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

1489

Batson “Blame” and Its Implications for

Equal Protection Analysis

Robin Charlow

I. INTRODUCTION .................................................................................... 1490

II. BATSON’S 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