Batson Remedies

Abstract

Batson v. Kentucky and its progeny hold that discriminatory uses of peremptory challenges in jury selection are unconstitutional. However, the appropriate remedy for the constitutional violation is unclear. The Batson Court addressed remedies in a single ambiguous footnote that identifies two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these are the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. Subsequent Supreme Court cases also do not clarify what the appropriate remedy is for a Batson violation, and the Court has never overturned a remedy imposed by a trial judge. This essay, prepared for a symposium marking the twenty-fifth anniversary of Batson, canvasses the remedies that state courts have imposed for Batson violations and discusses some underappreciated opportunities that Batson presents to state courts to address discriminatory uses of peremptory challenges. Recent case law from the Supreme Court distinguishes between the authority — vested ultimately in that Court — to define a federal constitutional violation and the authority of state courts to determine how best to remedy the violation. Read in light of this case law, Batson gives state courts considerable leeway to adopt their own unique measures to respond to discrimination in jury selection practices.

Keywords: Batson, peremptory challenges, jury selection, juries, discrimination, criminal justice