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Why Batson Misses the Point

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Twenty-five years ago, the United States Supreme Court responded to growing empirical evidence of rampant discrimination in jury deliberations by changing the subject. Batson v. Kentucky did not grapple with the need to choose an impartial jury free of racist jurors, but instead focused on discrimination against jurors. In reaching its decision, the Court prioritized the rights of citizens to colorblind jury selection over the impartial functioning of the criminal justice system. If lawyers choosing a jury could simply put race out of their minds, we could all pretend to have solved the problem. In the end, Batson does not grapple with the endemic problem of discrimination by jurors so much as it creates a grand distraction.

I argue that the Supreme Court’s constitutional governance of jury selection protects three distinct goals: individual juror impartiality, the diversity of the jury as a whole, and the lawyer’s colorblindness when selecting a jury.



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