Racism in the Legal System

Have you ever heard of the legal case Batson vs. Kentucky?

Few people have.  Yet this was a major legal landmark in the legal system; this case determined that a prosecutor cannot use peremptory challenges to remove a juror from a jury pool based on race.

A bit of explanation — potential jurors are examined before they are selected for a jury to see if they are suitable for that case.  For example, having a relative of a defendant on a jury would be an obvious conflict of interest.  (During the time I was called to serve on a jury, one man was excused for being hard of hearing.)  But each side gets a certain number of peremptory challenges (depending on the law at that time); an attorney or prosecutor can ask for a potential juror to be excused without giving a reason.

In the case of Batson vs. Kentucky, James Batson was being tried a second time for burglary and receiving stolen goods; his first trial had ended in a hung jury.  And by the way, Batson is African-American and there was a black woman on that first jury.  So when the jury for the second trial was picked, the prosecutor used peremptory challenges to remove all four black people from the jury pool, and Batson was convicted.  Was that fair?

The case was strengthened by examining similar cases across the country.  In other words, it was not unusual to use peremptory challenges to remove minorities from jury pools.   So the case was appealed and went to the Supreme Court

Not surprisingly, the Supreme Court ruled that peremptory challenges based on race violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.   (Some think the real surprise is this case had to go all the way to the Supreme Court to achieve such a ruling.)

So race is no longer a factor in jury selection?  Spoiler alert — YES, it still is!  This goes back to one of my favorite rules, the Law of Unintended Consequences.  Jurors are still being selected on the basis of race, it’s just that now prosecutors have to give a reason.  In some jurisdictions, almost any reason — place of residence, occupation, appearance — is good enough.

There is an excellent podcast discussing Batson vs. Kentucky at “Radiolab Presents: More Perfect” (http://www.wnyc.org/shows/radiolabmoreperfect ) under the title “Object Anyway”.  But a word of warning — listening could make you very cynical about the legal system.

A good synopsis of Batson vs. Kentucky can be found at  http://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-batson-v-kentucky.

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