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Law Practice,
Ethics/Professional Responsibility,
Civil Rights

Mar. 22, 2021

To end racial discrimination in jury selection, abolish peremptory challenges

Study after study after study shows that peremptory challenges are used to discriminate against people of color, Batson notwithstanding.

Thomas Umberg

Senator, California State Senate

Michele Ellson

Student, UC Hastings College of the Law

In issuing its landmark 1986 decision in Batson v. Kentucky, the U.S. Supreme Court sought to eliminate racial bias in jury selection by providing parties the right to object to opposing parties' peremptory challenges. But, as Justice Thurgood Marshall famously observed in his concurring opinion in the case, "[t]he decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely."

A great deal of evidence has accumulated in the intervening years to prove the late Justice Marshall right: Study after study after study shows that peremptory challenges are used to discriminate against people of color, Batson notwithstanding. As many have acknowledged, the Batson court's efforts (and those of the California Supreme Court in its own prequel to Batson, the Wheeler decision) to eliminate racial bias in jury selection failed. With Americans' faith in our institutions fading fast, attempting to solve this problem with half-measures will not do. That's why I introduced Senate Bill 212, which eliminates peremptory challenges for criminal trials.

Some states, California among them, have sought to reduce bias in jury selection by requiring the party making a peremptory challenge to prove it wasn't based on bias rather than the party that objects, and by listing reasons for such challenges that are presumptively invalid. While these efforts are laudable, it's unclear whether they will be effective against a jury selection tool whose sole reason for existence is to allow parties to remove prospective jurors based on their biases. Washington Supreme Court Chief Justice Steven C. González, in his call to abolish peremptory challenges in a 2013 concurrence in State v. Saintcalle -- the case that led Washington to change its own peremptory rules -- noted that while many peremptory challenges are based on generalizations or racial stereotypes, "there is no accurate and reliable way to identify which peremptory challenges are based on race and which are not."

Chief Justice González's exhaustively researched concurrence included a quote from a prosecutor who said that "any attorney worth his salt can make up something to get over a Batson challenge. And, literally, [prosecutors] do make it up." As Justice Stephen Breyer noted in his concurring opinion in Miller-El v. Dretke, a 2005 Supreme Court case that he said reinforced Justice Marshall's concerns about peremptory challenges, "the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before." The Berkeley Law Death Penalty Clinic underscored this point in its seminal 2020 report, "Whitewashing the Jury Box," in which it noted that "[p]rosecutors are instructed to strike jurors based on their 'gut reactions' to jurors' facial expressions, body language, clothing, and hairstyle, and to rely on lengthy stock lists of court-approved 'race neutral' reasons to explain their challenges."

Eliminating peremptory challenges is admittedly an unpopular proposition with some who think that their intuition and biases benefit their clients or cause, even though evidence shows they are ineffective, provide little if any benefit, and in fact harm our justice system. One study demonstrated the ineffectiveness of peremptory challenges: Defense attorneys who participated in a mock trial would have done just as well had they exercised their peremptory challenges based on the flip of a coin; prosecutors did only marginally better. State v. Saintcalle, 178 Wash.2d 34, 104 (2013) (González, J., concurring). Furthermore, attorneys still have access to dismissals for cause if the defense or prosecution believes a person cannot be impartial in a case, and courts should be encouraged to grant challenges for cause liberally. Each side has unlimited for-cause challenges.

As Chief Justice González noted in his Saintcalle concurrence, our jury selection system is intended to secure an impartial jury -- which the Sixth Amendment requires. Courts have interpreted this to mean that a jury should contain a fair cross-section of the community in which it sits. In practice, however, litigants attempt to use peremptory challenges to shape juries to their advantage. When we excuse potential jurors without a valid reason, we undermine their faith in our legal system. "Every time a prospective juror is peremptorily challenged we are telling that prospective juror that the foundation of this system is not evidence, but rather rumor, innuendo, and prejudice," Colorado District Court Judge Morris B. Hoffman wrote in a law review article arguing for the abolition of peremptory challenges. "I cannot count the number of times I have seen prospective jurors flash me a look of betrayal when, after they have passed through the gauntlet of challenges for cause, they have been excused peremptorily because of their educational level or their occupation or the kind of car they drive. Is it any wonder that these people leave our courtrooms thinking that the whole trial process is just as trivial and flawed as jury selection?"

England invented peremptory challenges to provide defendants with a counterweight to the extraordinary power of the Crown. In contrast, here in America, peremptory challenges have largely been used as a tool to discriminate, particularly against people of color. England abolished peremptory challenges in 1989 despite hundreds of years of history because they could not guarantee an impartial jury despite the time and treasure they consumed and because attorneys there determined that such challenges were improper. California should similarly make a break from its own disgraceful history. 

#361970

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