BILL NUMBER: S5574

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to prohibiting
peremptory challenges of prospective jurors based on race, color,
national origin, ancestry, gender, gender identity or expression, reli-
gion, religious practice, age, disability, or sexual orientation

 
PURPOSE OR GENERAL IDEA OF BILL:

To ensure that peremptory challenges of jurors are not based on unlawful
discrimination

 
SUMMARY OF PROVISIONS:

Section one of this bill amdends subdivision one of section 270.25 of
the Criminal Procedure Law to clarify that only lawful peremptory chal-
lenges shall result in a juror being excluded from service.

Section two of the bill creates a new subdivision four in section 270.25
              

of the Criminal Procedure Law to provide a standard which peremptory
challenges to jurors must adhere to in order to be sustained by a judge.

Section three sets 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.

The decision in Batson V. Kentucky led to the creation of the three-step
Batson challenge: first, the objecting party must establish a prima
facie case of racial or gender discrimination in the peremptory chal-
lenge, by establishing an inference of discrimination. Next, the burden
shifts to the party making the peremptory challenge to provide a
"neutral" explanation of their challenge. Thirdly, the court must decide
if such stated reasons are actually the truth or a pretext for purpose-
ful discrimination. If the peremptory challenge fails this test, it is
struck down.


Beyond this requirement of neutrality, however 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 safe-
guards 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.

This bill, recommended by an August 2022 report of the New York State
Justice Task Force, would follow the lead of other states such as Wash-
ington and California which have all recently put into place certain
safeguards to ensure that the protections of Batson are better enforced
during jury selection. It would create a "reasonable person" standard,
long recognized in other parts of statute and widely understood by both
courts and practitioners, to uphold peremptory challenges. Peremptory
challenges which, in the view of a reasonable person, were made as the
result of certain protected characteristics of the juror will be struck
down. The bill also expands the list of protected classes, which under
the federal Batson standard applies only to race and gender, to also
include color, national origin, ancestry, gender identity or expression,
religion, religious practice, age, disability, and sexual orientation.
This more expansive list would mirror that contained in New York Unified
Court System's directives on voir dire (the preliminary examination of a
potential juror by a counsel or judge), which emphasize that a fair
juror does not base a decision on the list of protected classes enumer-
ated above.

This bill addresses New York's peremptories problem, in which criminal
convictions are not infrequently overturned based on evidence that a
prosecutor used racial criteria to select a jury that they believed
would more likely return a conviction (see People v.  Morant for exam-
ple), head on. It represents a commonsense approach to ensure that the
protections of Batson, decades in place yet rarely enforced, are fully
upheld.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law and shall apply to all jury selections commenced
on or after such date.