Proposed Fix for Racism In Jury Selection

Despite a 1986 ruling that requires prosecutors to provide a race-neutral explanation when striking jurors using peremptory challenges, discrimination remains widespread, Linda Greenhouse writes in the New York Times. The anti-discrimination measures outlined in Batson v Kentucky ruling haven’t worked, she argues. “Prosecutors have learned to game the system by providing explanations that are accepted as persuasive to judges who appear all too eager to be persuaded.” A criminal case set to be heard by the U.S. Supreme Court is one stark example. A black man, Timothy Tyrone Foster, was accused of murdering a white woman. Prosecutors identified black prospective jurors with a “B” in their notes, and wrote each of their names first on a “definite NOs” list. Yet state courts did not throw out the case, upholding a death sentence verdict against Foster. The Supreme Court will hear Foster’s appeal this fall. Prosecutors said in their Supreme Court filing that, “If this court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.” But the Supreme Court could decide this case narrowly and leave jury selection as-is, “allow[ing] the implicit biases of the judges and attorneys to go unchecked,” Mark W. Bennett, a senior federal district judge in Iowa, wrote in the Harvard Law & Policy Review. Greenhouse’s suggests abolishing peremptory challenges altogether. “[T]heir continued existence threatens to erode even further the public’s confidence in the fairness of the criminal justice system, already stretched to near the breaking point.”