Batson and Jury Selection Bias

Jury duty. When we hear these words, most of us feel exasperation or annoyance. Maybe it’s because we think it will be time consuming, costly, or just plain boring. If we decide not to show up, we’re penalized for it. To many, it makes sense why the words jury duty are attached to such disdain. However, just like the ability to vote, it is one of the cornerstones of representative democracy. Without it, we concede our freedom to weigh in on what it means for justice to be served in this country. Who, and for what reasons are we sentencing a person to serve a year in jail, life in prison, or in some instances, to death? Our duty to serve on a jury ensures that if we are ever charged with a crime, we also have the opportunity to be heard by people in our community, people who are like us, to judge and determine our guilt or our innocence.

I recently read a book written by a man named James Batson. As a former criminal, he wrote about his experiences with crime, the harsh lessons he's taken away from it, and why the gratification of the "quick money" from commiting crime is never worth inevitably sacrificing your freedom. Now you might be asking what this has to do with jury duty, or what jury duty has to do with bias. As a criminal defendant, James Batson played a pivotal role in the creation of the modern jury system.

Let’s take a look at Batson v. Kentucky, one of the most influential landmark cases regarding As a young black man from Kentucky, Batson was tried for a burglary he claimed he did not commit. In the jury selection process, there are two ways for an attorney to strike a juror. The first trial ended in a hung jury due to one juror holding firm that she did not believe Batson was guilty beyond a reasonable doubt. This juror was a black woman.

The jury selection of the second trial was where things got messy. Jury selection allows attorneys two ways to strike a juror. There is “striking for cause” meaning a lawyer can strike a juror that they feel cannot be fair, or has a conflict of interest in the case, and thus takes them out of the juror pool. The second way is to use a peremptory challenge, which allows for an attorney to take a juror off the pool no questions asked. Each attorney is allowed a limited number of peremptory strikes, as to keep the selection process ‘balanced’. With 13 people left on the jury pool, nine white jurors and four black jurors, the prosecuting attorney decides to use all four of his peremptory challenges to strike the four remaining black jurors left in the jury pool. Batson noticed that should these four jurors be removed, he would be in a courtroom consisting of only white people: the judge, the attorneys, and the jurors. His guilt would be determined without the input of a single person of color. He made his lawyer object to the peremptory challenges, even though there was no legal precedent to do so, and appealed it up to the Supreme Court.

Batson’s appellate attorney gathered data from different parts of the country, and found substantial evidence that peremptories were used to take black people off juries everywhere. They argued that the practice violated the Equal Protection Clause of the 14th Amendment and the right to a jury of your peers of the 6th Amendment. The Supreme Court ruled 7-2 for Batson, finding that using peremptories on the basis of race violated the 14th amendment.

James Batson was released and the Batson Rule was established, requiring attorneys to explain their peremptory challenges if striking a minority off the jury.

Even after such an important victory, bias--both explicit and implicit--still influences the jury selection process. Prosecutors around the country began teaching each other how to get around the Batson Rule. All it took to get around the Batson Rule was to provide a simple non-race related reason, and as such, it was exploited all around the country. Even when prosecutors don’t intentionally or consciously strike a potential juror because of their race, implicit bias can impact their decisions without their awareness. We still have a ways to go in addressing our problem with bias in jury selection.

The More Perfect podcast does a great story on this case, and had some prominent figures in the legal field speak on the issue: Stephen Bright, founder of the Southern Center of Human Rights, states "Batson created set of procedures legitimizing and covering up the race discrimination that was going on." Bryan Stephenson a prominent attorney and advocate for criminal justice reform notes that Batson’s not going to eliminate racial bias in jury selection, but it will make the jury selection process a lot more entertaining (referring to how creative or absurd the “non-racial” reasons for striking a black juror were). Thurgood Marshall believed that in order for racial bias to be eliminated in the juror selection process, peremptory challenges must be eliminated entirely.

However, there are still many proponents of the necessity of peremptories. Traditionalists argue that we shouldn’t have to explain our strikes to the court because that’s just how it has always been. The practice goes back centuries, and it a tool that lawyers need to do their jobs well. Jeffery Robinson, Deputy Legal Director and Director of the Trone Center for Justice and Equality for the ACLU, stated that to give up on these peremptories would mean giving up on who he might be one day, because of who we are right now. “It means conceding that we are so divided by race that we will never be able to try and fix it, and I am not prepared to concede that”.

I believe Robinson raises a valid concern about giving up on fixing the division between race in our country. However, we must consider whether the United States is even close to being ready to live in a post racial society. Race has been an issue from the conception of this country. Jim Crow is not a thing of the distant past, and discrimination still runs rampant in our social, political, and economic systems. We cannot simply ignore the influence of race in our society in pursuit of an ideal vision of race-neutral justice. The reality is that race plays a big role in our justice system, and the biases that lead to the inequitable treatment of minorities cannot be addressed until we acknowledge race as a factor. Perhaps one day we will be able to properly implement race neutral sys… Thus, our jury selection process should reflect this reality. We must continue to challenge the idea that race is not as influential as we think, and push for implementation of systems that allow for procedural justice to limit bias as much as possible. Batson has pushed us in the right direction, but there is still much work to be done. There will be challenges, but we must have the will to respond the way Batson did when his attorney told him he could not object to peremptory challenges, “Object anyways”.

Sean Rameswaram, Narrator, “Object Anyways”, More Perfect, season 1, episode 7, WNYC Studios, 2016,

#criminaljusticereform #unconsciousbias #juryduty

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