Racial bias plagues our criminal justice system, including the way some prosecutors select a jury. All too often, people of color are unlawfully excluded from juries by prosecutors. Last week, the Arizona Supreme Court issued its opinion in State v. Urrea, a case that addresses the actions that judges can take to right the wrong of a prosecutor improperly excluding one or more potential jurors because of their race.
The ACLU of Arizona, along with Arizona Attorneys for Criminal Justice, filed a friend of the court brief in the case. We argued that the two fixes the U.S. Supreme Court identified in its seminal case on the issue, Batson v. Kentucky, are not the only remedies that judges can impose when they discover improper racial bias.
In Batson, the U.S. Supreme Court described two potential remedies following a finding of discriminatory jury selection: trial judges can declare a mistrial or reinstate the wrongfully excluded people into the jury pool. The U.S. Supreme Court did not say that those were the only things a trial judge could do to fix the problem, though.
Fortunately, the Arizona Supreme Court agreed with our argument that trial courts should impose contextual remedies, which an appeals court can only overturn if the trial court judge abused their discretion. It is now clear that Arizona courts may impose remedies other than those discussed in Batson, including taking away a prosecutor’s ability to strike jurors without justification.
This is good progress. We hope that in a future case the Arizona Supreme Court will address our argument that the Arizona Constitution provides even more protection against racial bias in jury selection.