The Power of Peremptory Strikes

The Supreme Court’s recent decision in Flowers v. Mississippi came out the right way, according to our existing case law. Justice Brett Kavanaugh called out the “relentless, determined effort to rid the jury of black individuals” that proved to be a pattern during jury selection in Mr. Flowers’s six trials. But deciding that the state had acted discriminatorily by consistently striking Black jurors over so many trials was easy.

In large part, the Supreme Court’s decision in the Flowers case depends on precedent that began in 1986 with Batson v. Kentucky, in which the Supreme Court determined that a prosecutor’s peremptory challenge in a criminal case—the dismissal of a prospective juror without cause—may not be used to strike potential jurors solely because of their race.

But we cannot look to the Batson precedent on its own as the way to rid the system of race discrimination in jury selection in criminal trials. Unfortunately, Batson set up a framework that catches just a fraction of intentional bias. First, Batson only works when the defense attorney raises the issue of discrimination by the prosecutor with the trial judge. But most defense attorneys are repeat players in the criminal legal system, and for a variety of reasons—not the least of which is their many other clients—they may not want to accuse a prosecutor in a public trial of racism. And many judges are loath to tarnish the reputation of a prosecutor who appears in front of them repeatedly by finding that the prosecutor engaged in intentional racism.

Second, it is impossible to see what is in a prosecutor’s mind. And it is all too easy for a prosecutor to offer a seemingly race-neutral reason as the justification for striking a prospective juror: hairstyle, neighborhood, experience with law enforcement, etc.

Finally, Batson only addresses intentional discrimination in jury selection, not unconscious bias. It is well accepted that all Americans have at least some level of unconscious racial biases. And like others in the legal profession, prosecutors tend to be disproportionately white, increasing the chance for implicit bias against people of color. Does the fact that a prosecutor was acting on his unconscious racism rather than a purposeful goal really matter to the defendant who ends up with an all-white jury?

Prosecutors are meant to be stewards of justice.

So what can be done? The peremptory challenge should be abolished for prosecutors.

Prosecutors are meant to be stewards of justice. And as public servants, prosecutors should be willing to put their cases before anyone in the communities they serve. They should not be engaged in any sort of picking and choosing, whether based on race or not.

Eliminating peremptory strikes for prosecutors will still allow jurors to be struck “for cause” if they indicate they cannot be fair. The jury panel, therefore, would comprise only qualified impartial jurors.

I am not the first to make this argument, but it has to be renewed now. In the last several years, a wave of progressive prosecutors have been winning elections. In Queens, New York, the former public defender Tiffany Cabán has made an impressive run to become the Democratic candidate for district attorney. In Arlington, Virginia, another former public defender, Parisa Dehghani-Tafti, also became the Democratic candidate for that county’s DA race. Philadelphia has Larry Krasner. St. Louis County, Missouri, has Wesley Bell, another former defense attorney, as prosecutor. In Durham, North Carolina, Satana Deberry won her election for DA on a reform campaign. And the list goes on.

This progressive-prosecutor movement is a rejection of the status quo by the communities that have grown weary of the aggressive win-at-all-costs prosecutors who have held office for the last several decades. Voters have shown that they want prosecutors to be accountable to the people they are supposed to represent. One way for these new district attorneys to build the trust of their communities would be to forgo their peremptory challenges in all criminal trials.

Defense attorneys, on the other hand, should retain the power of peremptory strikes. No one should feel confident in a criminal legal system if the accused is uncomfortable with the jury. But prosecutors have a duty to justice and to their communities. Prosecutors should feel comfortable trying their cases in front of any 12 unbiased members of the community they were sworn to serve.

Notwithstanding the Supreme Court’s recent Flowers decision, the Batson framework simply cannot overcome its shortcomings in addressing all forms of racial discrimination by prosecutors. Progressive prosecutors should take matters into their own hands.

Correction: This story has been updated to note that peremptory challenges allow jurors to be struck without cause.