Featured on AZCentral – https://www.azcentral.com/arizona-bill-allowing-peremptory-challenges-would-stop-reform/
The Arizona Supreme Court in August enacted a transformative rule: potential jurors can no longer be struck from serving on a trial jury without a reason.
“Peremptory challenges” allow trial lawyers to dismiss potential jurors for no reason. Our Arizona Supreme Court eliminated them.
The goal of this unprecedented reform is fairness, ensuring that all eligible Arizonans – regardless of their race or ethnicity – can serve as jurors. The new rule is also designed to ensure, as the U.S. Supreme Court stated in 1880, that the jury will serve as “the criminal defendant’s fundamental protection of life and liberty against race or color prejudice.”
This key reform could be short-lived
This groundbreaking reform, which went into effect on Jan. 1 of this year, will be short-lived if a bill introduced in the Arizona Legislature becomes law.
House Bill 2413, which was advanced by the House Judiciary Committee on a 6-4 vote, would restore peremptory challenges in criminal, but not civil, jury trials. Enacting this legislation would circumvent a reform, increasingly important after 2020, that can combat racial bias in the jury selection process.
We know because we research jury selection and jury behavior. We, as a team, are documenting and analyzing this change in Arizona, with support from the National Science Foundation.
Why? Because Arizona is the first state in the country to eliminate peremptory challenges. In every other state, prosecutors and defense attorneys can – and do – use their peremptory challenges to exclude people of color during the jury selection process.
Data show jurors of color are often dismissed
We do not say this lightly. Both national and local research reveals that attorneys strike jurors based on race, even in our own Maricopa County.
Attorneys, if asked, easily give a race-neutral reason for eliminating the juror, and courts generally accept the reason, no matter how illogical.
Justifiable reasons to strike people of color in Arizona include: the juror was “too quiet,” “a slob,” or would not understand “slang terminology and lingo, cop talk.”
The Arizona Committee on Superior Court agreed that the data support action, finding “strong evidence of how peremptory strikes have been misused and have resulted in juries that are not representative.”
A landmark Supreme Court decision, Batson v. Kentucky, placed limits on peremptory challenges. But those limits haven’t worked. That’s why other states, including Washington and California, are restricting peremptory challenges.
But Arizona is the first to eliminate these strikes altogether. Now, the rest of the country is watching us. Courts and legislatures in Iowa, Massachusetts, New York, Utah and others are introducing bills, creating task forces, holding conferences, and commenting in opinions, to determine whether they, too, should eliminate peremptory challenges.
Arizona is first to strike peremptory challenges
Arizona has long been seen as a trailblazer when it comes to reforming the jury process and has pioneered reforms that are now commonplace across the country. Yet HB 2413 would restore peremptory challenges before Arizonans can determine the impact of eliminating them.
The United States purposefully allows each state to experiment and try new solutions – as well as learn from other states. If the Legislature restores peremptory challenges, it will deny our courts the opportunity to carry out this experiment and will halt our momentum as a national leader in criminal justice reform.
Advocates of peremptory challenges argue that they are necessary to ensure that the jurors chosen for a trial are fair and impartial. Critics counter that they are unnecessary because trial attorneys can instead strike jurors by giving a valid reason – a process called striking a juror “for cause.”
Challenges for cause require attorneys to provide reasons for excusing a potential juror and must be approved by the judge, but they are unlimited in number. Attorneys can therefore use these challenges to eliminate jurors whom they legitimately believe are biased.
Critics also charge that peremptory challenges are used, not to ensure jury impartiality, but to preserve an all-white (or almost all-white) jury, especially in cases in which the defendant is a person of color.
As Time magazine recently opined, America has a “white juror problem.” Hard data support that conclusion. Studies consistently reveal that Black people are at least twice as likely as White people to be excluded from jury service.
Give this reform a chance to play out
Appellate courts have not fixed this practice. Arizona courts find no violation of Batson v. Kentucky, a landmark 14th Amendment case, in more than 93% of cases claiming such bias. In fact, more than 60% of unsuccessful appeals in Arizona under Batson involved prosecutors removing Blacks or Hispanics from trial juries.
Nearly 250 years after the founding of the United States, the country continues to struggle to provide a legal system that treats people equally regardless of their race or ethnicity.
The Arizona Supreme Court’s decision to eliminate the peremptory challenge represents a policy innovation designed explicitly to improve the fairness of the American legal system.
All eyes are on Arizona – and now on whether our state will rescind this reform before it can get off the ground.
Our study is evaluating the impact of the peremptory challenge ban on jury selection practices, jury racial composition and jury decision making. We urge the Legislature to wait for preliminary results and feedback before dashing this chance at reform.
