Illinois Courts Struggle to Evaluate Race-Neutral Explanations for Peremptory Challenges under Batson v. Kentucky, 22 J. Marshall L. Rev. 235 (1988) (original) (raw)
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Racial Discrimination and Jury Selection
Social Science Research Network, 2016
Racial Discrimination and Jury Selection BY PETER A. JOY AND KEVIN C. McMUNIGAL 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, No. 14-8349 (U.S. May 23, 2016), available at http://www.supremecourt.gov/opinions/15pdf/14-8349\_6k47.pdf, 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 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 Problem of Racial Discrimination in Jury Selection Racial discrimination in jury selection has long plagued the criminal justice system in the United States. Until the 1875 Civil Rights Act outlawed race-based discrimination in jury service, African American jurors were customarily, and legally, excluded from juries. Resistance to the Civil Rights Act was strong, and it took litigation through several decades until courts invalidated state laws restricting jury service to whites. After the repeal of de jure racial discrimination in jury composition, local officials achieved the same results well into the 1960s by excluding African Americans from jury rolls or jury panels or venires by various means.
American Journal of Criminal Justice, 2008
This paper examines race-based peremptory challenges. Such challenges occur during the voir dire jury selection process. The process allows both the defense and the prosecution to strike jurors who they believe will not decide cases fairly. However, in the case of Batson v. Kentucky 476 U.S. 79 (1986), the Supreme Court ruled that race could not be used as a factor in eliminating prospective jurors. This paper examines federal litigation for five years in which it was alleged that race was used as a factor in removing a juror. An examination of the cases revealed that most of the cases involved sole male litigants who allege that there were multiple racebased peremptory challenges used in their cases. Moreover, most of the cases that led to the allegations involved violent offenses. Other case characteristics are noted, but of most significance was the finding that most appellants lost their cases. As such, the courts felt that most of the challenges were, in fact, race neutral. The implications of this research are discussed.
SSRN Electronic Journal
This article examines possible applications of two affirmative action strategies in jury selection-affirmative jury structures and affirmative peremptory inclusion-in order to create racially mixed juries. I contend that, with the use of affirmative jury structures such as de medietate linguae jury, the Hennepin jury, and social science models, the court can effectively design three specific forms of racially mixed tribunals by requiring varying mandatory racial quotas to ensure the allocation of jury seats to racial minorities. Affirmative peremptory inclusion is a procedural jury selection strategy in voir dire to neutralize the biasing effect of race-based peremptory challenges so that a racially mixed jury is achieved through affirmatively choosing, rather than peremptorily excluding, potential jurors who share the same racial and ethnic background as the defendants. In order to illustrate the importance of affirmative jury selection structures and peremptory inclusion, this paper specifically focuses on People of the State of California v. Eugene "Bear" Lincoln (no. cl2632), the recent criminal trial and racially explosive case that received extensive national attention and international media coverage. The present author participated in the Lincoln trial as a defense jury consultant in assessing the extent of racial discrimination in jury selection at Mendocino County Superior Court, California. The critical analysis of the Lincoln case demonstrates that racially diverse tribunals may be the only effective and equitable solution to increase public's perceptions of trial fairness and verdict legitimacy in racially sensitive trials.
Ohio State Law Journal, 2021
Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post-facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced. This Article addresses this problem with data derived from a five-year field study of Assistant U.S. Attorneys. Through interviews and participant observation during jury selection proceedings, it provides an unprecedented empirical perspective on how Batson has made race central to the ways prosecutors perceive, pick, and strike jurors. Rather than diminishing race’s influence on voir dire, Batson has made it an essential consideration for prosecutors concerned with their in-court performance and professional reputations. This race-conscious approach to jury selection has arisen in part due to a clear doctrinal shift in courts’ analyses of juror questioning and striking. This shift has expanded the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical findings indicate that there is a meaningful connection between this latter approach and the incorporation of anti-discrimination norms into prosecutorial approaches to voir dire. Having identified and described this link, it becomes possible to perform a deeper audit of the Batson framework, and suggest, as this Article does, that with reform and expansion to address well-documented limitations, it may serve to narrow the gap between juries as they are and juries as the Constitution would have them be.
LSN: Juries (Public Law) (Sub-Topic), 1997
In July 1995, the University of California Board of Regents voted to end affirmative action based on race and gender in admissions, hiring, and contracting. Recently, the Equal Opportunity Act introduced by the Republicans would abolish three decades of affirmative action programs initiated by President Johnson in 1965. Given these actions, Americans will have another opportunity to decide whether racial preferences should be terminated from all federal programs.While the question of preferential treatment of racial minorities has divided the nation and even some minority communities themselves, affirmative action in jury proceedings and trials has yet to receive much-deserved attention. This article examines public perceptions of possible application of affirmative action in criminal jury proceedings, focusing on the uses of mandatory racial quotas in criminal jury trials. We examine two different types of racially mixed juries -- the jury "de medietate linguae" and the H...
Research shows the mere presence if Blacks on capital juries-on the rare occasions they are seated-can mean the d!fference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal if jurors through racially motivated peremptory challenges. 111ese proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome ifcapital trials. This Article deconstructs the role ofthe Batson ritual in legitimating the removal ifAfrican Americanjurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors ciffer as race neutral motivationsfor peremptorily striking Blackjurors. In my examination if "race neutral" removals in Texas courts, I demonstrate how the focus on form has jailed to solve the substantive problem of racially discriminatory IIses i f peremptory challenges. Cases from these courts have been critical in the Supreme Court jurisprudence that developed the process for deciphering racially motivated uses ifthis legal tool. Although Batson hearings have proven to be a weak legal instrument, they nevertheless repeatedly remind us i f the persistence if racially discriminatory uses oj peremptory challenges and the jailure if current measures to prevent such discrimination. Building 011 the suggestioll by Akhil Amar to "preempt peremptories," this Article callsfor the reexamillation ifthe use ifthis practice, particularly in capital trials, ill a justice system that purports illterest in protecting that system from racial discrimillation.