Thursday, February 25, 2021
LaCrisha McAllister has posted Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why it Should be Abolished (48 S.U.L. Rev. (2021)) on SSRN. Here is the abstract:
At the outset, the author examined Swain v. Alabama, Batson v. Kentucky’s precursor, where the court’s holding made it almost impossible for a defendant to prove racial discrimination in the jury selection process. The author further reviewed Batson as a basis of understanding how the use of peremptory strikes are challenged after Swain, and Flowers v. Mississippi to demonstrate the problems that the use of peremptory challenges present. Additionally, accepted race-neutral reasons asserted during Batson inquiries in several federal cases were investigated to determine if they were in fact race-neutral.
Through a thorough review and analysis of federal case law surrounding the discriminatory use of peremptory strikes, the author found that peremptory challenges are used to exclude Black prospective jurors from jury service. Furthermore, the author found that Batson is ineffective in addressing claims of race-based discrimination.
The author proffers that if jury service is one of the most important civic duties, the process should be free of racial discrimination. Abolishing the use of peremptory challenges is one way to begin to eradicate racial discrimination in the jury selection process.