Excerpted From: Payton Pope, Black Lives Matter in the Jury Box: Abolishing the Peremptory Strike, 74 Florida Law Review 671 (July, 2022) (185 Footnotes) (Full Document)


PaytonPopeBorn from the Supreme Court case Batson v. Kentucky, the “Batson Challenge” serves as a method for defendants to dispute the use of peremptory strikes during the jury selection process. Peremptory strikes are a tool used by attorneys that allows them to remove a potential juror from the jury pool without having to provide a justification for doing so. The Batson Challenge enables the defense to challenge the peremptory strike of a potential juror from opposing counsel if the defense believes that the strike is based on discriminatory intent. The Court had high hopes for the Batson Challenge at the time of its creation. But, almost thirty years later, the Batson Challenge has been widely regarded as a failure.

The Black Lives Matter Movement (the BLM Movement), founded in 2013, is an organization advocating against police brutality and mass incarceration of Black Americans. Since its inception, the BLM Movement has provided a platform to advocate for criminal justice reform. This Note contends that the discussion on criminal justice reform and equality cannot exist without revisiting the framework of the Batson Challenge. Yet, the Batson framework's apparent failure and the barriers it presents for access to justice and equal protection are not widely recognized in the mainstream discussion of the BLM Movement or criminal justice reform, generally.

The Supreme Court has had many opportunities since Batson to add force to the Batson Challenge framework but has plainly refused to do so. In fact, in the recent Flowers v. Mississippi decision, Justice Brett Kavanaugh appears to be one of the only legal professionals to claim, “Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants.” Although the Batson Challenge has been criticized since its creation, the Court's consistent refusal to meaningfully revisit the Batson Challenge framework indicates disinterest in adding any bite to it.

Critics of the Batson Challenge have called for elimination of the peremptory strike altogether. The peremptory strike has existed for quite some time in this country's justice system and it is assumed that prosecutors may use peremptory challenges for virtually any reason. However, there is no established procedure for using them. Despite being unwilling to strengthen the Batson Challenge framework, members of the Court have mused over the idea of eliminating the peremptory challenge in the face of the Batson Challenge's failure. With the BLM Movement gaining traction, and countless members and supporters participating in the justice system as defendants and potential jurors, the Batson Challenge does not provide an adequate safeguard for equal protection. Thus, it is time for the peremptory challenge to be eliminated altogether for the original goals of Batson to be realized.

[. . .]

The Batson Challenge has been a resounding failure to address the particular evil it sought to eradicate: racism in the jury selection process. Not only has Batson failed, but the Supreme Court has slowly but surely chipped away at its strength in subsequent case law.

Because of the inherent flaws within the Batson Challenge framework, it does not and cannot bear the burden of eradicating racism from the criminal justice system. To effectively combat racism, improve the public's faith in the criminal justice system, and promote a more transparent and reliable procedure in jury selection, the peremptory strike must be abolished, and the strike for cause must be expanded.

In the wake of a national uprising against racism in all forms by the BLM Movement, the failures of the Batson Challenge and the at best, outdated (but at worst, nefarious) reasoning behind the peremptory challenge cannot escape serious discussion. To put it plainly, there is no room for the peremptory strike in a fair and equal justice system. “[T]he peremptory's utility in furthering the objective of a fair trial [has never] been demonstrated .... The evils it propagates, however, are well-documented.” We have reached a point in American society where the blanket claim that the peremptory strike plays a pivotal role in ensuring an impartial jury can no longer be said with a straight face. The most appropriate measure of reform is redrafting Federal Rule of Criminal Procedure 24 in order to redesign the procedure for striking potential jurors.

J.D. Candidate 2022, University of Florida Levin College of Law; B.A. 2014, University of Florida.