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Vol. 103, Issue 2


Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors

Jordan Benson

29 Jul 2020

This Note will explore the Supreme Court’s decision in Batson v. Kentucky and the gradual expansion of its protections to other categories such as gender, ethnicity, and (at the circuit level) sexual orientation. I will show that, despite recent expansions of the Batson challenge to sexual orientation in the SmithKline v. Abbott Laboratories decision, achieving Batson protections for disabled jurors is unlikely given the Court’s use of equal protection analysis when examining allegedly discriminatory peremptory strikes. I will then look at several recent lower court decisions examining peremptory strikes of disabled jurors to demonstrate how little protection the current equal protection jurisprudence affords disabled jurors in practice. While there is some possibility that rational basis-level review could afford protections against discriminatory peremptory strikes of disabled jurors, it is almost certainly inadequate to combat them.

After synthesizing these decisions, I will show that constitutional law does not, and will not, provide protection for disabled jurors against peremptory strikes. Nevertheless, disabled jurors should be protected from discriminatory strikes so that their viewpoints are represented and to ensure that they have this opportunity for valuable civic participation. Discrimination against jurors on the basis of their disability poses similar risks of dignitary harm and reinforcement of negative stereotypes as does discrimination on the basis of race or gender. But statutory law, rather than constitutional equal protection principles, is the most viable means to protect disabled jurors from peremptory strikes. I will conclude with a look at some current and recent laws that have been enacted or proposed to modify procedural codes to prevent peremptory strikes on the basis of disability and the limits of such legislation. The recent passage of one of these laws demonstrates the political viability of these statutory protections, and they represent a promising avenue forward for advocates of eliminating discriminatory strikes of disabled jurors.

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