By Satana Deberry, Jamila Hodge and Miriam Aroni Krinsky
What if you could be removed from a jury for believing that Black lives matter? That question became reality after a prosecutor in California used a peremptory strike to remove a Black woman because she supported Black Lives Matter. An appeals court is currently weighing the legality of that action, while other courts have recently considered similar issues – including whether it’s racially discriminatory to remove jurors for participating in Black Lives Matter marches or activism (no in Minnesota and North Carolina, but yes in Nevada). Beyond the discriminatory implication of these questions, these cases raise an even deeper issue – why should prosecutors be using peremptory strikes to remove jurors at all? And can this ability to strike otherwise qualified jurors fuel racial stereotyping and discrimination?
Peremptory challenges allow attorneys to remove potential jurors whom they view as unfavorable to their case. They are only used, however, after a judge has eliminated potential jurors who cannot be fair and impartial – known as removal “for cause.” When laws banning Black people from juries were invalidated in 1880, peremptory strikes became a tool for prosecutors to keep Black people off juries, and wasn’t outlawed until the Supreme Court ruled in 1986 in Batson v. Kentucky that people could no longer be excluded from jury service based solely on race. Under Batson, the prosecutor is required to offer a credible “race-neutral” explanation when a troubling pattern of peremptory strikes arises.
Batson did not end prosecutors’ efforts to exclude Black people from juries. On the contrary, Batson had “at best, only a marginal impact” in preventing the exclusion of black jurors. Study, after study, after study has shown that prosecutors continue to use peremptory strikes to remove Black jurors at alarming rates.
For prosecutors seeking to intentionally remove Black jurors, they need only clear an extremely low bar. It is not difficult to identify a “race-neutral” reason to cover discriminatory stereotyping and thereby justify using a peremptory strike to remove a potential juror. For instance, it is common for prosecutors to ask jurors if they ever had a negative experience with law enforcement. If a Black person says yes – an answer anyone might readily expect – the prosecutor has a legally sufficient rationale to justify striking that person. Even well-intentioned prosecutors can subconsciously use their strikes in ways that disproportionately impact Blacks. Peremptory strikes are particularly susceptible to implicit bias as litigants make judgments based on stereotyping and “seat-of-the-pants instincts.”
Why don’t prosecutors instead forego the use of peremptories and simply seek to ensure that jurors are fair and impartial, as decided by the court? History supports this starting point. England – the birthplace of peremptory strikes – curtailed their use of peremptory challenges by prosecutors hundreds of years ago, and recently affirmed that prosecutors, as representatives of the government, should not select jurors based on tactical considerations. Justice Thurgood Marshall, recognizing the difficulty of eradicating unconscious racism, called for the elimination of peremptories for both the prosecution and defense. Although some may agree with that approach (England abolished them in 1989), prosecutors have a different ethical starting point – their duty is not to win at all costs, but rather to present a fair and thorough case to a jury that reflects the community. As such, even if defense attorneys don’t agree to forego peremptory strikes, there are good reasons for prosecutors to abandon this practice.
Elected prosecutors should take the lead and enact policies that prohibit their staff from using peremptory strikes – meaning that unless a prosecutor convinces a judge to strike a juror for cause, they won’t strike the juror. They can also make jury selection more transparent, by asking jurors to self-identify their race, ethnicity, and gender on the record, and by thoroughly documenting and articulating the reason they seek to remove jurors for cause. And they can support the rights of returning citizens by implementing a policy that presumes a prior criminal conviction does not disqualify prospective jurors. Perhaps most importantly, they can require their attorneys to stop asking questions that are thinly-veiled proxies for race: no prosecutor should ask whether someone has had negative interactions with or distrusts the police or criminal legal system, has a friend or relative who has been stopped or arrested, supports Black Lives Matter, or is on public assistance.
This current moment is forcing us all to admit the uncomfortable truth that past efforts to address racism in the criminal legal system have, at best, proven inadequate. This includes the effort to remove racism from jury selection. Justice Thurgood Marshall cautioned that the landmark Batson case would not “end the illegitimate use of the peremptory challenge.” History has proven him correct. It is up to prosecutors to change that trajectory and put an end to this practice.
Satana Deberry is the District Attorney of Durham County, N.C. Jamila Hodge is the Director of the Reshaping Prosecution Program at the Vera Institute of Justice and was a federal prosecutor in Washington, DC.. Miriam Aroni Krinsky is the Executive Director of Fair and Just Prosecution and was a federal prosecutor in Los Angeles, CA.
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