposite inference should be drawn from the dismal return rates for summonses mailed to Boston residents (62% for Boston versus 75% for neighboring Newton). 2. 1994 Supreme Judicial Court Gender and Race Bias Report In 1994, the Massachusetts Supreme Judicial Court’s (“SJC”) Commission to Study Racial and Ethnic Bias in the Courts issued a report sounding themes very similar to those featured in the 1993 Boston litigation and the instant case. The Commission concluded that “[t]he failure of municipalities to comply with state law requirements to provide the [state] Office of Jury Commissioner with accurate, complete, and verified resident lists contributes to minority underrepresentation in jury pools.” Commission to Study Racial and Ethnic Bias in the Courts, Massachusetts Supreme Judicial Court, Equal Justice 55-68 (1994). Specifically, the Commission noted inaccuracies in mailing addresses which “contribute [ ] to the large number of undeliverable summonses, particularly in poor neighborhoods.” Id. at 60. The study showed that Suffolk County had the highest rate of undeliverable summonses (24.8%) and the highest nonresponse rate in the state (22%). Id. at 63. While both the Boston litigation and the SJC report found the underrepresentation of African-Americans in Massachusetts jury pools to be demonstrable, historically persistent and troubling, the situation has not improved over the intervening ten years. 3. Federal Litigation Between 1984 and 1999 In case after case over the past twenty years, the First Circuit concluded that defendants had not made out a prima facie case of a constitutional fair cross-section violation. In United States v. Hafen, 726 F.2d 21 (1st Cir.1984), the court rejected a claim that African-Americans were underrepresented based on a showing of a 2.02% difference between the percentage of African-Americans in the population and then-percentage on the jury wheel. In United States v. Pion, 25 F.3d 18 (1st Cir.1994), the court rejected a challenge to Hispanic representation on the jury venire, concluding that the defendants had not proven that the 3.04% difference between Hispanic representation in the population and the jury pool was attributable to anything but chance. Four years later, in United States v. Royal, 174 F.3d 1 (1st Cir.1999), the court found a 2.97% disparity between African-American representation in the population and on jury venires to be constitutionally indistinguishable from the disparity in Hafen, although this time the court noted that the statistics defendant presented were “disquieting” and indicative of “a situation leaving much to be desired.” Id. at 21. E. Defendants’ Case On November 1, 2004, at defendants’ direction, the federal Jury Administrator, James McAlear [“Jury Administrator” or “McAlear”], mailed questionnaires to the clerk of each of the 190 towns and cities in the Eastern Division. The questionnaire inquired as to the manner in which each town or city compiles its annual resident list. While responses to the questionnaire were not given under oath, the government did not contest the accuracy of the facts asserted therein and did not object to admitting the completed questionnaires into evidence. Defendants also retained an expert: Andrew Beveridge, Professor of Sociology at Queens College and the Graduate Center of the City University of New York. Professor Beveridge is an expert in demography, particularly the statistical and quantitative analysis of U.S. Census data. He has testified as an expert in demographic and statistical analysis in nearly twenty court cases. Professor Beveridge analyzed the available Eastern Division data for the years 2001 through 2003, and the responses to the questionnaires. His analyses and conclusions were submitted to the Court in six affidavits, coupled with his testimony during the January 11 and January 26, 2005 hearings. McAlear, who is responsible for assisting the Clerk of the Court “in the performance of producing the master jury wheel” testified concerning his responsibilities during the same hearings. Jury Plan, at p. 1. The government did not enlist an expert and did not present any testimony. Pursuant to Federal Rule of Evidence 706, the Court appointed Professor Jeffrey Abramson as an expert witness to assist the Court in analyzing the extensive data provided by defendants. