Striking With Stereotypes

Here’s another thought on Snyder .   To start with the big picture, peremptory challenges are called an “arbitrary and capricious right” by Blackstone (the only place I know where he uses that phrase with a positive connotation).   Many believe that this means peremptories should be exercised in a completely unrestricted way, and that Batson v. Kentucky (1986) and J.E.B. v. Alabama (1994), which stated that they could not be exercised on race or gender grounds, were incorrectly decided.

Given that Batson is still good law, however, all the Justices are in the position of having to assess whether the litigant’s “arbitrary and capricious” reason is race-based.   I think what distinguishes Snyder and the Miller-El v. Dretke (2005) on the one hand from Hernandez v. New York (1990) on the other is that the stated reasons for which the potential jurors were struck in the first two cases were pretty hard to associate with race.   But that distinction leads to a perverse result.

In Snyder , the prosecutor said he struck the African-American potential juror because he seemed nervous and because he was worried that jury service would interfere with his work obligations.   In Miller , the prosecutor said he struck because the juror allegedly said that he would not give the death penalty if rehabilitation were possible, even though the juror said no such thing.   In both instances, it was hard to distinguish these jurors from the white jurors who were not struck.   It is probably true that close to 100 percent of African-American jurors consider the impact their jury service will have on their work, but it is also probably true that close to 100 percent of all jurors have this same concern.

Contrast Hernandez , where the Court permitted the prosecutor to strike all Latinos from a jury in a criminal trial of a Latino defendant.   The prosecutor stated that he struck the jurors because they spoke Spanish, and therefore were less likely to defer to the court-appointed translator when Spanish-speaking witnesses took the stand.   While the case didn’t generate a majority opinion, a majority of the Justices credited this reason and permitted the strikes.  

The Court, then, sent the message that if you want to strike a minority juror, you should use a “non-race-based” attribute correlated with their race or national origin (which receives the same treatment as race for these purposes).   But this leads to an unappealing result:   As Richard Ford has eloquently argued elsewhere, this will have the tendency to reify stereotypes about groups.   Latinos are indeed statistically more likely to speak Spanish than whites, so striking on the basis of “non-deference to Spanish speakers” will permit the removal of more Latinos than whites from a jury.  

I don’t see the Court getting any subtler about this issue (in Hernandez , for instance, there’s no analysis in the Supreme Court’s various opinions of whether non-Latino Spanish speakers were struck, or whether the prosecutor even asked non-Latino potential jurors if they spoke Spanish).   Given this assumption, it seems wiser to abolish peremptory challenges altogether, unless benefits of which I’m unaware so grossly outweigh the bars such strikes can place on the participation of citizens on juries regardless of race.   I’m curious to know what our trial lawyers and judge think.