Written by Manasi Chande
The most important principle of the U.S. legal system is the idea that “justice is blind,” meaning juries and judges are expected to use facts and evidence to determine rather than subjective opinions and prejudices. However, the disparity between Black and White incarceration and death penalty sentence rates reveals an institutional defect in the legal system. Specifically, many juries, the entities that determine the judgments and sentences for defendants therefore influence the racial inequalities in the criminal justice system, do reflect the racial composition of the counties where the crime took place. For most, if not all, jurors are white, even in counties where a significant percentage of the population is Black. Thus, the lack of racial diversity among jurors in criminal court proceedings demonstrates that Black jurors are likely being removed from juries deliberately since jurors of all races have an equal chance of being initially chosen for jury duty. This intentional removal of jurors of color reveals clear racial discrimination in the justice system and the failure of courts to effectively penalize racial discrimination in the jury selection process.
The landmark Supreme Court decision of Batson v. Kentucky in 1986 affirmed that the “purposeful racial discrimination in the selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure." As a result of this ruling, lawyers are not permitted to use their peremptory strikes to remove jurors on the basis of race or sex. If it is suspected that an attorney is using the peremptory strikes for the purpose of discrimination, a “Batson Challenge” can be filed.
However, the Batson Challenge has widely been regarded as a failure in preventing racial discrimination in jury selection, as lawyers are easily able to circumvent the loose standards for racial discrimination under the Batson Challenge. In order to successfully raise a Batson Challenge, the attorney must prove that the peremptory strike was based on race or another impermissible ground in the initial showing or impression of the jury to the lawyer, known as the prima facie. The accused lawyer can argue any reason as to why they removed the juror in question, which, ostensibly, must be racially or gender-neutral. However, when refuting the challenge, these reasons often have racially-charged undertones. For example, a lawyer can argue that members of a particular race are disproportionally less supportive of the death penalty in to order justify their high-strike rate of jurors belonging to that specific race. Similarly, a lawyer’s proclamation that Black people are more suspicious of the police would be considered a racially-neutral reason to strike Black jurors because broad generalizations about a juror’s beliefs based on their race are not considered discriminatory and are therefore not applicable to the Batson Challenge. An analysis of all published decisions regarding the implementation of a Batson Challenge from 1986 to 1993 concluded that the proffered explanations were often grounded in racial stereotypes. This phenomenon is also demonstrated by the fact that over a seventeen-year period in 317 Philadelphia County capital murder trials, prosecutors struck, on average, 51% of the black jurors they had the opportunity to strike, compared to only 26% of comparable non-black jurors.
Lastly, the Batson Challenge also fails to counter racial discrimination when the racial composition of a jury is deliberately altered through peremptory strikes of potential jurors. For instance, in the case City of Seattle v. Erickson, the Washington State Supreme Court ruled that the Batson Challenge was not applicable when an attorney struck the only African-American juror on the panel. The Court argued that the challenge could only be used for matters that concern whether a juror was struck because of their race, not the level of diversity remaining on the jury. As a result, a lawyer could legally remove the jurors of color in order to create an all-white jury, since the ruling clarified that the lawyer was not technically discriminating on the basis of race, as their motive was to create a more homogeneous jury, rather than discriminate against any individual’s juror due to their race or ethnicity. Thus, the case affirmed that the Batson Challenge was also ineffective in preserving the racial diversity of a jury, which made proving racial discrimination even more challenging.
The racial composition of the juries is particularly important because it significantly impacts the criminal sentences given to both Black and White defendants. For example, all-White juries have been historically harsher in their judgments of a Black than a White defendant  and had “deliberations that were, on average, 12 minutes shorter than those of diverse juries.” The failure of the Batson Challenge contributes to racial inequality in the U.S. because it allows Black defendants to receive unfair sentences, and as a result, be incarcerated at much higher rates than White defendants.
The Batson Challenge can be altered to more robustly prevent racial discrimination by both including a provision that allows the judge to assess if stereotypes are being used as justifications for peremptory strikes and asserting that attempts to intentionally change the racial composition of the venire are also considered racial discrimination. The mandate that all reasons for striking potential jurors be thoroughly examined for stereotypes and the acknowledgement of such stereotypes as forms of prejudice will aid in proving discrimination has occurred against a particular juror. Additionally, the specification that jurors cannot be removed to change the racial or gender composition of the venire will significantly augment the diversity of juries, which will likely lead to more accurate and just sentences for minority defendants.
 Timothy J. Ting, Batson Revisited: Exploring Racial Bias in Contemporary Jury Selection, 27 Ill. St. Bar Ass’n 1, 1 (2017), https://www.isba.org/committees/minorities/newsletter/2017/01/batsonrevisitedexploringracialbiasi.
 Jigar Chotalia & Richard Martinez, Limitations of the Batson Analysis in Addressing Racial Bias in Jury Selection, 46 J. of the Am. Acad. of Psych. and the L. Online 533, 533 (2018), http://jaapl.org/content/46/4/533.
 Catherine Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1534 (2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2050088.
 Id. at 1541.
 Id. at 1539.
 Chotalia & Martinez, supra note 2, at 534.
 Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. of Pers. and Soc. Psych. 597, 600 (2006).
 Id. at 605.