The constitutional guarantee of equal protection in courtrooms and the practice of allowing prosecutors to use peremptory challenges have resulted in tension between citizens and legal figures. The right to a jury trial is a hallmark of the American criminal justice system. However, the fairness of the American criminal justice has recently been called into question. The Sixth Amendment of the Constitution guarantees the right to a trial by an impartial jury of one’s peers; however, several different court procedures have prevented this constitutional guarantee from becoming a reality. The “trial by jury” standard has been believed to mean that jurors should be reflective of the community in which the defendant lives. However, within the past few centuries, courts throughout the nation, especially southern courts, have made sure that African-Americans who were charged with crimes were subject to jury trials that consisted of all-white juries.
As a result, legal lynchings against black defendants became common practice within the American judicial system. White jurors have often engaged in jury nullification when white defendants are charged for crimes committed against black victims. The well-known trials of the killers of Medgar Evers and Emmet Till, and more recently Trayvon Martin, highlight injustices committed by biased white jurors who some believe ignored the facts, and instead focused on extra-legal factors to make a decision. As a product of these incidences, the process of finding justice in courts has changed substantially but there are still tools used by the judicial system for invidious race and gender discrimination. The peremptory challenge is a tool used by both prosecutors and defense attorneys to eliminate unfavorable candidates from severing as a juror. This article critically examines the history, use, and effects of peremptory challenges and suggest solutions to what Hoffman (1997:847) describes as “the last tool of Jim Crow” (as cited in, Rose, 1999, p. 696).
The Evolution of Trial by Jury in America
The notion of a trial by jury originated from English common law and dates as far back as King Henry II’s idea of a self-informing jury. A self-informing jury is a jury that consists of individuals who are members of the community who are familiar with parties involved in the trial and had some knowledge of the dispute between parties. The right to a jury trial was eventually brought to America by the English colonists to serve as a tool against oppression and a symbol of freedom (Weddle, 2013). The right of a defendant to have a trial by jury is written in Article III of the constitution and the Sixth and Seventh Amendments, which grant defendants the right to trails by an impartial jury in all criminal prosecutions and the right to have juries in common-law civil cases. In addition, the Sixth Amendment also requires that a jury that harbors bias against the defendant will not try defendants.
Although the constitution did not set forth any guidelines for impartiality, The Supreme Court ruled that an impartial jury is a jury that is impartial to issues that may arise in a given trial. Therefore, parties are allowed to question potential jurors during voir dire. Parties are also granted the opportunity to remove jurors who may hold biases against them by using challenges with or without cause. The hypocrisy of the Sixth Amendment and early American history is that not every citizen was able to serve on juries. Most states typically only allowed property-owning taxpaying white men to serve on juries. Jury qualifications were later loosened by the late 19th century, but the issue was not fully addressed until the Fourteenth Amendment was passed in 1868. The Fourteenth Amendment guarantees all citizens equal protection under the law, and it is used to make the Bill of Rights applicable to all states. The Fourteenth Amendment ensures that no state will implement laws that can infringe on the rights of citizens of the United States or deny persons equal protection of the laws. In addition, the Fourteenth Amendment also granted citizenship to emancipated African-Americans, and it gave congress the power to enforce the provisions of the Fourteenth Amendment against states that failed to provide equal protection of laws for all citizens. Thus, it became harder for states to bar citizens from serving on juries, though several states found ways to exclude citizens from serving on juries.
The Importance of Strauder v. West Virginia (1880)
The earliest case to touch on the racial makeup of the jury was Strauder v. West Virginia (1880). InStrauder, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibited the government from purposely prohibiting individuals from serving on juries based on race. The Supreme Court invalidated a West Virginia Statue that disqualified African-Americans from serving on juries and a conviction of an African-American man who was found guilty of murder by an all white jury was reversed. Strauder was reaffirmed by the Supreme Court repeatedly between 1860 and 1965, and several other state statutes that excluded African-Americans from jury service were invalidated (Burgess and Smith, 2011). The Strauder Court ruled that a defendant’s right to a jury by their peers does not mean that the defendant is tried by their friends, but rather by people that share common characteristics with them. Common characteristics such as race, gender, and socio-economic status can help a juror empathize with the defendant, and such characteristics may be helpful when deciding guilt or innocence (Weddle, 2013).
