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40 U. Kan. L. Rev. 219 (1991-1992)
Powers v. Ohio: Race-Based Peremptory Challenges

handle is hein.journals/ukalr40 and id is 1389 raw text is: Powers v. Ohio: Race-Based Peremptory Challenges* I. INTRODUCTION In 1986, the United States Supreme Court decreed in Batson v. Kentucky' that the 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. That decision followed the principle enunciated in Strauder v. West Virginia.' The Strauder Court ruled that a black defendant is denied equal protection when he is put on trial before a jury whose composition is derived from a jury venire that purposefully excluded members of his race.' The Batson Court determined that a defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.4 That showing, when combined with other factors, would evidence a violation of the defendant's equal protection rights.5 In 1991, the Supreme Court extended the Batson rule in Powers v. Ohio.6 The Court held that a criminal defendant may object to race- based ... peremptory challenges whether or not the defendant and excluded juror share the same race.'7 The Powers Court ruled that the equal protection rights of the excluded juror, not the defendant, were violated by the strike.8 This Note will argue that the Powers Court inappropriately extended the Batson rule and will conclude that the Court should have limited this rule to the logical boundary stressed in Batson: When the peremp- torily challenged juror is the same race as the defendant.9 This limitation recognizes that a defendant must suffer some real injury before pursuing a constitutional claim, while also upholding the necessary and long- standing American legal tradition of the use of peremptory challenges to ensure an impartial jury in accordance with the Sixth Amendment. * Christopher T. Wilson 1. 476 U.S. 79, 89 (1986). 2. 100 U.S. 303 (1880). 3. Batson, 476 U.S. at 85 (citing Strauder). 4. Id. at 96 (citation omitted). 5. Id. 6. 111 S. Ct. 1364 (1991). 7. Id. at 1366. 8. Id. at 1372. 9. See Batson, 476 U.S. at 94. 219

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