Batson, GR37, & the Issue of Racial Compositions of American Juries

“We have come some of the way, not near all of it. There is much yet to do.” 

- Lyndon B. Johnson

These remarks by President Johnson were made shortly after he signed the Civil Rights Act of 1968 into law on April 10th of that year.1 To many, the Act represented the culmination of years of social justice struggle by racial minorities in the United States, bringing an end to legally permissible discrimination that had plagued efforts for racial equality in the post-Civil War era. President Johnson took time in his speech to appreciate the progress necessary for the passage of the Act, mentioning the years of rejection the bill went through before being voted into law. Still, he concluded by saying that more needed to be done. 

Fifty-seven years later, it is hard to say that much progress has since been made toward racial equality in the United States. According to a 2021 report by the Equal Justice Initiative, people of color make up just 5% of elected prosecutors despite constituting 40% of the population, and “similar disparities exist within the judiciary.”2

Despite numerous acts of legislation in the past attempting to eradicate discrimination in the jury selection process, systemic issues continue to persist to this day. According to a Duke University study, all-white juries are 16% more likely to convict a black defendant than a white one.3 Piecemeal reforms over the years have done little to correct issues embedded within the justice system and society, meaning that much more is required to truly resolve an issue so deeply entrenched within the fabric of this country’s judicial operations. 

Part I: A Brief History of Civil Rights Legislation in the United States

Since the end of the Civil War in 1865 and the ensuing haphazard Reconstruction efforts that followed, institutions enabling racial inequity have hampered the United States for decades upon decades. Movements have risen and fallen, from the Civil Rights Era to the Black Panther Party to the BLM movements of the last decade, but issues of implicit discrimination that have eluded the jurisdiction of lawmakers continue to persist and stand in the way of an America that treats all of its citizens as if they were created equal. 

The first federal order to target discrimination came courtesy of President Franklin D. Roosevelt in 1941, when he signed Executive Order 8802 to prohibit discrimination in defense industries on the basis of “race, creed, color, or national origin.”4 Civil rights legislation continued to pass on an infrequent basis until the landmark Civil Rights Act of 1964,5 which officially banned all forms of discrimination based on “race, color, religion, sex, or national origin” in a bevy of facets. Following the Voting Rights Act of 1965 and the aforementioned Civil Rights Act of 1968, the nation hit a lull in legislative progress towards racial equality, and thus, the Civil Rights Era is judged by most historians to have ended in 1968.6 

Part II: Batson Challenges

By the 1980s, the United States had made much progress over the last century in outlawing discrimination. However, implicit biases held by people in positions of influence persisted and were difficult to pin down and outlaw with legislation. In 1986, 121 years after the end of the Civil War, the landmark Batson v. Kentucky case became the first to make it illegal for a prosecutor to dismiss a juror from a jury on the basis of race by using a peremptory challenge.7 

In this instance, James Kirkland Batson, a Black man indicted on a burglary charge, was convicted after the prosecutor in his case dismissed several black jurors in favor of an all white jury. Batson then proceeded to appeal his conviction up to the Supreme Court, where a 7-2 decision ruled that Batson was denied equal protection as afforded to him by the Fourteenth Amendment. The case overruled a two-decade-old precedent set by the Swain v. Alabama case of 1964 in which a similar situation was ruled against the defendant because racial exclusion did not violate equal protection, a surefire sign of the progress that had been made regarding racial attitudes during the Civil Rights era and up until 1986.8 That being said, the fact that a judge would feel the need to make such an exclusion based on race as recently as 1986 presents its own reasons for concern. 

In the years since Batson, numerous cases (known as Batson challenges) have crossed SCOTUS’s desk, calling similar principles into question. These cases extended Batson's protections to include discrimination based on sex or sexual orientation, notably Powers v. Florida,9 Edmonson v. Leesville Concrete Co.,10 Georgia v. McCollum,11 SmithKline v. Abbott,12 and most recently, Davis v. Ayala.13 Each of these cases involves an instance of peremptory challenges being used to exclude jurors based on race or sex, but Davis, in particular, is especially noteworthy. 

