Institutional racism in the United States Criminal Justice System is a well-documented phenomena, shown in higher arrest rates, higher conviction rates, and longer sentences for people of color than for white people. Despite all of that information, what seems to rarely get an in-depth examination is the racial makeup of an integral part of the criminal justice system: juries. To address iniquities in our justice system, it is important to consider the history of racism in jury selection and find potential solutions for the problem today.
The Jury Selection Process
Jury trials in the United States always begin with a jury selection process, known as the voir dire. During this process, both the prosecution and defense get to ask the jurors questions to determine who they want on the jury. Courts call in a substantial jury pool, known as venire, and narrow it down to the jurors who will hear the case. To remove potential jurors, the prosecution and defense are given two kinds of strikes: for cause and peremptory challenges. For cause challenges are made for specific reasons, such as when a potential juror has some relation to the case that makes them biased (like being a coworker or relative of the defendant). The judge will review an unlimited number of these challenges and decide whether they are legitimate. Peremptory challenges are different. Both the prosecution and defense get a limited number of strikes to make for no particular reason, other than to help their own case.
Case History Before Batson
The first time the Supreme Court tackled racism in jury selection occurred in 1879 in the case of Strauder v. West Virginia. The Court held that a West Virginia law allowing only white males above the age of 21 to serve on juries was unconstitutional as it violated the 14th Amendment’s Equal Protection Clause. This began a stretch of cases that used the 14th Amendment to decrease discrimination in jury selection. Unfortunately for the court, the discretionary nature of jury selection as well as the wide variance in laws across the nation led to a number of cases about jury discrimination over the next century. A good example of these sorts of cases is Neal v. Delaware. In Neal, the Supreme Court ruled that a law that restricted jury service to only “sober and judicious” individuals was being used to discriminate against Black jurors and thus the law was unconstitutional. The ruling in Neal, however, proved to be too limited as it only addressed the problems of that particular law, not the universal issues with jury selection. Unfortunately for both the Court and minority citizens, this strategy of ignoring broader legal problems limited the possibility of creating any meaningful precedent for decades. As a result, the issue of peremptory challenge discrimination, perhaps the greatest source of racial bias, remained unaddressed for 86 years after Strauder until Swain v. Alabama in 1965.
In Swain, the Court first recognized the distinct problem with the coexistence of peremptory challenges and protections against racism in jury selection. In the majority opinion, Justice White specifically argued against protections for each individual case by claiming, “In the quest of an impartial and qualified jury, Negro and White, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge.” Importantly, this doesn’t necessarily mean that the Defense has no right to challenge the Prosecution’s use of these strikes in a racially discriminatory manner. In fact, the court in Swain held that a defendant could win that challenge if proof of repeated discrimination by the prosecutors is provided. That result certainly helped, allowing successful challenges to racist, discriminatory prosecutors, but most defendants saw no real benefits. It’s also important that the Court, for the first time, recognized the fact that there could be no long term solution that preserved both peremptory challenges and equal protection as guaranteed by the 14th Amendment.
Batson v. Kentucky
Swain was criticized broadly for the high burden it imposed on defendants. In the years after Swain, some lower courts began to allow defendants to prove racism using extreme circumstances in one particular case. Despite the criticism, by 1986 the Supreme Court had not set new precedent. Then came Batson v. Kentucky, the most recent major case on the subject. The case involved James Kirkland Batson, a man on trial for burglary and receipt of stolen goods. The prosecutor from his case, Joe Gutmann used his peremptory challenges to strike 4 potential jurors, all of whom were black, making the case’s jury all-white. The defense contested the strikes but was overruled and Batson was convicted. On appeal, the Supreme Court of Kentucky affirmed the conviction, leading Batson’s team to appeal to the Supreme Court of the United States.
In a 7-2 decision, the Supreme Court decided that the Swain burden of proof was unjust and sided with Batson. This led to the current test for discrimination in peremptory challenges, known simply as a Batson challenge. This includes 3 steps: First, the defense must show that the Prosecutor removed potential jury members that are the same race as the defendant. Second, the defendant can rely on the fact that peremptory challenges allow room for discrimination. Third, the defendant needs to show evidence that the prosecutor did remove them based on their race, such as arguing convincingly that there was no other potential reason. Once they fulfill Part 3, the prosecution must explain why they struck the juror or the the juror is reinstalled.
Interestingly, two concurring opinions highlighted another possible solution: Justice White thought that the Court should consider addressing the removal of peremptory challenges and Justice Marshall openly advocated for the end of peremptory challenges. Despite their hopes, Batson challenges remain the only recourse for discriminatory strikes.
