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Prosecutors and Peremptories

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This Article calls on prosecutors to implement voluntary reforms seeking to minimize the government’s exercise of racialized peremptory challenges in criminal cases. I purposefully use the word “racialized” here to distinguish a lawyer’s disproportionate use of peremptory challenges by race from the intentional discrimination emphasized by the Court in Batson and its progeny. prosecutors should care about the prevention of Batson violations. Part II sets forth the institutional pressures and cognitive biases that might lead even well-intentioned prosecutors to exercise peremptory challenges in a race-based manner. Part III concludes by calling on prosecutors to take steps to neutralize their own exercises of peremptory challenges, including the collection and publication of both individual and office-wide statistics reflecting the numbers of peremptory challenges exercised and the race of the affected venirepersons and resulting juries.

 

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