Hector Ayala, who was facing a death sentence for a 1985 incident involving an alleged murder, appealed to the Supreme Court in response to peremptory challenges that struck his jury of all potential Black and Hispanic jurors. The judge in Ayala’s case heard the explanation for challenges in the absence of Ayala’s team, “so as not to disclose trial strategy,” before eventually sentencing him to death. The Court eventually ruled 5-4 against Ayala, saying that the exclusion was an unimpactful error, and thus upholding his death sentence in a highly controversial verdict.14 A key point here was that the Court admitted a miscarriage of constitutional right but still declined to reverse the case. In the words of legal scholar Hadar Aviram, “The Court was willing to accept, as a basic premise, that Ayala's constitutional rights were violated; but that is not enough to merit a reversal.”15 

Thus, over a half-century after the conclusion of the Civil Rights Era, the usage of Batson challenges now applies to challenge strategic manipulations of juries that deliberately take advantage of observed implicit biases in juries of specific demographics. For them to succeed, the defendant must provide prima facie evidence that the peremptory challenge was executed based on intentional racial discrimination.16 The burden of proof in such a case has been the subject of much deliberation in the decades since Batson, partially due to the issue of proving “harmful error” as in Davis as well as because such a threshold invariably has to depend on the subjective opinion of the Court presiding over the case to some extent.

Part III: Inconsistencies in Enforcing a Batson Challenge

According to a 2020 piece by the California Law Review, Batson challenges struggle to succeed in court for two reasons:

“First, even where overt racism prompts a party to strike a juror, it is too easy for the striking party to articulate a race-neutral justification. So long as a lawyer can assert any facially neutral reason for the strike, the Batson framework—and thus the judges who employ it—tend to allow the peremptory.”17 In an instance where a racially motivated peremptory challenge is issued, an attorney can defend themselves by making up an excuse of a reason that does not involve race to avoid reversal of the challenge in appellate court. For example, say an attorney defends a peremptory challenge against a Batson challenge where a black citizen from a higher-crime neighborhood was struck from the jury in a case involving a white person from a wealthy neighborhood using residential backgrounds as their reasoning. Even if it is reasonably clear that such logic is merely a cover-up for malicious intent, the burden of proof that the defense faces can be difficult to overcome. Thus, intent in any legal context is usually not difficult to mask, as fabricated reasonings can be used to cover for malicious intent and thus subvert Batson. 

The second reason given is that:

Batson’s intentional discrimination framework does not account for a party’s ‘unconscious racism,’ more commonly referred to today as implicit bias. Implicit biases ‘are activated involuntarily and without an individual’s awareness or intentional control.’ In the context of peremptory challenges, a party may not intend to discriminate against a juror based on the juror’s race, but the party may nonetheless act on biases without realizing it. Under Batson, strikes of this nature escape judicial inquiry.18 

Peremptory challenges in these instances are not consciously made with the intent of striking a juror due to their race, but the implicit bias of a prosecutor influences their decision to do so, unbeknownst to them. Such challenges are not outlawed under Batson but can have just as damaging an impact on the fairness of a case as challenges made with outright and explicit racial intent. Batson thus fails to completely eradicate racial motivation in the jury selection process as such damaging attitudes are often, if not usually, implicitly held rather than outwardly so and oftentimes without the knowledge of the prosecutor bringing forth the peremptory themselves.

