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Batson “Blame” and Its Implications for Equal Protection Analysis

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On this twenty-fifth anniversary of Batson v. Kentucky it is unsettling to observe that so many consider the decision a failure in terms of its apparent purpose—to remedy and prevent discrimination in jury selection. According to numerous commentators, the elimination of potential jurors on the basis of race and gender is a daily occurrence in courtrooms across the country, and despite Batson’s ruling to the contrary, largely nothing is done about it.

Although I can only accomplish this in very broad strokes in this symposium context, I suggest two related points. First, in Part II, I posit that “blame” might account for some degree of Batson’s ineffectiveness. That is, the failure of Batson to live up to its promise may, at least in part, stem from the association of a Batson violation with personal fault or failing. Blame in this context may be warranted or unwarranted, depending on the circumstances, but even when justified, it is quite possibly counterproductive to the ultimate goal of eliminating discrimination in the use of peremptory strikes.

In Part III, I make the second and related point that blame seems inevitable under Batson. This is because Batson enforces the Constitution’s equal protection guarantee, and blame appears to follow inexorably from both of the two dominant theories of equal protection analysis: anticlassification and antisubordination. Indeed, this could be a problem for equal protection law more generally, well beyond the issue of discriminatory juror challenges. Assuming blame is unavoidable under current theory and interferes with rooting out discrimination, this Essay briefly explores a possible alternative view of equal protection—antibalkanization—that may better resolve the problem of discriminatory peremptories without necessarily raising the specter of blame. This Essay concludes by considering the applicability of this alternative theory to the Sixth Amendment, instead of the Equal Protection Clause, in the service of addressing discriminatory peremptory strikes.



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