Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors

Whitewashing the Jury BoxRacial discrimination remains a persistent feature of jury selection in California, says Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, an eye-opening report from the Death Penalty Clinic.

Released in June 2020, the exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color—especially African Americans—from state juries through prosecutors’ peremptory challenges.

The report was researched and written by Elisabeth Semel (Clinical Professor of Law and Director, Berkeley Law Death Penalty Clinic), Dagen Downard, Emma Tolman, Anne Weis, Danielle Craig, and Chelsea Hanlock (Students, Death Penalty Clinic, Berkeley Law Class of ’20).  

Read the report

Read the Berkeley Law story

Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval. In California, peremptory challenges are defined by statute. Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service. These strikes were part and parcel of the systematic exclusion of Black people from civil society. 

In 1978, in People v. Wheeler, the California Supreme Court ruled that peremptory challenges based on intentional group bias violate our state Constitution’s fair cross-section guarantee. The court adopted a three-step procedure for determining whether an attorney had impermissibly exercised a strike. It was not until 1986, in Batson v. Kentucky, that the United States Supreme Court, applying the Equal Protection Clause, adopted a similar three-step inquiry.

Whitewashing the Jury Box builds on decades of research showing that the Batson procedure does not significantly reduce, much less eliminate, discrimination in jury selection. Indeed, racial discrimination is an ever-present feature of jury selection in California. The report examines how and why the Baston approach has failed.

The report’s findings include:

  • Historically and still today, in California, it is overwhelmingly defense attorneys who make Batson objections to prosecutors’ peremptory challenges of Black and Latinx jurors.
  • Social science research demonstrates that—for well-founded reasons—most Blacks and Whites do not share the same attitudes towards law enforcement or the criminal legal system. However, prosecutors routinely and successfully rely on a Black or Latinx juror’s views on these issues to justify a peremptory challenge.
  • The Batson procedure requires proof of intentional discrimination. However, implicit biases play a significant role in how prosecutors are trained to and do exercise their peremptory challenges. California district attorney training manuals encourage discriminatory strikes in at least three ways:
    • Defining the “ideal” juror by characteristics disproportionately applicable to White professionals
    • Instructing prosecutors to rely on their “gut reactions” to jurors’ demeanor and appearance
    • Advising prosecutors to strike prospective jurors who have had or whose relatives have had a negative experience with law enforcement or are distrustful of the criminal legal system.
  • California courts define a “race-neutral” reason so expansively that prosecutors are able to rely on a laundry list of judicially approved “race-neutral” reasons when they explain their peremptory challenges.
  • We evaluated nearly 700 cases decided by the California Courts of Appeal from 2006 through 2018, which involved objections to prosecutors’ peremptory challenges. In these cases, prosecutors successfully used their peremptory challenges against African Americans because they had dreadlocks, were slouching, wore a short skirt and “blinged out” sandals, visited family members who were incarcerated, or had negative experiences with law enforcement.
  • California courts have an abysmal record in Batson cases. In the last 30 years, the California Supreme Court has reviewed 142 cases involving Batson claims and found a Batson violation only three times (2.1%). From 2006-2018, our state appellate courts found Batson error in just 18 out of 683 decisions.
  • It has been more than 30 years since the California Supreme Court found a Batson violation involving the peremptory challenge of an African-American prospective juror.

Whitewashing the Jury Box concludes that replacing the Batson framework is long overdue and can best be accomplished by bold legislative action. The report therefore recommends passage of Assembly Bill 3070, which was signed by Governor Newsom in September 2020. 

