The False Promise of Peña-Rodriguez

52 Pages Posted: 22 Mar 2021 Last revised: 4 Jan 2022

See all articles by Daniel Harawa

Daniel Harawa

New York University School of Law

Date Written: February 16, 2021


In Peña-Rodriguez v. Colorado, the Supreme Court recognized that racial bias influencing jury deliberations violates the Sixth Amendment’s impartial jury guarantee and is incompatible with the Fourteenth Amendment’s anti-discrimination principles. The Court therefore created a racial bias exception to the centuries-old no-impeachment rule, claiming the decision reflected “progress” in the effort to overcome race-based discrimination in the jury system.

This Article asserts that Peña-Rodriguez is full of false promise—that under the standard it sets, only the most egregious examples of juror racial bias will even be considered by a court. Subsequent cases reveal that, rather than protecting against racial bias, Peña- Rodriguez’s standard insulates most forms of racism from review. As society reckons with the ways in which race invidiously infects the criminal legal system, Peña-Rodriguez falls far short of its professed goal of eliminating bias from the jury box. Therefore, courts and jurisdictions committed to racial justice must consider other interventions.

Keywords: criminal law, criminal procedure, race and the law

Suggested Citation

Harawa, Daniel, The False Promise of Peña-Rodriguez (February 16, 2021). 109 California Law Review 2121 (2021), Available at SSRN:

Daniel Harawa (Contact Author)

New York University School of Law ( email )

United States

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