Citing EJI’s report on the ongoing problem of racial discrimination in jury selection, the Washington Supreme Court determined that “racial discrimination remains rampant in jury selection” and new legal standards and procedures are needed to recognize and eradicate institutional racism.
In its August 1, 2013, en banc opinion in State v. Saintcalle, the state’s highest court rejected Mr. Saintcalle’s claim that the prosecutor violated Batson v. Kentucky when he excluded the single African American prospective juror from jury service.
But the court went on to recognize that Batson is failing to effectively combat racial discrimination in jury selection. “Twenty-six years after Batson,” the court wrote, “a growing body of evidence shows that racial discrimination remains rampant in jury selection.” The court cited EJI’s report in concluding that “peremptory challenges have become a cloak for race discrimination.”
Washington’s appellate courts have never reversed a conviction based on Batsondespite 42 cases raising a Batson claim. In 28 of those cases, the prosecution removed every prospective juror of the same race as the defendant, and in only six cases were any minority jurors permitted to serve. This “shocking” evidence shows, the state’s supreme court found, that Batson has made it “very difficult for defendants to prove discrimination even where it almost certainly exists.”
Because “Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional, or unconscious,” the court “conclude[d] that our Batsonprocedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”
The court suggested that replacing the “purposeful discrimination” requirement with one that “alerts trial courts to the problem of unconscious bias, without ambiguity or confusion” and changes the legal standard to make it easier to sustain a Batsonchallenge. “A new framework should give trial courts the necessary latitude to weed out unconscious bias where it exists, without fear of reversal and without the need to level harsh accusations against attorneys or parties.”
The court stopped short of adopting a rule that would strengthen Batson procedures because neither party in the case had asked for a new rule. “It must wait for another day to determine how to adapt Batson to the realities of continuing race discrimination and fulfill the promise of equal protection.”