Excerpted From: Nancy S. Marder, Race, Peremptory Challenges, and State Courts: A Blueprint for Change, 98 Chicago-Kent Law Review 65 (2023) (227 Footnotes) (Full Document Requested)


NancySMarder.jpegPeremptory challenges based on race continue to keep some prospective jurors from serving on juries, but several states, including Washington, California, and Arizona, have taken action and are now trying to address this problem. They grew frustrated with the U.S. Supreme Court's test in Batson v. Kentucky, which was an attempt to preserve the peremptory challenge while eliminating peremptory challenges based on race. Washington and California tried to make the Batson test more objective and comprehensive. Washington acted through a rule change, and California acted through legislation. In contrast, Arizona made the Batson test for peremptory challenges irrelevant by eliminating peremptory challenges altogether. It is the first state in the United States to do so. Each route provides a blueprint for other states to follow.

The Batson test, as it has come to be known, was a compromise reached by the U.S. Supreme Court. It was an effort to maintain peremptory challenges, which allow lawyers to remove a certain number of prospective jurors from the jury without having to give a reason, but it was also an attempt to stop the practice of discriminatory peremptory challenges. Discriminatory peremptory challenges are those that lawyers exercise on the basis of a prospective juror's group membership, though the Supreme Court has only recognized race, ethnicity, and gender as protected groups for purposes of the peremptory challenge. A lawyer can challenge the other side's use of a peremptory challenge if he or she can establish a prima facie case of discrimination, in which case the lawyer exercising the peremptory challenge will have to give a race-neutral reason and the judge will decide whether it is pretextual or not. However, it remains the burden of the objecting lawyer to establish that the lawyer exercising the peremptory challenge has engaged in purposeful discrimination.

After thirty-five years of Batson, and myriad academic articles and judicial opinions (usually concurring opinions) describing its ineffectiveness, some states have decided that Batson needs to address more than purposeful discrimination; it needs to address implicit bias and institutional racism. Washington and California have attempted to strengthen the Batson test so that it prohibits peremptory challenges based on implicit bias and institutional racism, in addition to explicit bias. Washington has done so through a rule change, and California has done so through legislation. Meanwhile, Arizona has gone in a different direction. It has decided that jury selection will not be unbiased until peremptory challenges are eliminated. Arizona has followed Justice Thurgood Marshall's prescient advice in Batson. In his concurring opinion, Justice Marshall wrote, “I applaud the Court's holding that the racially discriminatory use of peremptory challenges violates the Equal Protection Clause, and I join the Court's opinion. However, only by banning peremptory challenges entirely can such discrimination be ended.”

Although Washington, California, and Arizona have taken different approaches in their efforts to eliminate discriminatory peremptory challenges, their approaches have some elements in common. In all three states, the state supreme court created a task force, consisting of members of the legal community. The state supreme court charged the task force with examining the jury system in the state and considering whether jury selection was being conducted fairly. One facet that the task forces were asked to explore was the use of peremptory challenges and whether they were being exercised in a discriminatory manner. In all three states, the task forces were instructed to issue a report with their recommendations.

The task forces in Washington, California, and Arizona, and the well-documented reports they issued, provide a blueprint for other states that also want to take steps to end discriminatory peremptory challenges in their courts. For example, Connecticut has already started down this path. The Connecticut Supreme Court created a task force, and the task force issued a thorough report. It recommended that Connecticut follow the approach that Washington took. Connecticut has recently done this through a rule change, as has New Jersey.

Although the creation of task forces and reports provides a systematic and careful way for state courts to proceed, events sometimes lead to action before the completion of such meticulous study. The California legislature acted before the task force in California produced its report. Although the California legislature followed many of the substantive changes developed in Washington, it did so by legislation rather than by rule change. Similarly, the Arizona Supreme Court acted before its task force produced its report. The Arizona Supreme Court eliminated peremptory challenges through a rule change.

The theme of this Symposium, “Juries in a Time of Crisis and Change,” suggests that outside events can exert pressure even on well-regarded judicial institutions such as the jury. Two states' responses to discriminatory peremptory challenges took place after racial protests against systemic racism and an ongoing pandemic that exacerbated the racial divide. The California Supreme Court and the Arizona Supreme Court followed Washington's lead by convening a task force and requesting that it issue a report, but those courts did not act based on those reports. Rather, the California legislature and the Arizona Supreme Court felt the need to act before the issuance of those reports; they felt the need to reassure their citizens, particularly Black and Latino citizens, that jury selection in their states would be conducted fairly and without bias, including implicit and institutional bias. Other states are likely to feel similar pressure, and they can look to the work that has been done in Washington, California, and Arizona.

States that seek to eliminate discriminatory peremptory challenges can follow the approaches taken by Washington, California, or Arizona. They can convene a task force that will issue a report with recommendations tailored for the needs of their state. Perhaps these other states can act more quickly because of the earlier work done by Washington, California, and Arizona. At the very least, these three states provide examples that other states might wish to use as models for their own reform efforts.

Although recent crises, such as racial protests and the pandemic, have made the need for action appear more pressing, the problem of discriminatory peremptory challenges has been longstanding and in need of reform for quite some time. In Strauder v. West Virginia, the U.S. Supreme Court held that a state statute prohibiting Black men from serving as jurors violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, which laid the foundation for subsequent cases pertaining to peremptory challenges based on race. Eighty-five years later, in Swain v. Alabama, the Supreme Court held that prosecutors could not use peremptory challenges to remove Black prospective jurors because of their race, but the burden that defendants had to meet proved insurmountable. In Swain, an opinion that seemed to give more weight to preserving peremptory challenges than to eliminating discriminatory peremptory challenges, the Supreme Court created a “crippling burden of proof” that required a criminal defendant to establish that the prosecutor's office, in case after case, had exercised peremptory challenges based on race.

