Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent—a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.
Despite Batson, discrimination by prosecutors in jury selection persists. Because this type of discrimination can easily be masked with an excuse that on its face is race neutral, examining whether an excuse like a juror’s arrest records is one that is truly race neutral is imperative. This Article will explore whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson. Part I examines how race affects the likelihood that a person will have an arrest record. Part II provides background regarding jury selection and Part III examines Batson and its progeny. Part IV discusses the constitutionality of strikes based on arrest records. This Article concludes with the common sense suggestion that questions about arrests during voir dire should be precluded, as should the practice of using a person’s arrest record as the sole basis for the exercise of peremptory strikes.
Visiting Professor of Law, Georgetown University Law Center, Criminal Defense and Prisoner Advocacy Clinic and Criminal Justice Clinic. Many thanks to Jonathan Anderson, Keith Findley, Kim Thomas, Amber Baylor, Nina Chernoff, Richard Frankel and Robin Walker-Sterling. Special thanks to Emily Wilson and Carlton Powell for research help.
