Arizona’s conservative state Supreme Court took a surprising step last week that could lead to juries in that state being more racially diverse, and thus less likely to treat racial minorities more harshly.

It announced that it will eliminate “peremptory challenges” in Arizona — a practice that allows trial lawyers to remove jurors from a case, often for arbitrary or ill-defined reasons.

Although criminal justice reformers, including some who sit on the Supreme Court of the United States, have warned for decades that peremptory challenges are often used to exclude jurors because of their race, the practice remains widespread in the United States. Arizona will be the first state to eliminate peremptory challenges entirely; the state’s new rules will take effect in January.

People of color are less likely to serve on juries for a wide range of reasons — racial minorities are less likely than white people, for example, to appear on voter registration lists and vehicle registration lists, which many jurisdictions use to develop a pool of potential jurors. But multiple studies suggest that peremptory strikes play a major role in producing juries that are whiter than the population as a whole.

Typically, in both criminal and civil jury trials, a court will assemble a panel of potential jurors that is much larger than the actual number of jurors needed to hear the case. Though the rules vary from state to state (and the federal system has its own set of rules), lawyers on both sides of a case may ask the judge to remove a juror “for cause” if there is reason to doubt that juror’s impartiality. (A prosecutor, for example, may wish to exclude a juror who is related to the defendant.)

Peremptory challenges, meanwhile, allow lawyers to strike jurors even if they are unable to convince the judge to do so for cause. Typically, a lawyer who uses a peremptory challenge to remove a juror does not have to explain why they decided to do so, and is allowed to remove a juror for arbitrary reasons. A lawyer may, for example, use a peremptory challenge to remove a juror because they do not like the juror’s haircut.

The number of peremptory challenges available to lawyers varies depending on the type of case and which court is hearing the case. In most federal felony trials, for example, the prosecution may strike up to six jurors, while the defense may strike 10.

There are a few constitutional limits on peremptory strikes. Most notably, in Batson v. Kentucky (1986), the Court held that lawyers may not remove a juror because of that juror’s race, and it laid out a three-part test that judges should use to sniff out whether a particular juror was removed for racist reasons.

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The stakes are very high if racial minorities are less likely to serve on a jury than white Americans. A 2012 study of felony trials in Florida, for example, found that Black defendants are 16 percent more likely to be convicted than white defendants when no Black person serves on the jury. This gap disappears if the jury has a single Black member.

The upshot of the Arizona Supreme Court’s new rules is that racial discrimination through peremptory strikes will cease to exist in Arizona because peremptory strikes will themselves cease to exist. But the new rules were also criticized by prosecutors and at least some defense lawyers because they will take away a tool that can potentially be used to screen out biased jurors.

Ultimately, the state supreme court appears to have decided that the benefits of eliminating peremptory challenges, including the benefit of eliminating a frequent vehicle for race discrimination, outweigh the risk of having some bad jurors remain on juries.

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One problem with this system is that there are all kinds of lawful reasons a prosecutor may wish to strike a juror who happens to be a person of color. The prosecutor may legitimately believe that the juror expressed a bias against police, for example. Or they may simply feel that the juror seemed inattentive during the juror screening process. The Constitution forbids excluding a juror because the juror is of a particular race, but it doesn’t forbid a prosecutor from striking a juror for being inattentive or a skeptic of police, even if that juror is also a person of color.

Peremptory strikes may be used to remove a juror for completely arbitrary reasons. In Purkett v. Elem (1995), for example, the Supreme Court permitted a prosecutor to strike two Black jurors because the prosecutor disapproved of one juror’s “long hair” and thought that both jurors’ “mustaches and the beards look suspicious to me.”

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Data suggest that racial jury discrimination is widespread, even after Batson.  {snip}

A study of capital cases in North Carolina, for example, found that prosecutors “were responsible for eliminating 12% of whites who went through the [jury selection] process without being removed [for cause], and 35% of blacks who did so,” while “the defense’s strikes eliminated 35% of whites who were not removed [for cause], and 3% of blacks.”

A study in Mississippi found that “Black venire members are 4.51 times as likely to be excluded from a jury due to peremptory challenges from the prosecution in comparison to White venire members.” And federal data shows that “in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.” Meanwhile, “black jurors were underrepresented by 16%, Native American jurors were underrepresented by 51% and Hispanic jurors were underrepresented by 21%.”

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