By Noah Goldenberg.
You may have heard that Arizona is disallowing peremptory challenges starting January 1st, 2022. If you missed the news, make sure to read Emily Tegley’s post on how peremptory challenges work and why it is so significant that Arizona is disallowing them.
Here is a quick refresher: before a jury trial, a jury must be selected. Arizona summons potential jurors to create a venire, or jury pool—a group from which the ultimate petit jury will be picked. During voir dire, lawyers from each side question potential jury members. If a lawyer shows that a juror cannot be impartial, the judge will exclude that juror from the final jury. Typically, lawyers also have a limited number of peremptory challenges–a tool lawyers use to exclude potential jury members without showing cause.
Peremptory challenges can, however, be used to exclude minorities from juries. A 2019 study of Mississippi juries found that black jurors are 4.51 times as likely to be dismissed with a peremptory challenge than white jurors. By eliminating peremptory challenges, the Arizona Supreme Court hopes to achieve more representative and impartial juries. Indeed, the intersection of peremptory challenges and prosecutorial discretion has caused shockingly unjust and undemocratic criminal trials. It remains to be seen whether eliminating peremptory challenges will create more impartial and representative juries. If Arizona is interested in reaching this goal, then additional reforms should be enacted to develop more representative and impartial venires.
Flowers v. Mississippi: The Risks of Peremptory Challenges
Curtis Flowers’s story, retold in season 2 of the podcast In the Dark, is a chilling example of the dangers posed by prosecutorial discretion and peremptory challenges. In 1996, three people were found dead inside a furniture store in rural Mississippi. The police arrested Curtis Flowers despite having little evidence and no motive. Flowers, a black man who is now 51 years old, spent the next 23 years of his life in prison. The catch? He was never convicted.
Flowers was tried six times by the same prosecutor, for the same crime, and with the same questionable evidence. The first three trials resulted in convictions against Flowers, but all three were overturned by the Mississippi Supreme Court: two for prosecutorial misconduct and one for misuse of peremptory challenges to exclude potential black jurors from the jury. Trials four and five each had at least three black jurors and both resulted in dead-locked verdicts. Finally, Flowers sat trial before a sixth jury, this time with one black juror. He was convicted of four counts of murder and sentenced to death. In 2019, Flowers’s conviction went to the United States Supreme Court.
Writing for the 7–2 majority in Flowers v. Mississippi, Justice Kavanaugh reversed Flowers’s conviction. Kavanaugh wrote that “four critical facts, taken together, require reversal.” First, throughout Flowers’s six trials, the prosecutor used a total of 42 peremptory challenges; all but one of these challenges were used to strike prospective black jurors. Second, in Flowers’s sixth trial, the prosecution used its peremptory challenges to strike five of the six prospective black jurors. Third, during the sixth trial, the prosecution engaged in “dramatically disparate questioning” between black and white jurors. Finally, the prosecution even used a peremptory challenge to dismiss a prospective black juror with opinions and biases closely resembling the seated white jurors. Kavanaugh found that the combination of these facts led to one inevitable conclusion: that the prosecution’s use of peremptory challenges was impermissibly motivated in substantial part by “discriminatory intent” in violation of Batson (seriously–if you have not read Emily Tegley’s post, you are missing out).
After the Supreme Court’s ruling, Mississippi dropped the charges against Curtis Flowers. After 23 years behind bars, he was free. A Mississippi judge ordered the state to pay Flowers $500,000, the statutory maximum, for wrongful imprisonment. That is only $1.05 for every hour he spent imprisoned. While Batson provides theoretical judicial relief against discriminatory use of peremptory challenges, defendants like Flowers can spend half of their lives behind bars when peremptory challenges are abused.
By prohibiting all peremptory challenges, Arizona hopes to avoid discriminatory use of the challenges. The goal is for this rule to efficiently create more impartial and representative juries. Such a goal should be applauded, but can it be achieved by eliminating peremptory challenges alone?
Fish from the Poisoned Pool?: Achieving an Impartial Venire
Even before excluding jurors from the petit jury, Arizona creates less-representative venires by excluding certain citizens from serving on a jury. If the jury pool from which a petit jury is chosen is already unrepresentative, then even the most progressive policies regarding peremptory challenges will achieve limited results. Arizona should consider further reforming the jury selection process by ensuring that juries are drawn from truly representative juror pools.
Currently, venires are drawn from a combination of voter and department of transportation records, but some limitations are put on this list. First, having a felony record can permanently remove you from jury eligibility. Citizens convicted of a felony, including out-of-state felonies, cannot serve on an Arizona jury until their civil rights have been restored. For those convicted of their first felony, this ban from juror service lasts only until the final discharge of their sentence. However, Arizona imposes a lifelong ban on citizens convicted of a second felony. While Arizona does not impose an automatic life ban after a first felony, there is ample room for reform in this area. Maine does not impose any restrictions on a jury service resulting from a felony and instead allows potential jurors to be excused while incarcerated. Indiana and North Dakota suspend those with felony convictions only while incarcerated. By imposing lifelong bans on citizens with certain felony convictions, Arizona narrows its jury pools even before voir dire. Arizona should consider reforming its juror eligibility laws; afterall, a truly representative jury pool would include citizens with felony convictions.
Arizona jury pools will also be less representative because of the financial realities of jury duty. While Arizona law prevents employers from discharging or discriminating against an employee because of jury service, Arizona jurors are only paid $12 a day for their service, far below Arizona’s minimum wage and the Arizona District Court’s juror compensation rate. Arizona allows jurors to request exclusion if service would result in financial hardship. While salaried workers may continue to be paid, some hourly workers may not be able to afford to serve on a jury. By offering inadequate compensation for jury service, Arizona risks excluding lower-income Arizonans from jury service altogether. To achieve representative jury pools, Arizona should also consider new jury compensation systems for low-income Arizonans or hourly employees.
Curtis Flowers’s case underscores the need for peremptory challenge reform. While it remains to be seen whether Arizona’s new rule will achieve its intended result, Arizona should be applauded for attempting to enact rules that increase jury representation. However, until Arizona jury pools are truly representative, even the best possible outcomes from Arizona’s new peremptory challenge ban will yield limited results.