BILL NUMBER: S282

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to repeal section 270.25 of the criminal procedure law relating
to peremptory challenges of jurors

 
PURPOSE OR GENERAL IDEA OF BILL:

Relates to abolishing peremptory challenges of jurors in criminal cases.

 
SUMMARY OF PROVISIONS:

Section 1 repeals section 270.25 of the criminal procedure law.

Section 2 states the effective date.

 
JUSTIFICATION:

In 1986, the Supreme Court of the United States found in Batson v.
              

Kentucky that racial discrimination in the selection of jurors both
deprives the accused of important constitutional rights during a trial
and is devastating to the community at large as it "undermines public
confidence in the fairness of our system of justice."

Batson was specifically addressing the discriminatory use of peremptory
challenges in criminal cases. Unlike challenges for cause, which allows
for the disqualification of a potential juror for an explicitly stated
reason, peremptory challenges allow for striking a potential juror with-
out cause or reason. As was affirmed in Baston, these challenges are
often intentionally or unintentionally discriminatory in nature, as the
ability to strike jurors without cause opens the door for that decision
to be based on conscious or unconscious bias. Theoretical and empirical
evidence across disciplines such as psychology, sociology, criminology,
and law agree, having concluded that peremptory challenges, by their
very nature, are fertile ground for the influence of bias on jury
selection.

Archival and experimental studies have illuminated the extent of the
role of bias in the use of peremptory challenges. Often, this practice
further disenfranchises those who have historically been disproportion-
ately harmed by the criminal justice system, namely young black men.
Furthermore, attorneys are unlikely to cite bias (racial or otherwise)
when asked to justify the use of a peremptory, regardless of its actual
influence on their decision. Research has also indicated that contrary
to their supposed goal, peremptory challenges do not lead to more impar-
tial juries. In fact, legal rulings and empirical data suggest that
diverse jury compositions reduce bias and encourage more thorough jury
deliberations.  Additionally, homogenous juries that are not represen-
tative of their communities tend to elicit skepticism rather than confi-
dence in the system.

The decision in Batson V. Kentucky led to the creation of the three-step
Batson challenge, which requires an accusation of unlawful discrimi-
nation in a peremptory challenge to be met with a neutral (unbiased)
explanation by the accused. However, beyond this requirement of neutral-
ity, there are no criteria for evaluating explanations for peremptory
challenges. In Purkett v. Elem, the court went so far as to state that
the explanations do not need to be "persuasive or even plausible." Thus,
despite this supposed remedy, examinations of jury selection proceedings
have shown that when either the prosecution and defense are challenged
on Batson grounds, a vast majority of neutral justifications are
accepted by judges as legitimate. It is unsurprising, then, that
research has shown that the current safeguards against such bias and
discrimination are untenable: Even when attorneys are aware of the
impact of bias, they are unlikely to admit it, and even when judges
scrutinize peremptory justifications for evidence of discrimination,
they are unlikely to find it.

Concern about discrimination in jury selection dates as far back as the
1870s, when the Supreme Court of the United States ruled that excluding
individuals from serving on a jury due to their race is a violation of a
defendant's Equal Protection rights. However, bias in jury selection is
still a concern today. In 2019, the Supreme Court of the United States
held that Curtis Flowers' sixth murder trial was plagued by a discrimi-
natory peremptory strike of a Black prospective juror. Mr. Flowers'
previous five murder trials were overturned for the same reason.

New York State is not immune to these issues. In 2020 alone, NYS appel-
late courts heard at least 17 cases related to peremptory challenges and
Batson. One of these cases, People v. Morant, overturned two convic-
tions-one for murder and one for shooting a police officer-after case
files were discovered indicating that a former Queens DA used notes to
determine which potential jurors to strike with peremptory challenges.
This cheat sheet included notes to "Get white jurors that are like the
Witnesses" and "established whites," but "no Jews" and "no Hispanics."
When asked, the DA fully admitted to using these notes during jury
selection proceedings.

History, science, and data have all clearly shown that peremptory chal-
lenges invite bias and discrimination to further permeate the criminal
justice system. To quote Justice Thurgood Marshall in his concurrence in
Batson, "only by banning peremptories entirely can such discrimination
be ended."

 
PRIOR LEGISLATIVE HISTORY:

2022: S6066 - Referred to Codes

2021: S6066 - Committed to Rules

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.