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Arizona launches a bold new experiment to limit racist convictions

The state embraces a reform proposed by Justice Thurgood Marshall more than three decades ago.

Supreme Court Justice Thurgood Marshall
Thirty-five years ago, Justice Thurgood Marshall proposed eliminating a practice known as “peremptory strikes” in jury selection. Now Arizona will follow his lead.
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Arizona’s conservative state Supreme Court took a surprising step last week that could lead to juries in that state being more racially diverse, and thus less likely to treat racial minorities more harshly.

It announced that it will eliminate “peremptory challenges” in Arizona — a practice that allows trial lawyers to remove jurors from a case, often for arbitrary or ill-defined reasons.

Although criminal justice reformers, including some who sit on the Supreme Court of the United States, have warned for decades that peremptory challenges are often used to exclude jurors because of their race, the practice remains widespread in the United States. Arizona will be the first state to eliminate peremptory challenges entirely; the state’s new rules will take effect in January.

People of color are less likely to serve on juries for a wide range of reasons — racial minorities are less likely than white people, for example, to appear on voter registration lists and vehicle registration lists, which many jurisdictions use to develop a pool of potential jurors. But multiple studies suggest that peremptory strikes play a major role in producing juries that are whiter than the population as a whole.

Typically, in both criminal and civil jury trials, a court will assemble a panel of potential jurors that is much larger than the actual number of jurors needed to hear the case. Though the rules vary from state to state (and the federal system has its own set of rules), lawyers on both sides of a case may ask the judge to remove a juror “for cause” if there is reason to doubt that juror’s impartiality. (A prosecutor, for example, may wish to exclude a juror who is related to the defendant.)

Peremptory challenges, meanwhile, allow lawyers to strike jurors even if they are unable to convince the judge to do so for cause. Typically, a lawyer who uses a peremptory challenge to remove a juror does not have to explain why they decided to do so, and is allowed to remove a juror for arbitrary reasons. A lawyer may, for example, use a peremptory challenge to remove a juror because they do not like the juror’s haircut.

The number of peremptory challenges available to lawyers varies depending on the type of case and which court is hearing the case. In most federal felony trials, for example, the prosecution may strike up to six jurors, while the defense may strike 10.

There are a few constitutional limits on peremptory strikes. Most notably, in Batson v. Kentucky (1986), the Court held that lawyers may not remove a juror because of that juror’s race, and it laid out a three-part test that judges should use to sniff out whether a particular juror was removed for racist reasons.

In practice, however, Batson is difficult for judges to apply, and it rarely leads to convictions being tossed out because a juror was struck for racist reasons — even though data suggests that racial jury discrimination is quite widespread. As a pair of Arizona judges explained in a petition asking the state supreme court to abolish peremptory challenges, “decades of litigation over Batson challenges have consumed countless hours of attorney time and judicial resources. Yet in Arizona, only five cases have been reversed over a Batson challenge.”

The stakes are very high if racial minorities are less likely to serve on a jury than white Americans. A 2012 study of felony trials in Florida, for example, found that Black defendants are 16 percent more likely to be convicted than white defendants when no Black person serves on the jury. This gap disappears if the jury has a single Black member.

The upshot of the Arizona Supreme Court’s new rules is that racial discrimination through peremptory strikes will cease to exist in Arizona because peremptory strikes will themselves cease to exist. But the new rules were also criticized by prosecutors and at least some defense lawyers because they will take away a tool that can potentially be used to screen out biased jurors.

Ultimately, the state supreme court appears to have decided that the benefits of eliminating peremptory challenges, including the benefit of eliminating a frequent vehicle for race discrimination, outweigh the risk of having some bad jurors remain on juries.

The case against peremptory challenges

Peremptory challenges have a long pedigree that predates the United States. Yet while the practice existed in English courts for many centuries, English prosecutors were stripped of their ability to exercise peremptory strikes as far back as 1305.

It was, instead, a protection afforded to defendants. As William Blackstone, a famous chronicler of English law, wrote in 1769, criminal defendants retained an “arbitrary and capricious species of challenge to a certain number of jurors” out of respect for the principle of “in favorem vitae,a Latin phrase meaning “in favor of life.” The idea was that, if the life or liberty of a criminal defendant could be placed in the hands of a jury, the defendant should have some ability to exclude jurors who might be biased against them.

American courts, however, largely have not followed the centuries-old English practice of only giving peremptory strikes to defense counsel. Typically, federal and state courts within the United States permit prosecutors and defense lawyers to exercise some peremptory challenges — although some jurisdictions do give extra challenges to the defense.

Indeed, peremptory strikes are so widely used by prosecutors and defense attorneys that, when assembling a pool of potential jurors, courts typically summon far more potential jurors to serve jury duty than they actually need — because the courts assume that many of these potential jurors will either be removed for cause or removed by a peremptory challenge.

Batson recognized that peremptory strikes may be used to remove jurors for unconstitutional reasons. “Purposeful racial discrimination in selection of [potential jurors] violates a defendant’s right to equal protection,” Justice Lewis Powell wrote for the Court in Batson. It also violates the rights of the jurors themselves, who should have an equal opportunity to decide the fate of their peers, regardless of their race.

