Jury Selection in the Post-Batson Era

Abstract

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.