Peremptory strikes are often used to illegally keep people off juries because of their race. In 2022, Arizona got rid of them. So far, the innovative move appears to be improving the diversity of juries.
Across the country, the fairness, reliability, and integrity of the legal system have been compromised by clear evidence of racial bias in the selection of juries.
Unrepresentative juries exclude and marginalize communities of color—and they produce wrongful convictions and unfair sentences.
The primary tool for preventing people of color from serving on juries has been the use of peremptory strikes, which allow lawyers to remove otherwise qualified jurors for virtually any reason—or no reason at all.
The Supreme Court has long recognized that peremptory strikes are used to illegally remove jurors because of their race. In 1986, the Court attempted in Batson v. Kentucky to make it easier to prove that a peremptory strike is racially biased.
But as Justice Thurgood Marshall warned at the time, the decision did “not end the racial discrimination that peremptories inject into the jury-selection process.”
Significant disparities in jury representation by race and ethnicity have persisted in both criminal and civil cases in Maricopa County, where more than 60% of Arizona’s population resides.
In 2019, a recent analysis shows, 59.8% of Maricopa County residents identified as white, but 80% of jurors were white. The county’s population is 32% Hispanic, but less than 20% of jurors were Hispanic. And prosecutors struck Black potential jurors at a rate 40% greater than their presence in the venire and American Indian individuals at a 50% greater rate.
Batson had not remedied the problem, researchers found. The legal standard articulated in Batson is still easy to meet despite discriminatory conduct. In fact, appellate courts had found Batson error in only 4.4% of cases statewide.
Taking its cue from Justice Marshall, who wrote that ending illegal racial discrimination in jury selection “can be accomplished only by eliminating peremptory challenges entirely,” Arizona became the first state to eliminate all peremptory challenges.
Effective January 1, 2022, a juror in Arizona can be struck only if it is shown “by a preponderance of the evidence that the juror cannot render a fair and impartial verdict.”
Researchers examined data from Maricopa County Supreme Court in 2019 and 2022 to evaluate the new policy and found that more people of color are serving on juries since peremptory strikes were eliminated. The changes also save taxpayer dollars by requiring courts to call fewer jurors for each trial.
Removing peremptory challenges has led to increased jury diversity and representation, researchers found, because “racial and ethnic minorities who show up to serve as less likely to be disproportionately removed.”
For criminal trials, researchers report, the data shows a 6% increase in people of color sitting on juries and a 15% increase in those who identified as Hispanic.
Preliminary data further show the change did not lead to more hung juries, mistrials, or more conviction-prone juries. In fact, the conviction rate decreased from 2019 to 2022, possibly reflecting more careful deliberations.
Eliminating peremptory strikes did not, as some feared, create administrative problems or delays. The data show that time spent on jury selection and trials did not increase significantly.
Both litigants and judges have expressed positive views of the new rule, with 72% of trial judges statewide saying in June 2022 that they had no concerns about the jury selection process following the rule change, according to researchers.
A surprising benefit has been improved efficiency in the summons process that has reduced costs to taxpayers, researchers report. When fewer jurors are removed from the panel, fewer jurors need to be summoned—and paid—to report for jury duty.
In just one year under the new rules, researchers found an increase in racial and ethnic minority representation without an increase in trial length, the number of mistrials, or convictions—all while cutting costs for Arizona taxpayers.