Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why it Should be Abolished

Abstract

In theory peremptory challenges should be used to ensure a fair system of jury selection, however, in practice, they are a loophole exploited to racially discriminate. Peremptory challenges are now systematically and intentionally employed to racially discriminate in the jury selection process, effectively excluding Black potential jurors from jury service. 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.