Twenty-five years ago, in Batson v. Kentucky, the Supreme Court established a framework for protecting against discrimination in jury selection. Since then, the Batson doctrine's breadth has increased considerably. Batson resolved the claim of an African American criminal defendant from whose jury all African Americans had been removed through peremptory strikes. Now, however, the Batson doctrine applies to civil trials as well as criminal, to strikes by prosecutors as well as defenders, and to discrimination on the basis of gender as well as race. Although the doctrine protects only against purposeful discrimination, in Hernandez v. New York the Supreme Court held that courts should give appropriate weight to the fact that a peremptory strike's justification has a disparate impact on a certain race when determining whether purposeful discrimination motivated the strike.
Despite the increased breadth of the Batson doctrine, this may not be a happy anniversary for Batson. Opponents accuse the current framework of failing to provide meaningful protection against purposeful discrimination, and, specifically, of being vulnerable to an end-run that exploits disparate impact. In a society often stratified along demographic lines, the possibility that, for example, an attorney might mask purposeful racial discrimination with a justification based on a juror's neighborhood, and be immune from Batson's protections in doing so, has led some to despair of the protections and to call for an end to the peremptory strike.
Despite the risk that disparate impact poses to the Batson protections, disparate impact analysis in the Batson context has received insufficient scholarly attention, and has never been the subject of a comprehensive study. This article examines all of the federal court decisions relating to this issue that have been published since Hernandez. While this survey omits unpublished decisions, it brings to light an intriguing disparity that is mirrored in other Batson research beyond the disparate impact context, and in other Equal Protection scholarship. Thirty-nine published decisions have addressed disparate impact arguments in Batson cases since Hernandez. Thirty-six decisions involved claims relating to stricken jurors who were either people of color alleged to have been stricken because of their race or ethnicity, or women alleged to have been stricken because of their gender. All of the claims relating to those jurors were ultimately unsuccessful. The remaining three decisions involved racial discrimination claims relating to stricken jurors who were white. All of the claims relating to those jurors were ultimately successful. While this numerical disparity might arouse concern--that the disparate impact doctrine is being utilized disparately--a further disparity may temper that concern with hope. In comparing these two groups of cases, there are differences not just in outcome, but also in judicial approach. In several key areas, the depth of analysis was greater in those cases where the stricken jurors were white; more attention was given to the need to make the Batson protections an adequate check against purposeful discrimination. This disparity should make one pause before reaching the conclusion that the Batson framework cannot adequately protect against justifications that have a disparate impact.
This article highlights four key areas of difference in the approach taken by the two groups of cases: the role of the trial judge, the question of whether a justification for a strike must be connected to the facts of the case, the application of the comparability principle, and the expansion of the groups that the Batson doctrine protects. It urges that the depth of analysis found in those four areas where the rights of white jurors were at stake should be applied uniformly to all disparate impact Batson claims. Part I surveys the development of the Supreme Court doctrine relating to Batson, describes the Supreme Court's pronouncements on disparate impact, and focuses on parameters that the Supreme Court has set in these four key areas. Part II highlights a disparity in result between the two groups of disparate impact cases in the lower federal courts. Part III focuses on a second disparity regarding disparate impact. It demonstrates that courts analyzed the doctrine more deeply where the stricken jurors were Caucasians, alleged to have been subject to racial discrimination.
The disparity between outcomes in the two groups of disparate impact cases is stark. Of thirty-six published decisions involving allegedly discriminatory strikes of jurors of color and/or female jurors, none ended in a finding of purposeful discrimination. Of three published decisions involving allegedly discriminatory strikes of white jurors, all ended in a finding of purposeful discrimination.
In addition to this disparity in outcome, a further disparity in approach merits examination. In response to the Supreme Court's mandate that appropriate weight be given to disparate impact, one finds the Wynn and Taylor courts adopting methods that are largely absent from the cases involving jurors of color and/or female jurors, and that are astute. They endorse an informed, proactive role for the trial judge; they ensure that the connection to the facts of the case requirement is not too loose, and the comparability requirement is not too tight, to be meaningful; and they weigh within their Batson analysis the fact that every allegation of a discriminatory strike involves an allegation that a juror has been the victim of discrimination.
Courts involved in Batson analysis, no less than critics calling for its abandonment as pointless, should heed the risk of disparities in outcome and in approach. Until an attempt is made to minimize any such disparities, one cannot legitimately call the peremptory system fair, and one cannot legitimately call for its abandonment.
Acting Assistant Professor, New York University School of Law.