Prosecutors and Peremptories

Abstract

A quarter of a century after the Court’s decision in Batson v. Kentucky, overwhelming evidence demonstrates that lawyers continue to exercise peremptory challenges in racialized ways. In light of Batson’s failure to alter a stubborn pattern of using peremptory challenges in racialized ways, scholars have repeatedly called for the abolishment of peremptory challenges, changes to the Batson framework, modifications to the rules of professional responsibility, and increased disciplinary enforcement and sanctions against those who discriminate during jury selection. The focus of much of the current Batson scholarship assumes that lawyers will inevitably consider race during jury selection and that the legacy of barring people of color from jury service will therefore inevitably continue unless we find external ways to detect and punish the discrimination. In the criminal context, however, scholars who study prosecutorial discretion have argued that external regulation of prosecutors, whether ex ante or ex post, has proven largely to be ineffective. In contrast, prosecutors themselves have the institutional ability to transform prosecutorial culture and incentives from the inside. This Article speaks directly to prosecutors and calls on them to voluntarily implement internal practices to avoid racialized jury selection in criminal cases.

The Article proceeds in three parts. Part I builds the case that prosecutors should value a race-neutral jury selection process. Part II sets forth the institutional pressures and cognitive biases that might lead even well-intentioned prosecutors to exercise peremptory challenges in a race-based manner. Part III concludes by calling on prosecutors to take steps to neutralize their own exercises of peremptory challenges, including the collection and publication of both individual and office-wide statistics reflecting the numbers of peremptory challenges exercised and the race of the affected venirepersons and resulting juries.

Keywords: Prosecutors, prosecutorial discretion, Batson, jury selection, racial discrimination, professional responsibility, cognitive bias

JEL Classification: K14, K41