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When the U.S. Supreme Court overturned a Texas capital case this month because the prosecution had engaged in racial discrimination in jury selection, the justices didn't change their scheme for determining when a peremptory challenge is unlawful. But Justice Stephen G. Breyer made it clear that if he had his way, he might do away with peremptory challenges. "A jury system without peremptories is no longer unthinkable," Breyer wrote in a concurring opinion in Miller-El v. Dretke. The view has sparked controversy. Howard Weiner, a criminal defense attorney in New York's Law Offices of Lawrence S. Goldman, said it would be a mistake to get rid of them. … When the American Bar Association revised its principles for juries and jury trials this year, it eliminated the suggested caps for peremptory challenges that had been on its books. "Our goal was to signal their continued value," said Stephan Landsman, the reporter for the American Jury Project, which drafted the principles. He said Breyer, an architect of the sentencing guidelines, has always opposed judicial discretion. "[Getting rid of peremptory challenges] would be a disaster in the same way the sentencing guidelines have been," said Landsman, a specialist on the civil jury system at DePaul University's law school in Chicago. "In an ideal world, where there was extensive voir dire conducted by lawyers, and judges were energetic in removing jurors for cause, we could do without them," he said. But those conditions don't exist in most courts.
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