Unfortunately, the Batson challenge has proved to be ineffective at best and actively harmful at worst. Prosecutors learn to come up with any excuse to remove black jurors other than race, helping them hide their discrimination in new ways. In fact, there are many examples available of prosecutors being taught to discriminate and get around Batson challenges, with sheets detailing criticisms like how the juror dresses, their body language, or their attitude being spread by district attorneys to aid prosecutors. While in some rare instances Batson has helped, like in the recent Foster v. Chatman case, Batson challenges have actually caused more white people to benefit than people of color. Sean Overland, a seattle based jury and trial strategy consultant, explains this phenomenon: “Only about 17% of Batson objections are eventually sustained. Ironically, Millili (1996) found that the highest rate of successful Batson challenges (53% success rate) are made against peremptories used to strike white jurors”. The fact that the success rate is so low and would be even lower if you ignored challenges for claims of anti-white discrimination is a pretty fatal indictment of the Batson system. Even though the rule has been expanded to include discrimination based on gender and sexuality, its ineffectiveness across the board points to one conclusion: Batson challenges are not a sufficient solution to discrimination in jury selection.
Potential Solutions
What are our options? One appealing choice is to force quotas for juries, ensuring they’re representative of the community. This solution ensures that we give every defendant a jury of their peers. Unfortunately, this solution is fraught with legal and pragmatic problems. In the past, the court has repeatedly denied that there is a right to a perfectly representative jury or a jury that includes some or only people of our own race. This is due to the fact that the Constitution only guarantees a right to an “impartial jury” in the 6th Amendment as well as the logistical issues to which we have already alluded. It would be extremely difficult and resource-intensive to find a qualified jury in proportion to the general public for every single trial. It would also be difficult to decide both what counts as proportional with varying jury sizes and what truly constitutes a “community.” In the end, this solution represents a false hope for an unachievable goal.
Perhaps the most common solution is advocated by Thurgood Marshall and more recently Stephen Breyer: the elimination of peremptory challenges altogether. The Los Angeles Times Editorial Board recently argued that this is the logical end result of further challenges to peremptory challenges, claiming, “It's only a matter of time before courts discover other impermissible uses of the peremptory challenge, undermining its original purpose of providing a safety valve for lawyers who suspect but can't prove that a juror might be biased.” It’s also important to consider that Batson challenges end up forcing jurors to have causes for any strike they make, meaning the burden for the prosecution does not grow dramatically. The only change is more judicial oversight over how challenges are used, and if a prosecutor cannot provide proper justification, then calling their strike discriminatory seems not only fair, but necessary. Unfortunately, there is one daunting problem with this solution: it seems unrealistic to expect the Court to implement it. The Supreme Court has repeatedly had the opportunity to abolish peremptory challenges but has simply never considered it, ignoring it most recently in Foster v. Chatman. There are several cases involving peremptory challenges every year, so the opportunity exists, assuming the Supreme Court agrees to hear them. As a result, there is hope that maybe next term peremptory challenges will be removed (Breyer’s support is particularly encouraging). But, until then, the Court can’t do much. Luckily, the Court in Rivera v. Illinois (2014) stated that “there is no freestanding constitutional right to peremptory challenges”, which opens up legislation as a potential way to end peremptory challenges. However, legislating the problem away has its own issues. If the legislature attempted to outlaw peremptory challenges, they would be ending a practice that has existed since the Middle Ages and thus will set forth a major shift in our legal system. Generally, decisions of that gravity are far more difficult to implement legislatively, especially in our increasingly partisan Congress. There is some reason to hope, however, as Britain’s legislature took action to end that centuries old norm in the Criminal Justice Act of 1988. Perhaps our Congress can use that as precedent to justify the removal of peremptory challenges.
Until we can eliminate peremptory challenges in general, we are left with very few simple solutions. At some level, we as a society need to accept that this bias may always exist but work to minimize its negative effects. Kami Chavis discusses the potential for training to help decrease discrimination rather than training to maneuver around discrimination laws, arguing that increased sensitivity training and accountability for prosecutors can limit the impacts of peremptory challenges in the short term. This would include tracking the use of peremptory challenges by prosecutors to determine trends in who they strike as well as stricter penalties for prosecutors in the event that a judge calls their strike discriminatory. Other potential accountability measures include limiting the total number of strikes allowed to jurors, like the Three-Strike Plan advocated for by Professor David Baldus from the University of Iowa College of Law. All of these measures have the potential to drastically limit the quantity and impacts of discriminatory challenges, but none will end this type of discrimination for good.
There is no easy fix to racial discrimination in peremptory challenges without causing a fundamental overhaul of the United States criminal justice system. It will be difficult, but given the opportunity, both Congress and the Supreme Court should act. Until then, we must do all we can to minimize discrimination in the system and soften its effects on all persecuted minorities.