California State Legislature must act to end racial discrimination in jury selection

Since the murder of George Floyd, there have been calls across the nation to address entrenched racism in our criminal justice system.

Even before that crime, and the protests that followed it, the need for one such reform has been crystal clear. It has been established beyond dispute that African Americans, Latinx and other people of color are the victims of blatant discrimination when it comes to selecting juries.

As detailed in “Whitewashing the Jury Box,” a recent study by the Berkeley Law Death Penalty Clinic, African Americans are eliminated from juries at almost two-and-one-half times the rate as others. Yet it has been over 30 years (and scores of cases) since our state Supreme Court found that discrimination against a Black juror had occurred. Last year, Justice Goodwin Liu outlined the failures of the current system and announced that it was “past time” to adopt a new one to address racism and other forms of discrimination in jury selection.

Taking up that challenge, I introduced, and the Assembly passed, Assembly Bill 3070. The bill, which is now before the state Senate, is modeled on a reform that was successfully implemented in Washington state over two years ago. The bill will directly address the worst flaws in the current system. The procedure now in effect only provides a remedy for intentional discrimination.

Everyone, however, including lawyers and judges, is affected by biases of which we are often unconscious but that lead us to make decisions based on racial and ethnic stereotypes. AB 3070 replaces that “intentionality” requirement with an objective standard that tests instead for the existence of implicit or unconscious bias in the elimination of the juror.

Another shortcoming of the current system involves what are known as “race-neutral” reasons. When the party exercising the peremptory challenge is required to give an explanation for the strike, the lawyer must offer a “race-neutral” reason. In the overwhelming majority of cases, trial courts reject claims of discrimination without even asking the lawyer who struck the juror to explain why. But even when the court asks for an explanation, the result is almost always the same. Our courts have defined this term so broadly that almost any explanation short of an admission of discrimination will suffice.

For example, the Berkeley Law report identified one prosecutor training manual that lists 77 race-neutral reasons for removing a juror, including the juror’s demeanor, negative experiences with law enforcement or relationship with someone who has been arrested or is incarcerated. The study found that prosecutors most often rely on these three explanations to strike African-American and Latinx jurors. Even though these reasons have historically been associated with discrimination in jury selection, the new procedure does not prohibit a lawyer from relying on them — but it does require the lawyer to explain convincingly why the justification is appropriate in that specific case.

These common-sense reforms are needed now if we are going to begin to restore faith in the fairness of our justice system. Yet opponents of this reform are demanding that it be delayed, indefinitely, while a “work group” recently formed by the chief justice of the California Supreme Court goes about studying the problem.

Facing similar calls for delay in changing discriminatory laws, the Rev. Dr. Martin Luther King Jr. published his famous call for change, “Why We Can’t Wait.” We are again at a historical moment when the familiar insistence on putting off needed change just won’t do. The notion of suspending our efforts while the chief justice’s “work group” studies the issue just won’t do.

First of all, the chief justice and the chair of the work group have given repeated assurances that their efforts are not intended to impede the passage of AB 3070. On the contrary, they have stated several times to members of the Legislature that they expect the bill to become law. Both have made clear that the work group has a broader review agenda than reviewing peremptory challenges, but that they envision the group will have a role in facilitating the implementation of this new legislation.

Second, the problem has already been studied, exhaustively, including by the Washington Supreme Court before it instituted its General Rule 37, reforming the jury selection process, by the Berkeley Law report’s specific examination of the matter in California and by numerous other studies cited in the report. Washington’s reform has proved effective, and it is what provides the basis for the procedure in AB 3070.

The late Congressman John Lewis said, “We are tired of being beaten by policemen. We are tired of seeing our people locked up in jails. And then you holler, ‘Be patient.’ How long can we be patient?”

We are also tired of seeing our people denied their constitutional right to serve as jurors. We are tired of the courts’ continued reliance on a process that perpetuates discrimination. We are again at a pivotal moment when the familiar insistence on putting off needed change just won’t do.

The courts have had decades to put in place an effective procedure for eliminating discrimination in the selection of juries and have been unable to do so. It is up to the Legislature to take the necessary action.

This story was originally published August 22, 2020 at 5:00 AM.