Student Note on Disability-Based Peremptory Challenges

New on Westlaw: Natasha Azava, Note, Disability-Based Peremptory Challenge: Need for Elimination, 4 Cardozo Pub. L. Pol'y & Ethics J. 121 (2006). From the introduction:

In 1986, in Batson v. Kentucky, the Supreme Court held that peremptory challenges based on race violate the Equal Protection Clause and as such are unconstitutional. In 1994, in J.E.B. v. Alabama ex rel. T.B., the Supreme Court stated the same about peremptory challenges based on gender. Peremptory challenges based on disability, however, are still constitutional. Under the current standard, when a court finds a disabled person qualified and therefore able to survive a challenge for cause, parties can merely exercise a peremptory challenge to remove the juror, as long as they have peremptory strikes left. Many cases illustrate this point. For example, in People v. Guzman, when the court rejected counsel's challenge for cause, the attorney exercised a peremptory challenge and nonetheless excluded a deaf juror.

Applying such challenges undermines all of the important progress made in recent years towards opening the courts to people with disabilities. Peremptory challenges based solely on a person's disability represent ignorance on the part of those who exercise them. Instead of evaluating one's disability individually to determine whether that disability interferes with one's duty as a juror, parties generalize about people with disabilities and make irrational assumptions that are the "'vestigial fruits' of a history of prejudice, segregation, and exclusion." As one deaf attorney noted, "[u]nfortunately, lawyers who know little or nothing about deafness are exercising their peremptory challenges to remove deaf people from the jury."

Peremptory challenges therefore permit the reinforcement of many unfair prejudices and stereotypes about individuals with disabilities that many have struggled to confront in recent years. "In effect, peremptory challenges remain the final and ultimate bastion of prejudice, segregation, and exclusion preventing jury service by 'qualified' people with physical and mental impairments." And as one judge admits, "if the mentally ill and the mentally retarded are not 'suspect classes' . . . where does that leave the disabled prospective juror who is peremptorily challenged because of his or her disability? I submit, very low in the pecking order of classifications under equal protection of the law." In these circumstances, it seems that unless there is some change in the peremptory challenge as it is applied to people with disabilities, all of the progress in statutory law will be for naught.

This article explores improvements in state jury laws that have resulted in the increased access to courts of jurors with disabilities and argues that even if this progress in carefully evaluating the individual qualifications of prospective disabled jurors continues, the peremptory challenge will remain an obstacle to jury service. Therefore, to ensure equal opportunities for jurors with disabilities, the peremptory challenge based on disability should be prohibited, just like the peremptory challenge based on race and gender.