The End of Batson? Rulemaking, Race, and Criminal Procedure Reform

On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature of American trial adjudication, were abolished. Arizona’s move is part of an important trend (one that has largely escaped scholarly attention): after decades of inaction at the federal level, states have begun experimenting with new ways to counter racial exclusion in the selection of juries. Nearly one-sixth of the country now lives in a jurisdiction where Batson v. Kentucky does not provide the basic framework governing peremptory strikes, and more states are contemplating reforms. Perhaps as noteworthy as the scope of Arizona’s reform is how the state’s abolition of peremptory strikes came about: wielding its rulemaking authority, the Arizona Supreme Court simply got rid of them. Indeed, the court did not even issue an explanation for its new rule, despite the private reservations—disclosed here for the first time—of some justices. Most of the other states’ reforms have followed the same trajectory: rather than announce new constitutional rules through adjudication (or call upon their legislatures to enact new statutes), state supreme courts have exercised their broad quasi-legislative authority to promulgate new rules of criminal procedure. 

This Article makes four main contributions. First, it situates the recent wave of rulemaking reforms in broader historical context, revisiting the century-long conflict between state judiciaries and legislatures for control over American criminal procedure. Second, it provides the first comprehensive account of recent state-level developments that are quietly reconfiguring how American juries are constituted. It situates this development as a response to anemic efforts by the U.S. Supreme Court to meaningfully counter racial exclusion in recent decades, tracks how various state-level reform efforts have built upon one another, and highlights how these experiments depart from federal anti-discrimination doctrine. Third, it provides a close descriptive account of Arizona’s historic abolition of peremptory strikes, based largely upon original interviews with the key actors, including the Chief Justice of the Arizona Supreme Court. We surface a surprising explanation for why the overwhelmingly conservative court endorsed abolition: many key actors perceived the reforms undertaken elsewhere to confront systemic racism and implicit bias as “too woke.” Finally, we use the abolition of peremptory strikes in Arizona to explore the broad judicial rulemaking power that many (but not all) state supreme courts currently wield. We offer a detailed analysis of the current legal landscape throughout the fifty states, exploring where an ambitious state supreme court could, and could not, undertake further reforms to jury selection (or revamp criminal procedure more broadly).