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing”). Professor Abramson’s appointment became effective on February 18, 2005. See Order Re: The Court’s Intent to Appoint An Expert Witness, docket entry # 293, dated February 9, 2005. Professor Abramson produced a report to the Court on April 21, 2005, concluding that the defendants had not made out either a prima facie constitutional violation or a violation of the JSSA. See Report on Defendants’ Challenge to the Racial Composition of Jury Pools in the Eastern Division of the United States District Court for the District of Massachusetts, docket entry # 329, dated April 21, 2005. The parties were given until May 9, 2005, to file responses to Professor Abram-son’s report. See Order Re: Report Of The Court-Appointed Expert Witness, docket entry # 329, dated April 25, 2005. The government filed a response concurring in Professor Abramson’s conclusions. See Government’s Response to Court’s April 25, 2005 Order Regarding Report of the Courb-Appointed Expert Witness, docket entry #335, dated May 16, 2005. Defendants filed a response objecting to many of the conclusions reached in Professor Abramson’s report. See Response of Defendants Branden Morris and Darryl Green To The Report of Courb-Appointed Expert Jeffrey Abramson, docket entry # 337, dated May 17, 2005. For purposes of the constitutional analysis, defendants contend that there is official misfeasance — haphazard or negligent preparation of the resident lists in the cities and towns with the highest African-American populations. They could not provide direct evidence of official misfeasance in compiling resident lists. Only one town, New Bedford, blatantly admitted in its questionnaire to failing to update its resident list annually, as it is required to do. The task of examining or cross-examining the other 189 city and town officials would have been a daunting one. Moreover, defendants did not have access to the 190 resident lists, nor would the lists have disclosed the race of each listed individual. Accordingly, defendants used the data from the only sources available to them—the master jury wheel, the available jury pools, and the grand jury pools, together with the rate of nonresponses and undeliverables. They argue, inter alia, that substantial differences between data and the resident census list data, coupled with high undeliverable and nonresponse rates, prove that the resident lists are woefully inaccurate. Furthermore, defendants used zip code data to focus on precisely which cities and towns are suffering from the highest rates of undeliverables and nonresponses. They found these to be the cities and towns in the Eastern Division with the most African-American (and poor) residents. Thus, while virtually all of the 190 cities and towns in the Eastern Division claim to conduct an annual census, it appears that only the smaller, wealthier (and whiter) towns are conducting meaningful annual census counts. In contrast, the efforts of poorer towns are lackadaisical and inadequate. The government blames the falloff in minority representation, and in particular the non-response rate, not on official misfeasance, but on demographic characteristics, like higher levels of transience among poorer populations, and private choices not to answer jury summonses. These characteristics, the government argues, cannot be redressed unless they result in a jury venire that fails to meet constitutional fair cross-section mínimums, or they are accompanied by statutory violations. The government does not believe that either condition is met here. Notwithstanding the limitations of the data, one thing is clear: The data presented here represents the most comprehensive effort thus far to capture the causes of African-American underrepresentation in Eastern Division jury pools. III. DISCUSSION A. Fair Cross-Section Challenge 1. Fair Cross-Section Framework The Sixth Amendment requires that juries are selected from pools representing a fair cross-section of the community. Duren v. Missouri, 489 U.S. 357, 363-64, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); see generally Nancy Gertner & Judith H. Mizner, The Law of Juries, §§ 2-11-2-19 (1997) [hereinafter Gertner & Mizner, The Law of Juries ]. Although petit juries need not mirror the exact demographic composition of the community, the process of selecting petit juries must give members of “cognizable” groups a fair opportunity to serve (i.e., they may not be systematically excluded from the pool). Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Duren, the Court outlined the requirements for finding a prima facie violation of the Sixth Amendment, albeit in very general terms. Defendants must show: (1) that the group alleged to be excluded is a “distinctive” group in the community [cognizable group prong]; (2) that the representation of this group in veni-res from which juries are selected is not fair and reasonable in relation to the number of such persons in the community [underrepresentation prong]; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process [systematic exclusion prong]. 