Performing Discretion or Performing Discrimination: An Analysis of Race and Ritual in Batson Decisions in Capital Jury Selection

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors offer as race neutral motivations for peremptorily striking Black jurors. In my examination of race neutral removals in Texas courts, I demonstrate how the focus on form has failed to solve the substantive problem of racially discriminatory uses of peremptory challenges. Cases from these courts have been critical in the Supreme Court jurisprudence that developed the process for deciphering racially motivated uses of this legal tool. Although Batson hearings have proven to be a weak legal instrument, they nevertheless repeatedly remind us of the persistence of racially discriminatory uses of peremptory challenges and the failure of current measures to prevent such discrimination. Building on the suggestion by Akhil Amar to preempt peremptories, this Article calls for the reexamination of the use of this practice, particularly in capital trials, in a justice system that purports interest in protecting that system from racial discrimination