Newly Enacted California Assembly Bill 3070

Key features of the bill include:

  • Eliminating the first step of the Batson procedure. When a party objects that opposing counsel exercised a peremptory challenge in violation of the statute, opposing counsel must state the reasons.
  • Eliminating the requirement that the party objecting to the peremptory challenge prove the strike was based on intentional discrimination. Instead, the court, acting as an objective observer—aware of the role implicit, institutional, and unconscious bias has played in the discriminatory exclusion of jurors in California—determines whether there is a substantial likelihood that race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation was a factor in the exercise of the strike.
  • Creating a presumption that reasons historically associated with improper discrimination are presumptively invalid. These reasons include expressing a distrust of law enforcement or the criminal legal system; the juror’s neighborhood; dress, attire, or personal appearance; or the juror’s unemployment or underemployment.

Batson Reform: State by State

The clinic is beginning to track the progress of Batson reform proposals across the country. They are posted here.

District Attorney Jury Selection Training Materials

The authors reviewed district attorney training materials, some of which are cited in the report. As the report explains, the materials were obtained by the ACLU of Northern California in response to public records act requests the ACLU-NC sent to county district attorney offices. The ACLU-NC made these materials available to the clinic, and authorized the clinic to post the full set of training materials. They are posted here.

The ACLU of Northern California has posted a collection of the prosecution training manuals the organization obtained through its California Public Record Act requests. Note that this collection also includes materials the ACLU received after the publication of Whitewashing the Jury Box.

News stories

Professor Elisabeth Semel on the Implications of Batson v. Kentucky and California’s Capital Punishment System, Death Penalty Information Center, 4/30/24

The Top NJ Supreme Court Rulings from 2021, Law 360, 12/22/21

Many juries in America remain mostly White, prompting states to take action to eliminate racial discrimination in their selection, The Washington Post, 12/18/21

Balancing the Scales of Justice, SF Weekly, 8/12/21

Racial Discrimination Still Exists in Jury Selection. Colorado’s Supreme Court Rejected a Proposal Meant to Fix That, The Colorado Sun, 7/21/21

Alameda County’s First Black Chief Public Defender Is Trying to Fix the Problem with Juries, San Francisco Chronicle, 4/4/21

California Passed a New Law to Diversify Juries. Here’s Why It’s So Important, The San Diego Union-Tribune, 12/3/20

California Legislature Confronts Racial Discrimination in New Criminal Justice Reform Package, American Bar Association, 10/28/20

Change-Making at the Capitol: Governor Signs Seven Bills Driven by Berkeley Law Clinics and Centers, 10/5/20

California Lawmakers Approve Bills to Address Racism in Criminal Charges and Jury Selection, Los Angeles Times, 8/31/20

Editorial: Attack Racism in California’s Criminal Proceedings, Los Angeles Times, 8/27/20

Op-Ed: California State Legislature Must Act to End Racial Discrimination in Jury Selection, The Sacramento Bee, 8/22/20

‘Racialized Dehumanization’: UC Berkeley Experts Weigh in on Criminal Justice, Daily Californian, 8/17/20

When Can a Juror Say Black Lives Matter?, Law 360, 8/9/20

Report Finds Ongoing ‘Whitewashing’ in California Jury Selection, San Jose Mercury News, 7/10/20

New Study Highlights Issues of Systemic Bias in Jury Selection, NBC Nightly News with Lester Holt, 7/8/20

Op-Ed: The Pandemic, the Killing of George Floyd and Discriminatory Jury Selection, LA Daily Journal, 6/30/20

Racial Discrimination Persists in California Jury Selection, Equal Justice Initiative, 6/29/20

In California, Jury Boxes ‘Whitewashed’ All Too Often, Law 360, 6/21/20

“Whitewashing the Jury Box,” NCSC, 6/19/20

New Study Finds Black & Latino Folks Are Routinely Kept From Serving on Juries, Remezcla, 6/16/20

“Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors,” LEXBlog, 6/16/20

California Prosecutors Routinely Strike Black and Latino People from Juries, Report Says, Los Angeles Times, 6/15/20

Study: Prosecutors Strike Black and Latino People from Juries, KQED California Report, 6/15/20

California Prosecutors Routinely Strike Black and Latino Prospective Jurors, Study Says, ABA Journal Briefs, 6/15/20