Just Say No: A Proposal to Eliminate Racially Discriminatory Use of Peremptory Challenges
![handle is hein.journals/amcrimlr31 and id is 1115 raw text is: JUST SAY NO!: A PROPOSAL TO ELIMINATE RACIALLY
DISCRIMINATORY USES OF PEREMPTORY CHALLENGES
Professor Charles J. Ogletree*
Frederick Douglass was a remarkable person who overcame the vestiges of
slavery to become one of the most articulate and influential spokespersons in
African-American history. In the early 19th century, Frederick Douglass
poetically criticized the plight of African-Americans in the criminal justice
system. Douglass lamented, fj]ustice is often painted with bandaged eyes.
She is described in forensic eloquence as utterly blind to wealth or poverty,
high or low, white or black, but a mask of iron, however thick could never
blind American justice when a black man happens to be on trial.' A century
and a quarter later, his remarks still, and sadly, ring true.
Justice Thurgood Marshall, a critic of our modern criminal justice system,
believed that some of the biases and prejudices that African-Americans
encounter stem from fundamental flaws in the Constitution and the govern-
ment it established. In criticizing the celebration of the Constitution on its
bicentennial, Justice Marshall noted, I do not believe that the meaning of
the Constitution was forever 'fixed'. ... To the contrary, the government
[the Framers] devised was defective from the start, requiring several amend-
ments, a civil war, and momentous social transformation to attain the system
of constitutional government, and its respect for the individual freedoms and
human rights, that we hold as fundamental today.2
Justice Marshall's most profound criticism of the treatment of race in the
criminal justice system, however, was his observation that prosecutors have
commonly used peremptory challenges as pretexts for invidious racial discrimi-
nation. In his concurring opinion in Batson v. Kentucky,3 Justice Marshall
* Professor of Law, Harvard Law School; Director, Criminal Justice Institute. This article is
dedicated to the memory of Professor William W. Greenhalgh, Director of the Georgetown
University Law Center Criminal Justice Clinic. Professor Greenhalgh was a familiar face to any
lawyer preparing a criminal case to be argued before the United States Supreme Court. We will miss
his unyielding commitment to the criminal justice system and his voice of reason on issues affecting
indigent defendants.
I would like to thank Professors Louis Michael Seidman, Barbara Babcock, Christine Desan and
Abbe Smith for their helpful comments on earlier drafts of this article. I would like to thank my
research assistants Von Hughes, David Chiu, Elaine Lu, Donna Bryan, and Stephen Burt as well.
Finally, full credit is due to the late Justice Thurgood Marshall, whose wisdom and foresight long
ago predicted this inevitable result.
1. THE LIFE AND WRITINGS OF FREDERICK DOUGLASS (Philip Foner ed., 1950).
2. Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARv. L.
REV. 1, 2 (1987).
3. 476 U.S. 79 (1986).
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Just Say No: A Proposal to Eliminate Racially Discriminatory Use of Peremptory Challenges
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