439 U.S. at 364, 99 S.Ct. 664. Only if a prima facie violation is shown is the government required to justify its practices— to prove “that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group.” Id. at 367-68, 99 S.Ct. 664. There is no dispute that Duren’s first prong is satisfied here: African-Americans unquestionably constitute a cognizable group. See, e.g., Hafen, 726 F.2d at 23. The dispute here centers around Duren’s second and third prongs. Lower courts have struggled to give content to Duren’s very general statements about underrepresentation and systematic exclusion. For the most part, the prima facie standards have been rigorously defined. The stringency of the prima facie standards is one explanation for the fate of Hafen, Royal and Pion — the First Circuit’s three hallmark (and unsuccessful) fair cross-section challenges — although there are recent indications that the Court could revisit its fair cross-section standards. See, e.g., Royal, 174 F.3d at 12-13 (statistics presented by the defendant were “disquieting” and “a situation leaving much to be desired”). Put simply, Duren raises the following questions regarding the underrep-resentation prong: (1) By what statistical means shall the exclusion of members of a cognizable group be measured? (2) And, far more significantly, what level of exclusion of members of a cognizable group is tolerable for constitutional purposes? See Peter A. Detre, A Proposal for Measuring Underrepresentation In The Composition Of The Jury Wheel, 103 Yale L.J.1913 (1994) [hereinafter Detre, Measuring Un-derrepresentation ]. Precedent, including the First Circuit’s precedent, answers the second question with something of a contrivance, a normative determination of how much disparity is too much. As I describe below, there should not be a magic number. The answer should instead depend upon the context in which the underrepre-sentation is found, and upon the degree to which the goals embodied by the Sixth Amendment are or are not being achieved. This is fundamentally a qualitative, not a quantitative, inquiry. With respect to question (1), the First Circuit has chosen to measure the under-representation prong using the absolute disparity test, which measures the difference between the cognizable group’s percentage in the relevant population against the group’s percentage on the jury wheel. See Hafen, 726 F.2d at 23 (calculating “the difference between the percentage of eligible blacks in the population and the percentage of blacks on the master wheel”); see also Pion, 25 F.3d at 23 n. 5 (defining the absolute disparity standard as “the gross spread between the percentage of eligible Hispanics ... in the relevant population and the percentage of Hispanic representation on the Master Jury Wheel”). With respect to question (2), the court found that the absolute disparity of 2.98% in Royal was “not meaningfully distinguishable from the 2.02% absolute disparity accepted in Hafen." Royal, 174 F.3d at 10-11. While the First Circuit surely did not adopt any given threshold talismanic figure, it has cited with approval United States v. Maskeny, 609 F.2d 183 (5th Cir.1980), which rejected an absolute disparity of 10%, and United States v. Clifford, 640 F.2d 150 (8th Cir.1981), which rejected an absolute disparity of 7.2%. See Hafen, 726 F.2d at 23-24. With regard to Duren’s systematic exclusion prong, a court hearing a fair cross-section challenge must ask: (1) Is the un-derrepresentation caused by happenstance (which is not actionable), or is it caused by official action or inaction of some sort (which may be actionable)? (2) And if official misfeasance contributes somewhat to the disparity in representation, do the defendants bear the burden of showing precisely how much? There is little law on these issues because few cases have gotten beyond the underrepresentation prong. One thing is, or should be, clear: Sixth Amendment analysis does not require proof that a cognizable group has been excluded because of discrimination, as in the case of an Equal Protection challenge under either the Fifth or Fourteenth Amendments. The distinction is important. An Equal Protection challenge concerns the process of selecting jurors, or the allegation that selection decisions were made with discriminatory intent. The Sixth Amendment, on the other hand, is concerned with impact, or the systematic exclusion of a cognizable group regardless of how benevolent the reasons. It looks to discriminatory effects, while the Equal Protection clause looks to discriminatory purposes. See Gertner & Mizner, The Law of Juries, at §§ 2-10-2-13. Even practices that are race-neutral but have a disparate impact on the representation of a cognizable class in the jury venire fit within the Sixth Amendment’s protections, while they would not be cognizable under the Equal Protection clause. Defendants challenge First Circuit precedent on underrepresentation both with respect to the absolute disparity test and the percentages rejected by First Circuit precedent. In addition, they — along with Professor Abramson — suggest an alternative formulation, a hybrid test that melds the second and third prongs of Duren: If defendants can identify a mechanism by which a cognizable class is excluded — here, that city and town officials are not compiling annual resident lists that are even remotely accurate — -and if they can show that such misfeasance