Jury Selection in the Post-Batson Era

Abstract

In Batson v. Kentucky (1986), the US Supreme Court sought to eradicate racial discrimination in jury selection by prohibiting the exercise of peremptory strikes based on race. This chapter reviews the evidence that Batson has failed to protect jurors from race-based strikes and the reasons for this failure. The test for establishing racial discrimination set forth in Batson suffers from design flaws that make its enforcement difficult given common psychological mechanisms at work in the decision-making process and which may be exacerbated by the jury selection process itself. Batson seeks to remedy only intentional discrimination. Moreover, its capacity to ensure diverse juries is limited by the stages of jury selection that precede its application. Enforcing Batson effectively is critical to the system’s integrity, but no simple solutions exist to remedy the stubborn persistence of racial bias in jury selection. All of this suggests that measures are needed to strengthen Batson’s protections.

A call to dismantle systemic racism in criminal legal systems.

“…Despite the U.S. Supreme Court decision in Batson v. Kentucky (1986) that made it unconstitutional to discriminate against jurors based on race or ethnicity during jury selection, it is well documented that people of color continue to be underrepresented on juries (Equal Justice Initiative, 2021), making defendants of color far less likely than their White counterparts to benefit from the similarityleniency bias. Reducing the number of peremptory strikes that attorneys are permitted and emboldening attorneys and judges to raise Batson challenges are examples of practical legal changes that criminal legal systems can take to address this problem and diversify the body of legal decision makers (O'Brien & Grosso, 2018).…”