Sep 01, 2020
Reforming Jury Selection: Don't Stop at the End
Sep 01, 2020
By Emily Charley
Race, as a matter of constitutional principle, cannot factor into the selection of jurors. But one must spend only the briefest amount of time observing jury trials to know that this colorblind ideal has not been realized yet in America. Racial bias in the jury selection process is known to seep in through peremptory challenges, the ability of each side to exclude a certain number of potential jurors without needing to give the court any reason for the exclusion. In criminal trials, the conventional wisdom is that prosecutors will use these challenges to remove non-White jurors who are statistically more likely to acquit, while defense attorneys will typically attempt to counteract by removing more White jurors.
Assembly Bill No. 3070, introduced by Assembly Member Shirley Weber, seeks to add section 231.7 to the Code of Civil Procedure to address the use of race in peremptory challenges of jurors. Specifically, in its form as of August, AB 3070 would prohibit the use of a peremptory challenge to remove a prospective juror on the basis of race, as well as ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The bill would allow a party to raise the issue of improper bias by objecting to the use of a peremptory challenge and, upon objection, would require the party exercising the challenge to state their reasons. The court must then evaluate the reasons given and, if the objection is granted, the court could either declare a mistrial, overrule the preemptory challenge and seat the challenged juror, or provide another appropriate remedy acceptable to the objecting party. Supporters of the bill argue that AB 3070 is necessary to address racial bias in the criminal justice system. Tweeting his support of AB 3070, Alameda County Public Defender Brendon Woods noted, “Blacks are excluded from jury service by peremptory challenges at rate 2.5x higher than jurors of any other race. Those most likely to be incarcerated by law enforcement & prosecutors are most likely to be excluded from jury service. Thank u @AsmShirleyWeber #AB3070 can fix this.”
But AB 3070 addresses only part of the problem. Peremptory challenges occur at the end of the jury selection process, and AB 3070 leaves the composition of the original jury pool itself unaddressed. A “fix” that starts at the end is not a fix. Unfortunately, people of color do not enter into the jury selection process in proportionate levels.1 Thus, while AB 3070 is a good start,2 it presents the danger of lulling us into a false sense that the issue has been remedied. Fortunately, there are ways to ensure that Americans of color occupy a larger percentage of the original jury pool by reducing impediments earlier in the process.
First, the pool from which jurors are drawn must be broadened. In California, jurors are selected from Department of Motor Vehicles and voter registration lists. But both of these lists disproportionately exclude people of color, and both are beset with outdated information. Using income tax records would not only broaden the original jury pool, but increase the chances that a jury summons will arrive at a current address. The California legislature has been working on passing a bill that would require the Franchise Tax Board to semiannually furnish the jury commissioner of each county with a list of state tax filers. A bill passed the Legislature in the final days of the session and the governor has until September 30 to sign or veto it. (Cal. Const., art. IV, § 10(b)(2).)
Second, we must financially support jurors. If we do not, those who cannot afford to take unpaid time off work will not show up, or when they do they will seek to be excused. Under California law, beginning on the second day only, jurors are paid $15 a day and receive 34 cents per mile for one way of travel. Payment is further limited to days during which a potential juror physically reports to the courthouse, leaving unpaid standby days, which many employees would need to request off in advance. The current minimum wage in California is $12 an hour. Our jurors should receive at least a minimum wage for their essential role in our justice system. Yes, this adds expense to an already strapped budget. But we must figure out how to accomplish this, perhaps in cooperation with the business community. We cannot ask our jurors to forsake a minimum wage – the bare minimum we have determined as a society needed for survival – for their part in realizing a fundamental constitutional principle.
Third, we must put in place mechanisms for transparency and quality control of our jury system. Most states limit disclosure of juror and jury information. In California, Rule 10.500 of the Rules of Court outlines public access to judicial administrative records, and does not provide access to jury or juror information among the identified records. Concerns about privacy and safety weigh in restricting this information. However, a lack of transparency hamstrings efforts to unearth glitches in the system that, intentional or unintentional, exclude whole swaths of people. Without being able to review our system, it is nearly impossible to confirm that the names of all eligible jurors are making their way to the jury list.
In a system that already disproportionately prosecutes people of color, we cannot tolerate further harm from an unrepresentative jury. We must review the jury selection process as a whole, not just patch it up at the end.
1 For references regarding various aspects of racial disparities in juries, download this one-page pdf.
2 Editor's Note: AB 3070 passed on August 30, 2020. The governor has until September 30 to sign or veto bills passed by the Legislature before September 1. (Cal. Const., art. IV, § 10(b)(2).)
Emily is a partner at Hanson Bridgett and is on the board of the Marin County Bar Association. She represents a variety of private parties and businesses, as well as public sector clients. She is an active litigator, handling disputes in both state and federal courts, as well as in arbitration and mediation. Emily contributes significant time to pro bono legal services in her community. She sits on the board of directors of the Golden Hour Restoration Institute, a non-profit providing ecological restoration education, and frequently takes cases for the Volunteer Legal Services Program of the Bar Association of San Francisco and the Lawyers’ Committee for Civil Rights.