What if we abolished peremptory challenges?The subject is discrimination in jury selection. The occasion is Foster v. Chatman, a case of pretty blatant racial discrimination where a Georgia prosecutor used peremptory challenges to kick blacks off a jury and help secure a death sentence.
The Supremes thought, in their naiveté, that they'd abolished that sort of discrimination in Batson v. Kentucky and a string of cases applying and extending it. They were wrong. They were also, as it happens, misguided.
Oh, the goal, end discrimination in jury selection, is high-minded enough. Nobody much, today, is going to be a public advocate for racial discrimination. (Batson's been extended beyond race, but the same point applies.) That's not really the issue, though. Because once you start down the road you've got a problem.
When Batson simply applied to the prosecution in criminal cases, it was a sham. (Only the hopelessly - like the berobed ones in Washington - really thought it would achieve what they claimed.) Built into the ruling was an easy out for prosecutors: Offer a race-neutral lie for why they were kicking this or that juror off a case. (Juror frowned; juror smiled; juror wore green pants; juror wore no pants (!); juror once knew someone who once knew someone who heard about someone who got a traffic ticket - or didn't; the possibilities are endless.)
But when the Court went further and made clear that the goal of Batson was not to ensure that defendants got fair trials but that discrimination ended, the largely empty but plausible logic went out the window. Batson, it turns out, isn't about the rights of the accused - not about the rights of the litigants at all. It's about the rights of the juror who is excused based on a discriminatory peremptory. The lawyer who challenges the peremptory, acts not (the court says) in the interests of her client but in the interests of the excluded juror.
That's bullshit, of course. As a lawyer, your only responsibility beyond upholding the basic integrity of the system by obeying the rules, is the interests of your client. If that peremptory - racially motivated or otherwise and regardless of reason - is one you're happy the other side exercised, you're not going to complain. It's only when your client would get screwed that you're gonna bitch.
And that's as it should be. The theory is that when I get rid of the jurors I hate and the prosecutor gets rid of the jurors he hates, the remaining 12 are going to be pretty fair. That theory may be nonsense in practice (jury selection is largely a matter of gut feeling rather than hard science), but it's the underlying idea. And it works. There are jurors who pretty obviously will be biased one way or the other but don't fall into any of the categories where exclusion for cause is allowed (brother of the defendant, witness in the case, plaintiff's lawyer in another case, whatever). So we have peremptories to get rid of them.
Doing away with peremptories means assuming that any 12 random folks will be fair to both sides. In the real world, that ain't so. And nobody who litigates really wants that. We want jurors who will vote our way. Same as the other side does. So we all get rid of the ones who surely won't. That's the idea. And hundreds of years of Anglo-American jurisprudence suggests that it works pretty well.
Does it allow for discrimination? Yeah. Can the discrimination be invidious and unfair and racist and lead to appalling decisions? Yep. (Think of those all-white juries in the south that routinely sentenced blacks to die for looking crooked at whites and routinely acquitted whites who murdered blacks.)
Of course, if instead we figured out how to give teeth to what seemed like the idea of Batson when it first came out. Prevent the government from using race to secure convictions and death sentences. Now that was an idea.
Scott Greenfield also takes on Greenhouse and Batson over at Fault Lines.
*If it were actually a thought experiment, the follow-up would be an examination of how that would (or would not) change things. Her follow-up is to announce that there aren't enough votes on the Supreme Court to do it but that she longs for a day when there are. Not an experiment at all.