Bill against Discrimination during Jury Selection Process Passes California Assembly Judiciary Committee

Wednesday, May 13, 2020

SACRAMENTO – The Assembly Judiciary Committee passed AB 3070 through its first phase of California’s legislative process.

On May 11, 2020, an 8 to 3 committee vote pushed further along a bill that aims to end discrimination in the jury selection process of California. Current legislation prohibits parties to excuse jurors on the basis of the juror’s possible biases caused by their race, gender, religion, and other individual characteristics and requires peremptory challenges to be made if a juror’s dismissal is alleged to be based on discriminatory acts. Contrary, AB 3070 would prohibit the removal of a juror on the basis of their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation and would increase the consequences of grants and objections of peremptory challenges that claim to be non-discriminatory driven.

The bill is sponsored by partnering organizations, California Attorneys for Criminal Justice, and the UC Berkeley Law Death Penalty Clinic. Assemblymember Shirley Weber introduced this bill on Feb. 21, 2020.

Supporters of the bill argue that AB 3070 is necessary for ending the racial bias in the criminal justice system. Brendon Woods, the current Public Defender of Alameda County, thanks Assemblymember Weber in a tweet, “ Blacks are excluded from jury service by peremptory challenges at rate 2.5x higher than jurors of any other race. Those most likely to be incarcerated by law enforcement & prosecutors are most likely to be excluded from jury service. Thank u @AsmShirleyWeber #AB3070 can fix this.”

The bill opposes the standing Batson process known for the weak limitations on removing jurors based on their race and ethnicity. According to the California Attorneys for Criminal Justice organization, “the Batson process has proven ineffective.” Though the Batson process is in place to protect jury selection from discrimination, prosecution attorneys can easily avoid safeguards by creating different reasons for dismissing jurors of color.

AB 3070 would pose stronger limits to discrimination through the elimination of heavy use of peremptory challenges. The proposed bill states that “the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination” and argues that “many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination.”

Some of the new measures under this bill include having the courts consider many factors such as whether peremptory reasons are disproportionately related to race, ethnicity, gender, etc when granting or denying challenges and the court must consider whether the party proposing the challenge has disproportionately used peremptory challenges in present or past cases.

All peremptory challenges are set to be considered invalid unless the party proposing the challenges can clearly prove that the rationale behind the juror removal is unrelated to race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.

If the court comes to grant an objection to the improper exercise of a peremptory challenge, the court can either seat the challenged juror, declare a mistrial, or provide an appropriate and alternative remedy acceptable to the objecting party.

The denial of an objection by the court will be reviewed by the appellate court. If the appellate court finds the denial was made incorrectly, a new trial must be granted.

These new steps to guarantee the non-discriminatory removals of jurors comes 36 years after the Batson v. Kentucky ruling that resulted in the creation of the—then necessary but now flawed—Batson process. Misuse of peremptory challenges has led to countless individuals belonging to minority populations being removed from juries. With minorities constituting the majority of the imprisoned population, unaltered representation within juries is a key step to guarantee the correct application of justice.

AB 3070 passed its first vote in the Assembly committees and has been referred to the Committee on Appropriations for another vote. If passed, the bill is expected to take over the current Batson process in January of 2021.