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 firstname.lastname@example.org.
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.
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. AB 3070 added section 231.7 to the Code of Civil Procedure.
Key differences between Batson and CCP section 231.7 include the following: the elimination of Batson’s first step and of the requirement that the strike opponent prove purposeful discrimination; the inclusion of “presumptively invalid” reasons such as a prospective juror’s “distrust of or . . . negative experience with law enforcement and the criminal justice system,” “dress, attire, or personal appearance,” or “lack of employment or underemployment”; and the requirement that the court make its determination “acting as an objective observer” who is aware that unconscious, implicit, and institutional “biases have resulted in the unfair exclusion of potential jurors in the State of California.” Note that while there are similarities between the reforms adopted by rule or statute in states such as California, Connecticut, New Jersey, and Washington, there are significant differences.
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.
In 2021, 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.
On March 16, 2021, in the face of opposition from the state’s 22 district attorneys, Democratic lawmakers withdrew Senate Bill 128, Batson reform legislation. The same day, the sponsors of SB 128 wrote to the Advisory Committee on the Rules of Criminal Procedure, asking the committee to revive a proposed amendment to Rule 24 of the Rules of Criminal Procedure, which the Colorado Supreme Court rejected last year. The amendment would have adopted a rule similar to Washington General Rule 37. The letter also made clear the legislators’ interest in the collection of data on the exercise of peremptory challenges.
On June 20, 2022, the Implicit Bias Subcommittee of the Colorado Supreme Court Committee on the Rules of Criminal Procedure issued a new report. The report announced that the committee is “unanimous” in its support for “a rule of criminal procedural to address implicit bias in the exercise of peremptory challenges.” It detailed the areas of agreement and disagreement regarding a proposed rule. A majority of the committee agree that the rule should be limited to the exclusion of prospective jurors “based on race or ethnicity”; eliminate step one of the Batson procedure; eliminate the requirement that the strike opponent prove purposeful discrimination; include a list of “presumptively invalid” reasons; and provide that a peremptory challenge shall be denied “[i]f the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenges.” Note that while there are similarities between the rule proposed in Colorado and the reforms by adopted by rule or statute in states such as California, Connecticut, New Jersey, and Washington, there are significant differences.
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.
The Connecticut Superior Courts adopted section 5-12 (Objection to the Use of a Peremptory Challenge), which goes into effect on October 1, 2022. The new rule applies to criminal and civil trials. Key differences between Batson and Rule 5.12 include the following: the elimination of Batson’s first step and of the requirement that the strike opponent prove purposeful discrimination; the inclusion of “presumptively invalid” reasons; the requirement that the court deny the peremptory challenge if it “determines that the use of the challenges against the prospective juror, as reasonably viewed by an objective observer, legitimately raised the appearance that the prospective jurors race or ethnicity was a factor in the challenge”; and a definition of the “objective observer” as one who is “aware that purposeful discrimination, and implicit, institutional, and unconscious biases, have historically resulted in the unfair exclusion of potential jurors on the based or their race, or ethnicity.” Note that while Connecticut’s new rule is similar to Washington General Rule 37, there are differences.
Concurring in part and dissenting in part in State v. Veal, 930 N.W.2d 319 (Iowa 2019), Justice Wiggins proposed abolishing peremptory challenges. He wrote that “[i]n the majority of cases, the reasons given by the prosecution in response to a Batson challenge appear to be pretextual.” 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.
Professor Elisabeth Semel submitted an expert report on peremptory challenges in the state of Kansas. The report is part of a challenge to Kansas death penalty statute brought by the ACLU, the ACLU of Kansas, and the law firm of Hogan Lovells US LLP in the case of Kansas v. Cornell McNeal. The report, which Professor Semel wrote with the assistance of students in the Berkeley Law Death Penalty Clinic, finds that: (1) Kansas prosecutors have disproportionately exercised peremptory strikes against Black jurors, and despite the intent of Batson, relied upon racial stereotypes to justify their strikes”; (2) “in more than half of the cases, the prosecutor struck at least half of the jurors of a cognizable minority race or ethnicity from the panel, and in at least one third of the cases, the prosecutor struck every member of a cognizable minority racial or ethnic group from the panel”; and (3) “prosecutors frequently rely upon explanations that correlate with racial stereotypes, which have been explicitly deemed impermissible under the California and Washington state reforms.”
