Eating the criminal justice reform elephant

District Attorneys recently have been voted out in liberal and conservative California counties - Chesa Boudin (D) in San Francisco and Tori Verber Salazar (R) in San Joaquin County. Verber Salazar did little to be progressive aside from claiming to be so. She publicly opposed the death penalty but took no action to remedy capital case injustices, thereby aggravating voters on both sides. Boudin, by contrast, went all in. Voters believed that his new bail and charging policies led to unacceptable spikes in crime. Goodbye Chesa. Now, voters may attempt to recall Los Angeles County District Attorney George Gascón (D) for purported reformative justice policies.

Criminal justice change is not necessarily reform. Reform infers improvement. District Attorneys may be best to approach reform with a shovel, not a bulldozer. Start with a policy that prohibits peremptory challenges on jurors. That will end claims of racism in jury selection, both founded and unfounded. There is no downside to either event.

In 1986, the U.S. Supreme Court outlawed the use of peremptory juror challenges based upon race. Batson v Kentucky, 476 U.S. 79, 85 (1986). Simple enough. Citizens of all races should be entitled to sit on a jury and participate in our criminal justice system, and defendants should be entitled to a jury of their peers without regard to race. That is bipartisanly American - an inclusive, equitable, fair system of due process.

Since Batson, fifty-eight California counties have conducted on average 6,000 felony trials a year for thirty-six years, i.e., ~216,000 trials. That likely would involve 6.5 million potential California jurors, of which perhaps ~450,000 were African American. Despite these sizeable statistical samples, only once since 1986 has the California Supreme Court found a peremptory strike of an African American juror to be presumptively race-based. People v. Miles, 464 P.3d 611, 687 (Cal. 2020) (Liu, J., dissenting). The last and only California Supreme Court Batson reversal regarding an African American prospective juror occurred just months after Batson was published, ironically referencing Batson as a "landmark decision." People v. Turner, 726 P.2d 102 (Cal. 1986). Are we to believe that California eliminated criminal justice racism directed at blacks over 35 years ago? Californians can be quite a proud lot, but things aren't that rosy.

Simply stated, California ignores Batson. We routinely permit the State to eliminate all blacks during jury selection. See, e.g., Walker v. Davis, 822 Fed. Appx. 549 (9th Cir. 2020) (3/3 blacks struck); Miles, 464 P.3d at 629 (3/3 blacks struck); People v. Rhoades, 453 P.3d 89 (Cal. 2019) (4/4 blacks struck); People v. O'Malley, 365 P.3d 790 (Cal. 2016) (2/2 blacks struck); Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009) (2/2 blacks struck); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (6/6 blacks struck); Johnson v. California, 545 U.S. 162 (2005) (3/3 blacks struck).

For nineteen years after Batson, California failed to even apply the Batson standard properly. Johnson v. California, 545 U.S. 162 (2005). In the 14 years after Johnson, the California Supreme Court "reviewed the merits of a first-stage Batson denial in 42 cases, all death penalty appeals (citation omitted). Not once did th[e] court find a prima facie case of discrimination - even though all 42 cases were tried before Johnson [] disapproved the 'strong likelihood' standard and held that 'an inference of discrimination' is enough." People v. Rhoades, 453 P.3d 89, 146 (Cal. 2019) (Liu, J., dissenting).

If you think this record reflects that California's jury selection practices are simply that good, you're incorrect. Batson violations regularly are confirmed by federal courts after they are ignored by the California courts. See, e.g., Ervin v. Davis, 12 F.4th 1102 (9th Cir. 2021); Walker v. Davis, 822 Fed. Appx. 549 (9th Cir. 2020); Mayfield v. Broomfield, No. 97-03742 (C.D. Cal. June 26, 2020) (Olguin, J.) (no appeal); Currie v. McDowell, 825 F.3d 603 (9th Cir. 2016); Shirley v. Yates, 807 F.3d 1090 (9th Cir. 2015); Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008); Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en banc); Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006); Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004); Lewis v. Lewis, 321 F.3d 824 (9th Cir. 2003).

There is no need to go crazy on fresh concepts of criminal justice reform because there is plenty of low hanging Batson fruit already. We're 36 years post-Batson yet behave as if it's 1985. Recently enacted California legislation (AB 3070) attempts to remedy the matter, but ultimately, the hyper-politicized judiciary will maintain the status quo.

Here is a progressive idea for District Attorneys in favor of reform - adopt a policy to forgo the use of preemptory challenges altogether. There is nothing to be afraid of if the State's evidence warrants the prosecution.