Is Batson workable? Studies show association between race and peremptories
A case set for argument in the U.S. Supreme Court on Nov. 2 returns to the issue of the use of race in jury selection.
Georgia death-row inmate Timothy Foster claims prosecutors violated the Constitution by using highlighter on the names of prospective black jurors and using peremptory challenges to strike them all. Peremptory challenges generally can be exercised for any reason, absent discriminatory intent.
The Washington Post has a story on the case that highlights studies suggesting that the ban on the use of race in jury selection, established in Batson v. Kentucky, may not be working.
The story notes Justice Thurgood Marshall’s concurrence predicting Batson would not end the use of race in jury selection. “That goal can be accomplished only by eliminating peremptory challenges entirely,” Marshall wrote.
Since the 1986 decision, studies have shown the association between race and peremptory challenges, according to the Post article. The problem, critics point out, is that lawyers can cite many race-neutral justifications for the exclusion of a potential juror. In Foster’s case, accepted reasons included a potential juror who didn’t maintain eye contact and a potential juror who was nearly the same age as Foster.
In a 2012 study in North Carolina, Michigan State University law professors Catherine Grosso and Barbara O’Brien found prosecutors used 60 percent of their peremptory challenges to strike black jurors, though they made up only 32 percent of potential jury members. Defense lawyers used 87 percent of their peremptory challenges to strike white jurors, though they made up 68 percent of potential jury members.
The case is Foster v. Chatman.
