The New York State Justice Task Force released recommendations last week aimed at reducing illegal racial discrimination in jury selection.
Chaired by retired Court of Appeals Associate Judge Carmen Beauchamp Ciparick and Deborah Kaplan, the duty chief administrative judge for New York City courts, the panel was tasked by Chief Judge Janet DiFiore to take a comprehensive look at racial disparities in the criminal legal system.
The result, the chief judge said, is a “package of reforms to help prevent discriminatory jury selection and foster a jury system that genuinely reflects the rich diversity of all communities throughout the state.”
Race-based discrimination in jury selection was outlawed nearly 150 years ago. But because those who perpetrate or tolerate racial bias—including trial and appellate courts, defense lawyers, lawmakers, and prosecutors—are not held accountable for illegal racial discrimination in jury selection, the longstanding problem persists today.
In Race and the Jury, EJI identified the many steps in the jury selection process where Black people and other people of color are excluded from jury service:
- when the court system creates lists of potential jurors,
- when potential jurors are notified to come to court,
- when judges decide which potential jurors are qualified to serve, and
- when prosecutors use peremptory strikes to remove potential jurors.
The task force focused on the use of a peremptory strike to exclude a potential juror based on race—a practice the U.S. Supreme Court struck down as unconstitutional in Batson v. Kentucky.
The Batson decision set out a three-step process for enforcing this constitutional rule, but as Chief Judge DiFiore said in her statewide address, it “has not worked well to prevent peremptory challenges that reflect a different form of discrimination—one based on ‘implicit bias’ or ‘unconscious racism.'”
To address this failing, the task force unanimously recommended changing how courts determine whether a peremptory strike illegally discriminates on the basis of race. The recommended standard requires judges to evaluate:
Whether, in the view of a reasonable person, the race of a juror was a factor in the exercise of the peremptory challenge. If the court determines that the answer is yes, then the peremptory challenge shall be denied.
This standard also would apply to strikes based on a juror’s “color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation.”
The task force also examined other steps in the jury selection process where racial discrimination prevents Black people and other people of color from participating in jury service.
It found that, even though New York pulls the names of prospective jurors from more source lists than most states and uses a standardized system regulated by statute to issue summons for jury duty, the demographics of the people who actually come to court in response to a summons “do not mirror the racial makeup of the county populations.”
For example, although 46% of the New York County’s population identify as white, the report found that 60% of those who appear for jury service identify as white.
Finding that the difficulty of obtaining transportation to the courthouse and the cost of childcare while serving as a juror are barriers for economically disadvantaged prospective jurors, the task force recommended that the legislature consider increasing juror pay.
The report also recommended that the state expand the pool of citizens eligible for jury service by allowing citizens convicted of a felony who are no longer incarcerated to serve on a jury.
The New Jersey Supreme Court adopted similar changes this week aimed at “enhancing fairness” in the jury selection process. New Jersey courts will now rely on state labor records, rather than voter registration information, to generate jury lists. The state’s juror qualification questionnaires will now include questions about potential jurors’ gender and ethnicity, and judges and court staff will be required to complete implicit bias training.
The state launched its Committee of the Judicial Conference on Jury Selection last Summer, after a unanimous Supreme Court decision in State v. Andujar found that a man named Edwin Andujar’s trial had been undermined by racial bias in the jury selection process. Since then, the committee has worked to “examine New Jersey’s jury selection processes and recommend improvements designed to broaden participation and representativeness and reduce the effects of purposeful discrimination and all types of bias.”
Along with the changes already adopted, the New Jersey Supreme Court has recommended that lawmakers pass legislation that would allow people convicted of certain crimes to serve on juries and would increase the overall compensation that jurors receive.