Some states seek to eliminate racial bias in jury selection with peremptory challenge changes

Juries

Some states seek to eliminate racial bias in jury selection with peremptory challenge changes

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Some states are changing peremptory challenge rules — and in one case eliminating them altogether — in an effort to eliminate racial bias in jury selection.

The Washington Post has a blanket of the problem and the changes aimed at correcting it.

Peremptory challenges are used to eliminate jurors without cause. The United States Supreme Court ruled in a 1986 decision, Batson v. Kentuckythat such challenges cannot be based on intentional racial discrimination.

But prosecutors seeking to remove black people from juries circumvent the ban by asking questions such as, “Have you ever had a bad encounter with the police?” Black people have had more negative experiences with law enforcement, studies show, and prosecutors hoping for an affirmative answer are using it as a reason to dismiss the juror with a peremptory challenge.

The most recent state to take action is Arizona. The state Supreme Court changed procedural rules in August to eliminate all peremptory challenges in civil and criminal cases.

The momentum for change began when Washington enacted a new rule in 2018. He said judges would deny a peremptory challenge if an “objective observer” viewed race or ethnicity as a factor in its use.

An objective observer is defined as someone who is “aware that implicit, institutional, and unconscious biases, in addition to deliberate discrimination, have resulted in the unfair exclusion of potential jurors” in the state.

The rule lists several presumptively invalid reasons for removing a potential juror through a peremptory challenge, including that the person has previously had contact with law enforcement or has expressed distrust of the police.

In 2020, the governor of California signed legislation similar to the Washington rule. The law goes into effect for criminal cases in 2022 and for civil cases in 2026, according to earlier coverage by the appeal.

Courts in Connecticut and New Jersey are also considering the issue, while reform bills have been introduced in several states, including Massachusetts and Mississippi.

The Washington Post spoke with Elisabeth Semel, director of the University of California Death Penalty Clinic at Berkeley Law School, who documents the changes to the peremptory process. She also supports reforming other aspects of jury selection.

“It can’t be an isolated cure,” Semel told The Washington Post. “We have a systematic exclusion from the beginning of the process throughout. The affordability of jury service is so important. When you pay jurors $12 or $15 a day, who can possibly sit on a jury for a week and/or two or even months? You eliminate everyone who is not independently wealthy.

Another problem cited by experts is the use of voter registration files and motor vehicle records to find potential jurors. Critics say those records likely include more white people, who tend to stay at the same address for longer periods of time.

Martin E. Berry