Georgia v. McCollum: It's Strike Three for Peremptory Challenges, But is it the Bottom of the Ninth?
A grand jury in Georgia returned a six-count indictment against
three individuals, charging each with aggravated assault and simple battery.
The defendants were white, while the victim was black. Shortly
thereafter, leaders of the African-American community circulated leaflets
urging the town's residents to boycott the defendants' place of business.
Because of the community reaction to the allegedly racially motivated
assaults, the prosecution, in pre-trial proceedings, moved to forbid the
use of race-based peremptory challenges to remove potential jurors.
Under Georgia law, forty-two people comprise the typical petit jury
venire.· Because the racial composition of the community was fortythree
percent African-American, in all probability, the twenty peremptory
challenges allowed to the defendants would have been more than enough
to exclude all potential black jurors.
The trial judge denied the motion, concluding that no such prohibition
restricting the exercise of peremptory challenges by a criminal
defendant existed. The state supreme court affirmed the trial court's
decision, reasoning that jury trials are an essential element in the protection
of human rights; therefore, the court would not restrict the free exercise of
peremptory challenges by the criminal defendant.'
The United States Supreme Court granted certiorari to decide whether
the United States Constitution prohibits the race-based exercise of peremptory
challenges by criminal defendants. Five members joined in the
majority opinion that held: 1) the state had standing to raise objections
on behalf of the excluded jurors; 2) the accused's exercise of these
challenges was considered state action to invoke constitutional scrutiny;
and 3) the Equal Protection Clause of the Fourteenth Amendment
prohibits the use of peremptory challenges to exclude potential jurors
from jury service solely on the basis of race.s The Court reversed the
judgment of Georgia's high court and remanded the case to the original
forum for further proceedings consistent with the opinion.
The United States Supreme Court faced these issues in Georgia v.
McCollum,the latest case in a recent line of Supreme Court decisions
restricting the exercise of racially-based peremptory challenges under the
Equal Protection Clause of the Fourteenth Amendment. However, this
decision extends the scope of equal protection review and affords protection
to potential jury members challenged by criminal defendants.
The irony is that, for the Equal Protection Clause to have any application,
the defendant must be considered a state actor.
McCollum was strike three for racially-based exclusions from jury
service. This note focuses on the impact of McCollum on the future
exercise of peremptory exclusions in today's judicial process. Section I
provides a history of peremptory challenges and of the jury system itself;
this section also incorporates a brief study of prior jurisprudence limiting
race-based exclusions of potential jurors. Section II addresses the test
for Equal Protection Clause litigation and the requirement of state action.
The analysis then focuses on possible alternatives to the current Supreme
Court's application of the Equal Protection Clause. Section III highlights
the possible extension of this analysis to other types of discriminatory
exclusions such as those based on gender. Finally, Part IV questions
whether any substance remains in the peremptory challenge and the
future viability of this practice after the judgment in McCollum.