Opinion: The practice of removing potential jurors without cause shows how racial bias works in the criminal justice system. Will other states follow Arizona’s lead and end it?
Arizona is taking a bold step toward reforming jury selection — specifically, how potential jurors may be removed from service for no given reason. Other states should take notice.
Citing clear evidence that lawyers continue to strike otherwise qualified jurors simply because of their race, the Arizona Supreme Court announced that come Jan. 1, 2022, the state will eliminate peremptory challenges in jury trials. It will be the first state to do so.
The use of peremptory challenges shows how racial bias works in the criminal justice system.
On the surface, there is nothing discriminatory about these challenges, which, historically, have permitted each side to strike a set number of prospective jurors without having to cite a reason at all.
Armed with peremptory challenges, lawyers play hunches about which jurors favor which side all the time. As a prosecutor, I struck social workers because I believed that their training made them favor treatment over incarceration.
What both sides believe about Black jurors
If I were a defense lawyer representing a client accused of drug possession, I’d feel uncomfortable keeping a narcotics agent on the jury, even if a judge accepted the agent’s word that he could be impartial. I might want to strike members of the National Rifle Association if I were prosecuting someone for violating a gun control law.
I might strike Catholics were I prosecuting a priest for blocking access to an abortion clinic during an illegal protest. I’d have hunches about taxicab drivers in negligence cases that turned on speeding.
But one of the hunches lawyers play most often has to do with race.
Prosecutors believe that Black jurors are pro-defense, anti-police, racially loyal in cases involving Black defendants, and routinely opposed to the death penalty. Defense counsel agree with these hunches and use peremptory challenges in mirror-image ways to strike whites.
But since most jury pools in the U.S. are predominantly white, prosecutors are more able to turn juries all-white than defense counsel can eliminate all or nearly all whites.
Black jurors still get struck, for other reasons
Striking jurors solely because of their race has been unconstitutional for prosecutors since 1986 and for defense counsel since 1992. As the Supreme Court put it, every citizen has an equal right to serve on juries, regardless of race. That core principle is violated whenever a litigant uses a peremptory challenge to eliminate a juror solely because of race.
For decades now, judges have tried to monitor peremptory challenges to prevent their use to racially profile jurors.
But, as the Arizona Supreme Court found, the misuses continue. For example, in 2019, in criminal trials in Maricopa County, prosecutors were three times more likely than the defense to use a peremptory challenge to eliminate a prospective Black juror.
Litigants on both sides are as convinced as ever that the race of a juror matters and they have become adept, when asked by a judge why they appear to be striking all Black men in the jury pool, at explaining why the peremptory challenges were actually motivated by permissible factors.
For example, prosecutors have argued successfully that they struck the available Black male jurors because they all had long hair or unkempt beards, or because they had relatives in prison, or lived in the same neighborhood as the defendants, or had children the same age as the defendants.
It’s time to save the system from this damage
Judges have largely accepted these sorts of reasons as “race neutral,” even in cases where the lawyer left whites with similar backgrounds or characteristics on the jury.
Eliminating peremptory challenges will not be without its costs. It says something about a prospective juror, for instance, whether they get most of their news from The Washington Post or Fox News. It might be relevant that a person has participated in a Blue Lives Matter protest, in a case where a police officer is being tried for using excessive force.
Competent defense counsel, in a case where the man is accused of domestic violence, might well use a peremptory challenge to eliminate the prospective juror who belongs to the National Organization of Women.
It is too bad that the race conscious uses of peremptory challenges have poisoned the entire well. But the Arizona Supreme Court is brave and correct in concluding that we have tried and failed to reform the peremptory challenge system.
The time has come for other states, and the federal courts, to follow Arizona’s lead and to save the jury system from the damage that race-based peremptory challenges is doing to it.
Jeffrey Abramson, professor of law and government at the University of Texas at Austin, is the author of “We, the Jury: The Jury System and the Ideal of Democracy.” Reach him at Jabramson@austin.utexas.edu.