Batson v. Kentucky and its progeny hold discriminatory uses of peremptory challenges unconstitutional. However, the appropriate remedy for the constitutional violation remains unclear. The Batson Court addressed remedies in a single ambiguous footnote that identifies two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these are the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. Subsequent Supreme Court cases also do not clarify what the appropriate remedy is for a Batsonviolation, and the Court has never overturned a remedy imposed by a trial judge. This symposium Essay canvasses the remedies that state courts have imposed for violations of Batson and discusses some underappreciated opportunities that Batson presents to state courts to address discriminatory jury-selection practices. The focus on state courts is deliberate. The Batsondecision arose out of a state court prosecution for burglary and receipt of stolen goods, and state courts are the place where the overwhelming majority of criminal prosecutions and criminal trials occur. As with other aspects of their criminal-justice systems, state courts have considerable discretion in structuring their jury-selection processes, and state practices accordingly vary.
As this Essay shows, state courts have taken inconsistent approaches to Batson remedies. Some state courts have read the relevant footnote in Batsonto set out the only available remedies. Other state trial courts have understood the two remedies that Batson identifies as possible remedies among others and have imposed alternative remedies. These include ordering the forfeiture of peremptory challenges, giving the side prejudiced by the Batson violation additional peremptory challenges, granting a mistrial, and imposing sanctions upon the attorney making the improper challenge. While Batson can plausibly be read to give trial judges discretion to craft an appropriate remedy, state appellate courts have created their own rules about the kinds of remedies that their own state trial courts may impose. This has occurred through two mechanisms. One is by state appellate courts ruling that in applying Batson, trial courts are limited in the kinds of remedies they may impose. The second mechanism is by state courts reading the state constitution to prohibit discriminatory uses of peremptory challenges and superimposing upon Batson a specific remedy derived from state-law limitations. In addition, some state legislatures have limited the discretion of trial judges when they remedy Batson violations.
Despite the variations in state practices, state courts implementing Batson do not fully appreciate the discretion they possess to craft appropriate remedies. Recent case law from the Supreme Court distinguishes between the authority—vested ultimately in that Court—to define a federal constitutional violation and the authority of state courts to determine how best to remedy the violation. Read in light of this case law, Batson gives state courts considerable leeway to adopt measures to respond to discriminatory jury-selection practices.
Part I begins with a brief overview of the Batson decision and then turns to remedies that state courts have imposed. Part II shows how state courts can legitimately read Batson to deploy a much wider range of remedies than have so far been used, and this Part also identifies the benefits to this approach. Among other things, the authority to select an appropriate remedy may encourage state courts to find Batson violations more frequently by giving judges a tool to distinguish among different levels of culpability associated with the use of peremptory challenges.
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