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(Reuters) - Arizona’s top court shocked even some advocates last week when it unexpectedly, even quietly, became the first state to eliminate outright the century-old practice of peremptory juror challenges, which have historically been plagued with race discrimination.
Beginning Jan. 1, only for-cause challenges will be allowed in Arizona under a landmark rule change ordered by the state Supreme Court on Monday.
Courts in the U.S. introduced peremptory challenges in the post-Civil War period, after Black Americans gained the right to serve on juries, and they've been used since then in both state and federal courts. Lawyers in civil and criminal trials can strike potential jurors for cause or based on peremptory challenges, meaning they can essentially rely on a hunch or gut feeling.
A 1986 U.S. Supreme Court ruling in Batson v. Kentucky allows the challenges themselves to be contested if the other side suspects unlawful motivations, like race, but it’s been very easy for lawyers to evade the court’s test for that scenario.
The move to end the practice is groundbreaking, if only in light of how long-standing and ubiquitous peremptory challenges are in the U.S. justice system, despite the discrimination enabled by the practice. The Arizona rule-change also undermines anti-reform arguments that prioritize reliance interests – the inherent costs to parties when long-standing procedures and practices are changed – over considerations of fairness. (England abolished peremptory strikes in 1988, and Canada did so in 2019, for example, without any chaos in the courts).
The proposal to end the practice was filed by two Arizona state appellate judges, Peter Swann and Paul McMurdie. They went even further than most reform advocates, many of whom recommended that the Arizona Supreme Court should adopt rules like those recently enacted by Washington and California, rather than eliminating peremptory strikes altogether. McMurdie didn't respond to my request for comment.
Judge Swann lauded the independence of his colleagues on the bench in doing away with peremptory challenges, although he added that even he was "a bit surprised" by the justices' "courageous" decision. He noted that peremptory strikes have also engendered bias against people based on sexual orientation, disability and, especially, gender.
"Lawyers have practiced with peremptory strikes their entire careers, so I think there's natural resistance to a paradigm shift in a system you're used to. It's like quitting smoking – it's hard, but the fact you might enjoy smoking doesn't mean you shouldn't quit," Swann said. "I'm hoping that other states will follow once they realize it can work and actually enhance the fairness of trials."
Washington and California’s rules make it easier to show a strike is discriminatory by allowing courts to consider unconscious bias, instead of only purposeful acts. They also treat certain explanations for striking jurors – like distrust of law enforcement – as presumptively invalid, because they can also be proxies for race.
Robert Chang, director of Seattle University School of Law’s Korematsu Center for Law and Equality, told me some advocates likely made a political calculation to recommended changes amenable to courts and politicians, though they may actually prefer abolition. The Center pushed for a change in Arizona patterned after Washington state's rule.
“Our position was based on a pragmatic assessment about how far courts or legislatures would be willing to go, given how entrenched peremptory challenges are,” Chang said. “We saw what Washington did as a step in the right direction because it would increase diversity in juries, even though it may not be where things should end up.”
Chang said he was shocked but happy the court went for abolishment.
Swann and McMurdie relied on decades-old arguments based on numerous empirical studies that found racial imbalances in American juries both before and after the Supreme Court formulated the current framework for conducting peremptory challenges. Justice Thurgood Marshall predicted correctly in Batson that the test meant to prevent discriminatory peremptory challenges was too easy to evade and urged the majority to eliminate the practice altogether.
Data from the Administrative Office of the Courts shows that the proportion of white jurors in criminal cases only varied by 3% from their representation in the general U.S. population, while black jurors were underrepresented by 16%, Native American jurors by 51% and Hispanic jurors by 21%, according to one analysis Swann and McMurdie included in their petition. Supreme Court justices said in 2005 that one Dallas prosecutors’ office had for decades maintained a specific policy of excluding Black people from juries, and Swann mentioned that, while in private practice, he was familiar with “well-paid jury consultants who brazenly recommended striking all Latino jurors."
“We submit that the Court has a clear opportunity to end definitively one of the most obvious sources of racial injustice in the courts,” the judges wrote.
Much of the opposition to the proposed rule change came from prosecutors, including the Maricopa County Attorney’s Office. Chief Deputy Kenneth Vick wrote that peremptory strikes should be maintained because it’s unrealistic to expect prospective jurors to candidly admit their biases against a defendant.
Of course, it’s similarly unrealistic to expect lawyers to candidly admit their biases against jurors – as indicated by the copious data showing discrimination in jury selection, compared with the relative dearth of case records showing prosecutors admitting their racism.
A spokeswoman told me the Maricopa Attorney’s office has no comment in response to my questions to Vick.
Benjamin Taylor, of Taylor & Gomez Law in Phoenix, told me some practitioners favor an intermediate approach because they sometimes want to strike jurors who slip past judges.
“Some attorneys still want a peremptory strike just in case the judge makes a mistake or doesn’t recognize a juror is biased,” Taylor said. He added that judges sometimes allow jurors who make a seemingly biased comment to “rehabilitate” themselves simply by attesting that they can be fair and impartial.
The new rules “make perfect sense in a utopian world, but we don’t have that, so we’ll still have to rely on judges,” Taylor said. “That said, it’s a step forward, and if implemented correctly, it should work well.”
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