Batson Remedies

• Author: Jason Mazzone
• Position: Professor of Law, Brooklyn Law School
• Pages: 1613-1633

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.