Snyder v. Louisiana: continuing the historical trend towards increased scrutiny of peremptory challenges.

• Author: Bringewatt, John P.

In March 2008, the Supreme Court decided Snyder v. Louisiana, the latest in the line of progeny of Batson v. Kentucky. This Note demonstrates that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has moved away from permitting the unfettered use of the peremptory challenge in favor of stronger Equal Protection considerations. Snyder alters the requirements for trial judges in deciding Batson challenges by requiring them to provide some explanation of their reasons for accepting a prosecutor's justification of a peremptory challenge. Snyder is the latest step in the historical pattern of trying to create a more enforceable standard to prevent racial discrimination in jury selection and in keeping with this pattern should be broadly interpreted going forward.

TABLE OF CONTENTS INTRODUCTION I. THE BATSON LINE OF CASES: A PATTERN OF INCREASING SCRUTINY A. Batson, its Predecessors, and its Progeny B. The Batson Line: Moving Towards a More Enforceable Equal Protection Standard II. SNYDER V. LOUISIANA: A NEW LEGAL STANDARD A. Factual and Procedural Background of Snyder B. Imposing a New Standard for Reviewing Batson Objections III. SNYDER AS AN ATTEMPT TO MAKE BATSON MORE ENFORCEABLE: HISTORICAL CONTEXT AND FUTURE IMPLICATIONS A. Snyder as a Continuation of the Historical Pattern of Increasing Scrutiny of Peremptory Challenges B. The Impact of the Snyder Standard Going Forward. CONCLUSION INTRODUCTION

The peremptory challenge is a longstanding jury selection tool that allows parties to remove prospective jurors without cause. (1) The challenge has traditionally been thought of as a way to ensure an impartial jury by allowing parties to dismiss any prospective juror they suspect might be biased against them. (2) In contrast to a challenge for cause, which requires showing a specific reason why a juror might not be impartial, no justification is required for a peremptory challenge. (3) Historically, "[t]he essential nature of the peremptory challenge [was] that it [was] one exercised without a reason stated, without inquiry and without being subject to the court's control." (4)

"The peremptory challenge has very old credentials," coming to the United States by way of English common law. (5) Emphasizing the purely discretionary nature of the peremptory challenge, Blackstone described it as "an arbitrary and capricious species of challenge." (6) Blackstone nonetheless justified the challenge in terms of fairness and "tenderness and humanity" to defendants, asserting that a defendant should not have to be tried by anyone whom he suspects might be prejudiced against him. (7) Blackstone wrote that the peremptory challenge could only be exercised by defendants, not by the Crown, (8) but ultimately "[p]eremptories on both sides became the settled law of England." (9)

The traditional unfettered, purely discretionary use of the peremptory challenge allowed attorneys to remove a prospective juror on the basis of race. (10) An inherent and well-recognized tension therefore exists between this traditional operation of the peremptory challenge and the protections afforded by the Equal Protection Clause of the Fourteenth Amendment. (11) Those who defend the longstanding power of attorneys to dismiss prospective jurors without any required justification argue that "[a]nalytically, there is no middle ground: [a] challenge either has to be explained or it does not." (12) In response, those favoring stronger Equal Protection principles for jury selection argue that the Fourteenth Amendment trumps the historical role of the peremptory challenge, which is not constitutionally compelled. (13)

In Batson v. Kentucky, the Supreme Court held for the first time that it was unconstitutional to use peremptory challenges to dismiss individual prospective jurors on the basis of race. (14) The Batson Court focused on the danger posed in criminal cases by a prosecutor using peremptory challenges in a racially discriminatory manner, which denies a defendant (15) an important aspect of his right to a jury trial and violates the Equal Protection Clause. (16) The Batson Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." (17) Batson created a process for defendants to challenge a prosecutor's use of peremptory challenges. (18)

