Why Is It So Easy for Prosecutors to Strike Black Jurors?

The defense bar celebrated Batson when it was decided. Even Justice Marshall, who had expressed concerns about its effectiveness, applauded the majority for taking “a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.” It’s clear today, though, that Batson rested on faulty assumptions. The Court placed too much faith in trial judges and underestimated prosecutors’ motivation to circumvent the rule, possibly because it refused to recognize that there was any rational reason to strike jurors based on race. And once it became clear that the Batson test wouldn’t do the trick, the Court refused to strengthen it. In fact, later decisions did the opposite, holding that judges can accept even a “silly or superstitious” reason—like a lawyer thinking that a prospective juror’s mustache is “suspicious”—as long as it doesn’t explicitly invoke race.

What should be done? In his Batson concurrence, Justice Marshall argued that only banning peremptory challenges would solve the problem. While that idea has picked up support from academics and judges, including Supreme Court Justice Stephen Breyer, it’s a political nonstarter. Most trial lawyers, even on the defense side, just don’t want to give up their ability to use strikes to shape the jury, and they have the clout to prevent it from happening.

Richard Bourke, who has worked on Batson appeals as the director of the Louisiana Capital Assistance Center, suggested that the most powerful, realistic reform would be to have states track the racial makeup of jury selection in the same way they track the racial statistics of traffic stops. He has a point. Neither courts nor legislatures will think seriously about replacing the feeble Batson procedure if there aren’t public objections to it. But cases like Timothy Tyrone Foster’s, where the defense uncovers the prosecution’s blatantly racist notes, are rare. Race-based peremptory strikes are almost always invisible, or at least, as Batson has shown, hard to prove. Only when such strikes are added up can they be seen. Batson is a reminder that a legal system formally blind to race is just as often blind to racism.