The Problem with a Peremptory Challange – a Tool of Racial Discrimination Within American Jury Selection Process




peremptory challenge, jury, racial discrimination, Batson v. Kentucky, Batson claim, criminal trial, Batson Rule


Jury duty serves as one of the fundamental pillars of American democracy, for it encourages direct citizen participation. Yet, the process of selecting its members is characterised by a flaw in form of a peremptory challenge — a tool with considerable potential for abuse since it permits covert discrimination against members of visible minority groups. Despite not being a procedural right protected by the Constitution of the United States, peremptories have entered the canon of provisions thought to be necessary for preserving the fairness of trial due to their long history of employment in the legal system. In the late 1980s, the Supreme Court in Batson v. Kentucky ruled the exclusion of jurors solely on the basis of their race to be unconstitutional and established the first preventative procedural standard against dubious usage of peremptories in form of the Batson Rule. The effectiveness of the said standard remains questionable, for it did not successfully deal with racial discrimination during voir dire but only enabled to formally object to the questionable juror’s strike. This paper aims to put racial discrimination within the American jury system into a historical perspective, analyze the arguments of both the supporters and the opponents of further peremptory challenge usage and consider probable alternatives that might be implemented to successfully prevent discriminatory practices within the American jury selection process.

PlumX Metrics of this article

Author Biography

Iga Machnik, Jagiellonian University, Krakow, Poland

An M.A. and B.A. graduate of American Studies at the Institute of American Studies and Polish Diaspora of the Jagiellonian University. Recipient of the Copernicus Society of America’s scholarship (Dickinson College, USA, 2023). Doctoral student in the Society of the Future program at the Jagiellonian University’s Doctoral School in the Social Sciences. Her main research interests focus on the United States Supreme Court, racial discrimination within American justice system, American South and policies of desegregation. 


Aiello, Thomas. “Guest Column: Discriminatory Jury Practices in Louisiana Not Limited to State Court.” The Advocate, 25 Mar. 2021.

Alschuler, Albert, and Andrew G. Deiss. “A Brief History of the Criminal Jury in the United States.” University of Chicago Law Review, vol. 61, no. 3, 1994, pp. 867-928. DOI:

Batson v. Kentucky, 476 U.S. 79, 1986.

Brief for Petitioner, at 2, Batson v. Kentucky, 106 S. Ct. 1712, 1986,

Cabrera, Marisa, and Sundquist, Christian B. History of Batson v. Kentucky and Its Progeny, 14 Oct. 2017,

Cohn, Avern, and David Sherwood. “The Rise and Fall of Affirmative Action in Jury Selection.” University of Michigan Journal of Law Reform, vol. 32, 1999, pp. 323-333.

Edelman, Gilad. “Why is it so Easy for Prosecutors to Strike Black Jurors?” The New Yorker, 5 Jun. 2015.

Edmondson v. Leesville Concrete Co., 500 U.S 614, 1991.

Equal Justice Initiative. “Race and the Jury Illegal Discrimination in Jury Selection.”

Flowers v. Mississippi, 588 U.S., 2019.

Fukurai, Hiroshi, and Richard Krooth. Race in the Jury Box: Affirmative Action in Jury Selection. New York: State University of New York Press, 2003. DOI:

Herman, Susan. “Why Court Loves Batson: Representation-Reinforcement, Colorblindness, and the Jury.” Tulane Law Review, vol. 67, no. 6, 1993, pp. 1807-1852.

Hernandez v. New York, 500 U.S. 352, 1991.

Hoffman, Morris B. “Peremptory Challenges Should Be Abolished: A Trial’s Judge’s Perspective.”

University of Chicago Law Review, vol. 64, no. 3, 1997, pp. 809-871, DOI:

J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 1994.

Jonakait, Randolph N. The American Jury System. New Heaven and London: Yale University Press, 2003.

Marder, Nancy S. “Justice Stevens, the Peremptory Challenge, and the Jury.” Fordham Law Review, vol. 74, no. 4, 2006, pp. 1684-1729.

Marder, Nancy S. “The Changing Composition of the American Jury.” 125th Anniversary Materials Chicago-Kent College of Law, 2013, pp. 66-74.

Morrison, Caren Myers. “Negotiating Peremptory Challenges.” Journal of Criminal Law and Criminology, vol. 104, no. 1, 2014, pp. 1-58.

National Archives. “Declaration of Independence: A Transcription.”

Price, Melynda. “Expanding Reach: The Importance of Batson v. Kentucky Thirty Years On.” Kentucky Law Journal, vol. 105, no. 4, 2017, p. 1.

Purkett v. Elm, 514 U.S. 765, 1995.

Simerman, John. “Here’s How Federal Court in New Orleans Aims to Address Shortage of Black Jurors. Is It Enough?” Nola, 23 Jan. 2021,

Strauder v. West Virginia, 100 U.S. 303, 1880.

Swain v. Alabama, 380 U.S. 202, 1965.




How to Cite

Machnik, I. “The Problem With a Peremptory Challange – a Tool of Racial Discrimination Within American Jury Selection Process”. Ad Americam, vol. 24, Nov. 2023, pp. 71-81, doi:10.12797/AdAmericam.24.2023.24.05.