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Excerpted From: L. Darnell Weeden, Mississippi Allows Peremptory Challenges for Fake, Race-neutral Reasons in Violation of Batson's Equal Rights Rationale, 53 Suffolk University Law Review 159 (2020) (124 Footnotes) (Full Document)
Does the Equal Protection Clause prohibit Mississippi from demonstrating discriminatory intent by allowing the prosecution to strike at least one black juror, whose circumstances were like those of potential white jurors who were not stricken by the prosecution? In Flowers v. Mississippi (Flowers VI), the Supreme Court of the United States declared that the Batson v. Kentucky decision prohibits Mississippi from discriminating on the basis of race when using its peremptory challenges to remove potential jurors in a criminal trial. Writing for the Court, Justice Kavanaugh highlighted the Batson decision as endorsing a central goal of the Fourteenth Amendment--to stop racial discrimination by governmental actors. Although Batson has noble goals, “Batson challenges are difficult to win. First, the judge must find enough merit in the challenge to require the opposing party to identify a non-discriminatory basis for its challenge. Many Batson challenges will fail at this stage.” When a court commands an opposing party to provide nondiscriminatory information for its challenges, competent attorneys have the ability to provide some justification other than race for their strikes. “If the opposing party manages to offer a nondiscriminatory basis, the challenger must demonstrate that the basis was pretext, another substantial hurdle. Accordingly, [parties] reserve Batson challenges for extreme circumstances.” Because peremptory challenges may serve as easy tools for intentional racial discrimination abuse in criminal trials, any nondiscriminatory justification under Batson should be required to meet a strict scrutiny test to protect racial equality in the jury selection process.
Part II of this Article asserts that Batson historically failed to end discrimination on the basis of race in peremptory challenges because a prosecutor may use any plausible, nonracial removal justification.
Part III provides an analysis of Flowers VI and the link between peremptory challenges and discrimination on the basis of race.
Part IV contends Batson remains a toothless tiger in slowing down or ending intentional, racially-biased jury selection by prosecutors because the Supreme Court refuses to apply the strict scrutiny test to a prosecutor's peremptory exclusion of black jurors on the basis of race even when that exclusion leaves the jury either all white or extremely disproportionately white.
Part V recommends eliminating peremptory challenges in the jury selection process under the Fourteenth Amendment's Due Process Clause because the practice leaves the prosecution with unbridled discretion to exercise that power in a pretextual race-neutral or arbitrary manner.
Part VI of this Article asserts that because the exercise of peremptory strikes in a criminal trial--when there is an allegation of discrimination on the basis of race--is not subject to a strict scrutiny analysis, one can only conclude the Supreme Court is not serious about providing an effective judicial remedy to end discrimination against jurors on the basis of race.
[. . .]
Unlike the Supreme Court of the United States, the Mississippi Supreme Court was not persuaded that Flowers was discriminated against on the basis of race in his sixth trial. To justify this decision, Mississippi provided a conceivable race-neutral justification for removing blacks from the jury, which is permitted under Batson.
The Supreme Court uses the strict scrutiny standard when it is serious about providing an effective judicial remedy to combat racial discrimination. Because exercising peremptory strikes in a criminal trial where there is an allegation of racial discrimination is not subject to a strict scrutiny analysis, is it clear the Supreme Court is not serious about providing an effective judicial remedy to end discrimination against jurors on the basis of race. When the denial of the right to serve as a juror occurs with peremptory challenges for racial reasons, it is not ordinarily checked by the political process. Racial minorities are entitled to a heightened judicial inquiry of strict scrutiny when they are excluded from jury service by racially discriminatory peremptory challenges.
Associate Dean for Research & Faculty Development, Roberson King Professor of Law, Texas Southern University, Thurgood Marshall School of Law, Houston, TX
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