Should the Supreme Court Abolish Peremptory Strikes?

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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.”