California Passes New Laws to Combat Racism in Jury Selection Process
Cynthia Hernandez
On September 30, 2020, California Governor Gavin Newsom signed a number of landmark bills into law which are designed to fight racism in the criminal justice system. Two of the bills–Assembly Bill 3070 and Senate Bill 592–target racial discrimination in the jury selection process. These laws are part of the state’s broader attempt to fight intentional and implicit bias, as well as racial disparities, in its criminal legal system.
Over three decades ago, in Batson v. Kentucky, James Kirkland Batson, a Black man, was on trial for burglary and receipt of stolen goods. During voir dire, the prosecutor used his peremptory challenges–which allow for the exclusion of a potential juror by either the defendant or the government “ without cause” when their impartiality toward rendering a verdict is called into question–to exclude all of the African Americans in the jury pool from jury selection. The all-white jury convicted Batson on both counts.
Batson appealed his convictions to the Supreme Court of Kentucky, arguing that the removal of the African American jurors violated his Sixth Amendment right to an impartial jury of his peers and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. After the Supreme Court of Kentucky upheld the convictions, the United States Supreme Court accepted Batson’s petition for certiorari to review the state courts’ decisions.
In Batson v. Kentucky, the United States Supreme Court reversed the state court decisions, ruling that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees to a criminal defendant that the State will not exclude members of his race from the jury based on race. Thus, peremptory challenges cannot be used by either defendants or prosecutors to systematically exclude prospective jurors on the basis of race.
Although Batson’s ruling was monumental in establishing that race-based jury exclusion is unconstitutional, its application in the decades following the Supreme Court’s decision has proven to be weak due to unconscious (or conscious) implicit racial bias. Even under Batson, prosecutors are still allowed to exclude jurors for what may appear to them to be race-neutral reasons, but are in fact “reasons that track closely with race and racial stereotypes, like living in a predominantly Black neighborhood or wearing dreadlocks[.]” Likewise, if a person has been a victim of racial discrimination in the legal system, advocated for racial justice, or has expressed a distrust of law enforcement and the government, prosecutors may also be able to strike jurors for these reasons. In fact, according to a recent study authored by Berkeley Law, prosecutors used their peremptory strikes to exclude African American jurors in 75% of cases from nearly 700 California Courts of Appeal cases ranging from 2006 to 2018. Latinx jurors were excluded in about 28% of the cases, while white jurors were only excluded in 0.4% of the same cases. Even then, the appellate courts only found error in 2.6% of those decisions.
In an unprecedented, but long overdue, criminal system reformation move, AB 3070 and SB 592 will require a more clear-cut, equitable application of Batson’s ruling. As a result, more people of color will hopefully have more access to serving on a jury.
Assembly Bill 3070 – Juries: Peremptory Challenges
Although existing law, based on Batson, prohibits a party from excluding a prospective juror on the basis of “an assumption that the prospective juror is biased merely because of the sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation of the prospective juror, or on similar grounds,” AB 3070 goes one step further than Batson, targeting discriminatory jury selection by establishing a procedure for eliminating the exclusion of potential jurors based on any discriminatory grounds.
First, the bill allows for a party, or the trial court on its own motion, to object to the use of a peremptory challenge based on the criteria noted above. Upon an objection to a peremptory challenge, the party exercising the peremptory challenge would have the burden of explaining why the peremptory challenge has been raised. The court would then have to evaluate the reasons given by the party asserting a peremptory challenge to either grant or deny the challenge. If the court grants the objection, the court may begin jury selection anew, declare a mistrial at the request of the objecting party, seat the challenged juror, or provide any other appropriate remedy. On the other hand, a denial of an objection will be subject to de novo review by an appellate court.
AB 3070 outlines various circumstances that the court may consider when deciding whether to grant or deny an objection to a peremptory challenge. These considerations include, but are not limited to: (1) the objecting party is a member of the same perceived cognizable group as the challenged juror, (2) whether the party exercising the peremptory challenge has engaged in cursory questioning of the challenged prospective juror; (3) how the party exercising the peremptory challenge has questioned members of one cognizable group versus other jurors from a different cognizable group; and (4) whether the counsel or counsel’s office exercising the challenge has a history of discriminatory peremptory challenges.
Moreover, AB 3070 acknowledges implicit bias by establishing a presumption that a peremptory challenge is invalid for certain enumerated reasons, unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as being unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation (or perceived membership in any of these groups). Some of these enumerated reasons include expressing distrust or a negative experience with law enforcement, expressing a belief that law enforcement engages in racial profiling or that criminal laws have been discriminatorily enforced, a prospective juror’s neighborhood, receiving state benefits, and personal appearance.
AB 3070 was sponsored by the California Attorneys for Criminal Justice, which is “a statewide association of criminal defense attorneys who successfully argued that the bill will create an effective procedure for bringing an end to discrimination in the selection of juries.” The California District Attorneys Association opposed the bill on a number of grounds, including that the bill is unconstitutional.
AB 3070 takes effect for criminal cases in January 2022 and for civil cases in 2026.
Senate Bill 592 – Jury Service
SB 592 will include persons who have filed a resident state income tax return in California’s random jury selection pool. Because California’s jury pool was previously drawn from people who are registered to vote or have a driver’s license–which disproportionately excludes Black and/or Latinx Californians and people with low income–SB 592 will vastly expand and provide a more accurate representative population for California’s jury selection pool.
This bill was supported by a number of criminal justice organizations, including the Ella Baker Center for Human Rights and the California Public Defenders Association. There was no formal opposition to the bill.
SB 592 will take effect in January 2022.
Should North Carolina pass a similar law?
In short, yes. According to a 2018 article published by the National Association of Criminal Defense Lawyers, as well as a 2016 study published in the North Carolina Law Review, no appellate court in North Carolina has ever reversed a case because of discrimination against a minority juror. Rather, the North Carolina appellate courts have only found Batson violations when white jurors were struck from a jury. Clearly, the time for North Carolina to pass laws which properly uphold and apply Batson and has long passed.