In December, the Connecticut Supreme Court extensively quoted FIU Law Dean Antony Page’s article, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory Challenge, in their opinion for the case State v. Holmes.
Calling it a “leading article on implicit bias” and a “landmark article,” the article was central to the court's decision to form a Jury Selection Task Force to propose meaningful changes to jury selection.
Peremptory challenges, or strikes, are tools used during the jury selection process to reject a potential juror without stating a cause or explanation. However, in 1986, the Supreme Court ruled in the case Batson v. Kentucky that peremptory challenges could not be used to strike jurors because of their race. Doing so would violate the 14th Amendment’s Equal Protection Clause, which reads that “nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws.”
Subsequent cases extended Batson to ethnicity and sex.
The case gave rise to the term “Batson challenge,” an objection to a peremptory challenge on the grounds that it was used to reject a juror based on race, ethnicity or sex. For a Batson challenge to be successful, the court has to find evidence that the peremptory challenge had been made with intentional racial discrimination. If the attorney who made the peremptory strike offers a believable race-neutral explanation for why he or she rejected the potential jury, the Batson challenge will fail.
As Dean Page explained in his article, the Batson challenge procedure ultimately flounders in its goal to eliminate racial and gender discrimination in large part because it does not account for the effects of implicit bias.
Implicit bias differs from deliberate racism. All cultures emphasize certain associations, and those associations become part of an individual’s unconsciousness through repeated exposure.Why is this a problem?
According to Page, “race- and gender-based stereotypes almost inevitably affect people’s judgment and decision-making, even if people do not consciously allow these stereotypes to affect their judgment.”
For example, prosecutors can reject jurors because they believe police engage in racial profiling, because they live in a high-crime neighborhood, or because they are not a native English speaker. These are all race-neutral explanations on their face, but are also reasons that have historically been associated with racial bias or are more likely to be held by certain minorities.
Page first became interested in the concept of implicit bias after doing pro bono work on a death penalty case. He felt the decision-making had been questionable and began researching decision-making in general, including in the context of peremptory challenges.
Page dual-majored in psychology as an undergrad, so he had some familiarity with the concept of implicit bias.
“Today, the notion of implicit bias has become broadly accepted,” he says. While there is still some dispute as to how much real-world impact implicit bias has, most people now agree that it exists.
Connecticut is not the first to try and reform jury selection. In 2018, Washington became the first state whose court adopted a court rule designed to eliminate implicit as well as intentional racial bias. Challenges based on “implicit, institutional and unconscious” race and ethnic biases will now be rejected.
Page thinks these reviews are a good idea. “All states should be addressing the problems in jury selection,” he says.
“We’ll never get to perfect, but we can certainly get to better. Juries should be selected as fairly as humanly possible.”