When 6-Year-Olds Chose Jury Candidates

Before computers randomly issued jury summons, some state laws required that children do the picking

A child picks out jury candidates before a courtroom audience. (Shaylyn Esposito)
smithsonian.com

Following the advent of the American court system and continuing into the 20th century, many jurisdictions needed a way to select candidates for a jury that would at least superficially appear unbiased. Although today algorithms choose from a list of eligible citizens, for a brief period, some states relied on an arcane process for randomizing their jury lists: put the names of candidates in a box and have kids pick the winners.

The children, this method assumed, would be too innocent to interfere with the selection process, ensuring as close to random candidates as possible.

Six-year-old Louis Scrughan of Charleston, South Carolina, was one such "jury picker," and his job paid handsomely: For pulling slips of paper out of a box all day, Scrughan earned three dollars a day, which New Jersey's Plainfield Courier-News noted in January 1936 was "more than grown men get for juggling government spades or doing more back-breaking work" and more than "any other member of his family." In a follow-up article that same year, the Washington Post wrote that Scrughan's dad had died, and Scrughan was subsequently "one of the main contributors to his family budget," earning $700 per court session.

Scrughan had a specific routine, according to the Courier-News. When drawing names out of a box, he sat on a stack of books, his bare feet dangling over the edge, in front of a group of lawyers and court officers. Jurors were randomly selected from a list of all citizens, although some states had laws either barring or limiting the black Americans and white women who could serve. The people he selected had already been called in for jury duty, and Scrughan’s roll was to randomly select the ones who would be questioned for possible inclusion in the final jury.

When the Courier-News article was written in January 1936, Scrughan had "managed to hold his job for a number of months," according to the paper. Only once was there a slip-up, when the boy "fell from the books during a solemn trial and created a wave of merriment in the courtroom." But Scrughan was about to head off to school, and his stint as a jury picker was thus winding down. To sustain the family income, he was training his 5-year-old brother, Henry, to take his place.

A bin at the South Carolina courthouse holds the boxes used by child jury pickers. Eligible names were slipped into one of the capsules, which were then placed into the boxes. (Courtesy of Robert Kittle at the South Carolina AG's office)

Child jury pickers like Scrughan were a feature of some state laws. The 1932 South Carolina Circuit Court rules noted that “a child under ten years of age shall, in the presence of the Court, draw one from the names of all the jurors in attendance," who one-by-one face questioning by the lawyers “until, in regular course, the panel is exhausted or a jury is formed.” This statute appears to date back to an 1838 South Carolina law that mandated children under the age of ten to draw a list of jury candidates out of a "box or chest.” By 1933, the state amended that provision to add that a blind person could also be permitted to select from the list of names, according to the South Carolina Department of Archives.

South Carolina was far from alone in its use of child jury pickers. A New Jersey law dating to 1688 made a similar call for a child to draw potential jurors out of a list of "freedman five and twenty years of age." North Carolina had child jury pickers, a fact that it used to distract from its practice of excluding black citizens from juries, claiming in a 1959 civil rights case that jury selection happening "in open court by a child" meant that the process could not be biased. (In some states, names would be color-coded by race so that white jury commissioners could weed out black jurors.)

"The provisions for young children and the blind must have been based on the idea that others would be able to read the names and might draw, or avoid drawing, specific names on the pieces of paper," says Valerie Hans, a law professor at Cornell University.

These laws were written broadly enough that jury picking could happen at two levels: First, kids like Scrughan might be drawing from a list of all of the residents in a particular town, randomly choosing those who would be asked to show up for jury duty. But at least in some states, these random drawings actually seemed to determine not just who might be called for jury service but in fact the final jury that would oversee a case. In Wisconsin, for instance, children were presented with a box full of candidates that lawyers on either side had already thoroughly interviewed to serve on a grand jury. The first 17 people to have their names drawn received a seat on the grand jury, and the rest were sent home.

The 1931 Wisconsin statute laid out a host of specific regulations around jury picking, including the edict that court officials had to write down all possible grand jurors on pieces of paper, fold them "so that the name written thereon shall not be visible," and stick them in a box. "Thereupon said box shall be thoroughly shaken and the names of seventeen persons shall be drawn therefrom, one by one, in the presence of said commissioners and the presiding judge… by a child under ten years of age," the statute continued.

Legal historians contacted for this article expressed surprise that child jury-picking existed at all, and it’s not clear how widespread the practice was in the U.S. or when it fell out of use. Only in 1985 did South Carolina amend its jury-picking provision to note that, if a child could not be located, any “responsible and impartial person” could manage the selection process, and the advent of computing in particular seems to have obliterated the profession. Most states, according to Hans, now use computers to decide which citizens are called for jury duty. Yet it took a long time for laws that allowed children to select juries to disappear entirely—that provision in South Carolina, at least, wasn't officially repealed until 2006.

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