In Strauder, the Supreme Court ruled that the denial of equal opportunity only applies when a member of the defendant’s race is purposefully excluded from the jury venire. The Supreme Court also ruled that defendants are not guaranteed to have a jury that is wholly or partially comprised of members of the defendant’s race. Although the decision in Strauder attempted to eliminate discriminatory elimination of African-American jurors during jury selection, states were able to circumvent Strauder’s requirements by implementing racially neutral eligibility requirements for jury selection. For example, southern states were able to keep African-Americans off juries by excluding them from voting lists and requiring that potential jurors are educated property owners, such requirements often excluded African-Americans from serving on juries.
Swain v. Alabama (1965)
In 1965, the issue of racial discrimination in the jury selection process reared its head again when the Supreme Court heard the case of Swain v. Alabama, which involved a Black man being indicted for raping a white girl. The prosecutor used his peremptory challenges to eliminate six Black jurors. Swain was convicted, and he later appealed his conviction by arguing that he was denied equal protection by the state’s exercise of peremptory challenges to exclude blacks from the petit jury. The Alabama and the U.S. Supreme court sided with the prosecution. Browne-Marshall (2007) noted that the Supreme Court decided that in order for Swain to win his appeal, he had to prove that the removal of the jurors was based on purposeful discrimination, which is an extremely difficult standard to meet. The Supreme Court also found that the principle of Strauder, which held that the Equal Protection Clause forbids excluding people from jury service on the basis of race, applied to peremptory challenges in a limited sense (Burgress & Smith, 2011). As a result, the court placed a heavy burden on criminal defendants who sought to show a constitutional violation in their case.
In order for a defendant to prove that an Equal Protection Clause violation occurred the defendant must show that a systematic use of purposefully race-based peremptory challenges occurred over time; because the court felt that a low burden of proof would defeat the purpose of peremptory challenges (Burgess & Smith, 2011). Swain was not able to meet the courts burden although the prosecution had used six peremptory challenges to remove all of the African-American jurors from the jury. The defense attempt to introduced evidence that showed that no African-American person had served on a jury in that county since 1950 was unsuccessful. Three Supreme Court justices dissented on the grounds that the majority undermined the principle of Strauder, which subjected Swain to criticism throughout the years due to its extremely high burden of proof (Burgess & Smith, 2011).
Batson v. Kentucky (1986)
The Supreme Court revisited the issue of racially based peremptory challenges two decades after the Swain decision in Batson v. Kentucky. This case involved an African-American man who was charged with 2nd degree burglary and the possession of stolen goods. Four African-American jurors were struck by the prosecution, which resulted in an all-White jury. As a result, Batson’s attorney sought to have the jury dismissed, by arguing that the removal of all of the black jurors denied Batson of his Fourteenth Amendment equal protection rights. The Supreme Court ruled in favor of Swain by finding that removing black jurors from the trial was a violation of the Fourteenth Amendment. As a result, the Supreme Court made it unconstitutional for attorneys to exclude jurors based on race or the belief that a juror cannot impartially rule on the case because of their race (Browne-Marshall, 2007). In addition, the Supreme Court also outlined three steps to determine if a peremptory challenge is based on a race-neutral explanation.
First, a prima facie case revealing discrimination must be established, and then the burden shifts to the side that made the challenge to give a race-neutral explanation. Finally, the court must decide if they will accept the challenge after an explanation is heard. Thus, the Batson court overturned Swain’s burden of proof for showing a violation of the Equal Protection Clause in jury selection. A defendant can now solely rely on evidence of the prosecutor’s use of peremptory challenges to remove prospective jurors of a defendant’s race from a jury pool to argue that a Batson Violation occurred. Therefore, the defendant can now rely on circumstantial evidence from his trial to make a prima facia showing of racial discrimination. In order for the prosecution to give a successful race-neutral explanation, the prosecution’s race-neutral explanation must contain legitimate reasons and be clear and reasonably specific (Gabbidon, Kowal, Jordan, Roberts, Vincenzi, 2008).
