Batson v. Kentucky, 476 U.S. 79 (1986)

In Batson v. Kentucky, the Supreme Court addressed how a criminal defendant can establish that a prosecutor used a peremptory challenge against a prospective juror of the defendant’s race on the basis of race. The Court had previously in a 1965 case, Swain v. Alabama, recognized that a state’s exercise of such a race-based peremptory challenge was unconstitutional under the equal protection clause. Swain, however, had imposed a virtually insurmountable evidentiary burden, in that a defendant needed to show a repeated pattern of discriminatory strikes across several cases in order to prevail.

The Batson defendant, an African American, was convicted of burglary and receipt of stolen goods by an all-white jury. The record showed that the prosecutor had used four out of six peremptory challenges to strike all of the African Americans from the venire. The defendant had moved to discharge the jury on the basis that the prosecutor’s use of peremptory challenges violated both the equal protection clause in the Fourteenth Amendment and the defendant’s Sixth Amendment right to a jury drawn from a fair crosssection of the community, as incorporated against the states by the Fourteenth Amendment. The trial court denied the motion without granting a hearing, and the Kentucky Supreme Court affirmed the conviction. On appeal, the defendant conceded that Swain precluded an equal protection claim based only on the peremptory challenges exercised in his own case.

Justice Powell, writing for the Court, overruled this part of Swain. The opinion outlined a three-step procedure drawn from other equal protection cases such as Washington v. Davis and modeled on several state court decisions. In the first step, the defendant must raise an inference that the prosecutor exercised a peremptory challenge on the basis of race. Such an inference could be drawn from all relevant circumstances, such as the prosecutor’s pattern of strikes, questions to the venire, or statements to the court.

In the second step, the burden of production—but not the Burden of Proof or persuasion—shifts to the prosecutor to supply a race-neutral reason. Later cases, in particular Purkett v. Elem., clarified that this was a formalistic step, in that any reason, even those that are ‘‘implausible,’’ ‘‘fantastic,’’ ‘‘silly,’’ or ‘‘superstitious,’’ would be adequate to survive step two, so long as the reason was facially neutral. Mere denials of discriminatory motivation or affirmations of good faith, however, remain inadequate.

In the third step, the judge determines whether the defendant has established the prosecutor’s ‘‘purposeful discrimination.’’ Whether purposeful discrimination requires subjective discriminatory intent, and if so, whether it is sufficient, remains unclear. In any event, the Supreme Court has stated in cases such as Miller-El v. Cockrell that the decisive question will be the prosecutor’s credibility. If the judge believes the neutral explanation, no matter how trivial, then the peremptory challenge must be sustained.

In an important concurrence, Justice Marshall objected that the Court’s Batson framework would not end racial discrimination in jury selection. He advocated instead the complete elimination of peremptory challenges. Chief Justice Burger argued in dissent that the Court’s decision had effectively ended the peremptory challenge because articulating a neutral explanation would be difficult.

The Sixth Amendment claim that a prosecutor’s use of peremptory challenges might deny the defendant a jury representative of a cross-section of the community was finally rejected in Holland v. Illinois on the grounds that the Sixth Amendment was intended to ensure an impartial jury rather than a representative jury.

Batson was later expanded in Powers v. Ohio so that defendants could object to the exclusion of jurors of other races as well as their own race. Batson was extended to civil litigants in Edmonson v. Leesville Concrete Co., criminal defense counsel in Georgia v. McCollum, and to prevent peremptory challenges made on the basis of gender in J.E.B. v. Alabama ex. rel. T.B. The Supreme Court also stated in dicta in United States v. Martinez-Salazar that a peremptory challenge may not be exercised on the basis of ethnic origin. As the reach of Batson has expanded, the Court has clarified that the primary concern is the violation of the excluded juror’s equal protection right rather than solely the rights of the litigants.

The bulk of academic commentary and empirical studies suggests that Batson has failed to eliminate the use of race as a factor in jury selection. Much of this commentary focuses on how dishonest lawyers can easily survive a Batson challenge by providing false but neutral reasons for their challenges. Commentators also note that limited misuse of peremptory challenges is unlikely to be discovered. Batson has, however, undoubtedly reduced the most egregious uses of race and gender in jury selection.

ANTONY PAGE

References and Further Reading

• Altschuler, Albert W., The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, University of Chicago Law Review 56 (Winter 1989): 153–233
• Cavise, Leonard L., The Batson Doctrine: The Supreme Court’s Utter Failure to Meet the Challenge of Discrimination in Jury Selection, Wisconsin Law Review 1999 (1999): 501–52
• Melilli, Kenneth J., Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, Notre Dame Law Review 71 (1996): 447–503
• Muller, Eric L., Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, Yale Law Journal 106 (October 1996): 93–150
• Page, Antony, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, Boston University Law Review 85 (2005): 155–263

Cases and Statutes Cited

• Batson v. Kentucky, 476 U.S. 79 (1986) 
• Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) 
• Georgia v. McCollum, 505 U.S. 42 (1992) 
• Hernandez v. New York, 500 U.S. 352 (1991) 
• Holland v. Illinois, 493 U.S. 474 (1990) 
• J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) 
• Miller-El v. Cockrell, 537 U.S. 322 (2003) 
• Powers v. Ohio, 499 U.S. 400 (1991) 
• Purkett v. Elem., 514 U.S. 765 (1995) 
• Swain v. Alabama, 380 U.S. 202 (1965) 
• United States v. Martinez-Salazar, 528 U.S. 304 (2000) 
• Washington v. Davis, 426 U.S. 229 (1976) 

See also Equal Protection of Law (XIV); Holland v. Illinois, 493 U.S. 474 (1990); Jury Selection and Voir Dire; Jury Trials and Race; Race and Criminal Justice; Swain v. Alabama, 380 U.S. 202 (1965)