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Justice Breyer: Get rid of Peremptory Challenges

By Tom Lincoln

In Miller-El v. Dretke, 545 U.S. --, No. 03?9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether.  He seems to be worried about preservation of the democratic institution of the jury when he states[...] If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury?s democratic origins and undermine its representative function.Of course, when he dissented from Booker's merits opinion and drafted Booker's remedial majority opinion, Justice Breyer's concern for the institution of the jury was nowhere to be found...continue to full post

Full post as published by Puerto Rico Association of Criminal Defense Lawyers on June 14, 2005 (boomark / email).