Solving Batson.

• Author: Tetlow, Tania
• Position: Diversity and impartiality issues in peremptory challenges - Introduction through II. Using a Sixth Amendment to Balance Impartiality and Diversity B. Why Holland v. Illinois Was Wrong: The Sixth Amendment Should Regulate Jury Selection, p. 1859-1903

Abstract

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant's Sixth Amendment right to an "impartial jury" drawn from a "fair cross-section of the community." By choosing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error into the Batson rule, a doctrine which has failed to meaningfully reform jury selection.

This Article proposes to revisit that fork in the road, and for the first time, to describe how a Sixth Amendment test would function far better in comparison to the present rule. Unlike Batson, a Sixth Amendment test would focus on the impact of jury selection on diversity instead of attempting to divine the subjective intent of lawyers. The test would function as follows: If peremptory challenges skewed the diversity of suspect classifications on the jury, then a lawyer would need to justify his strikes with reference to specific and individualized concerns about each juror's impartiality. The judge would then balance the strength of the proffered reason for the strike against the value of the lost diversity. Although this remains a subjective test, it would prove much stronger than the Batson rule. Pragmatically, the test would measure the relevance and importance of a proffered reason rather than its sincerity, and would prove far less insulting to enforce. Ideologically, the test would focus on the more important constitutional goals of the diversity and impartiality of the jury. Instead of vainly regulating the color blindness of jury selection, a Sixth Amendment rule would focus on gathering as diverse a jury as possible while rooting out individual bias.

This would require reversal of the Court's reasoning in Batson, a decision that would greatly improve equal protection law. Scholars divided between the worlds of constitutional and criminal law rarely place the Batson cases into an equal protection context and thus fail to recognize that those cases prove outliers in their insistence on absolute color blindness. Stranger still, each side of the Court switched positions in the jury cases on the value of diversity, on whether race can predict belief, and on whether racial stereotyping standing alone causes constitutional injury. This Article argues that the Supreme Court's interpretation of the Sixth Amendment as valuing diversity, and indeed requiring a jury drawn from a "fair cross-section of the community," creates a constitutional right for defendants that trumps color blindness. Jury discrimination has plagued our criminal justice system for too long to settle for the Court's current state of denial. As mandated by the Constitution, we should focus on the quest for an impartial jury, not just a color-blind selection process.

TABLE OF CONTENTS INTRODUCTION I. THE DILEMMA OF JURY SELECTION A. Competing Goals: Impartiality, Diversity, and Color Blindness B. Applying Theory to Practice II. USING A SIXTH AMENDMENT TEST TO BALANCE IMPARTIALITY AND DIVERSITY A. The Specifics of a Sixth Amendment Test Three Very Different Steps 1. Step One: Establishing a Prima Facie Case of Skewed Diversity 2. Steps Two and Three: Balancing Specific Concerns About Impartiality Against the Importance of Diversity to an Impartial Jury. B. Why Holland v. Illinois Was Wrong: The Sixth Amendment Should Regulate Jury Selection. C. Why Batson Was Wrong: Equal Protection Does Not Ban Recognition that Racial Diversity on Juries Matters 1. Valuing Diversity in Equal Protection Analysis 2. Prioritizing the Rights of Third Parties Against Stereotyping over the Rights of Defendants to an Impartial Jury III. PROTECTING DIVERSITY WITHOUT LOSING FOCUS ON IMPARTIALITY: IN DEFENSE OF THE PEREMPTORY CHALLENGE A. Why Diversity Is Not Enough 1. Denying Peremptory Challenges Only to the State Ignores Endemic Jury Discrimination Against Minority Victims 2. Strengthening For-Cause Challenges Gives the Power of Jury Selection to the Judge. 3. Relaxing Unanimity Disempowers the Biased Juror, but Also Dilutes the Impact of Diversity B. The Defendant's Right to an Impartial Jury Matters More than the Democratic Role of Juries CONCLUSION INTRODUCTION

