Document Type

Article

Abstract

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to vindicate the rights of white jurors. In other words, disparate impact analysis is itself being applied disparately.

This Article proceeds in three parts. Part I describes the Supreme Court framework within which the lower federal courts operate when they evaluate the constitutionality of peremptory strikes of potential jurors. The three-step test first articulated in Batson requires (1) a prima facie showing of discrimination; (2) a neutral justification for the strike; and (3) a determination by the trial judge of whether purposeful discrimination motivated the strike. In describing the Supreme Court jurisprudence, the Article identifies four issues that are crucial to disparate impact analysis in the Batson context: the role of the trial judge; the requirement that justifications be connected to the facts of the case; the comparability principle, which requires that similarly-situated jurors be treated in similar fashion; and the question of whose rights the Batson doctrine protects.

Part II introduces the two sets of cases that I examine in this Article, and that exhibit a striking disparity in outcome. The first set consists of the thirty-six cases in which lower federal courts addressed disparate impact arguments relating to the strikes of jurors of color and/or female jurors. In all of those cases, the claims of purposeful discrimination were ultimately unsuccessful. The second set consists of the three cases in which courts addressed disparate impact arguments relating to the strikes of white jurors. In all of those cases, the claims of purposeful discrimination were ultimately successful.

In Part III, the Article demonstrates that this disparity in outcome correlates with a disparity in approach to four issues that I identify as crucial to disparate impact analysis. On each issue, the courts addressing the strikes of white jurors provide a depth of analysis that is absent from the cases involving jurors of color and/or female jurors. On each issue, the courts addressing the strikes of white jurors display a boldness in addressing the challenges and opportunities created by Batson that is absent from the cases involving jurors of color and/or female jurors. The Article concludes by urging that this depth of analysis and this boldness be applied uniformly to disparate impact claims in the Batson context. Until these disparities are corrected, it would be naïve to call the peremptory system fair, and it would be premature to call for its abandonment.

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