Senator Joseph A. Boncore introduced Senate Bill 918 in the (2021) 192nd Legislative Session. The bill is modeled on Washington Supreme Court General Rule 37. It has been referred to a Senate study committee.
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).
In August, 2021, in Commonwealth v. Carter, 488 Mass. 191, 172 N.E.3d 367 (Mass. 2021), 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.
Senate Bill No. 2211, Regular Session 2021 was not voted out of committee.
In her concurring opinion in State v. Wellknown, 510 P.3d 84 (Mont. 2022), Justice Beth Baker urged that “Montana’s Equal Protection and Dignity Clauses provide bases for strengthening Montana’s Batson framework.” Article II, section 26 of the Montana Constitution provides: “The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Justice Baker relied on state precedent and the Constitutional Convention Commission’s Bill of Right Study for the proposition that “the State could ‘go beyond the federal Fourteenth Amendment.’” (internal citation omitted). She wrote, “Many judicial and academic commentators agree that the Batson framework fails to remedy the discriminatory use of peremptory challenges,” citing recent reforms in California and Washington, Arizona’s elimination of peremptories, and advisory committees in other states that are considering reform or have made recommendations for reform. Justice Baker proposed that a committee of the Montana Supreme Court study the issue and issue recommendations.
The Rural Justice Initiative at the University of Montana is collaborating with criminal justice stakeholders in Montana to prepare a report on the use of peremptory challenges in Montana state courts. RJI collaborates with local, state and Tribal stakeholders to support evidence-based criminal justice policy that integrates the needs and experiences of rural and indigenous communities. The report seeks to leverage Justice Baker’s proposal in Wellknown. Professors Jordan Gross and Laura Kirsch are leading the collaboration and welcome inquiries and information from interested persons.
State v. Andujar, 247 N.J. 245, 254 A.3d 606, 611, 622-23 (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.
In April 2022, the Committee of the Judicial Conference on Jury Selection issued 25 recommendations. They cover the topics highlighted in Andujar and during the Judicial Conference on Jury Selection, including jury composition and compensation as well as cause and peremptory challenges. Among the committee’s “strategies to address institutional and implicit bias” are recommendations to (1) collect race, ethnicity, and gender data using the juror qualification questionnaire; (2) employ an electronic juror questionnaire; (3) lower the threshold for granting cause challenges: (4) allow attorney-conducted voir dire; (5) reduce the number of peremptory challenges; and (6) modify Batson. The committee proposed that (1) Batson’s first step be eliminated; (2) a peremptory challenge may not be used “to remove a prospective juror based on actual or perceived membership in a group protected under the United States or New Jersey Constitutions or the New Jersey Law Against Discrimination”; (3) the trial court will determine whether “a reasonable, fully informed person would believe that a party removed a prospective juror based on the juror’s actual or perceived membership” in a protected group; and (4) the court need not find purposeful discrimination to disallow the peremptory challenge. Although it did not recommend the adoption of a rule modeled explicitly on reforms in Washington, California, or Connecticut, the committee’s official comment proposed that courts be guided by specific provisions of the Washington and Connecticut rules, including the presumption of invalidity attached to the use of reasons historically associated with race discrimination. The committee proposed a pilot program in which its recommendations will be implemented.
On July 12, 2022, the New Jersey Supreme Court adopted Rule 1:8-3A (“Reduction of Bias in the Exercise of Peremptory Challenges”), which will go into effect on January 1, 2023. The new rule applies to criminal and civil trials. Key differences between Batson and Rule 1:8-3A include the following: the elimination of Batson’s first step and of the requirement that the strike opponent prove purposeful discrimination; the requirement that the court deny the peremptory challenge if, under the totality of the circumstances, “a reasonable, fully informed person would believe that a party removed a prospective juror based on the juror’s actual or perceived membership in a group protected [under the statute].” The rule applies to cognizable groups in additional to those defined by race or ethnicity. The rule does not include a list of “presumptively invalid” reasons. However, the Official Comments direct trial courts to “bear in mind that the following reasons have historically been associated with improper discrimination and are therefore presumptively invalid” and then list the reasons identified by Washington General Rule 37.
