Private: The Case Against Peremptory Challenges

In most jurisdictions, both prosecutors and defense attorneys may exercise a limited number of "peremptory challenges," which allow them to remove jurors for any reason, except because of racial or other discriminatory reasons forbidden by the Constitution.  According to Scott Lemieux, however, so long as there are peremptory challenges, unconstitutional discrimination may be inevitable:

Liptak mentions the 2005 Miller-El case, which I discussed here. (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall, and Stephen Breyer, I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials.

As ACSBlog recently discussed, an Alliance For Justice report on controversial Fifth Circuit nominee Judge Leslie Southwick argues that peremptory challenges also give some judges the ability to engage in racially discriminatory decisions themselves:

Judge Southwick has participated in numerous cases involving challenges to the racial makeup of a jury under Batson v. Kentucky, in which the United States Supreme Court held that peremptory challenges to jurors cannot be used in a racially discriminatory manner. In 59 of the 70 Batson cases reviewed for this report, the defendants challenged their convictions on the ground that the prosecution had used peremptory challenges to strike African- American jurors. Judge Southwick, voting with a majority of the Court in every case, voted to uphold the convictions in all but five of these cases.

In 10 of these 70 Batson cases, the defendants challenged their convictions on the ground that the prosecution had unfairly prevented them from using their peremptory challenges to exclude white jurors (in one case the juror whom defendant sought to strike was Asian American). Defendants, with Judge Southwick again joining the majority of the Court in every case, lost all ten of these challenges. In the final case, the defendant challenged his conviction on both grounds and lost on both grounds, with Judge Southwick again in the majority.

In other words, Judge Southwick and a majority of the judges on the Court of Appeals routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants.

Lemieux concludes his commentary on the issue with a quote from Justice Goldberg: "[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former."

Equality and Liberty