Peremptory Challenges

The Enemy of Pluralism

In recent years, rhetoric from politicians, media sources, and average individuals has become very cynical of our pluralistic society, with some going so far as to suggest that we should seek to eliminate the presence of other cultures from our country. While there are undoubtedly many problems and conflicts that are bound to arise from a pluralistic society such as our own, a concept developed by Robert Merton and referred to as Strain Theory (Schmalleger, 2016), I believe that the benefits of retaining our pluralism outweigh the problems that it creates. Firstly, limiting or removing foreign cultures from our country is not a practical solution due to the fact that American culture is a blend of other cultures from across the globe. Additionally, while extremely disparate cultures may cause the greatest amount of tension, there are many different subcultures that exist within any large culture (i.e. Southern culture vs. Northeastern culture in the United States). Because of this, it would simply be impossible to eliminate all of the strain that is created by pluralism. However, the benefits of a pluralistic society such as our own arise from the mixture of ideas, beliefs, and theories that is made possible by the blend of cultures that exist within a pluralistic society. Having a mixture of ideas allows for our society and its leaders to examine a problem from many different perspectives, some of which starkly contrast with what is considered mainstream.

Because of the value of pluralism in any body of decision-makers, I hold that it would behoove our justice system to abolish the use of peremptory challenges. Peremptory challenges are a part of the voir dire process of selecting a panel of twelve jurors, whereby both prosecuting and defending attorneys are granted the ability to exclude a certain number of prospective jurors “without a reason stated, without inquiry, and without being subject to the court’s control” (Swain v. Alabama, 1965). Unfortunately, these challenges can and have been used by attorneys on both sides to eliminate pluralism from the jury box in order to increase their odds that the case will be decided in their favor. The use of peremptory challenges has received much criticism and, as such, certain restrictions have been placed upon their use. First, each attorney is only given a certain number of peremptory challenges to work with, the precise number of which varies by jurisdiction, type of case, and seriousness of offense (Greene & Heilbrun, 2014). Second, the Supreme Court has ruled in the cases Batson v. Kentucky (1986) and J.E.B. v. Alabama ex rel. T.B. (1994) that peremptory challenges may not be used to exclude groups of individuals based on race or gender respectively.

While this may seem to fix the issue of peremptory challenges, it is often difficult to determine whether the challenge was used on the basis of race or gender, allowing attorneys to continue to use them as long as they are able to produce another reason for the challenge in the event of a mistrial. While some advocate for the continuance of peremptory challenges, I assert that there are perfectly viable alternatives in the form of challenges for cause, which are used to dismiss prospective jurors for a specific reason, such as a conflict of interest. By eliminating the use of peremptory challenges and charging attorneys who attempt to use challenges for cause in order to eliminate any discernable group (religious or economic) with contempt of court, I believe that the criminal justice system would be able to better incorporate our pluralistic society into the courtroom.

References

Schmalleger, F. (2016). Criminology (3rd ed.). Pearson Education.

Greene, E. & Heilbrun, K. (2014). Wrightsman’s Psychology and the Legal System (8th ed.). 
Wadsworth, Cengage Learning.

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