The Batson Challenge - Very Broken and Needs Fixing

 During jury selection, an attorney can strike a potential juror from the jury pool in two ways.  First, the attorney can strike them "for-cause."  A challenge "for-cause" is exercised when a potential juror has exhibited some sort of bias towards the parties or the case at hand.  These are unlimited in number.  The second way to strike a potential juror is by exercising a peremptory challenge. These are limited in number and vary by jurisdiction.  No justification is required for an attorney to use a peremptory strike.  Because of this, it is widely known that attorneys exercise these in racially discriminatory ways -- relying on stereotypes and biases to strike the potential jurors they perceive as being averse toward their client.

As a way to combat this racial discrimination, the United States Supreme Court, in Batson v. Kentucky, held that a prosecutor's exercise of race-based peremptory challenges violated the Equal Protection Clause of the 14th Amendment.  The Court found that "purposeful racial discrimination in the selection of the venire denies the protection that a trial by jury is intended to secure."  As a result of this case, an attorney now has the ability to challenge an opposing attorney's use of a peremptory strike if they believe it was motivated by the juror's race.  This is known as a Batson challenge.

A Batson challenge has three prongs.  First, the defendant must make a prima facie case showing that a peremptory challenge has been exercised on the basis of race.  This is satisfied by producing "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."  If the defendant can make a prima facie case, the burden is then shifted to the prosecution.  Second, the prosecution must come up with a race-neutral explanation for why they challenged that particular juror.  This step "does not demand an explanation that is persuasive, or even plausible... but only one that is facially race-neutral."  And third, the defense as the burden of proving purposeful discrimination.  

Batson challenges are hard to win.  This is because proving discriminatory intent is nearly impossible.  Especially when any race-neutral explanation for why the juror was struck is acceptable -- the North Carolina Supreme Court has stated that "as long as the state's reason appears facially valid and betrays no inherent discriminatory intent, the reason is deemed neutral."  The most difficult prong of the Batson challenge, part three, requires the defendant to both (1) prove the strike was actually motived by race, and (2) prove that the prosecutor's race-neutral explanation is a lie.

While Batson was a step in the right direction, it is in no way effective at stopping racial discrimination in voir dire.  One modification that will help is changing the "discriminatory intent" element to a "discriminatory impact" element.  Instead of focusing on what the prosecutor's motivation was behind the peremptory challenge we should focus on the impact the challenge itself has on the jury pool.  Because this is what we are actually trying to combat isn't it?  To stop the discriminatory effects of peremptory strikes -- not so much the hard-to-prove discriminatory intent behind them.  This is just one of many examples of how we can enhance the Batson challenge system.