There are so many troubling issues surrounding race and the criminal justice system these days that it is easy to forget a longstanding problem: the exclusion of African-Americans from juries. After all, it was nearly three decades ago that the Supreme Court took what was seen then as a major step toward solving that problem. In Batson v. Kentucky, decided in April 1986, the court ruled that prosecutors could be required to provide a race neutral explanation when their use of peremptory challenges to strike black potential jurors raised an inference of discrimination.
That decision, applying on a trial-by-trial basis the 14th Amendment’s guarantee of equal protection, repudiated a precedent that had given defendants the near-impossible task of proving that blacks were systematically excluded from juries in a particular jurisdiction in many trials over a long period of time. In short order, the court expanded the Batson rule to cover civil as well as criminal trials, to apply to defense lawyers as well as prosecutors, and to the exclusion of jurors on the basis of ethnicity and gender as well as race.
But the open secret is this: Batson hasn’t really worked. Despite efforts by the American Bar Association, the National District Attorneys Association, and well-intentioned prosecutors’ offices, and despite the alarms raised by serious inquiries, including one five years ago by the Equal Justice Initiative in Montgomery, Ala., blacks are still being excluded from juries at disproportionate rates, especially when the defendant is black and the crime victim is white. Prosecutors have learned to game the system by providing explanations that are accepted as persuasive to judges who appear all too eager to be persuaded.