In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.
The folks at Radiolab have a new podcast on Batson v. Kentucky entitled Object Anyway. The podcast provides a history of Batson and the modern day implications of the Supreme Court's 1986 ruling. The podcast focuses less on the law surrounding the decision and more on the human story of those involved in the case to include James Batson and Joe Gutmann, the prosecutor. The podcast also offers a surprise twist at the end involving Joe Gutmann and James Batson.
Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent — a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.
Despite Batson, discrimination by prosecutors in jury selection persists. Because this type of discrimination can easily be masked with an excuse that on its face is race neutral, examining whether an excuse like a juror’s arrest records is one that is truly race neutral is imperative. This Article will explore whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson. Part I examines how race affects the likelihood that a person will have an arrest record. Part II provides background regarding jury selection and Part III examines Batson and its progeny. Part IV discusses the constitutionality of strikes based on arrest records. This Article concludes with the common sense suggestion that questions about arrests during voir dire should be precluded, as should the practice of using a person’s arrest record as the sole basis for the exercise of peremptory strikes.
In 1868, the Fourteenth Amendment to the United States Constitution was passed stating that no state shall deprive “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The United States Supreme Court first held that the Fourteenth Amendment applied to jury selection in in 1880 in Strauder v. West Virginia. In Strauder the court held that West Virginia violated the defendant’s rights when the State’s attorney excluded African Americans from jury service. The Court further held that a defendant does not have the right to a jury including members of his own race. Later in a 1986 case, Batson v. Kentucky, the United States Supreme Court revisited its application of the Fourteenth Amendment application to jury selection, particularly when striking potential members due to race. In Batson, the Court held that when a prosecutor uses a challenge to strike a potential juror in violation of equal protection, the State must produce a non-discriminatory reason for the challenge.
In 1989, the Louisiana Supreme Court adopted the United States Supreme Court’s decision in Batson which later became codified in the Louisiana Code of Criminal Procedure article 795 by the Legislature. A Louisiana appellate court established the Knighten Rule which held that the State must turn over any information upon the request of the defendant in regards to the criminal record of the prospective jurors. However, the Louisiana Supreme Court recently abrogated the Knighten Rule in State v. Bender and held that a mere assertion of the potential juror’s prior criminal conviction is sufficient to strike a potential juror. I argue that by abrogating the Knighten rule, the Louisiana Supreme Court is in direct opposition to the Supreme Court’s mandate under Batson that requires that a challenger to produce some racially neutral-explanation that is “clear reasonable, specific, legitimate, and related to the particular to the case at bar.”
In Warden v. Ayala the Supreme Court reversed and remanded the decision of the Ninth Circuit Court of Appeals. The Court held that any federal constitutional error that may have occurred by excluding Ayala’s attorney from part of a Batson hearing was harmless. A federal court cannot grant Ayala habeas relief unless the state court’s rejection of his claim was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts.
SCT Grants Cert. in Another Batson Case: Foster v. Humphrey
The issue in Foster v. Humphrey, a death penalty case involving a Black defendant, a White victim and an all-White jury is whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case. The case will be argued in the fall.
The facts here seem to favor Foster; however, one can never be sure with these cases.
--Prosecutors highlighted the name of each prospective Black juror in green (see above)
--Black jurors referenced as "B#1," "B#2," and "B#3"
--Prosecutor's investigator ranked each Black juror against the other Black jurors
--All Black jurors were struck by the prosecution
--Prosecutor at the close of trial requested a death verdict from the jury to “deter other people out there in the projects."
Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of Modern Voir Dire
Although scholarly attention has been devoted to the argument that Batson v. Kentucky should apply to gay and lesbian jurors, little or no attention has been paid to how these challenges would work in practice. This article is, foremost, a thought experiment about how peremptory challenges would function if Batson were applied to sexual orientation. I examine several scenarios to understand the practical implications of this change and conclude that it would be ineffective at best and socially appalling at worst. My analysis reveals a fundamental problem with the current peremptory system: it fails to take into account the complex nature of social identity and the psychological realities of human interaction and bias. The goal of equal protection, I suggest, would be better served if changes were made to the existing peremptory challenge system, such as reducing the number of challenges allowed and requiring a Batson-style explanation for every peremptory challenge exercised.