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A large body of research suggests that peremptory challenges — which allow either side in a trial to exclude potential jurors without explanation — open the door to racial discrimination in jury selection. In 2005, Justice Stephen Breyer called on the Supreme Court to reconsider the use of peremptory challenges, or at least to reform the test it had established in Batson v. Kentucky. That case requires an objecting party to first produce evidence that a peremptory challenge had a discriminatory purpose, at which point the other side must provide an adequate race-neutral explanation for the court to weigh. Breyer cited “studies and anecdotal reports suggesting that, despite Batson, the discriminatory use of peremptory challenges remains a problem.”
The Supreme Court hasn’t taken up Breyer’s call to action, but in recent years, several states have either changed their procedural rules or established new precedents to more rigorously police discriminatory jury selection. Since 2018, Connecticut, New Jersey, and Washington all introduced court rules that altered the Batson framework, and California adopted similar changes legislatively. In Arizona, the state supreme court recently eliminated peremptory challenges altogether.
Washington has been a groundbreaker in addressing discriminatory jury selection. Its recent decision in In the Matter of the Personal Restraint of Theodore R. Rhone — in which the court unanimously ordered a new trial in a nearly 20-year-old case based on discriminatory use of peremptory challenges — highlights some of the steps the court has taken to address racial bias in the justice system.
In 2005, Rhone was tried on first-degree robbery and other charges. His 41-person jury pool had 2 Black members. After both sides agreed to remove a Black member of the pool for cause, the prosecution struck the remaining Black member using a peremptory challenge. After the court swore in the jury, Rhone made a statement: “I don’t mean to be facetious or disrespectful or a burden to the Court. However, I do want a jury of my peers. And I notice that [the prosecutor] took away the [B]lack, African-American, man off the jury. . . . I would like to have someone that represents my culture as well as your culture. To have this the way it is . . . seems unfair to me.”
The trial judge applied the Batson standard and found there was no prima facie case of discrimination — in other words, Rhone hadn’t provided enough evidence of discrimination to make an initial case and require the prosecution to give an explanation for the strike. On appeal, Rhone argued that there should be a bright-line rule that a defendant establishes a prima facie case whenever a prosecutor peremptorily challenges the only remaining member of a racial group in a jury pool. In 2010, a divided Washington Supreme Court denied his claim.
Fast forward to 2017. In City of Seattle v. Erickson, the Washington Supreme Court reversed course, modifying Batson to largely adopt the bright-line rule that Rhone had proposed. In 2018, it went even further, adopting a new court rule that modified the questions a judge must consider after a prima facie case has been has been made. The rule requires a judge to deny a peremptory challenge if an objective observer, aware of “implicit, institutional, and unconscious biases,” could view race or ethnicity as a factor in the challenge. The rule does not require purposeful discrimination and identifies presumptively invalid reasons that have historically been associated with discriminatory jury selection, including prior contact with law enforcement, expressing distrust of law enforcement, and living in a high-crime neighborhood.
This month, the court returned to Rhone’s case. The court didn’t make its Batson precedents retroactive, but it did conclude that justice required allowing Rhone “to benefit from the rule he proposed that ultimately became the law in this state.”
The court characterized its 2010 ruling as lacking “the benefit of the considerable knowledge we have gained regarding the impact of implicit bias in jury selection.” And a lot has changed in Washington since 2010. That same year, two justices (neither still on the court) drew controversy when they argued that discrimination is not a significant driver of racial disparities in the justice system, including comments by one justice that “certain minority groups” have “a crime problem.” Since then, changes in the court’s membership, coupled with research, working groups, task forces, and engagement with stakeholders, have prompted revisions in Washington’s court rules and new judicial precedents that grapple directly with implicit biases and discriminatory practices in our justice system.
I recently had the opportunity to interview Washington’s chief justice, Steven C. González, for State Court Report. He talked about the court’s Batson rule, which he described as “a sea change in the way we address implicit bias and bias in our system.” I was struck by his description of the work still to be done: “Thinking through those kinds of issues takes bravery, courage, dedication, and a great deal of patience.”