It’s Still about Race: Peremptory Challenge Use on Black Prospective Jurors

• Published date: 01 February 2020
• Date: 01 February 2020
• DOI: 10.1177/0022427819873943
• Subject Matter: Articles

Article

It’s Still about

Race: Peremptory

Challenge Use on

Black Prospective Jurors

Whitney DeCamp

1

and Elise DeCamp

1

Abstract

Objectives: The use of race as a motive for excluding individuals from serving

on juries in American criminal trials is unconstitutional. Nevertheless, Black

individuals remain substantially more likely than others to be removed

during jury selection through peremptory challenges. This study tests

whether and to what extent there is a racial effect on peremptory challenge

use by the prosecution or the defense. Method: Using data from 2,542

venire members in Mississippi, propensity score matching is used to exam-

ine racial differences in jury selection by comparing Black venire members

to similarly situated White venire member counterparts. Results: Findings

suggest that Black venire members are 4.51 times as likely to be excluded

from a jury due to peremptory challenges from the prosecution in compar-

ison to White venire members. Conversely, White venire members are

4.21 times as likely to be excluded through peremptory challenges by the

defense in comparison to Black venire members. Conclusions: After control-

ling for all observed variables, there remain significant differences between

White and Black venire members, suggesting racial discrimination by both

1

Western Michigan University, Kalamazoo, MI, USA

Corresponding Author:

Whitney DeCamp, Western Michigan University, Sangren Hall, Kalamazoo, MI 49008, USA.

Email: whitney.decamp@wmich.edu

Journal of Research in Crime and

Delinquency

2020, Vol. 57(1) 3-30

ªThe Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0022427819873943

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the prosecution and the defense in peremptory challenge usage. Black

individuals are more likely to be excluded from juries through these effects,

resulting in less racially diverse juries.

Keywords

peremptory challenge, race, propensity score matching, racial bias,

prosecutorial misconduct

The use of peremptory challenge to remove potential jurors to which a

prosecutor or defense attorney objects, but lacks evidence to remove for

cause, has been consistently permissible throughout America’s judicial

history (Beck 1997). In 1986, the Supreme Court of the United States placed

a limitation on that power through its decision that it is unconstitutional to

use a peremptory challenge becaus e of the individual’s race (Batson v.

Kentucky 1986). However, despite this clear ruling on the matter, the effi-

cacy in detecting and enforcing violations is in serious doubt, with scholars

arguing that the Batson ruling failed to eliminate or reduce racial discrim-

ination in jury selection (Bennett 2010; Morehead 1994). It remains diffi-

cult to prove racial discrimination in jury selection in any given case. As

one scholar observed, using the Batson challenge “is an infinitely cumber-

some procedural obstacle course ...[and] only the most overtly discrimi-

natory or impolitic lawyer can be caught in Batson’s toothless bite and, even

then, the wound will be only superficial” (Cavise 1999:501).

One example of an overturned conviction due to the use of the Batson

challenge is the Supreme Court ruling in Miller-El v. Dretke (2005). In this

case, 10 of the 11 Black members of the jury pool were excluded on the

basis of peremptory challenges that could have been, but were purposefully

not, applied to White prospective jurors for similar reasons, as evidenced by

side-by-side comparisons of prospective jurors’ responses to questions

(Johnson 2014; Sommers and Norton 2008). Likewise, the opinion of the

court in Flowers v. Mississippi (2019) made direct comparisons between

strikes being applied to Black jurors when White jurors who provided

similar answers did not receive a strike. Such side-by-side comparis ons

of “similarly situated” venire members of different races, however, are not

possible in all trials. Justice Alito wrote, for example, in his concurring

opinion that the Flowers case is “likely one of a kind” (p. 1) and that “[w]ere

it not for the unique combinations of circumstances present here” (p. 2), he

would have “no trouble” (p. 2) allowing the conviction to stand. Further

4Journal of Research in Crime and Delinquency 57(1)