Batson Reform: State by State

The Death Penalty Clinic is tracking the progress of Batson reform proposals across the country. If you know of an investigation, jury selection reform working group, proposed rule or legislative bill that is not listed below, please send the information to esemel@clinical.law.berkeley.edu.

Arizona

On August 23, 2021, the Arizona Supreme Court amended Rule 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure to eliminate peremptory challenges in criminal and civil trial, effective January 1, 2022.  The Arizona Supreme Court announced the rule change in a press release issued August 30, 2021.

The Arizona Task Force on Jury Data Collection, Practices, and Procedures considered two proposals. The Petition to Adopt New Rule 24 favored reform consistent with Washington General Rule 37 and California’s AB 3070. The Petition to Amend Rules 18.4, 18.5, and 47(e) to abolish peremptory challenges supported the repeal of peremptory challenges.  On October 4, 2021, the Arizona Task Force on Jury Data Collection, Policies and Procedures released its report, recommending the elimination of peremptory challenges by a vote of 12-4.

California

AB 3070 was passed by the California Legislature and signed into law by Governor Newsom in 2022. Effective January 2022, it replaces the Batson framework in criminal trials. 

See Elisabeth Semel, Dagen Downard, Emma Tolman, Anne Weiss, Danielle Craig, & Chelsea Hanlock, Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors (2020).

In January 2021, Senator Tom Umberg introduced Senate Bill 212, which would have repealed AB 3070 and abolished peremptory challenges in criminal trials. In April 2021, the bill failed in the Senate Public Safety Committee.

The California Supreme Court Jury Selection Work Group appointed by Chief Justice Tani Cantil-Sakuye, was convened “to study whether modifications or additional measures are needed to guard against impermissible discrimination in jury selection.” You can read Professor Elisabeth Semel’s comments to the Work Group here. 

Colorado

The Colorado Supreme Court rejected the 7-5 recommendation of its Advisory Committee on the Rules of Criminal Procedure to amend Criminal Procedure Rule 24(d)(5) by adopting a rule similar to Washington General Rule 37. The minutes of the January 15, 2021 meeting, which show the vote and the proposed amendment are here.

The Advisory Committee issued a  Colorado Supreme Court Advisory Committee Majority Report on the Adoption of Criminal Procedure Rule 24(d)(5) majority and a minority report.

Connecticut

The Report of the Jury Selection Task Force to Chief Justice Richard A. Robinson (Dec. 2020) recommended the adoption of a rule modeled on Washington General Rule 37 and California’s AB 3070.

Iowa

Concurring in part and dissenting in part in State v. Veal,  930 N.W.2d (Iowa 2019), Justice Wiggins proposed abolishing peremptory challenges. Concurring in part and dissenting in part, Justice Appel proposed revisions to the Batson framework, including requirement that when the prosecutor strikes the “last minority juror” s/he provide a reason “related to the facts of the case” and that trial court “objectively determine whether the asserted reason was in fact race neutral or whether race may have played a role in the strike.” If the judge determines that the reason is race neutral, s/he “should then objectively weigh the prosecution’s racially neutral interested in eliminating the juror against the defendant’s interest in a jury composed of a fair cross section of the community.” Justice Appel cited Washington Supreme Court General Rule 37, which he included as an appendix.

Kansas

See the Initial Report of the Governor’s Commission on Equity & Justice.

Massachusetts

Senator Joseph A. Boncore introduced Senate Bill 918 in the (current) 192nd Legislative Session. The bill is modeled on Washington Supreme Court General Rule 37. It has been referred to the Joint Committee on the Judiciary.

In August, 2021, in Commonwealth v. Carter, the Massachusetts Supreme Judicial Court held for the first time that sexual orientation is a cognizable group. Justice Lowy’s concurring opinion took the position that the first step of the Batson inquiry should be eliminated in cases where there is an objection to a strike based on sexual orientation. He cited Washington’s General Rule 37, as well as decisions in other jurisdictions that have eliminated Batson’s first step. 

