Performing Discretion or Performing Discrimination: An Analysis of Race and Ritual in Batson Decisions in Capital Jury Selection

51 Pages Posted: 15 Jul 2012

See all articles by Melynda Price

Melynda Price

University of Kentucky College of Law

Date Written: 2009

Abstract

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated -- can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors offer as race neutral motivations for peremptorily striking Black jurors.

In my examination of "race neutral" removals in Texas courts, I demonstrate how the focus on form has failed to solve the substantive problem of racially discriminatory uses of peremptory challenges. Cases from these courts have been critical in the Supreme Court jurisprudence that developed the process for deciphering racially motivated uses of this legal tool. Although Batson hearings have proven to be a weak legal instrument, they nevertheless repeatedly remind us of the persistence of racially discriminatory uses of peremptory challenges and the failure of current measures to prevent such discrimination. Building on the suggestion by Akhil Amar to "preempt peremptories," this Article calls for the reexamination of the use of this practice, particularly in capital trials, in a justice system that purports interest in protecting that system from racial discrimination.

Suggested Citation

Price, Melynda J., Performing Discretion or Performing Discrimination: An Analysis of Race and Ritual in Batson Decisions in Capital Jury Selection (2009). Michigan Journal of Race & Law, Vol. 15, No. 1, 2009, Available at SSRN: https://ssrn.com/abstract=2106199

Melynda J. Price (Contact Author)

University of Kentucky College of Law ( email )

620 S. Limestone
Lexington, KY 40506-0048
United States
859 257-5022 (Phone)
859 323-1601 (Fax)

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