Friday, June 8, 2018
Jonathan Abel (Stanford Law School - Constitutional Law Center) has posted Batson’s Appellate Appeal and Trial Tribulations (Columbia Law Review, Vol. 118, No. 3, 713) on SSRN. Here is the abstract:
Batson v. Kentucky is widely regarded as a failure. In the thirty-plus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the discriminatory use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson’s appellate virtues rather than its trial shortcomings. This change in focus reveals a number of ways in which the Batson doctrine provides opportunities on appeal that do not exist at trial. In short, this Article argues that appellate Batson punches far above its trial weight.
Batson’s appellate virtues have been overlooked by the literature, and this Article’s first task is to illustrate them. This Article’s second project is to reorient the discussion about Batson by placing the doctrine in the proper context. In comparison to other antidiscrimination claims—and to other postconviction claims, more broadly—Batson has a real luster. Though not often acknowledged as such, Batson is the one meaningful doctrine for fighting discrimination in the jury-selection process and in the criminal justice system more generally. Enormous pressure is put on Batson as a result, and maybe Batson is not up to the task. But with Batson’s appellate dimension, the doctrine is more up to the task than previously thought. This Article’s final goal, in light of Batson’s appellate virtues, is to suggest a reconceptualization of Batson as not merely a jury-selection doctrine but rather a multipurpose vehicle capable of fighting discrimination wherever it occurs in the trial process—even if the discrimination takes place outside of jury selection. For appellate judges who want to correct the injustice of a trial stained by discrimination, a broad-based Batson doctrine may be their best, last, and only hope.