Making, Race, and Criminal Procedure Reform

By Thomas Frampton and Brandon Osowski

In January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature of American trial adjudication, were abolished. Arizona’s move is part of an important trend (one that has largely escaped scholarly attention): after decades of inaction at the federal level, states have begun experimenting with new ways to counter racial exclusion in the selection of juries. Nearly one-sixth of the country now lives in a jurisdiction where Batson v. Kentucky does not provide the basic framework governing peremptory strikes, and more states are contemplating reforms. Perhaps as noteworthy as the scope of Arizona’s reform is how the state’s abolition of peremptory strikes came about: wielding its rulemaking authority, the Arizona Supreme Court simply got rid of them. Indeed, the court did not even issue an explanation for its new rule, despite the private reservations—disclosed here for the first time—of some justices. Most of the other states’ reforms have followed the same trajectory: rather than announce new constitutional rules through adjudication (or call upon their legislatures to enact new statutes), state supreme courts have exercised their broad quasi-legislative authority to promulgate new rules of criminal procedure.

Frampton, Thomas and Osowski, Brandon, Rulemaking, Race, and Criminal Procedure Reform (April 15, 2023). Columbia Law Review, 2024.