contributes to African-American underrepresentation in the jury pool, such a showing should suffice even if the absolute disparity is “only” 2 or 3%. Below, I outline the law in this area (and its deficiencies), and then address defendants’ proof. a. Second Prong: Underrepresentation (1) By What Statistical Means Shall the Exclusion of Members of a Cognizable Group Be Measured? In Hafen, the Court not only endorsed an absolute disparity analysis, 726 F.2d at 23-24, but also expressly rejected comparative disparity analysis, which measures whether there is a diminished likelihood that members of an underrepresented group will be called for jury service. Id. (“Although we acknowledge the possibility that the comparative disparity calculation might be a useful supplement to the absolute disparity calculation in some circumstances, we do not believe that it necessarily produces a more accurate result where, as here, the group allegedly underrepresented forms a very small proportion of the total population.”). And in United States v. Royal, 174 F.3d 1 (1st Cir.1999), the Court refused to reconsider the absolute disparity model, even while conceding that the “case turn[ed]” on the choice of statistical methodology. Id. at 5. I am obliged to adopt the absolute disparity approach, although it is worthwhile to urge its reexamination. Absolute disparity analysis fails to capture the persistent underrepresentation in District of Massachusetts jury pools. It clearly does not adequately address situations where, as in Massachusetts, the underrepresented group is a small percentage of the population. See United States v. Rogers, 73 F.3d 774, 776 (8th Cir.1996) (“Although utilizing the absolute disparity calculation may seem intuitive, its result understates the systematic representative defíciencies ...”); United States v. Jackman, 46 F.3d 1240, 1247 (2d Cir.1995). Put simply, if each and every African-American in the Eastern Division were excluded from jury service, the absolute disparity would be “only” 6.96% — and within the range cited approvingly in Hafen. Such a result would legitimize the intuitively illegitimate — a jury trial without African-Americans for urban crimes that allegedly occurred in a county that is 20% African-American. Defendants recognize that absolute disparity analysis must inform my review, but they urge me to supplement it with additional statistical models. One such model is comparative disparity analysis. But here again, as noted above, the First Circuit has rejected comparative disparity analysis because it “distorts reality” where “a very small proportion of the population is black.” Hafen, 726 F.2d at 24 (“[T]he smaller the group is, the more the comparative disparity figure distorts the proportional representation.”); see also Royal, 174 F.3d at 7, 9 (citing cases from other circuits). Of course, one could — and perhaps should—draw precisely the opposite conclusion: Where a very small proportion of the population is African-American (largely because of the government’s choice of a federal forum), we have a heightened obligation to ensure that the highest numbers of that population will appear on our juries. See United States v. Levasseur, 704 F.Supp. 1158, 1162-63 (D.Mass.1989) (holding that “only a comparative disparity analysis will afford sufficient protection to defendants’ right to be tried by a fair cross-section of the community”). Defendants also cite to statistical decision theory (“SDT”) and disparity of risk as potential supplements to absolute disparity of risk. Using binomial distribution, SDT calculates the probability that an observed underrepresentation occurred by chance. In other words, SDT is a test of whether underrepresentation could be the result of a random process rather than a systematic failure; the smaller the probability produced by the SDT calculation, the less likely it is that the observed underrep- resentation occurred by chance. Defendants assert that the average SDT for the relevant data from 2001 through 2003 is 1 in over 507 million. Also using binomial distribution, disparity of risk describes the increase in a defendant’s chance of drawing an underre-presentative petit jury as a result of an underrepresentative jury pool. It measures the likelihood of having at least one African-American juror in a given twelve-member jury. Defendants calculate that, with a fully representative wheel for the years 2001 through 2003, approximately 58% of all twelve member juries in the Eastern District would have at least one African-American juror. But with the alleged underrepresentation of African-Americans in the available jury wheel from 2001 through 2003, defendants assert that an average of only 29.48% of juries would include at least one African-American juror. Thus, defendants argue that the likelihood of underrepresentation is both more prevalent and more entrenched than absolute disparity alone indicates. The First Circuit has never addressed