Juries embody the best and the worst of human instinct. The word "human," after all, signifies both compassion and weakness. (1) Juries represent the collective wisdom of the masses, acting with justice and mercy while exerting democratic control over our criminal justice system. But juries also make mistakes--convicting the innocent and acquitting the guilty for the wrong reasons. (2) Worst of all, juries too often act based on racism and sexism endemic in our society. (3) This discrimination is almost impossible to root out after a verdict is rendered, so instead, courts and scholars have tried for more than a century to prevent biased deliberations by regulating the process of jury selection. (4) Judges and lawyers strike potential jurors to keep the worst bigots away, and we attempt to choose a jury drawn from a "fair cross-section of the community." (5)

The debates on these subjects have been the source of many criminal appeals and a copious number of law review articles, most of which, I argue, have strayed off course. The current debate strangely focuses on the rights of potential jurors to a color-blind process, instead of focusing on the rights of defendants to an impartial jury. (6) It focuses on the public's perception of a fair system rather than an actually fair system. (7) Too often it measures impartiality solely through diversity, instead of recognizing diversity as a tool to obtain impartiality, not a goal unto itself. (8)

The Constitution clearly establishes the goal of an "impartial" jury in the Sixth Amendment. (9) And in the 1986 decision Batson v. Kentucky, the Court faced a stark fork in the road of how best to serve that goal once it banned the racial use of peremptory challenges, a practice which had resulted in the elimination of minorities from too many juries. (10) The Court could have based its decision on Sixth Amendment fair cross-section doctrine and regulated jury selection in a way that valued and protected racial diversity. Instead, the Court chose to base its decision on equal protection reasoning in a way that denied the very relevance of race to jury selection. (11)

The Court attempted to solve the problem of discrimination by jurors by changing the subject to discrimination against jurors. In the Batson v. Kentucky line of cases, the Court forbade the lawyers choosing a jury from considering the race or gender of jurors when exercising peremptory challenges. (12) The rule does not aim to protect jury diversity; indeed, the Supreme Court reasoned that the race and gender of jurors is irrelevant to the jury's decision making. (13) We should not therefore be surprised that the rule does not work particularly well to preserve jury diversity. (14) Nor did the Court make more than a passing attempt to connect such color-blind regulation to the rights of the defendant. (15) Instead, the Court elevated the interests of potential jurors against stereotyping during jury selection above consideration of the defendant's right to a nondiscriminatory verdict. (16) As Susan Herman has argued, the Batson line of cases is "a story whose author has become so preoccupied with the fate of peripheral characters that the protagonist has been forgotten." (17) We treat the Batson rule as our primary protection against jury discrimination, but it has nothing to do with rooting out bias from juries. (18)

A growing number of reformers would throw their hands up at the jury selection process and end the use of peremptory challenges altogether. (19) If we came closer to a system of random selection, they argue, we would end up with far more racially diverse juries. For them, the benefits of diversity far outweigh the costs of giving up a lawyer's chance to root out bias with peremptory challenges. Some of these scholars make the pragmatic argument that, in our heterogeneous society, diversity serves as the best available protector of impartiality. (20) Lawyers' amateurish attempts to use dueling peremptory challenges and root out bias can never compare to the benefits of a diverse jury, particularly one that is racially diverse. A few scholars, however, go farther and argue that diversity simply trumps impartiality. (21) For them, juries serve a democratic role and should represent the public, and minorities should have rights to proportional representation in the same way that we avoid vote dilution in legislative districts. (22) Under this vision, jury verdicts are neither right nor wrong, but rather expressions of popular sovereignty.

There is a middle ground. We should revisit the fork in the road and choose the Sixth Amendment over equal protection color blindness. (23) In Sixth Amendment cases before Batson, the Supreme Court required a jury drawn from a fair cross-section of the community precisely because the Court understood the value of jury diversity. (24) Applying the Sixth Amendment to jury selection would allow us to retain peremptory challenges as a tool of impartiality: to allow lawyers--with expanded voir dire rights--to root out bias as best they can. But we can provide a much better protection of jury diversity from the impact of peremptory challenges by actually valuing jury diversity. A Sixth Amendment approach would allow the judge to make trade-offs between the use of peremptory challenges to root out individualized bias and protecting the fair cross section of the jury.

Sixth Amendment regulation would resemble the Batson rule, but function...