On Monday, the Supreme Court will hear the case of Timothy Tyrone Foster, a case that illustrates much of what ails our criminal justice system. Mr. Foster, who is African-American, was convicted as a teenager of the murder of a 79-year-old Caucasian woman, and has been on Georgia’s death row for 28 years. His lawyers have attacked his conviction and sentence on many fronts. They have pointed out, for example, that a key piece of evidence—a videotaped statement—was illegally obtained. They have argued that Mr. Foster’s IQ scores, which have ranged from 58 to 80, make him ineligible for execution. All his claims have thus far proved fruitless.
The Supreme Court will consider one final claim. It concerns the prosecution’s use of its peremptory strikes—trial tools that permit lawyers on both sides to remove potential jurors for any reason other than race, ethnicity, or gender. The prosecution in Mr. Foster’s case struck four African-American jurors, and the result was an all-white jury. For 19 years, Mr. Foster got nowhere with his argument that these jurors had been removed because of their race, and got nowhere with his request that the prosecution turn over its jury selection notes. But in 2006, after the passage of Georgia’s Open Records Act, the contents of the prosecutor’s file were revealed. On juror questionnaires, the race of African-Americans had been circled, and on juror lists the names of African-Americans had been highlighted in green. A helpful key indicated that the green highlighting “represents blacks.” These notations contrast sharply with the prosecutor’s assertion during jury selection that, when selecting jurors, “I look at it color-blind.”
Some commentators have used this case as an illustration of the need to abolish the peremptory strike. The questions asked by those who would abolish it are important ones. What does it say about our chances of effectively policing this tool that three courts accepted the prosecutor’s lists of race-neutral reasons for each strike? What benefit is there to the peremptory strike that might offset the harms that it can cause—to a defendant, to jurors, and to the jury’s democratic function?
In a forthcoming article, I argue that the critiques of the peremptory strike do not justify its abolition. While they are compelling in the context of the prosecutorial peremptory strike, they are less compelling when it comes to the defense peremptory strike. Yes, harms caused by peremptory strikes can be severe, but it is prosecutorial peremptory strikes that carry with them a long, documented, and shameful history of discriminatory abuse. Yes, democratic representation may be threatened by the use of the peremptory strike, but it is the prosecutor’s use of the peremptory strike that threatens the jury’s key democratic function: holding the government accountable. And research into the policing and the use of the peremptory strike suggests not only that judges may police defense strikes more rigorously than prosecutorial strikes, but also that defense attorneys may be able to make more effective use than prosecutors of the peremptory strike: a tool that they need, given the biases, explicit and implicit, to which criminal defendants are vulnerable in a jury trial, as elsewhere in a criminal prosecution.
The asymmetrical application of the critiques of the peremptory strike militates in favor of asymmetrical responses, rather than across-the-board abolition. Historically, states did adopt such approaches, in a way that is steadily being erased. The first state statutes allocating peremptory strikes in criminal trials typically gave them only to criminal defendants; subsequent early statutes typically gave some to the prosecution, but a greater number to the defense. From those early days until now, however, the trend has been for states to move toward symmetrical allocation of peremptory strikes, invoking the notion of a “level playing field.”
Only nine states have preserved asymmetry in their allocations of peremptory strikes, and two of those regimes have been under recent legislative attack. Those nine should hold firm, and other states should consider emulating their approach. Symmetry has obvious appeal, but has never been the governing principle in our criminal justice system. Rather, asymmetries have served as a way of trying to ensure fairness. Constitutional rights are of course asymmetrical, in that they belong to the defendant; so is the burden of proof in criminal trials. So too, at least in theory, are the roles of defense and prosecution: the former is tasked with zealous advocacy on behalf of a client, whereas the latter is to “seek justice,” rather than merely convictions. So, let states by all means reduce the number of prosecutorial peremptory strikes—or, as some have advocated, abolish such strikes. Adopting across-the-board abolition in response to what happened to Mr. Foster, however, would do an injustice to future defendants, and to our vision of a fair trial.