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Policing the Borders of Democracy: The Continuing Role of Batson in Protecting the Citizenship Rights of the Excluded

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I came to Kentucky not really thinking about this state as being the origin of the case upon which so much of my work is focused—Batson v. Kentucky. For many Supreme Court cases, the law handed down from the Court seems detached from the places and circumstances where the litigation began—almost suspended above the real people whose lives are part of the impetus for such systemic change to the law and legal practices. However, in discussing the legacy of Batson, it is appropriate to revisit the place where Batson began.

Early in my time at the University of Kentucky College of Law, I heard about the efforts of a judge in Louisville aimed at reducing racially discriminatory jury practices—practices that Batson and its resulting policies were partly formulated to cure. When I initially met Judge Denise Clayton, my first thought was that she should be taller. A woman who has done what she has done seems tall on paper. However, she is not tall. She is a compact, friendly woman who tells the truth no matter who is in the room. Before being appointed to the Kentucky Court of Appeals, she served in a family court, district court, and drug court in Jefferson County, which spans much of metropolitan Louisville. Judge Clayton, like many in her generation of African American women, has a résumé with a litany of firsts—she was the first African American woman to serve on the Kentucky Court of Appeals and the first African American woman to serve on the Kentucky Circuit. However, Judge Clayton’s work as the chair of the Kentucky Commission on Racial Fairness for Jefferson County (“RFC” or “the Commission”) may be her most significant contribution to the administration of justice.

Despite their merit, Batson and its progeny ultimately fail to protect the rights of those jurors dismissed as a result of racially discriminatory peremptory challenges. Under these cases, judges have very little ability to adequately investigate the motives offered by attorneys whose job it is to look out for the best interests of those they represent rather than the jurors who they seek to dismiss. Without some additional protections beyond the weak Batson hearing, we are left with a tool that is ineffective in its efforts to remedy racially motivated uses of peremptory challenges. However, in Kentucky, Judge Denise Clayton and the RFC have become a watchdog for the rights of dismissed jurors. The Commission’s work mixes the systematic proof that was required by Swain with a more probative interrogation under Batson. Although the cases progressing from Batson to more recently MillerEl and Snyder each expanded the scope of the places a court may look for evidence of discriminatory motives when it is reviewing peremptory challenges, this expansion has been insufficient to protect the citizenship rights of those jurors that are dismissed. In light of this deficiency, the Commission acts as an advocate for those who may be dismissed—a role that may be essential to ensuring the sustainability of peremptory challenges.

This Article examines the impact of discriminatory strikes on those who are excluded. It begins by reviewing the importance of the right to participate in juries to racial politics and then explores how Batson fails to protect that right. Next, this Article addresses Batson’s role in encouraging communities and courts to undertake other action designed to prevent racially discriminatory juror exclusion. This Article then provides a real-life example of community and court action in the very place where the Batson case originated, by exploring the work of the Jefferson County RFC, which is directed at increasing access to courts and justice. The deliberative space of the jury has long been a critical and negotiated democratic space. This Article argues that Batson objections, on their own, deal insufficiently with the multiple factors that lead to a lack of racial diversity on seated juries. Finally, this Article proposes that an important legacy of Batson is its call for a more active investigation into the practices that lead to racially discriminatory jury selections.



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