Threat to Juries Hidden in the California Budget

California Gov. Jerry Brown wants to whittle down a pillar of our legal system - the right to an unbiased jury.

The governor unveiled his budget last month, and with it, a plan to slash the number of peremptory challenges in misdemeanor trials from 10 to six. Peremptory challenges allow attorneys to excuse jurors without offering an explanation. They are also our best tool to weed out racism in the jury box. That's because they allow us to excuse potential jurors we suspect, but cannot prove, are harboring prejudice.

The governor argues that cutting peremptory challenges will save money and boost courtroom efficiency, though there are no studies to support his claim. Both prosecutors and defense attorneys know it's a bad gamble that comes at the expense of racial equality and due process. That's why both groups opposed the twice-failed measure in the state Legislature.

Participating in a jury is a fundamental civil right. Yet most juries are made up of white, middle class citizens. Hobbling our ability to shape diverse, unbiased juries will disproportionately hurt African American and Latino defendants, who are already over represented in our nation's prisons. At a time when the nation is focused on addressing racism in our criminal justice system, this proposal is a step backward.

But don't take my word for it-the U.S. Supreme Court has repeatedly held that peremptory challenges are an essential means for ensuring fairness. The purpose of the challenges, the Court said, is "to assure the parties that the juror before whom they try the case will decide on basis of the evidence placed before them, and not otherwise."

Peremptory challenges not only ensure ethnic diversity, but diversity of opinion, reflecting the value of the community as a whole.

In Holland v. Illinois, Justice Scalia wrote that "peremptory challenges, by enabling each side to excuse those jurors it believes will be most partial toward the other side, are a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury."

Peremptory challenges have been vital to justice from the beginning of the system. They date back to Roman law, when both parties would propose 100 jurors and each side was allowed 50 challenges, leaving 100 jurors to try the case.

English common law allowed the prosecution unlimited peremptory challenges but limited the defense to 35. Peremptory challenges in the U.S. are grounded in the Sixth Amendment, which guarantees the right to a fair and impartial jury.

This is a constitutional right not only for those facing serious charges, but misdemeanors as well. After all, there is nothing "minor" about misdemeanor sentences, which can include up to a year in jail or, for sex offenses, a lifetime of registration.

Lawyers are forbidden from using peremptory challenges to eliminate jurors based on race or gender. However, they allow us to remove both the biased and the disinterested alike. That's critical, because jurors who simply do not want to serve, but have failed in their attempts to be excused by the judge, are less likely to pay attention to the evidence and arguments. Their verdicts are less well-considered, a fact that hurts everyone.

Not only does the governor's plan erode due process, it also makes little financial sense. Jury selection will take longer, because prosecutors and defense attorneys will be forced to establish cause for each dismissal. Potential jurors, many of them taking time off without pay, will undergo more detailed questioning from both prosecutors and defense attorneys.

Both prosecutors and defense attorneys-two groups who are rarely on the same side-have opposed this dangerous bargain before. The phony reform plan failed to pass the California Legislature in 2014 under SB 794. It failed again in 2015 as SB 213. In both cases, the author pulled the proposed legislation due to lack of support.

Now, the governor is hoping citizens won't notice this erosion of justice hidden in the pages of his proposed budget. Let him know that the right to a fair trial is at the heart of our criminal justice system, not the fat to be trimmed.

To tell the governor and other lawmakers, please visit sfpublicdefender.org/save-peremptory-challenges/

Jeff Adachi is the San Francisco Public Defender.

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