Just say no! A proposal to eliminate racially discriminatory uses of peremptory challenges.

• Author: Ogletree, Charles J.
• Position: Symposium on bias in justice administration

Frederick Douglass was a remarkable person who overcame the vestiges of slavery to become one of the most articulate and influential spokespersons in African-American history. In the early 19th century, Frederick Douglass poetically criticized the plight of African-Americans in the criminal justice system. Douglass lamented, "[j]ustice is often painted with bandaged eyes. She is described in forensic eloquence as utterly blind to wealth or poverty, high or low, white or black, but a mask of iron, however thick could never blind American justice when a black man happens to be on trial."(1) A century and a quarter later, his remarks still, and sadly, ring true.

Justice Thurgood Marshall, a critic of our modern criminal justice system, believed that some of the biases and prejudices that African-Americans encounter stem from fundamental flaws in the Constitution and the government it established. In criticizing the celebration of the Constitution on its bicentennial, Justice Marshall noted, "I do not believe that the meaning of the Constitution was forever 'fixed'.... To the contrary, the government [the Framers! devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today."(2)

Justice Marshall's most profound criticism of the treatment of race in the criminal justice system, however, was his observation that prosecutors have commonly used peremptory challenges as pretexts for invidious racial discrimination. In his concurring opinion in Batson v. Kentucky,(3) Justice Marshall celebrated the case as a "historic step toward eliminating the shameful practice of racial discrimination in the selection of juries."(4) Yet Justice Marshall pessimistically concluded that Batson would not eliminate the discriminatory use of peremptory challenges. Rather, he stated, "[t]hat goal can be accomplished only by eliminating peremptory challenges entirely."(5)

This article will discuss the efficacy of various reforms proposed to limit or end the discriminatory use of peremptory challenges. Part I will focus on how differing judicial interpretations of the standard established in Batson, and, in particular, trial judges' acceptance of prosecutors' facially neutral explanations for peremptory strikes, have undermined the protection Batson was meant to offer against discriminatory peremptory strikes. Part II will both discuss the feasibility of various proposed race-conscious remedies to discriminatory peremptory challenges and also propose stronger procedural remedies, including the penalty of dismissal with prejudice. Expansive attorney-conducted voir dire is analyzed as a necessary step towards empaneling a fair jury and reducing the role of stereotypes and biases in the jury selection process. Part III will analyze the merits and disadvantages of eliminating peremptory challenges altogether. It concludes the article by recommending new restrictions on the use of the challenges, restrictions which should make prosecutorial racist challenges much more difficult while not denying the benefits that well-exercised challenges continue to present for criminal defendants.

1. PEREMPTORY CHALLENGES AFTER BATSON V. KENTUCKY

   The discriminatory use of peremptory challenges has become common and flagrant. The statistical evidence that does exist shows that peremptory challenges have been used disproportionately against blacks.(6) Before Batson, prosecutors freely explained to courts that they routinely strike black jurors. An instruction book used by the prosecutor's office in Dallas County, Texas, and cited by Justice Marshall in his Batson concurrence, explicitly advised prosecutors to eliminate "'any member of a minority group'" from a petit jury.(7) "[T]he discriminatory use of peremptory challenges is the single most significant means by which racial prejudice and bias are injected into the jury selection system."(8)

   Batson has been viewed as a major accomplishment in the effort to eliminate this form of jury discrimination. The Court in Batson reaffirmed the principle, established in Strauder v. West Virginia,(9) that a State denies a black defendant equal protection by putting him on trial before a jury from which members of his race have been purposefully excluded.(10) Moreover, Batson reaffirmed the principle, announced in Swain v. Alabama,(11) that a State's purposeful denial of jury participation on the basis of race violates the excluded juror's equal protection under the law.(12)

   More importantly, however, Batson lowered the burden of proof needed to establish the discriminatory use of a peremptory challenge.(13) Under Swain, to establish a prima facie case of purposeful discrimination, a defendant had to prove that the peremptory challenge system in his or her jurisdiction contravened the Equal Protection Clause: that the State in case after case, "whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes ... with the result that no Negroes ever serve on petit juries...."(14) A showing that all black potential jurors had been struck by the prosecutor in the defendant's own case would not suffice; nor would a showing (as in Swain) that no African-Americans had served on a jury for over decade suffice, since the defendant could not show that the absence of black jurors was directly and solely attributable to the prosecutors' actions.

   Swain was immediately and consistently criticized in the law reviews for the "almost insurmountable burden" it placed on defendants.(15) A list of jury-discrimination claims under Swain reveals that between 1966 and 1984, over seventy-five defendants failed to meet the Swain test; during those same years only two succeeded (against the same prosecutor).(16) Since most courts did not "maintain records of the race of veniremen, of whether a prospective juror was challenged for cause or peremptorily, or if challenged, by whom,"(17) defendants could meet the burden of Swain, in effect, if and only if the prosecutor admitted that he or she always struck all blacks from juries. This was the case in the only two successful Swain appeals before 1985, both of which involved the same East Baton Rouge prosecutor.(18) The Second Circuit in McCray v. Abrams called the Swain test "Mission Impossible."(19) While some state appellate courts held to Swain-like standards, the Supreme Court of California in People v. Wheeler used fair cross-section requirements under the Cali fornia state constitution to construct a more reasonable test.(20) The Supreme Judicial Court of Massachusetts followed suit in Commonwealth v. Soares.(21)

   Writing for the majority in Batson, Justice Powell agreed with numerous state courts and commentators that, in practice, the Swain standard had imposed a "crippling burden of proof"(22) that was "inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause."(23) Accordingly, Batson established that a defendant may make out a prima facie case of purposeful racial discrimination in the jury selection process by relying "solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial."(24) The Court held that a defendant must first show that he is "a member of a cognizable racial group,"(25) and that the prosecutor has exercised peremptory challenges to remove from the jury members of the defendant's race.(26) Second, relying on the facts of his case, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the juror on account of his race.(27)

   The Batson Court, however, left the important issue of determining whether a defendant had established a prima facie case of discrimination, and whether the prosecution had rebutted that prima facie showing, to the trial courts. The Court has since provided lower courts with little direction regarding those determinations. Although the Court allowed Batson's ban on discriminatory challenges to be invoked by defendants who did not share the juror's race,(28) by civil litigants,(29) and finally by the government in criminal prosecutions,(30) it declined to give lower courts more information on how to determine whether the prosecutor's race-neutral justifications for challenges were acceptable. This year, J.E.B. v. Alabama ex rel. T.B.(31) extended the Batson rule to gender. The opinion concerned itself entirely with the status of women as a classification deserving "heightened scrutiny." J.E.B. made the limits of Batson nearly clear: peremptory challenges by any litigant in any proceeding can always be used to make any classification that is subject to a "rational basis" test, such as occupation, but they can never be used to strike jurors according to a "strict scrutiny" classification, like race or national origin, or a "heightened scrutiny" classification like gender.(32)

   J.E.B., like the other Batson progeny (barring Hernandez, which is discussed below) says nothing about the difficulties in implementation that the Batson rule has already faced. In concluding that litigants cannot and should not, under the Constitution, strike on the basis of gender, the majority also seems to have concluded that there is not even a rational basis for them to do so. Justice Blackmun's majority opinion correctly distinuishes between those invidious, pervasive stereotypes (such as those regarding race and gender) which the law properly prohibits, and the thousands of less harmful stereotypes without which our ability to function in the world would be greatly diminished.(33) The majority admits only grudgingly and for the sake of argument that strikes based on gender stereotypes might...