A Call to Abolish Peremptory Challenges by Prosecutors
![handle is hein.journals/geojlege27 and id is 1194 raw text is: A Call to Abolish Peremptory Challenges by
Prosecutors
ABBE SMITH*
Today in America, there is perhaps no arena of public life or governmental
administration where racial discrimination is more widespread, apparent, and
seemingly tolerated than in the selection of juries. Nearly 135 years after
Congress enacted the 1875 Civil Rights Act . . . [there are] counties where
prosecutors have excluded nearly 80% of African Americans qualified for jury
service ... [and] majority-black counties where capital defendants nonetheless
were tried by all-white juries . . . . [S]ome prosecutors employed by state and
local governments actually have been trained to exclude people on the basis of
race and instructed on how to conceal their racial bias. 1
The prosecutor who says he doesn't consider race when choosing jurors is
either stupid or a liar.2
TABLE OF CONTENTS
I. ETHICS AND JURY SELECTION .......................... 1165
II. THE PROBLEM WITH PROSECUTORS' EXERCISE OF PEREMPTORY
CHALLENGES AND WHY DEFENSE IS DIFFERENT ............ 1171
III. GOOSE, GANDER, THE ANGRY BLACK WOMAN JUROR,
TRAYVON MARTIN & JORDAN DAVIS, AND WHY NOT JUST
GET RID OF THEM ALL ............................... 1178
INTRODUCTION
Some things don't change. No matter the Supreme Court ruling, federal or
state statute, or ethical proscription. No matter how many generations have
passed since the old Jim Crow, or the growing awareness of The New Jim
* Professor of Law, Director, Criminal Defense & Prisoner Advocacy Clinic, Co-Director, E. Barrett
Prettyman Fellowship Program, Georgetown University Law Center. With thanks to Christopher Miller and
Waleska Suero Garcia for helpful research assistance. © 2014, Abbe Smith.
1. See Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, 4 EQUAL JUSTICE INITIATIVE
(2010) [hereinafter EQUAL JUSTICE INITIATIVE] (Summary by Executive Director Bryan Stevenson).
2. PAUL BUTLER. LET'S GET FREE: A HiP-Hop THEORY OF CRIMINAL JUSTICE 12 (2009).
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A Call to Abolish Peremptory Challenges by Prosecutors
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