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

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

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

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

But prosecutors seeking to remove Black people from juries get around 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 who hope for an affirmative answer use it as a reason to remove the juror with a peremptory challenge.

The most recent state to take action is Arizona. Its 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. It said judges shall deny a peremptory challenge if an “objective observer” would view 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 purposeful 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 had prior contact with law enforcement or had expressed a distrust of police.

In 2020, California’s governor signed legislation that is similar to Washington’s rule. The law takes effect for criminal cases in 2022 and for civil cases in 2026, according to prior coverage by the Appeal.

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

The Washington Post spoke with Elisabeth Semel, a director of the Death Penalty Clinic at the University of California at Berkeley School of Law, who is documenting changes to the peremptory process. She backs reform in other aspects of jury selection, as well.

“This cannot be an isolated remedy,” Semel told the Washington Post. “We have systematic exclusion from the very beginning of the process all the way through. The unaffordability of jury service is so significant. When you‘re paying jurors $12 or $15 a day, who can possibly sit on a jury for a week and or two or even months? You’re eliminating everyone who isn’t 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 one address for longer time periods.

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