Part IV: GR37

As previously mentioned, it is these implicit biases and subversions of the law that make racial justice reform so difficult to legislate against and enforce in a post-Civil Rights Era America. The California Review goes on to mention an effort by the state of Washington to get around Batson’s glaring flaws in April of 2018: a court rule known as General Rule 37 (GR37) that separates itself from Batson in two key ways. Firstly, the rule allows for “implicit, institutional, and unconscious” biases to render peremptory challenges unlawful. The Review describes the clause by stating that “if an ‘objective observer could view [a juror’s] race or ethnicity as a factor in the use’ of the strike,”19 then sufficient grounds exist for disallowing the peremptory. Secondly, “GR37 combats the use of common race-neutral reasons that are historically associated with improper discrimination in jury selection. For example, the rule lists presumptively invalid reasons for a strike, including expressing a belief that law enforcement engages in racial profiling, having prior contact with law enforcement, and living in a high-crime neighborhood.”20

These motions were then met with understandable criticism. While they present an intent to get around Batson’s shortcomings, they add a vague definition to an already murky subject matter and arguably increase the subjectivity involved in enforcement. Its efficacy has been hotly debated in the years since, and the Review mentions that “further evaluation and research”21 is required to paint a clear picture of whether or not GR37 has truly made a difference. Since 2018, GR37 has been followed by efforts from numerous states to alter Batson’s framework, but the timeframe is still too brief to offer any semblance of concrete evidence of efficacy.

Part V: Analysis of Opposition to GR37 Implementation

The most glaring concerns around GR37 surround its ability to be consistently implemented. According to the California Law Review, “Some lawyers…raised questions about how judges will interpret and enforce the ‘could view’ objective inquiry.”22 The piece goes on to state that discrepancies in the enforcement of GR37 have already been evident from judge to judge, observing that “with some judges it is essentially impossible to use a peremptory challenge against a ‘perceived minority’ juror; with others, it has been essentially business as usual.”23 While the law generally tends to be applied differently from case to case depending on the judge, the fledgling nature of GR37 raises important questions as to how it will be enforced going forward.

Additionally, while Batson requires proof that the challenge was issued out of bias, GR37 only requires consideration that such a bias could have been present. According to the California Review, a superior court judge said that “under an objective observer ‘could view’ standard, a judge could always make a finding of potential bias when a party strikes a juror of color.”24 While it is unlikely to result in a complete lack of successful peremptory challenges against jurors of color, GR37 has already seen lawyers become more apprehensive towards striking jurors of color,25 presenting a potentially harmful consequence of the early stages of its enforcement.

Part VI: A Combined Analysis of Perspectives

We have established the existence of a key issue in how juries are constituted nationwide, as well as the fact that Batson has been flawed in its response. It is apparent that an alternative solution to racially motivated peremptory challenges is necessary, but is GR37 that solution?

As would be the case with the promulgation of any law or rule, GR37 is experiencing and will continue to experience growing pains as judges and prosecutors alike adapt to its implementation. Furthermore, the nature of reactions to GR37, such as a decrease in total peremptory challenges issued and an increase in objections to them, have the potential to permanently alter cases in all forms. Even if such an extreme shift to eliminate all peremptory challenges on people of color does not happen, prosecutors may react as if it will, which brings up the risk of genuinely unqualified jurors influencing a case in instances where a non-racially motivated peremptory challenge would have been valid.

That being said, it is just as important to holistically understand the nature of the situation. We are where we are right now because years of progress in civil rights have failed to fully resolve the nationwide issue that is attitudes toward race in America, and vague reforms have not proved adequate. It is important to weigh risks to benefits and understand that such action that targets implicit biases is necessary to see tangible progress towards the end goal, a society in which racial biases are nullified.

Part VII: Conclusion

The issue of jury composition by race, especially regarding the application of peremptory challenges, parallels many others in being systematically and deeply embedded in the framework of America and its judicial system. Since the Civil Rights Era codified the unlawful nature of discrimination, making any further reform has thus been tediously complex due to the ambiguity of defining and addressing systemic and implicit biases and issues. In the four decades since Batson, its issues have been repeatedly addressed in cases that expanded its scope. Nevertheless, issues persist concerning the definition of what constitutes passable prima facie evidence, and thus, a clear racial discrepancy exists between how jury selection affects white defendants and how it affects defendants of color. Efforts to amend the judicial process have thus far been met with mixed responses as to their reasonability on paper, and too little time has passed to adequately judge their efficacy. 

