Batson Remedies

Author:Jason Mazzone
Position:Professor of Law, Brooklyn Law School
Pages:1613-1633
 
FREE EXCERPT
1613
Batson Remedies
Jason Mazzone
INTRODUCTION .................................................................................... 1614
I. BATSON AND ITS REMEDIES ................................................................... 1615
A. OVERVIEW ...................................................................................... 1615
B. STATE COURT APPLICATIONS .......................................................... 1618
1. Reseating ............................................................................... 1619
2. Starting Anew ....................................................................... 1620
3. Legislative Constraints ......................................................... 1622
C. ALTERNATIVE REMEDIES ................................................................. 1624
D. SUMMARY ...................................................................................... 1625
II. FEDERALISM AND EXPANDING REMEDIES ............................................. 1626
A. LESSONS FROM DANFORTH ............................................................ 1626
B. REMEDIAL FLOORS AND CEILINGS .................................................... 1629
C. BENEFITS OF STATE COURT AUTHORITY .......................................... 1630
CONCLUSION ....................................................................................... 1633
Gerald Baylin Professor of Law, Brooklyn Law School. The Brooklyn Law Sch ool
Dean’s Summer Research Program provided generous support for the preparation of this Essay.
Jesse Oppenheim provided excellent research assistance.
1614 IOWA LAW REVIEW [Vol. 97:1613
INTRODUCTION
Batson v. Kentucky and its progeny hold discriminatory uses of
peremptory challenges unconstitutional. However, the appropriate remedy
for the constitutional violation remains unclear. The Batson Court addressed
remedies in a single ambiguous footnote that identifies two possible
remedies: discharging the venire and selecting a new panel or reseating the
improperly stricken juror. This footnote did not, however, specify whether
these are the only permissible remedies, and it did not explain when one of
the two is more appropriate than the other. Subsequent Supreme Court
cases also do not clarify what the appropriate remedy is for a Batson
violation, and the Court has never overturned a remedy imposed by a trial
judge. This symposium Essay canvasses the remedies that state courts have
imposed for violations of Batson and discusses some underappreciated
opportunities that Batson presents to state courts to address discriminatory
jury-selection practices. The focus on state courts is deliberate. The Batson
decision arose out of a state court prosecution for burglary and receipt of
stolen goods, and state courts are the place where the overwhelming
majority of criminal prosecutions and criminal trials occur. As with other
aspects of their criminal-justice systems, state courts have considerable
discretion in structuring their jury-selection processes, and state practices
accordingly vary.
As this Essay shows, state courts have taken inconsistent approaches to
Batson remedies. Some state courts have read the relevant footnote in Batson
to set out the only available remedies.1 Other state trial courts have
understood the two remedies that Batson identifies as possible remedies
among others and have imposed alternative remedies.2 These include
ordering the forfeiture of peremptory challenges, giving the side prejudiced
by the Batson violation additional peremptory challenges, granting a mistrial,
and imposing sanctions upon the attorney making the improper challenge.
While Batson can plausibly be read to give trial judges discretion to craft an
appropriate remedy, state appellate courts have created their own rules
about the kinds of remedies that their own state trial courts may impose.
This has occurred through two mechanisms. One is by state appellate courts
ruling that in applying Batson, trial courts are limited in the kinds of
remedies they may impose. The second mechanism is by state courts reading
the state constitution to prohibit discriminatory uses of peremptory
challenges and superimposing upon Batson a specific remedy derived from
state-law limitations. In addition, some state legislatures have limited the
discretion of trial judges when they remedy Batson violations.
Despite the variations in state practices, state courts implementing
Batson do not fully appreciate the discretion they possess to craft appropriate
1. See infra Part I.B.
2. See infra Part I.C.

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