The design of the Batson procedure is to provide actual answers to suspicions that discrimination may have impacted the jury selection process. Justice Marshall, in dissent, noted that he feared that Batson did not go far enough, and he felt that the court should have abolished peremptory challenges altogether. Marshall also argued that it is extremely difficult to assess the motives of prosecutors, especially when a strike can be attributed to the prosecutor’s unconscious bias, and where an explanation based on demeanor can be used to mask a prosecutor’s racial bias. In addition, Justice Marshall predicted that the Batson framework would be ineffective in abolishing discriminatory use of peremptory challenges. Therefore, Batson has done little to address the impact that racial biases play on jury instructions. Batson critics have argued that Batson has done little to change the makeup of jurors and race plays an important role in jury selection, regardless of Supreme Court decisions (McGuffee, Garland, Eigenberg, 2007). Golash (1992) argues that Batson does more to enhance the appearance of fairness in the jury selection process rather than creating a racially unbiased method of seating a jury. Golash (1992) stated:
The widespread prosecutorial practice of striking all minority groups members from the jury was a public embarrassment to the judicial system. The requirement of offering such (non-racial) reasons may not stop the well-trained prosecutor from striking minorities from juries, but it will provide the occasion for him to offer an excuse for doing so (p.176).
Thus, prosecutors typically use slick strategies during jury selection to pick jurors that will support the state. As a result, prosecutors can work around Batson by providing race-neutral explanations for using peremptory challenges.
The Peremptory Challenge
During the venire process, potential jurors are sometimes questioned by the judge or by counsel. If the judge feels that a potential juror may harbor biases that may affect their ability to make an unbiased judgment during a trial, they can be dismissed for cause. Challenges for cause are unlimited and are used when a juror does not possess the qualifications to serve on a jury. Peremptory challenges give litigants the ability to remove potential jurors from a jury panel without a given reason or explanation. The Constitution does not specifically legitimize peremptory challenges, but they have always been used in the United States, and the Supreme Court acknowledged the importance of peremptory challenges under the Sixth Amendment when speaking on the importance of achieving an impartial jury. Preemptory challenges are different from challenges for cause because peremptory challenges are limited in number, and they are used when there is not enough evidence to remove a juror for cause.
Peremptory Challenge – Race Neutral Explanations
In order for a peremptory challenge to be accepted by a judge counsel has to provide a race-neutral explanation as to why a juror was striked. Courts have continuously extended the acceptable range of race-neutral explanations, and accepted examples of race-neutral explanations include the juror’s age, marital status, occupation, socio-economic status, demeanor, education, religion, and experience with the criminal justice system (Weddell, 2013). Moreover, the Supreme Court has held that counsel has the right to exercise a peremptory challenge based on silly reasons such as a potential juror having unkempt hair. The Supreme Court also has found that it is acceptable to exclude potential jurors who are bilingual. Thus, widespread discrimination remains in jury selection methods because attorneys can simply provide a race-neutral explanation for their use of a peremptory challenge; although their motives for removal of a potential juror may be racially based. Batson violations are extremely difficult to prove because most judges are willing to accept race-neutral reasons that counsel offer.
Peremptory challenges after Batson
The Supreme Court made it easier to win a race-based peremptory challenge case in Johnson v. California (2005). The court held that “permissible inferences of discrimination were sufficient to establish prima facie case of discrimination under Batson, shifting the burden to the state to adequately explain the racial exclusion by offering permissible race-neutral justification for the strikes” (Johnson v. California 2005). However, even with the Batson and Johnson rulings legal observers still believe that attorneys still use race-based peremptory challenges (Page, 2005). The debate regarding peremptory challenges features two sides, one side that argues for the eradication of peremptory challenges (Hoffman 1997; Marder, 2006), and another side that argues for the modification of peremptory challenges (Page, 2005; Stolz, 2007). Those who argue for the eradication of peremptory challenges argue that many peremptory challenges are being masked as being race-neutral when in reality they are racially based which violates Batson. However, those for the modification of preemptory challenges argue that African-Americans are incapable of neutrally deciding cases that have African-American defendants (Krauss & Schulman, 1997). Several legal and social scholars have examined the juror selection process and the social and psychological parts of the process in order to determine which side was more likely to use a peremptory challenge. Rose (1999) found, through the analysis of thirteen criminal trials in North Carolina that the most frequently used tool to excuse a juror was the peremptory challenge. In addition, Rose (1999) also found that blacks and whites were equally likely to be removed from the jury through peremptory challenges, but race did matter when identifying which side was likely to strike a juror. For example, African-Americans were more likely to be dismissed by the prosecution (81%), while the defense was more likely to dismiss white jurors (71%) (Rose, 1999).