When the Supreme Court revisited race-based peremptory challenges in Batson v. Kentucky, it developed a seemingly more manageable test that allowed a criminal defendant to challenge the prosecutor's exercise of peremptory challenges based on the prosecutor's actions in only that defendant's case. No longer would a criminal defendant have to try to retrace the steps of a prosecutor in past cases and to obtain evidence that was either no longer available or had never been available, such as the race of prospective jurors who were removed by the prosecutor with peremptory challenges in earlier cases. However, the three-step test in Batson did require a defendant to establish a prima facie case of discrimination; only then would the prosecutor have to provide a race-neutral reason for the peremptory challenge, which the judge would have to assess. It still remained the burden of the defendant to establish purposeful discrimination.

In the 1990s, the Supreme Court expanded the reach of Batson, which suggested that Batson might have far-reaching results. In the Batson progeny, the Court made Batson applicable to all lawyers, whether in civil or criminal cases and whether prosecutors or defense lawyers, and it protected prospective jurors from peremptory challenges based on their race, ethnicity, or gender. During this period, there was hope that Batson might eliminate discriminatory peremptory challenges while still allowing the tradition of peremptory challenges to endure. However, this hope was misplaced.

Even with the expansion of Batson, lawyers continued to find ways to exercise peremptory challenges based on prospective jurors' race, ethnicity, or gender. Lawyers who were challenged when they exercised a peremptory challenge to remove a Black prospective juror learned to give reasons--any reasons at all--as long as the reasons did not refer to a prospective juror's race, and after the Batson progeny, the reasons could not refer to a prospective juror's ethnicity or gender. Trial judges did not press them on their reasons, even when the reasons might be used disproportionately against Black prospective jurors, or when the reasons might be based on demeanor or behavior that nobody else had observed. Appellate judges were deferential to the rulings of trial judges because trial judges were in the courtroom and appellate judges were not. The literature and case law became rife with criticisms of Batson and its ineffectiveness at eliminating discriminatory peremptory challenges.

The Supreme Court had several opportunities to address the weaknesses of Batson in a series of death penalty cases involving Batson challenges; however, the Court did not revise the Batson test or eliminate peremptory challenges altogether, as several Justices had raised as possibilities. Many of the critics of Batson waited for the Supreme Court to act, hoping that it would fix the problem. If the Supreme Court acted, then it would be able to address the problem of discriminatory peremptory challenges in a uniform way.

The Supreme Court's failure to act meant that state courts could act. No longer did a state's citizens have to wait for the Supreme Court to fix the weaknesses of the Batson test or to abandon Batson altogether by eliminating peremptory challenges. Some of the early states to act included Washington, California, and Arizona, and, accordingly, their actions are the subject of this Article. They provided a blueprint for action by other states, such as Connecticut and New Jersey. The starting point is to understand the Batson test and its shortcomings. From there, state supreme courts can create task forces whose mandate is to write a report with recommendations. State task forces can follow the reports that have been done by Washington, California, and Arizona, and tailor them to meet the needs of their own state courts and legal communities. Although state courts' various approaches will not lead to uniformity in practice, as a decision by the Supreme Court would, at least state courts can respond to the needs of their own citizens so that they can serve on juries and not be removed because of their race, ethnicity, or gender. State courts have done this before. Some states held that race-based peremptory challenges were impermissible before the Supreme Court decided Batson v. Kentucky, and some states held that gender-based peremptory challenges were impermissible before the Court decided J.E.B. v. Alabama ex rel. T.B.

This Article proceeds in three parts. Part I provides the basics of Batson, including the test that the Supreme Court devised that was intended to permit peremptory challenges to continue while halting the use of discriminatory peremptory challenges. That test is directed only against purposeful discrimination and is easy for lawyers to evade. Part II examines three states' responses to Batson and discriminatory peremptory challenges. Two of those states, Washington and California, tried to make the Batson test more effective by making it more objective and by making some reasons “presumptively invalid,” even though those reasons had been accepted in the past. The third state, Arizona, simply eliminated all peremptory challenges. Part III examines what the three states' approaches have in common. In all three, the state's highest court convened a task force and asked it to examine jury selection and to make recommendations about peremptory challenges. All three task forces followed their charge and issued reports with recommendations. The use of task forces and reports can serve as a blueprint for other states, though crises may lead to more immediate action.

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Washington, California, and Arizona turned to task forces and reports to decide how best to reform peremptory challenges. Washington followed its task force recommendations whereas the California Legislature and the Arizona Supreme Court reached decisions before their task forces could issue their reports. My own view is that Washington's and California's decision to strengthen the Batson test is likely to prove too complicated to implement effectively, whereas Arizona's decision to eliminate peremptory challenges will be more feasible in the end, but only time will tell. Meanwhile, these three states, and others that follow, will have the opportunity to serve, in Justice Louis D. Brandeis's words, as “laborator[ies] and try novel social ... experiments without risk to the rest of the country.”

Although the U.S. Supreme Court could provide a uniform approach to discriminatory peremptory challenges by eliminating peremptory challenges, it has not done so yet; thus, our best hope now is with state courts' experimentation. State courts will arrive at solutions by working from the ground up through task forces that study the problem, collect data, and issue reports with recommendations. Other states can make use of these reports; the reports can provide a starting point and some background as to what other states have done and why. Although this state-by-state effort will necessarily result in a piecemeal approach to peremptory challenges, at the very least, it will allow for change. It will allow state courts to begin to grapple with the problems of discriminatory peremptory challenges, which have long kept many willing and able citizens from serving as jurors.

Professor of Law and Director, Justice John Paul Stevens Jury Center, Chicago-Kent College of Law.