Some state policymakers are trying reduce bias in the criminal justice system by aiming to eliminate racial discrimination in jury selection. High-profile trials with nearly all-white juries, including those of Kyle Rittenhouse in Kenosha, Wi., and the three men who chased down and killed Ahmaud Arbery in Glynn County, Ga., where the judge acknowledged that there appeared to be “intentional discrimination” in jury selection, have brought renewed attention to how juries often do not reflect their communities, the Washington Post reports. Nearly four decades after the Supreme Court established a precedent meant to eliminate racial discrimination in jury selection, the problem remains widespread. Most often the practice occurs through a legal tactic called a peremptory challenge, which allows an attorney to strike a potential juror without having to state a reason.
Critics say lawyers have found ways to get around the Supreme Court’s prohibition against discrimination in jury selection by asking potential Black jurors such questions as, “Have you ever had a bad encounter with the police?” If the potential juror says yes, they could be dismissed for perceived bias against police. One study in the Deep South found that Black jurors were being challenged and dismissed at double or triple the rates of other people. Elisabeth Semel of the Death Penalty Clinic at the University of California Berkeley School of Law said, "In every study that I know of that has been done across the country, looking both in state courts and in federal courts, there has been a universal finding," Semel said. “The exercise of racially discriminatory peremptory strikes remains an ever present feature of the jury selection system." he results are unremarkably the same.” In 2018, the Washington Supreme Court court adopted a rule that made it easier for opposing lawyers to challenge a peremptory strike without having to prove intentional discrimination. In 2020, California passed legislation that codified much of Washington’s rule into state law. In September, the Arizona high court abolished peremptory challenges altogether. Courts in Connecticut and New Jersey are studying the issue.