Research by Clark, Boccaccini, Caillouet, and Chaplin (2007) found that young unemployed African-American males were more likely to be excused by the prosecution. A study conducted by Gabbidon et al. (2008), which studied the characteristics of race based peremptory challenges, found that black jurors are most likely to be removed from the jury through peremptory challenges, most likely due to the long history of the legal system not trusting Blacks to neutrally rule in cases. Young unemployed African-American males are not the only group affected by racist legal practices. Rose (1999) also found that some district attorneys also distrusted African-American female jurors, and some district attorneys even went as far as to target African-American female jurors for removal. There was even a well-known training tape in Philadelphia that was given to district attorneys that labeled African-American women as downtrodden and angry about their gender and race, which can result in them taking their frustration off on the state (Rose, 1999).
Some district attorneys throughout the nation feel that African-Americans are unable to be objective when serving on juries due to their animosities towards society. Gabbidon et al. (2008) also studied the results of race-based peremptory challenge litigation after the Johnson decision in 2005. The results found that when defendants challenge peremptory challenges they often lose their cases, and that federal courts often accept the prosecutions peremptory challenge explanations as race neutral. In addition, Gabbidon et al. (2008) also found that after the Johnson decision in 2005 the largest share of the peremptory challenge litigation occurred in 2006, most likely a product of the Johnson litigation. However, the results of the cases in 2006 were not any more successful than cases in prior years. For example, only 20% of the individuals who brought forth cases were successful in their appeal. Although this number is significant, Gabbidon et al. (2008) argues that it is still too early to make a clear assessment of the Johnson decision because it occurred so recently. Thus, the Batson and Johnson decisions have done little to address the impact that peremptory challenges have on the representation of African-American jurors in trials.
Jury Nullification as a Tool to Fight Peremptory Challenges
After the O.J Simpson trial and verdict of not guilty several legal scholars and legal commentators saw the deep racial rifts that infiltrate the justice system and legitimize the justice system in America. Some saw the Simpson verdict as a form of jury nullification, and one legal analyst even argued that African-American defense attorney Johnnie Cochran urged jurors towards jury nullification (Fukurai & Krooth, 2003). Jury nullification is the notion that jurors have the right to refuse to enforce unjust laws when laws have been unjustly enforced. With jury nullification, the jury can sidestep legal requirements by using their discretionary power to acquit a defendant contrary to the evidence or the law. Thus, the jury has the power to ignore the law and the evidence of a trial to make an independent judgment when embracing a more lenient approach to deciding a verdict. African-Americans have historically been wary of law enforcement and the judicial system due to years of harassment and oppression by law enforcement and the judicial system.
Therefore, it is not surprising that most African-Americans question the legitimacy of administering justice in America. Thus, in order to legitimize the justice system for African-Americans, African-Americans must become active participants within the justice system, which includes working within the system and participating in the justice system as jurors. However, with the increasing prevalence of racially based peremptory challenges used by prosecutors and even defense attorneys, African-American citizens continue to be barred from participating in the process of justice by serving on juries. African-American jurors should use their political function of serving on a jury to acquit a black defendant of a crime that may result in arbitrary enforcement of laws when granted the opportunity to serve on a jury, in order to curtail oppression that results from flawed criminal justice policies and practices. The Supreme Court ruled in Duncan v. Louisiana (1968) (391 U.S. 145, 1968) that the jury’s fundamental role in criminal cases is to provide defense against arbitrary enforcement. The Supreme Court stated that:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the government. Those who wrote our constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge (391 U.S. 145, 1968).
Racially based jury nullification can be used as an effective tool to check the exercise of abusive state power, which can protect the interest of minority citizens. Paul Butler in his article “Racially-Based Jury Nullification: Black Power in the Criminal Justice System” (1995) argues that black jurors should be thoughtful about who they send to prison, and for the safety of the community murderers, rapists, and robbers should be convicted, but when black people are prosecuted for drug offenses and other victimless crimes, Butler recommended that jurors consider nullification (Butler, 1995). Butler believes that the African-American community can better address non-violent offenders than the racist criminal justice system and that it is the “moral responsibility of black jurors to emancipate black outlaws” (p. 679). Jury nullification is needed for African-American non-violent defendants because African-Americans are disproportionately incarcerated in America.