On July 12. 2022, the New Jersey Supreme Court issued an order creating a pilot program in three counties that permits attorney conducted voir dire.
On July 14, 2022, the New Jersey Supreme Court announced a program for the voluntary collection of juror demographic information in these three counties that will expand statewide in 2023.
The New York State Justice Task Force was created in 2009 “to provide broader recommendations for changes to the criminal justice system to improve its fairness and effectiveness for all New Yorkers.” In August 2022, the task force issued Recommendations Regarding Reforms to Jury Selection in New York. With regard to impaneling a racially diverse jury, the report examined reforms that have been adopted or are under consideration in other states. It recommended modifications to the Batson test, beginning with the requirement that the trial judge determine [w]hether, in the view of a reasonable person, the race of a juror was a factor in the exercise of the peremptory challenge.” Note that in New York, this proposal requires legislative action. The task force recommended that the new standard apply to “an expanded set of classes, including a juror’s race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation.” It took the position that “the court is often in the best position to begin probing issues of implicit bias,” but acknowledged that “counsel also play an important role” and proposed that “the courts allow sufficient time for attorneys conducting voir dire to probe the potential implied biases of prospective jurors.” The Task Force “narrowly” recommended that the number of peremptory challenges currently allotted by statute remain unchanged and expressed the expectation that other reforms it recommended would help “remedy the potential for bias resulting from the use of peremptory challenges.” It also proposed that district attorneys and institutional defenders “examine the use of peremptory challenges within their offices.”
New York Senate Bill S6066, was introduced in the 2021-22 session and would repeal peremptory challenges in criminal cases. The bill is in committee.
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 held a virtual panel discussion on the reforms proposed in its report.
In his concurring opinion in State v. Vandyke, 507 P.3d 339 (Or. Ct. App. 2022) (per curiam), Justice Aoyagi referred to State v. Curry, 447 P.3d 377 (Or. Ct. App. 2019), in which the Oregon Court of Appeals commented that the states’ rules on the Batson framework lack adequate guidance and pointed to Washington’s adoption of GR 37 as a development appropriate for consideration by the Council on Court Procedures and legislature. Here, he wrote, “[W]ith the passage of time, the procedural mechanism crafted in Batson v. Kentucky [citation omitted] to root out racial discrimination in jury selection — specifically in the use of peremptory strikes — has proven demonstrably not up to the task.” Justice Aoyagi discussed the growth in our understanding of racial discrimination and agreed that Batson” is extremely ill-suited to addressing implicit bias.” Quoting Batson, he urged that “[u]nless reimagined, Batson will never live up to its stated purpose of ‘eradicat[ing] racial discrimination in jury selection.’” Justice Aoyagi called attention to some state courts — most notably Washington — that have replaced Batson, and concluded, “The time has come to revisit” Batson‘s framework, “update it” and “recommit to eradicating racial discrimination in jury selection.”
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.
In State v. Aziakanou, 498 P.3d 391 (Utah 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.
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.
Key differences between Batson and General Rule 37 include the following: the elimination of Batson’s first step and of the requirement that the strike opponent prove purposeful discrimination; the inclusion of “presumptively invalid” reasons “historically . . . associated with improper discrimination in jury selection,” such as a prospective juror’s “prior contact with law enforcement officers,” “expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling,” or “living in a high-crime neighborhood”; the requirements that the court make its determination “acting as an objective observer” who is “aware that “implicit, institutional, and unconscious biases have resulted in the unfair exclusion of potential jurors in Washington State” and that the court deny the peremptory challenge if it “could view race or ethnicity as a factor in the use of the peremptory challenges.” Note that there while there are similarities between General Rule 37 and the reforms by adopted statute in California and by rule in Connecticut and New Jersey, there are significant differences.