'How we've done things for ages': Pushback from Arizona peremptory-strike change

An empty jury box is seen at the New York State Civil Supreme Court in Manhattan, New York City
An empty jury box. REUTERS/Andrew Kelly

(Reuters) - The Arizona Supreme Court was praised in many quarters last August when its rule change made the state the first in the country to eliminate peremptory strikes, a decades-old practice of removing prospective jurors based on hunches — notorious for perpetuating racism.

Now, weeks after the changes took effect on Jan. 1, Republican lawmakers and local prosecutors are moving to revert to the old rules, arguing that the new policies are already failing and criticizing the Republican-dominated high court for what they say was a rushed and secretive process.

Arizona House of Representatives member Jacqueline Parker, who represents portions of Maricopa County, is sponsoring a bill that would largely reinstate the old system of jury selection, which allows lawyers to strike a certain number of jurors without having to state a reason. The House Judiciary Committee voted 6-4 along party lines to advance Parker’s legislation on Feb. 3.

“We’re not revolutionizing anything,” Parker said in the Wednesday morning hearing. “The AZ Supreme Court did that really suddenly and quickly, and kind of surreptitiously recently, and so we’re just putting it back to the status quo.”

Parker added an appeal to tradition, saying the older procedure was “how we’ve done things for ages.” Peremptory challenges were introduced in the post-Civil War period, after Black Americans gained the right to serve on juries. The U.S. Supreme Court devised a test to prevent race discrimination in those challenges in Batson v. Kentucky in 1986, but virtually all of the data and research in the decades since have shown that discrimination persists in jury selection across the country.

Later in the hearing, Kristin Larish, a Maricopa County Attorney’s Office prosecutor, testified on behalf of a larger group of trial lawyers in the prosecutors’ office. The Arizona Supreme Court’s decision “came as a complete surprise,” and was “very abrupt,” Larish said.

Larish and the Maricopa County Attorney’s office didn’t respond to a request for comment. Parker also didn’t respond to my questions for this column.

The high court’s rule change was certainly groundbreaking, mostly because it was a first. But the sort of underhanded coup portrayed during the hearing by those supporting its reversal was a straw man argument: the Supreme Court went through its standard and quite public rulemaking process — akin to processes federal agencies and many other government entities use when changing administrative or other procedures. In fact, much of the Arizona legal community was aware and provided formal comments, including the state attorney general, the State Bar of Arizona, the Arizona Prosecuting Attorneys’ Advisory Council, and even the Maricopa county prosecutor — Larish’s boss. Comments and replies were accepted for about six months.

Moreover, supporters of the policy reversal didn’t actually speak to the central issue: none pointed to evidence that the old procedures work to prevent or reduce bias, nor did they even attempt to speak to the public impact of decades of proven discrimination in jury selection.

The move to nix the new jury rules before any meaningful study, and the arguments forwarded by supporters suggest the measure will be a step backward for the state — let alone the extensive research demonstrating persistent discrimination under the older “status quo.”

Kevin Heade, an attorney in the Maricopa County Public Defender Office who is also a reform advocate, testified in opposition to Parker’s bill. He spoke to me about the policy changes in his personal capacity.

“The claim that this was a surprise or surreptitious just doesn’t fit reality,” Heade said. “This was a public process, and there was an open public comment period for months.”

“The reality is that the only group in this state who are saying that Batson v. Kentucky works and that there isn’t racial discrimination in jury selection are prosecutors. Pretty much every academic study, in every state examined, has found discrimination,” Heade said.

Indeed, there have been nearly universal findings of discrimination in available data and studies of jury composition going back decades — as far as when Batson was first passed in 1986 (U.S. Supreme Court Justice Thurgood Marshall cited at least three lower court opinions, from Missouri, Louisiana and South Carolina, in which courts examined a sample of criminal cases and found that prosecutors challenged Black jurors at much higher rates than others).

A 2020 study by the Death Penalty Clinic at the University of California Berkeley School of Law evaluated nearly 700 cases and found that prosecutors used their strikes against Black jurors in 72% of those cases, and struck Latino jurors in about 28%. They challenged white jurors in only 0.5% of those cases.

Recent data from Arizona courts shows that the proportion of white jurors in criminal cases only varied by 3% from the general population, while Black jurors were underrepresented by 16%, Latino jurors by 21% and Native Americans by 51%.

Still, prosecutors who testified in favor of Parker’s rule reversion expressed doubt about racism in jury selection.

Matthew Smith, the Mohave County Attorney, said he believes the state Supreme Court was wrong to conclude that Batson enables discrimination. “I don’t think the data is sufficient along those lines,” Smith said.

Smith didn’t respond to requests for comment.

Under the circumstances, one might have expected lawmakers to focus on studying the effects of the rule change or even on the approaches taken by other states that have recently addressed discrimination in juries (working groups in Arizona are still fleshing out best practices post-Batson, Heade said). Since 2018, Washington, California, New York, New Jersey and several other states have modified their jury rules or are considering doing so. And those efforts have yielded some sensible approaches short of abolishment.

Arizona lawmakers could simply watch and learn about their Supreme Court’s new approach. They could look toward Washington, California or a number of other states for lessons — not to mention the decades of research on this question.

Instead, they have decided to simply look backward, while conveniently ignoring decades of proven race discrimination.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com