CrimProf Blog

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

Friday, May 13, 2022

Brown on Batson and Armstrong Challenges

Darryl K. Brown (University of Virginia School of Law) has posted Batson V. Armstrong : Prosecutorial Bias and the Missing Evidence Problem (Oregon Law Review, Vol. 100 forthcoming) on SSRN. Here is the abstract:
Equal protection prohibits racially motivated decisionmaking by prosecutors: Batson doctrine prohibits race-based uses of peremptory strikes in jury selection; Armstrong doctrine bars racial motivations in charging decisions. Batson doctrine is widely viewed as weak and ineffectual; Armstrong doctrine is, as a practical matter, virtually meaningless. Scholars (and a few courts) criticize the structure of both doctrines and urge their reform. This article makes that the case that, despite the hurdles both doctrines create to identifying equal protection violations, the ineffectiveness of Batson and Armstrong is in significant part an evidentiary problem: information that would enable courts to identify racially motivated decisionmaking—under established doctrinal requirements—is largely inaccessible to litigants and thus to judges.

The article—a contribution to a symposium on race and criminal law—identifies three paths to produce more of that evidence for courts without requiring the Supreme Court to revise equal protection law. The clues lie in existing equal protection law and judicial practice. One reform relates to the timing of discovery from prosecutors’ files, which should occur pretrial for Batson claims and post-conviction for Armstrong claims; current practice is largely the opposite. The second reform identifies sources of evidence that claimants rarely produce but which equal protection doctrine clearly embraces: evidence from officials’ decisionmaking in prior cases and at all stages of litigation. In this way, evidence of previous Batson violations can help identify and prove later Armstrong violations. Deploying both reforms create desirable incentives for prosecutors’ offices to a) disclose relevant, non-sensitive work product earlier and b) monitor future decisionmaking when past actions leave public evidence of race-based decisions. The third reform path is longer. Although digital information and analytics is expanding rapidly for many aspects of criminal justice, no progress is on the horizon for digitizing information key to equal protection claims. The article suggests how third-party entities can assist litigants with this information until public or commercial entities fill the breach.

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