justice---l-body2

Over the past few years, we’ve seen national outcries in response to high-profile instances of racial injustice. Across the country Christian leaders have joined in public protests over police brutality and what they’ve seen as unjust verdicts. They’ve held vigils and led prayer services. These acts were important. As Christians we are called by scripture to mourn with those who suffer, in a fallen but redeemed world. However, that cannot be the end of our response to incidents of racial injustice. It should be the beginning.

It is important for Christians to both understand and work to change the structural injustices that might lead to unjust verdicts.

Right here in the Pacific Northwest we have been given a chance to move closer to racial justice in our jury system. The Washington State Supreme Court has just handed down a fascinating invitation to our legislators to re-examine an important part of jury selection in criminal trials.
Christians who think about what it means to be Christ-like in government would do well to take our Court’s invitation seriously and encourage our legislators to change the policy.

In 2007, a black man named Kirk Saintcalle was accused of entering an apartment in Auburn, Washington, holding people at gunpoint and killing one of them. He was charged with first degree felony murder and sentenced to 579 months in prison. At his jury trial the prosecutor had used a mechanism called a peremptory challenge to strike the only African American in the jury pool. On appeal Saintcalle’s attorney argued that the defendant’s constitutional Sixth Amendment right to an impartial jury had been violated and asked that the verdict be overturned.

In a lengthy opinion, the state Supreme Court justices concluded that the Constitution had not been violated. There were race-neutral reasons for the exclusion of the African American juror in this particular case. However, the Court made a persuasive argument that the system of peremptory challenges is fraught with racial bias in our state, and the justices argued for further analysis on how to rectify this. One justice, Steven Gonzalez, said that peremptories should be abolished all together because it is impossible to determine when and if racial bias is at the root of jury selection.

Long ago I was a trial attorney. I know how hard it is to pick a good jury, and I know the kinds of assumptions that lawyers have to make in the short time that they are allowed to interact with potential jurors. When I picked a juror I was not interested in the Constitutional requirement that the jury be “impartial.” I wanted jurors who would look at a case the way I did.

Usually potential jurors fill out a long questionnaire that contains information relating to experiences that could taint their ability to evaluate the evidence before them. Then, the lawyers have an opportunity to engage in “voir dire” where they ask questions and engage in conversation with jurors. There are two ways for a juror to be excluded from the jury at this point. The first method allows an attorney challenge “for cause” which means that the juror has demonstrated some sort of bias or inability to reach a fair verdict. The judge then assesses this claim and decides whether or not to dismiss the juror.

The second method to exclude a juror began long ago in England when the King was allowed to exclude jurors for any reason or no reason at all. The defendant was given “peremptory” challenges in which he, too, could exclude a juror without giving a rationale. Today, in all states, lawyers selecting a jury have a number of peremptory challenges in which they can dismiss a juror without giving a reason. It is easy to abuse this privilege. It is easy to abuse this privilege without even realizing that one is excluding a juror because of assumptions about that person’s race, gender, sexual identity or religion. But, excluding jurors because of these characteristics is problematic.

As far back as the 1800s the United States Supreme Court has recognized that race discrimination in the selection of jurors violates the Constitution. As the Washington Supreme Court pointed out it harms both the defendant and minority jurors, and it also undermines the integrity of the legal system. But, there was no clear method to identify or deal with discrimination and for a long time nothing was done about it. By 1986, however, the U.S. Supreme Court took notice and in Batson v Kentucky ruled that the use of peremptory challenges to remove jurors because of an identifiable characteristic like race was unconstitutional.

Batson set up a two-part process that put most of the responsibility for detecting racism in the hands of the judge. First, if a prosecutor uses a peremptory challenge to exclude an African American, the defense attorney can challenge this as an exclusion that violates Batson. At that point the burden moves to the prosecutor to demonstrate that the reason he or she eliminated the juror was race-neutral. If the judge is persuaded by the argument the exclusion of the juror will stand. But, if the judge is not persuaded, the juror remains on the jury.

The Batson system sounded good but implementing it has proven to be difficult. According to the Washington court Batson eliminates purposeful discrimination when racism is intentional and clear, but it has not worked to uncover racism that is “unintentional, institutional or unconscious.” The proof of this lies in the criminal system itself.

Justice Steven Gonzalez wrote a sixty page concurring opinion in Saintcalle, outlining all the ways in which Batson and peremptories in general have failed the system. Gonzalez, who before becoming a judge had significant trial experience, highlighted a number of studies that confirm racial bias in jury selection. In the aftermath of Batson several scholars across the nation demonstrated that peremptory challenges of racial minorities barely declined. Gonzalez said that in our own state, Washington appellate courts have never reversed a conviction based on a lower court’s Batson analysis. Moreover, fifteen years ago the Washington State Minority and Justice Task Force found that over 40 percent of surveyed lawyers said prosecutors in our state either sometimes or often used peremptory challenges to systematically exclude minorities from juries. As recently as 2011 the Washington Task Force on Race and the Criminal Justice System said it is “indisputable” that we have racial and ethnic disproportionality on our juries. The task force highlighted this as a problem related to race but also connected it to fairness across the board. According to the national Equal Justice Initiative “by every deliberation measure, heterogeneous groups outperformed homogeneous groups.” Diversity on a jury brings about more fair trials.

Gonzalez argued that peremptory challenges should be abolished all together for several reasons. First, he says that as long as “for cause” challenges exist, peremptory challenges serve no purpose. There is no constitutional requirement to have them. When lawyers argue that they are necessary for a fair trial it is important to recognize what it is that the lawyers really want. Gonzalez says lawyers want to “remove qualified and fair jurors whom [lawyers] deem likely to favor the other side on a close case.” He argues that often the decision to exclude a juror is based on nothing more than “racial stereotypes or generalizations” and he emphasizes that for judges there is no accurate way to figure out which peremptory challenges are based on race and which are not.

In a quote getting national attention Justice Gonzalez said that the entire peremptory system contributes to “historical and ongoing underrepresentation of minority groups on juries, imposes substantial administrative and litigation costs, results in less effective juries, and unfairly amplifies resource disparity among litigants all without substantiated benefits.”

Despite Justice Gonzalez’s impassioned plea the Washington Supreme Court did not put an end to peremptory challenges, but they did call on legislators and scholars to come up with revisions that will fix the system. The case highlighted racial justice but it also has relevance for other groups as well. Peremptories have been used to exclude jurors because of their sexual orientation, religion, gender and other characteristics. Eliminating the peremptory system could bring us one step closer to justice in a wide variety of ways.