either SDT or disparity of risk. See Royal, 174 F.3d at 7 n. 3 (“Our case involves only these two methodologies [absolute disparity and comparative disparity] — the only two discussed by the parties — and our endorsement of one should not be taken as a statement that it is the best of all possible methodologies”). While use of SDT is not without precedent in other circuits, see e.g. United States v. Jackman, 46 F.3d 1240, 1247 n. 5 (utilizing a derivative of SDT), both SDT and disparity of risk have faced significant criticism. I urge the First Circuit to supplement the absolute disparity test with other statistical measures or the hybrid approach described below. No methodology has been mandated by the Supreme Court. Nor is there anything about absolute disparity that logically favors it over a more complex analysis of underrepresentation. More significantly, there is every reason to reconsider the approach at this time. To suggest that the relentless pattern of criminal defendants confronting white, or largely white, juries does not deserve further constitutional scrutiny is a troubling act of judicial complicity. In 1984, in Hafen, the pattern may not have been clear. Today, two decades later, it is. (2) How Much Exclusion of Members of a Cognizable Group Is Significant for Constitutional Purposes? The First Circuit has not adopted a threshold for answering the question of how much exclusion of members of a cognizable group is significant for constitutional purposes. However, it has told us that 2.02% absolute disparity in Hafen, 726 F.2d at 23, and 2.97% in Royal, 174 F.3d at 10-11, were not enough. A fair cross-section analysis should not be about picking a number out of context; it should be about how much exclusion of a cognizable group the Constitution should tolerate. Plainly, an entire group does not have to be eliminated from the jury pool before constitutional alarms are raised. But how much underrepresentation is too much? Perhaps we should take into account the fact that the choice of forum— the Executive’s choice — has already altered the decisionmaker, from a jury pool that is 20% African-American to one that is 7%. Perhaps we should care that, whatever the numbers, the vast majority of Eastern District juries will not have a single African-American member. The function of a prima facie case is to set the minimum threshold of evidence a moving party must offer before the court scrutinizes the practice further. In the context of this case, the bar should be set lower. Where African-American representation in the pool is effectively halved, and where there is evidence of systematic defects, the court should look more closely and the government should bear the burden of justification. b. Third Prong: Systematic Exclusion (1) Is the Disparity Found under the Second Prong Caused by Happenstance (Which Is Not Actionable) or Is it Caused by Official Action or Inaction of Some Sort (Which May Be Actionable)? The facts of Taylor and Duren illustrate what sorts of systematic defects qualify as potential violations of the Sixth Amendment. In Duren, administrators determined that it would be more convenient to give women an automatic exemption once they requested not to serve, since they were likely to claim exemptions based on child-rearing obligations. 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). And in Taylor, women were required to specially register for jury duty. 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). It may have been true — especially at the time of these cases — that, because women were more likely to be home with children, “hardship” disqualifications that were neutral on their faces would have led to their exclusion anyway. But plainly the government cannot put its fingers on the scale. The Supreme Court in both cases found that the government action cannot exacerbate a pattern of exclusion, even one enshrined in the culture. In United States v. Pion, the First Circuit found that the defendant had not identified “a systemic defect” or “an operational deficiency in the Jury Plan which would account for the alleged underrepresentation.” 25 F.3d at 23. Because names for the master jury wheel were drawn from resident lists — what the court deemed the broadest data available — there was no reasonable inference that the small number of Hispanics in the pool was attributable to “anything other than the randomness of the draw.” Id. at 23-24. In contrast, defendants here do identify an operational deficiency, namely, the inaccuracy of resident lists that form the source of the jury pool, due to official negligence (or worse). They claim that the resident list approach is an improvement over the use of voter lists only to the extent that it is executed properly. Still, the government interprets the evidence to suggest that the cities and towns complied with the law, and carried out all statutory mandates, but still could not capture a more transient