Evaluating the Elimination of Peremptory Challenges in Arizona

The Supreme Court confronted racial discrimination in jury selection in Batson v. Kentucky by prohibiting the use of race as a factor in exercising peremptory challenges. But Batson challenges rarely succeed in overcoming a challenged peremptory strike and have long been criticized as insufficient to eliminate racial discrimination in jury selection. Justice Marshall correctly predicted in his concurring opinion in Batson that racial discrimination in jury selection would continue as long as peremptory challenges were permissible. Recognizing Batson’s shortfalls, states have experimented with reforms ranging from lowering the required showing for a successful Batson challenge to enumerating presumptively impermissible justifications for peremptories. But only one state— Arizona—has gone as far as Justice Marshall envisioned by eliminating peremptory challenges altogether. Peremptory challenges—along with the many other defendant-protective mechanisms embedded in the American criminal legal system—have long been accepted as essential to achieving fair trials and properly restraining the state. Drawing on interviews with practicing public defenders in Arizona, this Note will examine the impact of Arizona’s reform on defendants and explore the competing values at play: antidiscrimination on the one hand, and vigorous protections for defendants on the other. These values, each generally viewed as beneficial to combatting racism in the criminal legal system, appear at first glance to cut in different directions on the issue of the complete elimination of peremptories in Arizona. However, Arizona’s reform was accompanied by other significant changes to voir dire designed to accomplish some of the most highly valued functions of peremptory challenges. Interviews and analysis of early case law from Arizona reveal that the elimination of peremptories is a workable reform that other states should consider as they aim to reduce discrimination in jury selection.