Concurring in Batson, Justice Thurgood Marshall expressed his view that the danger posed by racially discriminatory use of the peremptory challenge justified the elimination of the challenge. (19) Nearly twenty years later, Justice Breyer noted the continued prevalence of racially motivated peremptory challenges and echoed Justice Marshall's call for the abolition of the challenge. (20) Despite Batson's requirement of racial neutrality, studies suggest that peremptory strikes are routinely made on the basis of race. (21) Contrary to the general societal goal of removing racial discrimination from the administration of our criminal justice system, some trial lawyers view the use of racial stereotypes in jury selection as a legitimate litigation strategy. (22) Because of such views, "rac[ial] ... discrimination [in jury selection] continue[s] to flourish with corrective judicial action likely in only the most extreme circumstances." (23)

In March 2008, the Supreme Court decided Snyder v. Louisiana (24) , the latest in the line of Batson progeny. Snyder is the Court's most recent attempt to address the tension between the peremptory challenge and the Equal Protection Clause and to control the danger posed to a defendant's rights by the racially motivated use of peremptory challenges. At first glance, the Snyder opinion is unremarkable. The majority opinion is short-about seven pages long--and does not explicitly claim to create a new legal standard for Batson challenges. However, as the Snyder dissent points out, Snyder does in fact impose a standard for Batson challenges that had not existed before. (25)

This Note argues that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has increasingly applied a more individualized focus in an effort to create a more enforceable standard, moving away from the unfettered use of the peremptory challenge to more heavily weigh Equal Protection considerations. Part I provides the historical context necessary to understand the Snyder decision, discussing the line of Supreme Court cases dealing with racial discrimination in jury selection leading up to Snyder, including Batson, its predecessors, and its progeny. Part I demonstrates that over time the Supreme Court has applied increasingly detailed scrutiny in its analysis of such cases in an attempt to make Equal Protection principles more enforceable. Part II discusses the background of Snyder and argues that it alters the requirements for trial courts in deciding Batson challenges by requiting them to more carefully scrutinize the justifications proffered in support of peremptory challenges made by prosecutors. Part III shows that Snyder is the latest step in the historical pattern of trying to create a more enforceable standard to prevent racial discrimination in jury selection and argues for a broad interpretation of Snyder going forward.

1. THE BATSON LINE OF CASES: A PATTERN OF INCREASING SCRUTINY

   Snyder is the latest in a line of cases in which the Supreme Court has addressed the issue of racially discriminatory jury selection procedures. The problem is not a new one; the Court first addressed it in 1880. (26) The persistence of the issue over time suggests that it has been difficult to find a lasting solution to the problem.

   This Part discusses the line of Supreme Court cases addressing the application of Fourteenth Amendment Equal Protection principles to racial discrimination in jury selection and suggests a pattern in the Court's decisions. Section I.A offers a historical analysis of the line of cases leading up to Snyder, beginning with Batson's predecessors, including Strauder v. West Virginia (27) and Swain v. Alabama, (28) and continuing up to recent Batson progeny. Section I.A also traces the Court's discussion of the tension between Equal Protection principles and the sanctity of the traditional peremptory challenge. Section I.B argues that this line of cases presents a pattern in which the Supreme Court has, over time, applied a more individualized focus in its analyses of racial discrimination in jury selection in an effort to create a more enforceable Equal Protection standard.

   1. Batson, its Predecessors, and its Progeny

      The Supreme Court first considered the issue of Equal Protection in the context of jury selection in Strauder v. West Virginia. (29) In Strauder, the appellant, a black man who had been convicted of murder, argued that his rights under the Fourteenth Amendment had been violated by a West Virginia law that prevented anyone besides white men from serving on a jury. (30) The Court framed the issue as follows:

      [T]he ... question[] is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury. (31) The principles underlying this statement of the issue continue to be embraced in the Court's modern Equal Protection jurisprudence. (32) The Strauder Court noted the importance of the right of a defendant to be tried by a jury "composed of the peers or equals of the person whose rights it is selected ... to determine" and that "the constitution of juries is a very essential part of the protection...