AB 3070 will help our legal system meaningfully address racial bias

One hundred forty-four years ago, Ulysses S. Grant signed into law the Civil Rights Act of 1875, prohibiting African-Americans from being excluded from jury service. And, sure as night follows day (well, about 37,000 days), the California Supreme Court held, in People v. Wheeler, 22 Cal. 3d 258 (1978), that attorneys in criminal trials are forbidden from striking potential jurors based on race, ethnicity or religion. And, a mere decade after that, the U.S. Supreme Court followed our lead, holding, in the landmark case of Batson v. Kentucky, 476 U.S. 79 (1986), that striking jurors based on "group bias" violates equal protection. And that was the end of systemic racial bias in juries.

At least according to some. But according to the facts, the practice of excluding people of color from juries is alive and well, despite Batson/Wheeler having been the law of the land for lo these 42 years. Several scholarly studies confirm this fact. Most recently, the Berkeley Law Death Penalty Clinic conducted a painstaking study of racial bias in California jury selection. The study examined nearly 700 California cases from 2006-2018 involving objections to prosecutors' peremptory challenges. The results were abysmal. It found that in those cases, prosecutors excluded an astounding 72% of black Americans and 28% of Latinx Americans, as compared to less than 3.5% of Asian-Americans and 0.5% of white Americans.

A group known as the Alliance of California Judges, 700 strong, recently acknowledged this injustice, citing the "shameful role that discrimination has played in our justice system, particularly in jury selection." More on that in a moment.

The director of the Berkeley Law Death Penalty Clinic and past-president of California Attorneys for Criminal Justice, Elisabeth Semel, drafted a law designed to finally give teeth to Batson in light of the findings. Passing in the Assembly last week, Assembly Bill 3070, proposed by Assemblywoman Shirley Weber, D-San Diego, bars the use of peremptory challenges to remove potential jurors based on race, ethnicity or gender. Hardly controversial, right?

Wrong. Despite undeniable evidence of racial bias in the criminal justice system, some groups oppose the legislation, including the aforementioned Alliance for California Judges. On May 22, the Alliance, led by Sacramento County Superior Court Judge Steve White, sent an email to the bill's author challenging the "assumption that the current system is ineffective."

The Alliance of California Judges argues that they can fight racial injustice with the tools they already have. And they should be experts; they've had those tools for 144 years.

It's called implicit bias for a reason. Our brains work this way as we navigate through every aspect of our lives. So all of us who were born and raised within this racist, sexist culture are affected by such bias. And, especially if we have, by virtue of our race, ethnicity or gender, been arbitrarily benefited by it, we are largely unaware of its influence, even on ourselves. Good people at every level are affected. Lawyers, police officers, prosecutors, judges and jurors are impacted by it, and if left unchecked in the context of criminal trials, these subconscious biases result in miscarriages of justice when the stakes are highest. Opposition to AB 3070 rings of a desperate clinging to a shameful past in the dawn of a new enlightenment.

If our legal system is to be preserved, the problem of racial bias must be meaningfully addressed. Because the underrepresentation of people of color from juries does more than undermine faith in the justice system; it offends the very idea of justice itself. 