Yet, while racially motivated peremptory strikes are unconstitutional in theory under Batson, Justice Powell’s decision also made it very difficult for courts to sniff out discrimination.

Under Batson, if the defendant raises a credible claim that a juror was excluded because of the juror’s race, the prosecution must “come forward with a neutral explanation” for why it decided to exclude a particular juror. At that point, it’s up to the judge to determine whom to believe.

One problem with this system is that there are all kinds of lawful reasons a prosecutor may wish to strike a juror who happens to be a person of color. The prosecutor may legitimately believe that the juror expressed a bias against police, for example. Or they may simply feel that the juror seemed inattentive during the juror screening process. The Constitution forbids excluding a juror because the juror is of a particular race, but it doesn’t forbid a prosecutor from striking a juror for being inattentive or a skeptic of police, even if that juror is also a person of color.

Peremptory strikes may be used to remove a juror for completely arbitrary reasons. In Purkett v. Elem (1995), for example, the Supreme Court permitted a prosecutor to strike two Black jurors because the prosecutor disapproved of one juror’s “long hair” and thought that both jurors’ “mustaches and the beards look suspicious to me.”

Judges are not mind readers. So, when faced with a prosecutor’s race-neutral explanation for why they struck a particular juror, a judge will often have no way to determine that the prosecution’s real motive was racism.

Many prosecutors are even trained on how to devise pretextual reasons to exclude jurors. In 2004, Texas prosecutors were advised to tell judges that they excluded jurors not because of a particular juror’s race, but because the juror “agreed with O. J. Simpson verdict” or “watched gospel TV programs.”

Data suggest that racial jury discrimination is widespread, even after Batson. The Arizona Supreme Court decided to eliminate peremptory challenges after two of the state’s appellate judges petitioned them to do so. That petition, co-authored by Judges Peter B. Swann and Paul J. McMurdie, cites several studies suggesting that people of color are unusually likely to be excluded from juries.

A study of capital cases in North Carolina, for example, found that prosecutors “were responsible for eliminating 12% of whites who went through the [jury selection] process without being removed [for cause], and 35% of blacks who did so,” while “the defense’s strikes eliminated 35% of whites who were not removed [for cause], and 3% of blacks.”

A study in Mississippi found that “Black venire members are 4.51 times as likely to be excluded from a jury due to peremptory challenges from the prosecution in comparison to White venire members.” And federal data shows that “in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.” Meanwhile, “black jurors were underrepresented by 16%, Native American jurors were underrepresented by 51% and Hispanic jurors were underrepresented by 21%.”

Courts, moreover, have been aware of similar data for at least the past several decades. In Batson, which was decided in 1986, Justice Thurgood Marshall wrote a concurring opinion arguing that the goal of ending race discrimination in jury selection “can be accomplished only by eliminating peremptory challenges entirely.”

Marshall cited a raft of studies arguing that race discrimination in the use of peremptory strikes was pervasive, including a study of prosecutions in Dallas that found that “the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white.”

Thirty-five years after Batson, it appears that Marshall was correct that Justice Powell’s decision did not go far enough, if the goal was to prevent race discrimination in jury selection. The disparities Marshall warned about in Batson remain widespread.

Arizona’s new rules do add some uncertainty to criminal trials

The primary argument for retaining peremptory challenges is that eliminating them will prevent trial attorneys from removing jurors who they correctly believe might be biased, even if the juror doesn’t do anything suspicious enough to justify removing them for cause.

Several prosecutors criticized the Arizona Supreme Court’s move, arguing that, in the words of Maricopa County prosecutor Kenneth Vick, “expecting a prospective juror to candidly admit that they cannot be fair is not realistic.” Trial lawyers often pay close attention to a potential juror’s body language or other subtle signals when determining whether to exercise a peremptory strike, rather than relying solely on how the juror responds to lawyers’ questions.

Scott Greenfield, a criminal defense lawyer in New York, offered a similar criticism of the new Arizona rules on his personal blog. Greenfield warned of a situation where a criminal defense attorney spots “a glint of hatred as [a potential juror] stares at the defendant,” but the lawyer is unable to remove that juror because they can no longer exercise peremptory strikes.

There are two reasons, however, to be hopeful that Arizona’s experiment with eliminating peremptory challenges will not lead to systemic injustices against a defendant. One is the Supreme Court’s recent decision in Ramos v. Louisiana (2020), which held that “the Sixth Amendment’s right to a jury trial requires a unanimous verdict.”

That’s not a perfect safeguard against biased jurors — as Greenfield argues, there is a risk that the “juror with the killer eyes” will convince a juror who is inclined to vote for acquittal to flip their vote. But the requirement that convictions must be unanimous does diminish the ability of a biased juror to sway a verdict toward conviction.

The other reason to be optimistic that Arizona’s new rules might succeed is that, while they are novel within the United States, they are in line with the rules in other democracies. Great Britain, for example, eliminated peremptory challenges in 1988, and Canada did so in 2019.

Realistically, we cannot know what the full impact of Arizona’s new rules will be until the rules have been in place for some time. But, at the very least, Arizona’s experiment could teach us whether Justice Marshall was right when he warned that we cannot abolish discrimination in jury selection until we get rid of peremptory challenges.