144 years ago, Ulysses S. Grant signed into law the Civil Rights Act of 1875, prohibiting African-Americans from being excluded from jury service. And, sure as night follows day (but about 100 years of them), the California Supreme Court held, in People v. Wheeler (1978) 22 Cal.3d 258, that attorneys in criminal trials are forbidden from striking potential jurors based on race, ethnicity, or religion. And a mere decade after that, the U.S. Supreme Court followed our lead, holding, in the landmark case of Batson v. Kentucky (1986) 476 U.S. 79, that striking jurors based on “group bias” violates Equal Protection. That was the end of systemic racial bias in juries.
At least according to some, but according to actual facts, the practice of excluding people of color from juries is alive and well, despite Batson/Wheeler having been the law of the land for 42 years. Several scholarly studies confirm this fact. Most recently, the Berkeley Law Death Penalty Clinic conducted a painstaking study of racial bias in California jury selection. The study examined nearly 700 California cases from 2006-2018 that involved objections to prosecutors’ peremptory challenges. The results were shocking. It found that in those cases, prosecutors excluded an astounding 72% of Black Americans and 28% of Latinx Americans, as compared to less than 3.5% of Asian Americans and 0.5% of White Americans.
A group known as the Alliance of California Judges, 700 strong, recently acknowledged this injustice, citing the “shameful role that discrimination has played in our justice system, particularly in jury selection.” More on that in a moment.
The Director of the Berkeley Law Death Penalty Clinic and Past-President of the California Attorneys for Criminal Justice, Elisabeth Semel, drafted a law designed to finally give teeth to the Batson in light of the findings. AB 3070, proposed by Assemblywoman Shirley Weber, D-San Diego, bars the use of peremptory challenges to remove potential jurors based on race, ethnicity, or gender. Hardly controversial, right?
Wrong. Despite the undeniable evidence of racial bias in the criminal justice system, some groups oppose the legislation, including the aforementioned Alliance for California Judges. On May 22, the Alliance, led by Sacramento County Superior Court Judge Steve White, showing a striking lack of self-awareness, sent an email to the bill’s author challenging the “assumption that the current system is ineffective,” from his official email address-- and I’m not making this up-- Whites@XXXXcourt.gov.
The Alliance of California Judges argues that they “know bigotry when [they] see it,” and that they can fight racial injustice with the tools they already have. And they should be experts; they’ve had those tools for 144 years.
It’s called subconscious bias for a reason. Our brains work this way in every aspect of our lives. All who were born and raised in a racist society are affected by racial bias. And, especially if we have, by virtue of our ethnicity, been arbitrarily benefited by it, we are largely unaware of its influence, even on ourselves. Good people at every level are affected. Lawyers, police officers, prosecutors, judges and jurors are impacted by it, and if left unchecked, these subconscious biases result in miscarriages of justice when the stakes are highest. Opposition to AB 3070 seems a pathetic clinging to a shameful past in a time of enlightenment. If this system is to be preserved, the scourge of racial bias must be addressed. The underrepresentation of people of color from juries does more than undermine faith in the justice system; it undermines justice itself.