CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, March 9, 2011

Sarma on Race and Jury Selection

Bidish Sarma (The Justice Center's Capital Appeals Project) has posted When Will Race No Longer Matter in Jury Selection? (Michigan Law Review First Impressions, Vol. 109, 2011) on SSRN. Here is the abstract:

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson - when, if ever, can governmental race discrimination in jury selection be tolerated? - was easy. The lingering factual question, however - when will prosecutors cease to discriminate on the basis of race? - has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will always factor into lawyers' decisions about whom to keep on the jury and whom to exclude. Yet, until the Supreme Court holds lower courts accountable when they fail to meaningfully enforce the protections of Batson, we cannot know if the law goes far enough, and race will continue to permeate jury selections. Only when the law is properly enforced will we be able to determine if Justice Thurgood Marshall's observation was correct:

The Court's opinion also ably demonstrates the inadequacy of [requiring] "justice...sit supinely by" and be flouted in case after case before a remedy is available...The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

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Most judges were former prosecutors who may have engaged in Batson violations. Most of them are personal friends of prosecutors or live in the same communities as the prosecutors who commit Batson violations. Also, career law clerks have social ties with prosecutors. Until we examine the mechanism by which judges are selected, we could talk about race until we are blue in the face. It will not end. We have to name those who systematically strike blacks and weed them from the profession.

Posted by: godcent | Nov 2, 2011 10:08:07 PM

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