The Colorado Supreme Court has unanimously rejected a proposal that would fix a decades-old legal standard that has made it easy for attorneys to exclude people of color, especially African Americans, from serving on juries, reports the Colorado Sun. The proposal would have tackled the issues of implicit or unconscious bias by allowing objections to peremptory challenges of jury members if race or ethnicity could be seen as a factor in use of the peremptory strike, rendering invalid many of the reasons that have been historically used to excuse jurors of color from service, and aiming to increase the number of people of color serving on juries. The 1986 U.S. Supreme Court decision Batson vs. Kentucky sets the standard used by courts today for determining whether a party’s challenge of a juror is discriminatory, but critics say it’s easy to get around and challenges are rarely successful.
According to a 2010 study by the Equal Justice Initiative, a nonprofit based in Alabama, attorneys rely on commonly cited reasons such as a juror’s inattentiveness or “low intelligence” to living in a high-crime neighborhood to dismiss Black jurors. Because the standard doesn’t address implicit or unconscious bias — discrimination that isn’t explicit or necessarily intentional — judges can be reluctant to challenge attorneys on their reasoning. The proposal in Colorado would have: dropped the requirement that courts find purposeful discrimination to deny a peremptory challenge, changed the legal standard to whether an “objective observer,” or a person who is aware of implicit bias, “could view race or ethnicity as a factor” in challenging a juror, and established reasons to excuse a juror that are considered to be “presumptively invalid,” such as a distrust of law enforcement, receiving government benefits or not being a native English speaker.