Twenty-Five Years of Batson: An Introduction to ... - University of Iowa

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1402 IOWA LAW REVIEW [Vol. 97:1393 must consider all pertinent circumstances to decide whether a defendant has raised such an inference. 77 If the accused clears this hurdle, “the burden shifts to the State” to furnish “a neutral explanation” for the allegedly discriminatory strikes. 78 Although the “explanation need not rise to the level justifying . . . a challenge for cause,” 79 a prosecutor cannot “merely” affirm his good faith or deny an intent to discriminate. 80 More important, the prosecution “may not rebut [a] . . . prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.” 81 In fact, the state denies equal protection when it “strike[s] black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.” 82 If a prosecutor offers an adequate rebuttal explanation, a trial judge then has “the duty to determine if the defendant has” carried the burden of “establish[ing] purposeful discrimination.” 83 Because Batson “made a timely objection to the prosecutor’s” use of peremptory challenges to “remov[e] . . . all black persons,” and the trial judge “flatly rejected the objection without” inquiry, the Court remanded the case for reconsideration in light of the prescribed standards. 84 D. BATSON HIGHLIGHTS: STARK DEPARTURES FROM THE PAST, UNKNOWN PROSPECTS FOR THE FUTURE Before documenting the Court’s post-Batson journey, a few observations about Justice Powell’s landmark opinion are in order. The discussion that follows reflects upon the dramatic changes Batson effected and the uncertainties it generated. The Batson majority downplayed the magnitude of its alteration of the relationship between the Equal Protection Clause and peremptory 77. Id. at 96–97. 78. Id. at 97. Later, the majority suggested that a “neutral explanation related to the particular case to be tried” was necessary, id. at 98 (emphasis added), and indicated that rebuttal requires a “‘clear and reasonably specific’ explanation of [the prosecutor’s] ‘legitimate reasons,’” id. at 98 n.20 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981)). 79. Id. at 97. 80. Id. at 98. 81. Id. at 97. 82. Id. Exclusion based on “such assumptions” would render the Fourteenth Amendment guarantee “meaningless.” Id. at 97–98. The Justices asserted that their decision would neither defeat the “fair trial values” peremptory challenges promote nor result in “serious administrative difficulties.” Id. at 98–99. 83. Id. at 98. 84. Id. at 100.
2012] TWENTY-FIVE YEARS OF BATSON 1403 challenges. Although Swain indicated that equal protection principles might bar discriminatory strikes that prevented any blacks from sitting on juries, the proof demanded precluded any real constitutional regulation of the peremptory challenge system. Batson’s abandonment of that restriction— characterized as a relatively modest alteration of Swain’s burden of proof and based in part on general equal protection principles—was a dramatic, revolutionary step. 85 The allowance of equal protection claims based on the strikes in a single trial made frequent and substantial interference with the traditional operation of the peremptory system a realistic possibility. Whether or not claims of discrimination ultimately succeeded, it seemed likely that they would constrain prosecutors’ freedom to remove jurors and disrupt the accustomed processes of empanelling juries. The theoretical and practical ramifications of Batson’s procedural modification were considerably greater than the majority acknowledged. 86 More noteworthy was the majority’s refusal to acknowledge that it was also foreswearing a substantive constitutional premise that no Justice found objectionable in Swain. 87 The Swain Court did not believe that removing a juror because of an assumption that her race would influence her deliberations was unconstitutional. 88 What the Fourteenth Amendment forbade was exclusion based on racial animus or a conclusion that members of a race were incompetent or unqualified. 89 The peremptory system permitted litigants to speculate and make inferences about how a person’s background and characteristics—including race—might impact mental processes and affect verdicts. 90 This use of peremptories was not purposeful discrimination that offended the Fourteenth Amendment’s spirit. There was, after all, no inequality when all individuals were subject to exclusion based on assumptions that their race could incline them against the government’s efforts to convict defendants of their race. 91 In contrast, Batson held that peremptory challenges prompted by inferences that jurors’ perspectives and predilections could be affected by their racial identity deny equal protection. According to the majority, the Constitution forbids strikes based on the unsupported conclusion that race 85. The magnitude of Batson’s change of course is illustrated by the fact that no Justice in Swain advocated constitutional scrutiny based on strikes in a single case. 86. The Court rejected the contention that abandonment of the presumption of legitimate use in individual cases jeopardized the functioning of the peremptory system. See Batson, 476 U.S. at 98–99. 87. See id. at 134–37 (Rehnquist, J., dissenting). 88. Swain v. Alabama, 380 U.S. 202, 212, 220–21 (1965), overruled by Batson, 476 U.S. 79. 89. Id. at 203, 224. The statute struck down in Strauder was objectionable because its exclusion of blacks from juries rested on this discriminatory premise. Id. 90. Id. at 220–21. 91. Id. at 221 (observing that all groups “are alike subject to being challenged without cause”).
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