Here comes another one of my radical ideas for criminal justice reform: Striking judges.
No, I’m not advocating smacking judges around, although I’m sure most criminal court attorneys—on either side of the aisle—can think of a few judges that have it coming.
I’m not talking about judges who are strikingly attractive, either, although the attorneys would probably appreciate that too.
Let me explain.
When putting together a jury for a trial, the jurors can be eliminated—struck—from the panel for two basic reasons. First of all, they can be struck for cause, meaning there is a legal reason why they should not serve, such as knowing one of the parties or witnesses, or being unable or unwilling to carry out their duties as jurors. There is no strict limit to the number of potential jurors who can be struck for cause.
The second reason for striking jurors from the panel is because one of the lawyers doesn’t want them on the jury. These are called peremptory strikes, and each lawyer is allowed a fixed number of them in a trial.
(Jurors can also be excused for hardship, such as illness or taking care of children or invalids.)
I don’t know what the legal justification is for peremptory strikes, but it makes sense to me as an example of eliminating outliers to reduce variance among the jurors. Basically, each side of the case gets to strike the jurors least likely to agree with it—in a criminal case, the prosecution gets to strike the jurors who’d never vote guilty, and the defense gets to strike the jurors who’d never vote not guilty.
The resulting jury should be more of a middle-of-the-road group. This makes them more likely to reach the unanimous conclusion needed for the trial to reach a conclusive result.
It seems to me, however, that if eliminating extremists from the jury pool produces more certain justice, wouldn’t the same principle apply to judges as well?
My proposal is to allow the lawyers on a case to have the power to reject certain judges. For example, each case could be assigned a pool of three judges, then the prosecution and defense could each strike one of them. The remaining judge handles the case. The end result should be that not too many cases are brought before the oddball extremist judges.
For this to really work, the system of striking judges has to feed back into the management of the courthouse somehow so that extremist judges are removed from the bench. I don’t know enough about how the judiciary works to figure out how to do that. Perhaps every few years the judges who are struck most often could be culled, with special attention given to judges struck by both prosecution and defense.
Actually, as I understand it, there are places where the prosecutor’s office already has the power to refuse to bring cases before certain judges, so maybe this isn’t such a radical idea after all.
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