It does stand to reason that the issue cannot truly be resolved until a grassroots shift occurs in racial attitudes across the United States, thus eradicating the issue of juror bias at the source. Unless and until that happens, any policy action similar in nature to GR37 represents a step in the right direction that can be built upon and amended. With little reason to forgo such measures other than that they may only partially solve rather than fully, the federal government and all fifty states would be prudent to expound upon the definitions and framework set by Batson, ensuring that implicit biases and issues are accounted for as well as taking steps to recognize patterns in potentially unlawful peremptory challenges. It is unrealistic to expect a perfect solution to appear in the short term, and although such reforms may appear piecemeal, it is crucial to understand the need for the legislation surrounding them. Solutions must continue evolving with racial attitudes in America to eventually create a judicial system that supports all Americans.

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1. The American Presidency Project. “Remarks Upon Signing the Civil Rights Act.” The American Presidency Project. www.presidency.ucsb.edu/documents/remarks-upon-signing-the-civil-rights-act.

2. Equal Justice Initiative. “Race and the Jury.” Equal Justice Initiative, Nov. 2005. https://eji.org/wp-content/uploads/2005/11/race-and-the-jury-digital.pdf.

3. Duke University. “New Study Reveals Jury Composition and Verdict Influence.” Duke Today, Apr. 2012. https://today.duke.edu/2012/04/jurystudy.

4. Franklin D. Roosevelt Presidential Library and Museum. “Statement on Signing the Civil Rights Act.” Franklin D. Roosevelt Presidential Library, 1980. http://docs.fdrlibrary.marist.edu/od8802t.html.

5. National Archives. “Civil Rights Act of 1964.” National Archives, www.archives.gov/milestone-documents/civil-rights-act#:~:text=This%20act%2C%20signed%20into%20law,civil%20rights%20legislation%20since%20Reconstruction.

6. History.com. “Civil Rights Movement Timeline.” History.com, www.history.com/articles/civil-rights-movement-timeline.

7. Justia. Supreme Court of the United States. Batson v. Kentucky, 476 U.S. 79 (1986). https://supreme.justia.com/cases/federal/us/476/79/.

8. Ibid.

9. Casetext. “Powers v. State.” Casetext, 2020. https://casetext.com/case/powers-v-state-2031.

10. Justia. Supreme Court of the United States. Ford v. Georgia, 500 U.S. 614 (1991). https://supreme.justia.com/cases/federal/us/500/614/.

11. Justia. Supreme Court of the United States. Hernandez v. New York, 505 U.S. 42 (1992). https://supreme.justia.com/cases/federal/us/505/42/.

12. Justia. “United States v. McCollum.” U.S. Court of Appeals, 9th Circuit, 2014. https://law.justia.com/cases/federal/appellate-courts/ca9/11-17357/11-17357-2014-06-24.html.

13. Justia. Supreme Court of the United States. Lockhart v. McCree, 576 U.S. 257 (1986). https://supreme.justia.com/cases/federal/us/576/257/.

14. Ibid.

15. PrawfsBlawg. “Davis v. Ayala: Post-Conviction Review of Batson, Harmless Error, and a Surprising Dignity Opinion from the Supreme Court.” PrawfsBlawg, June 2015. https://prawfsblawg.blogs.com/prawfsblawg/2015/06/davis-v-ayala-post-conviction-review-of-batson-harmless-error-and-a-surprising-dignity-opinion-from-.html.

16. Kadane, J. B. (2017). Statistics for Batson challenges. Law, Probability and Risk, 17(1).

17. Sloan, A. (2020). “What to do about Batson?”: Using a court rule to address implicit bias in jury selection. California Law Review, 108(1), https://www.jstor.org/stable/26977909

18. Ibid.

19. Ibid

20. Ibid.

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid.

25. Ibid.