A Step Forward on the Tightrope: New Jersey’s Approach to Batson Reform

Authored By Ruihao Lin

Abstract

In the quest to strike a balance between upholding the long-standing tradition of peremptory challenges in the practice of law in America and minimizing discrimination in jury selection, the legal community has grappled with an ongoing debate since the advent of Batson v. Kentucky.  Despite the introduction of the Batson framework, the issue remains unresolved, as numerous voices within the Supreme Court have questioned its effectiveness.  Batson has failed to find favor with both conservatives and liberals who seek a middle ground, and many argue that such a middle ground may not even exist.

In August 2021, Arizona sparked a nationwide discussion by abolishing peremptory challenges, signaling the end of the Batson framework in Arizona.  The question of whether to follow in Arizona’s footsteps and bid farewell to Batson or to uphold its legacy became a critical topic of conversation, posing an existential issue for peremptory challenges.  Amidst a multitude of debates, New Jersey stepped into the fray and unveiled its reform in November 2021.  In contrast to Arizona’s sweeping changes, New Jersey cautiously navigated the tightrope between safeguarding the long-established litigation mechanism of peremptory challenges and mitigating discrimination. From the outset, the framers of this reform acknowledged there was no quick fix for the systemic issue of underrepresentation in jury selection.  Following extensive academic research, legal discussions, and opinions issued by the New Jersey Supreme Court, the reform measures were introduced through pilot programs in select counties.

Part I of this Article delves into the history and institutional purpose of peremptory challenges in American common law, as well as Batson’s attempt to address the discriminatory uses of these challenges.  Part II provides a comprehensive overview of the reform process in New Jersey, including court rulings, empirical research, legal discussions, and pilot reform measures.  Finally, Part III evaluates the reform in New Jersey from the perspective of constitutional jurisprudence and practical procedural concerns, showing the desirability of the reform should other jurisdictions follow these measures.