Racism in Jury Selection: Is Batson doing its job?

The short answer... "No." On its face, the US. Supreme Court's 1986 decision in Batson v. Kentucky prohibits the use of a preemptory strike in jury selection to eliminate a potential juror solely on the basis of race. The key word here... "solely".  In reality, Batson grants defendants a toothless challenge to discrimination in jury selection while giving prosecutors a safe haven for racist case strategy.

Since the decision in Batson, prosecutors at all levels of government have been able to use the rule as justification to excuse seemingly any black juror for seemingly any reason. There are no comprehensive statistics on how often prosecutors strike jurors based on race, but there is little doubt that the practice remains common, especially in the South. In order to overcome a Batson challenge by defense counsel, prosecution need only provide ANY OTHER reason to strike the juror. Common examples include age, education level, experiences with law enforcement, etc. Furthermore, proof of intentional discrimination is required under Batson and reinforced subsequently in Wheeler. Even where race appears to be the only relevant factor, proving intentional discrimination requires foolproof evidence that almost never exists.  At the end of the day, all parties involved understand the true nature of the preemptory strikes on black jurors, even the prosecution themselves. And no one can do anything about it?? 


Some states , as well as SCOTUS, are cracking down on discrimination in jury selection, acknowledging that it goes against the fundamental underpinnings of being examined by a representative cross section of the community. Juries containing at least one black member have proven to deliberate longer and be less harsh on defendants.  Other states, however, allow the practice to remain an "open secret," and the narrow statistics that exist attempting to capture the results (North Carolina) are alarming. 
What can we do about this problem? As the Supreme court and other higher courts express their disfavor toward discrimination in jury selection, the practice will continue to be attacked on an individual basis. The remedy may very well lie within state legislatures and executives to create standards for more representative juries, adding onto the Batson framework that exists. As citizens, we must hold our elected officials accountable and encourage that they follow the lead of states on the forefront of this movement.