By Dr. Ken Broda-Bahm:
America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before the Washington State Supreme Court (City of Seattle v. Erickson), two judges joined in calling for "the complete abolishment of peremptory challenges" as the only sure-fire way to eliminate the constitutional problem of jurors struck due to their race.
But perhaps it isn't necessary to throw that peremptories baby out with the racial-strike bathwater. A recent paper proposes one alternative that has worked in other contexts: open records that, the authors hope, will lead to a little more disinfecting sunshine on the exercise of strikes. In the article (Wright, Chavis, Parks, 2017), Ronald Wright, Kami Chavis and Gregory Scott Parks of Wake Forest University School of Law write on their newly-formed "Jury Sunshine Project," which started at the state level, assembling records from more than 100 North Carolina courthouses on 1,306 felony trials involving approximately 30,000 removed jurors in 2011. Prosecutors in the state, they found, removed nonwhite jurors about twice as often as white jurors, and defense attorneys excluded white jurors more than twice as often as nonwhite jurors. It varied widely by city as well, with prosecutors in Charlotte, Winston-Salem, and Durham accepting significantly fewer nonwhite jurors than prosecutors in the rest of the state. In this post, I will write a bit on the project and what it potentially offers as a way to retain peremptory strikes while addressing their abuses.