Report of the Willamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon

Abstract

Given recent events, the country has begun to recognize the impact of implicit bias on the criminal justice system. Washington and California, for instance, have made progress in creating broader opportunities and diversification within the jury selection system. Oregon, however, has yet to revise its rules for jury selection. This Report examines the connection between implicit bias and the nature and use of peremptory challenges in Oregon’s jury selection process. Accordingly, this Report argues that Oregon must implement a rule that strengthens—or even eliminates the need for—Batson’s rule and limits the impact of bias in our judicial system. In doing so, the Report proposes two solutions to reduce the impact of implicit bias on Oregon's jury selection process. This Report’s first recommendation is to abolish peremptory challenges in criminal proceedings. This would require repealing and replacing Or. Rev. Stat. § 136.230, which authorizes peremptory challenges in criminal prosecutions. The Task Force finds that persistent and ongoing racially motivated constitutional violations will continue unless the peremptory challenge is eliminated. This proposal tracks with the recommendation of U.S. Supreme Court Chief Justice Thurgood Marshall, U.S. Supreme Court Justice Stephen Breyer, and a growing body of scholars. It also follows the lead of England, which abolished the peremptory challenge, through the Criminal Justice Act of 1988, due to its propensity for discriminatory use. For similar reasons, Canada eliminated peremptory challenges in 2019 due to their propensity to exclude minority jury panelists. Batson challenges allow attorneys to articulate supposed reasons for “gut-reactions” and are widely acknowledged to serve as a poor mechanism for dealing with the documented implicit bias that exists within the criminal justice system. As Chief Justice Marshall once said, “Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels—a challenge I doubt all of them can meet.” Faced with a better understanding of implicit bias, Oregon has the opportunity to reduce the impact of implicit bias in its courts by abolishing the use of peremptory strikes. Alternatively, this Report recommends that Oregon implement a rule that combines aspects of both Washington’s GR-37 and California’s Assembly Bill No. 3070 (“AB 3070”). Such a rule would strengthen Batson challenges, as well as expand the classes of persons protected against discrimination. The hybrid Oregon rule would adopt GR 37(h), which lists presumptively invalid reasons for peremptory challenges that have historically been associated with improper discrimination in jury selection. It would also adopt AB 3070(d)(3), which provides a non-exhaustive list of circumstances a court may consider when ruling on an objection to a peremptory challenge. Such a rule would address some of the problems associated with implicit bias in Oregon’s juror selection process and, in doing so, better ensure that Oregon’s defendants receive a fair trial. At its core, this Report demonstrates that the deficiencies of Batson must be remedied in an effective manner, whether by the elimination of the peremptory challenge or the formulation of a new Oregon rule.