By Julia Cleary
Artwork by Owen Reinhart
In response to a nationwide movement demanding racial justice within law enforcement and legal systems, many states have begun implementing police reform measures. As calls for reform gain more traction, prosecutors are beginning to be implicated. Activists and protestors have called to defund and reform the internal affairs of prosecutor offices. However, the issue is more complicated than defunding. If these offices receive less funding, the problems in the system will only be further perpetuated. The court system is burdened by the quantity of cases it handles. Due to overcrowding in the courts, many defendants are pushed to take plea deals. Less funding will only result in more plea deals and more people forced to take responsibility for crimes without first securing their right to a fair trial. However, just because restricting funding is not the solution to this issue does not mean there isn’t one.
Unregulated, opaque prosecutorial power has continuously perpetuated racial inequality in the criminal justice system. To adequately address this issue, the prosecutorial peremptory strike must be removed from the voir dire process by legislative action. Voir dire is the preliminary evaluation of jurors. The process includes asking jurors questions about themselves, their experiences in life and any possible biases they may hold. The questions are intended to separate qualified unbiased jurors from the rest of the juror pool. The prosecutorial peremptory strike is a tool used by prosecutors to eliminate a certain number of potential jurors without an explanation. Opposing counsel can object to peremptory strikes if they believe discrimination based on race, sex, or ethnicity has occurred and require a reason from the prosecutor for the juror removal; however, this practice does not often occur. Prosecutors have historically used the strike to create juries that are not representative of the district that the jury pool is from and are often disproportionately white. Unrepresentative juries are more likely to be affected by racial bias that will harm defendants of color’s access to a fair trial with an impartial jury, as guaranteed by the 6th Amendment.
The Supreme Court has ruled that racial discrimination when assembling a jury is unconstitutional. In Batson v Kentucky, the Supreme Court held that discrimination based on race when assembling a jury deprives the accused of their rights and harms the community, undermining public confidence in the justice system’s fairness. This legal precedent was set in 1968, and yet racial discrimination within the jury selection process persists.
In 2019, the Supreme Court ruled on Flowers v. Mississippi. In this case, the court considered how Batson had been applied in the Mississippi Supreme Court. SCOTUS ruled in a 7-2 decision that the state trial court had committed an egregious error when determining whether the peremptory strike had been used appropriately. The Supreme Court disagreed with a lower court ruling that this particular use of the peremptory strike had not been motivated by discriminatory intent. While the justices were in disagreement about how frequently the peremptory strike is used for racial bias, with Justice Alito writing a concurrence stating the circumstances of the case were unusual, the majority agreed that it had been used in this manner for this case.
Flowers v. Mississippi shows how despite the ruling in Batson, the peremptory strike is still used to corrupt the sanctity of the court and perpetuate racial bias in the jury selection process. Additional evidence of this corruption was found by the Equal Justice Initiative in 2010, determining that in some counties, 80% of African Americans that qualify for jury duty are struck by prosecutors.
The Batson ruling laid the foundation for the removal of racial bias in voir dire by banning race-based jury selections; however, due to the lack of government oversight and enforcement mechanisms for SCOTUS rulings, prosecutors can still discriminate. To rectify this issue, the peremptory strike must be abolished entirely. It is clear that regulation of the tool is inadequate and hard to enforce. This is not to say jury strikes in general should be removed from the voir dire selection process. Jury striking is vital, as some potential jurors have a bias that would affect the case’s fairness. However, by eliminating the peremptory strike, the juror strikes will have to be justified. Juror strike explanations will allow the judge to determine if the removal is rational and unimpeded by racial bias.
Current prosecutor offices lack transparency, and their actions, including the use of peremptory strikes, are unregulated and unmonitored. With juror strike explanations required, there will be improved diversity on juries, and black defendants will finally secure their 6th Amendment right to an impartial jury of their peers. Legislative action is required to create substantial change, as the courts have failed to enforce their rulings adequately.