Racial Discrimination and Jury Selection

6 Pages Posted: 21 Jul 2016 Last revised: 13 Jan 2017

See all articles by Peter A. Joy

Peter A. Joy

Washington University in St. Louis - School of Law

Kevin C. McMunigal

Case Western Reserve University School of Law

Date Written: July 19, 2016

Abstract

In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.

Keywords: race, discrimination, Batson, jury selection, jury voir dire, ethics, prosecutors

JEL Classification: K14, K19, K39, K41, K42

Suggested Citation

Joy, Peter A. and McMunigal, Kevin C., Racial Discrimination and Jury Selection (July 19, 2016). Washington University in St. Louis Legal Studies Research Paper No. 16-07-08. Available at SSRN: https://ssrn.com/abstract=2811765 or http://dx.doi.org/10.2139/ssrn.2811765

Peter A. Joy (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

Kevin C. McMunigal

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
2163683613 (Phone)
2163682086 (Fax)

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