Batson 'Blame' and Its Implications for Equal Protection Analysis

Author:Robin Charlow
Position:Professor of Law, Hofstra University Maurice A. Deane School of Law
Pages:1489-1510
 
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1489
Batson “Blame” and Its Implications for
Equal Protection Analysis
Robin Charlow
I. INTRODUCTION .................................................................................... 1490
II. BATSONS ATTRIBUTION OF BLAME ...................................................... 1491
III. EQUAL PROTECTION THEORY AND BLAME........................................... 1500
IV. CONCLUSION ....................................................................................... 1509
Professor of Law, Hofstra University Maurice A. Deane School of Law. Thanks to my
fellow symposium participants and to colleagues at the Hofstra Law Faculty Workshop for their
helpful comments on earlier drafts, as well as to Matthew Berger and David Alamia for their
excellent research assistance.
1490 IOWA LAW REVIEW [Vol. 97:1489
I. INTRODUCTION
On this twenty-fifth anniversary of Batson v. Kentucky,1 it is unsettling to
observe that so many consider the decision a failure in terms of its apparent
purpose—to remedy and prevent discrimination in jury selection.2
According to numerous commentators, the elimination of potential jurors
on the basis of race and gender is a daily occurrence in courtrooms across
the country, and despite Batson’s ruling to the contrary, largely nothing is
done about it.3
1. Batson v. Kentucky, 476 U.S. 79 (1986).
2. See, e.g., Jean Montoya, The Future of the Post-Batson Peremptory Ch allenge: Voir Dire by
Questionnaire and the “Blind” Peremptory, 29 U. MICH. J.L. REFORM 981, 1009 (1996) (“[C]ase
studies . . . tell us . . . that Batson’s requirement of articulating a neutral explanation for suspect
peremptory challenges creates no substantial hurdle for ‘those . . . who are of a mind to
discriminate,’ let alone for those who discriminate unconsciously.” (third alteration in original)
(footnote omitted) (quoting Batson, 476 U.S. at 96)); Bidish Sarma, Commentary, When Will
Race No Longer Matter in Jury Selection?, 109 MICH. L. REV. FIRST IMPRESSIONS 69, 69 (2011),
http://www.michiganlawreview.org/assets/fi/109/sarma2.pdf (“The evidence that district
attorneys still exclude minorities because of their race is so compelling th at it is tempting to
assume that race will always factor into lawyers’ decisions about whom to keep on the jury and
whom to exclude.”); Jason Riley, Blacks Being Excluded from Louisville Juries, COURIER-J.
(Louisville, Ky.) (Nov. 6, 2005), http://www.courier-journal.com/article/20051106/NEWS01/
511060483/Blacks-being-excluded-from-Louisville-juries (reporting on the grossly
disproportionate exclusion of African Americans at every phase of jury selection in the state in
which Batson originated); see also Kenneth J. Melilli, Batson in Practice: What We Have Learned
About Batson and Peremptory Challenges, 71 NOTRE DAME L. REV. 447, 483 (1996) (“A system
which, like the current one created by Batson, seeks to accommodate both the inherent
[unfettered] aspects of the peremptory challenge and the scrutiny of anti-discrimination laws is
one . . . which either does not exist or is impossible to locate.”); Carol S. Steiker & Jordan M.
Steiker, Report to the ALI Concerning Capital Punishment (pt. II), 89 TEX. L. REV. 367, 383 (2010)
(“[T]he Court’s reliance on Batson as a means of preventing racial discrimination in capital jury
selection is profoundly misplaced. Studies of the effectiveness of Batson in reducing the race-
based used [sic] of peremptory strikes have demonstrated only an extremely modest effect.”).
3. See sources cited supra note 2; see also EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL
DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY 4 (2010), available at http://eji.
org/eji/files/EJI%20Race%20and%20Jury%20Report.pdf (“Too many courtrooms across this
country facilitate obvious racial bigotry and discrimination every week when criminal trial juries
are selected. The underrepresentation and exclusion of people of color from juries has
seriously undermined the credibility and reliability of the criminal justice system . . . .”); Jeffrey
Bellin & Junichi P. Semitsu, Widening Batson’s Net To Ensnare More Than the Unapologetically
Bigoted or Painfully Unimaginative Attorney, 96 CORNELL L. REV. 1075, 1077 (2011) (“[V]irtually
every commentator (and numerous judges) who have studied the issue have con cluded that
race-based juror strikes continue to plague American trials.”); Montoya, supra note 2, at 1009
(analyzing survey results that show many practicing lawyers believe that Batson does not
effectively prevent unlawful discrimination); Sarma, supra note 2, a t 70 (“Racially biased use of
peremptory strikes and illegal racial discrimination in jury selection remains widespread . . . .”
(quoting EQUAL JUSTICE INITIATI VE, supra, at 5) (internal quotation marks omitted)); id. at 70
(“[C]ourts have shirked their duty to take seriously these recurring claims of racial
discrimination.” (internal quotation marks omitted)); Michael Janofsky, Under Siege,
Philadelphia’s Criminal Justice System Suffers Another Blow, N.Y. TIMES (Apr. 10, 1997),
http://www.nytimes.com/1997/04/10/us/under-siege-philadelphia-s-criminal-justice-system-
suffers-another-blow.html?pagewanted=all&src=pm (reporting repercussions from the

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