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Miller-El and the Peremptory Challenge

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An important and correct decision by the Supreme Court on Monday, Miller-El v. Dretke. The case involved a death penalty trial in which 1)the prosecution “shuffled” the jury during voir dire to move potential black jurors to the back of the list and make them more likely to be dismissed without being questioned, and 2)then used peremptory challenges to remove 10 of 11 black jurors. As Souter’s majority opinion exhaustively detailed, potential black jurors and white jurors were clearly treated differently by the prosecution, with potential black jurors who expressed support for the death penalty struck while more ambivalent whites were allowed to remain in the pool. And, of course, we see yet more “results oriented jurisprudence” from Thomas, Scalia and Rehnquist. It’s true that voting to uphold every death penalty conviction regardless of the facts of the case is consistent and principled, but it’s certainly not a legal principle. And if the standard set out by Thomas was used, it would be virtually impossible to prove racial discrimination in jury selection, unless you think prosecutors would be dumb enough to explicitly admit it. (It should be noted, as well, that there is no equivalent on the other side; none of the 6-justice majority are blanket abolitionists in the way that Brennan and Marshall were.)

Of greater interest to me, however, is Breyer’s concurrence. Picking up the argument that Thurgood Marshall made in his concurrence in the controlling case (Batson v. KY), Breyer argues that peremptory challenges should be eliminated entirely. Perhaps someone with greater knowledge of the nuts and bolts of criminal law will bring up drawbacks I haven’t thought of, but this seems highly persuasive to me. I don’t think there’s anything unreasonable about forcing lawyers to show cause to eliminate jurors, and Breyer is right that under the current system it’s difficult to show discrimination even in the most blatant cases. Obviously, this wouldn’t be a panacea; in states like Texas, judges would obviously go along with reasons offered by prosecutors that are thin pretexts. But it seems to me that even in those cases, nobody is worse off, and requiring justification can only be an improvement. “[P]eremptory challenges,” Breyer argues, “seem increasingly anomalous in our judicial system.” I think that’s right. Let’s get rid of them.

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