Minton and Golinelli (2014) found that, as of midyear 2013, African-American inmates accounted for 36% of the total jail population, although they only constituted for 13% of the general population. In addition to disproportionate incarceration rates African-Americans are also more likely to be punished more severely than similarly situated white defendants (Miller, 1996). Also, because most states bar felons from voting, African-Americans are less likely to serve on juries because many municipalities pull their jury pools from voting registries (Harrison & Beck, 2006). Thus, racial discrimination often occurs before a prosecutor may have to use a peremptory challenge to remove an African-American juror from the jury pool. Thus, it is crucial to take Butler’s racially based jury nullification recommendations into consideration to ensure justice throughout the legal system for African-Americans. The criminal justice system is anti-rehabilitative; therefore, non-violent offenders should be subject to nullification because their community can rehabilitate such offenders.
There are many critics of Butler’s racially based jury nullification framework who argue that implementing Butler’s ideas would only further racism. Leipold (1996), for example, argues that the gains that have been made in society will be dismissed by Butler’s recommendations and that individuals who are critical of the criminal justice system must be patient when waiting for solutions to racist criminal justice policies and practices. Leipold’s critique is off base because many African-Americans continue to be subjected to disparate treatment and impact by the criminal justice system in America. African-Americans cannot afford to wait to address injustices in the criminal justice system because injustices will continue to grow. Legal segregation supposedly ended 49 years ago when the Civil Rights Act of 1964 was passed to end legal segregation and legal discrimination based on race. However, African-Americans continue to be oppressed by an inherently racist criminal justice system. Therefore, recommendations such as Butler’s racially based jury nullification must be taken into consideration to address the disparate impact that preemptory challenges have on African-Americans.
Recommendations to Fight Un-Checked Peremptory Challenges
The Supreme Court should reevaluate the use of peremptory challenges and possibly adhere to the framework that was set in Batson. Batson determined that after an individual makes a case for purposeful discrimination, it is then up to the proponent of the strike to give a clear, neutral explanation to the strike that is related to a given case. However, since Batson, the Supreme Court has altered theBatson test and courts now allow proponents of challenges to offer any neutral explanation, no matter how far-fetched an explanation may be. Therefore, the use of peremptory challenges should be limited or perhaps even abolished. Representativeness of juries should also be improved in order to ensure that juries are diverse, which can inject a sense of fairness into the legal process. Massachusetts provides a framework for increasing diversity and representativeness by relying on a municipal census to pull jurors for jury duty rather than relying on voter registration lists (Weddle, 2013). Many underrepresented groups and less affluent people are less likely to be registered voters. Therefore, it is imperative that municipalities draw from official records rather than voter registration lists, because official records will represent a broader range of people. Simply pulling names from more comprehensive lists can increase jury diversity. Peremptory challenges are an issue because great discretion is afforded in the application of peremptory challenges. Simply put, Batson violations are far too hard to prove. Thus, the culture within the legal process should change because too many courts are willing to accept race-neutral explanations. Society must address the unchecked use of discriminatory peremptory challenges in order to ensure justice for all.
Institutional discrimination in the justice system should not be tolerated by society because the American criminal justice system prides itself in being a democratic system that serves to protect all citizens. However, due to the use of unchecked peremptory challenges and ineffective jury selection strategies, citizens from marginalized communities are often underrepresented during jury trails in America. The jury trial allows average citizens the opportunity to engage in justice and ensure that the state does not sidestep or abuse the law. Thus, improvements should be implemented during the jury selection process to ensure that individuals from diverse backgrounds are allowed to participate in the democratic process of serving on a jury to seek justice.
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Batson v. Kentucky – 476 U.S. 79 (1986)
Duncan v. Louisiana – 391 U.S. 145 (1968)
Johnson v. California (04-6964) 545 U.S. 162 (2005)
Strauder v. West Virginia, 100 U.S. 303 (1879)
Swain v. Aalabama, 380 U.S. 202 (1965)