African-American community or persuade more African-Americans to return questionnaires. Since there is no constitutional requirement to take affirmative steps to ensure a representative jury, according to the government, there is no violation. The parties’ different perspectives beg the question: What if the data suggests that both the government and the defendants are right, that the problem is attributable to some degree of official misfeasance, and some degree of demographic factors? Is that sufficient? (2) Even if Official Misfeasance Contributes Somewhat to the Disparity in Representation, Do the Defendants Have to Show Precisely How Much of the Disparity Is Attributable to Such Factors? Defendants claim that they do not have to prove that systematic defects are responsible for the totality of the problem. In other words, while there may be demographic reasons for the underrepresentation of African-Americans, where official action or inaction has exacerbated the problem, they have made out a prima facie case. The government argues, and the court-appointed expert agrees, that defendants have to prove the precise extent to which official negligence or misfeasance is responsible for the disparity to meet constitutional standards. This debate is similar to the one in employment law about “mixed motive” claims: Does a plaintiff have to show that a given adverse employment decision was entirely caused by a defendant’s discriminatory animus? Or is it enough to show that discriminatory animus played a part in the final decision? In this context, if the goal is a fully representative jury, it should be enough that official misfeasance played a part in diminishing African-American representation, even if we cannot quantify that role, much less effect a perfect system because there will always be some people who will not respond to questionnaires or who will frequently change residence. Indeed, as Professor Abramson says, a more exact test would be well nigh impossible for defendants to meet. Abramson, Report, at 4 n. 2 (“[T]he data on the record, though detailed and probably the best that is available, cannot with mathematical certainty tell the Court exactly what percentage of a given town or zip code’s undercount is African American”). First Circuit case law has not addressed this issue. However, given the rigors of the First Circuit’s approach on other fronts, I can only assume that they would adopt Professor Abramson’s approach. c. Hybrid Approach The case law suggests that the representativeness and the systematic exclusion prongs are independent of one another: Traditionally, if the absolute disparity is not high enough, a court may not even address the mechanism of exclusion. But there is a hybrid approach, as implied by the analysis above and suggested by Professor Abramson. He states: [A]s a matter of law, there is some interplay between the “substantial” and “systematic” prongs of the Duren test... Thus, the more clear it is that the underrepresentation of a cognizable group is caused by the kind of official misfeasance that defendants allege here, the less tolerance there ought to be for loss of fair representation for that group. Abramson, Report, at 14. In effect, the hybrid approach views the second and third prongs of the Duren test as relating symbiotieally with one another. If defendants are able to identify practices that serve systematically to exclude African-Americans from the jury pools of the Eastern Division, courts should view defendants’ absolute disparity data more favorably than they would in the absence of identified exclusionary practices. This approach finds support in the case law and is an avenue of analysis that has not been foreclosed by the First Circuit. See, e.g., United States v. Rioux, 930 F.Supp. 1558, 1566 (D.Conn.1995) (“[T]he second and third prongs of the Duren test, unfair representation and systematic exclusion, are intertwined inextricably”); Commonwealth v. Arriaga, 438 Mass. 556, 566, 781 N.E.2d 1253 (2003) (“Evidence of a disparity smaller than 10% can support a conclusion of unconstitutional underrepresentation of smaller minority groups, especially when coupled with persuasive evidence of systematic exclusion”) (emphasis added); see also United States v. Biaggi, 909 F.2d 662, 679 (2d Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991). 2. Defendants’ Case a. First Prong: Distinctiveness [17] Because African-Americans are a distinctive group, defendants have unquestionably satisfied the first prong of the Duren test. See, e.g., Hafen, 726 F.2d at 23. b. Second Prong: Underrepresentation Defendants have calculated an absolute disparity of 3.67% for 2001, 3.58% for 2002, and 3.79% for 2003 in African-American representation in the Eastern Division. Taken together, these figures amount to an average absolute disparity of 3.66% for 2001 through 2003. Defendants concede that such numbers would not ordinarily be sufficient to meet the second prong