In July 2021, the Supreme Judicial Court of Massachusetts commented that “peremptory challenges themselves are not essential to the guarantee of a fair trial by an impartial jury,” acknowledged that “some have advocated for their outright elimination.” Commonwealth v. Fernandes, 170 N.E.3d 286, 298 n.6 (Mass. 2021) (citing Batson v. Kentucky, 476 U.S. 79, 108 (1986) (Marshall, J., concurring).

Mississippi

Senate Bill No. 2211, Regular Session 2021 was not voted out of committee.

New Jersey

State v. Andujar, 247 N.J. 245, 254 A.3d 606, 611, 620-21 (N.J. 2021) (modifying Batson’s third step to preclude a peremptory challenge based on “implicit or unconscious racial bias” on state constitutional grounds and calling for a Judicial Conference on Jury Selection).

The Final Report on New Jersey’s Empirical Study of Jury Selection Practices and Jury Representativeness by Mary R. Rose, Ph.D. (June 1, 2021) describes a study of 95 trials across fourteen counties during a six-week period. The findings included the following: (1) “the processes that determine who appears at the courthouse constitute a systemic source of minority-group attrition because concerning levels [of] underrepresentation appeared in nearly all areas studied”; (2) prospective jurors are more likely to be removed for cause rather than by peremptory challenges; (2) “although peremptory challenges can be linked sporadically to minority-group attrition patterns,” they are “not the primary reason” jurors of color are not seated; and (3) “[t]he data do NOT support a conclusion that the number of peremptory challenges allocated to attorneys does no harm to jury selection practices outcomes.”

On November 10 and 12, 2021, the New Jersey Supreme Court held a Judicial Conference on Jury Selection. Video recordings of the speakers, submissions by conference speakers and others, including those of Professor Elisabeth Semel, are available on the conference web page.

New York

The New York State Justice Task Force is studying the issue. 

New York Senate Bill S6066, was introduced in the 2021-22 session and would repeal peremptory challenges in criminal cases.

North Carolina

In June 2020, the Governor of North Carolina established the North Carolina Governor’s Task Force for Racial Equity in Criminal Justice (TREC). The task force was co-chaired by an associate justice of the North Carolina Supreme Court and the Attorney General, and composed of 24 members including activists, defense attorneys, law enforcement, prosecutors, and judges.

In October 2020, the North Carolina Supreme Court created the Chief Justice’s Commission on Fairness and Equity, which is chaired by Supreme Court Associate Justice Michael Morgan and North Carolina Court of Appeals Associate Justice Valerie Zachary.

In December 2020, TREC issued its report, which called for a number of reforms, including (1) diversifying North Carolina juror pools; (2) strengthening legal protections against juror discrimination; (3) educating jurors about the importance of guarding against the influence of bias on decision-making; and (4) developing a comprehensive jury selection data collection program sufficient to monitor enforcement of legal protections against jury discrimination. Recommendation 92, at page 102, proposed the adoption of a rule similar to Washington Supreme Court General Rule 37.

On December, 2, 2021, TREC will be holding a virtual panel discussion on the reforms proposed in its report.

Oregon

The Williamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon issued a report in April 2021, recommending the repeal of peremptory challenges.

News about the creation of the Willamette Law School Racial Justice Task Force is here.

Utah

In State v. Aziakanou, __ P.3d __ (2021), 2021 WL 44468427 (Utah, Sept. 30, 2021), the Utah Supreme Court directed its advisory committee on the rules of criminal procedure to address issues such as: (1) whether “peremptory strikes based on the concern that potential jurors will be biased against law enforcement witnesses due to past negative experiences with the police may lead to the disproportionate removal of persons of color from juries” and (2) whether Batson’s failure to take “unconscious racism” into consideration “erodes confidence in the justice system and weakens the very notion of a fair trial by an impartial jury.” The court commented that “other states have addressed these matters through procedural rules or other enactments,” citing Washington General Rule 37, California Civil Procedure Code section 231.7, and Connecticut’s Jury Selection Task Force.

Washington

The Washington Supreme Court adopted General Rule 37 in April 2018, which was the model for California’s AB 3070 and for Batson reform in other states. 

The Washington Supreme Court’s adoption of General 37 followed the publication of Proposed New GR 37—Jury Selection Workgroup FINAL Report.