When a Peremptory Challenge Is No Longer Peremptory: Batson's Unfortunate Failure to Eradicate Invidious Discrimination from Jury Selection
![handle is hein.journals/deplr43 and id is 635 raw text is: WHEN A PEREMPTORY CHALLENGE IS NO LONGER
PEREMPTORY: BATSON'S UNFORTUNATE FAILURE TO
ERADICATE INVIDIOUS DISCRIMINATION FROM JURY
SELECTION
Jere W. Morehead*
The inherent potential of peremptory challenges to distort the jury process
by permitting the exclusion of jurors on racial grounds should ideally lead
the Court to ban them entirely from the criminal justice system.'
INTRODUCTION
In Batson v. Kentucky,2 the Supreme Court declared that the use
of peremptory challenges3 by prosecutors in criminal cases to ex-
clude jurors on the basis of race violated the Equal Protection
Clause of the Fourteenth Amendment. In Batson, a prosecutor
used peremptory challenges to strike four African-Americans from
the jury so that the defendant, also an African-American, was tried
by an all-white jury.'
The Supreme Court's decision in Batson has sparked considerable
* Associate Professor of Legal Studies and Adjunct Associate Professor of Law, University of
Georgia. Prior to joining the Georgia faculty, Professor Morehead served as an Assistant United
States Attorney in the Department of Justice, where he prosecuted white-collar crime.
1. Batson v. Kentucky, 476 U.S. 79, 107 (1986) (Marshall, J., concurring).
2. 476 U.S. 79 (1986).
3. A peremptory challenge has been defined as [t]he right to challenge a juror without as-
signing, or being required to assign, a reason for the challenge. BLACK'S LAW DICTIONARY 1136
(6th ed. 1990). Generally, once a jury venire has been gathered, each side in a given case is
allowed two kinds of challenges: an unlimited number of challenges for cause, for which a basis
must be articulated to and accepted by the trial judge; and a limited number of peremptory chal-
lenges, for which no reason at all must be provided. See JOHN GUINTHER, THE JURY IN AMERICA
49 (1988); JoN M. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO
REPRESENTATIVE PANELS 139-40 (1977).
4. Batson, 476 U.S. at 82-84. In writing for the Court's majority, Justice Lewis Powell ob-
served that [tlhe Equal Protection Clause forbids the prosecutor to challenge potential jurors
solely on account of their race or on the assumption that black jurors as a group will be unable
impartially to consider the State's case against a black defendant. Id. at 89.
5. Id. at 82. The trial judge in Batson had observed that the parties were entitled to use their
peremptory challenges to 'strike anybody they want to.' Id.](ViewImageLocal?handle=hein.journals/deplr43&div=21&collection=journals&method=preview&ext=.png&size=3)
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