It is no secret that our criminal justice system targets black people disproportionately at every stage—more stops, more arrests, more serious charges, longer sentences. On Monday, the Supreme Court will face one facet of that system: juror selection.

Prosecutors frequently strike black jurors—especially when the defendant is black, and especially when the victim is white—because all-white juries are more likely to convict. This is, of course, unconstitutional, but the problem, as with many stages of the criminal process, is that it’s hard to prove that any one prosecutor acted because of race. Monday’s case, Foster v. Chatman, involves such a blatant effort to strike black jurors that, on the narrow issue of whether Timothy Foster should get a new trial, the case should be easy to decide. The real question is whether the Court takes on the bigger issue: the ease with which prosecutors can curate an all-white jury under current law.

Before a trial begins, judges and lawyers take a large pool of potential jurors and trim it down to a twelve-person jury. There are two ways jurors get cut. First, the judge removes potential jurors who have an obvious stake in the outcome of the case—either because they are connected to the defendant, or because they have preconceptions about the case. Next, the prosecution and defense each get to strike a certain number of jurors for any reason at all, on a hunch that the juror will not be sympathetic to their case. These are called “peremptory strikes.”

Peremptory strikes, which generally require no explanation, have long served as a means for excluding black citizens from juries. In a 1986 case called Batson v. Kentucky, the Supreme Court ruled that prosecutors could not use such strikes to remove jurors based on their race. Doing so violates the Fourteenth Amendment, which was ratified after the Civil War to ban racial discrimination, among other things. When a defendant alleges that a peremptory strike was racially motivated, in what is known as a “Batson challenge,” prosecutors must convince the judge that they struck the juror for race-neutral reasons. In practice, judges validate all but the most egregious strikes.

Foster v. Chatman, the case before the Court, is one of those egregious cases. The defendant, Timothy Foster, who is black, stood accused of capital murder. Before trial, the prosecutor struck all four prospective black jurors. This happens all the time, but what makes the case unusual is the paper trail left by prosecutors and discovered by the defense.

The prosecutor’s notes on jury selection—which the defense obtained through an open records request—explicitly singled out the black jurors based on their race. Prosecutors wrote a “B” next to each one’s name, highlighted their names in green, circled their race on the written questionnaire, discussed them as “B#1,” “B#2,” and “B#3,” listed them as the first four jurors to “definite[ly]” cut, and identified which one would be most acceptable “if it comes down to having to pick one of the black jurors.” It’s hard to imagine more obvious examples of racially motivated peremptory strikes. As an amicus brief puts it, “If this Court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.”


This sort of juror suppression has a long pedigree, stretching back to the moment blacks obtained citizenship and, with it, the rights to vote and serve on juries. As Reconstruction waned, Southern states went about systematically barring black citizens from political life. Many passed laws that only allowed white people to serve on juries. The Supreme Court struck down those statutes in 1880, but states quickly adapted. Some tied jury service to the voter rolls, where black citizens were kept out through poll taxes and literacy tests. Others vested total discretion in jury selection officials, who only selected white jurors. It took another half century, until the end of Jim Crow, for the Supreme Court to establish that blacks could not be excluded from the jury pool. In 1965, it confirmed that prosecutors could not use peremptory strikes to exclude black jurors “in case after case, whatever the circumstances, whatever the crime, and whoever the defendant or the victim may be.” But that high standard was nearly impossible to meet, and juror suppression short of systematic exclusion persisted. Finally, in 1986, the Supreme Court decided Batson, in which it held, for the first time, that striking any jurors based on their race violated the Fourteenth Amendment—even if the defendant could not show a larger pattern “in case after case.”

Historically, then, juror suppression has looked a lot like voter suppression—“unremitting and ingenious,” as the Supreme Court described the latter in 1966. Each time the high court has stepped in, states and prosecutors have found ways to continue trying black defendants before juries that were mostly or completely white. Since Batson, the evidence suggests that little has changed. A study of capital trials in North Carolina over a 20-year period found that prosecutors struck black jurors at twice the rate of white jurors (and three times the rate when the defendant was black). Another study found a three-fold disparity in Louisiana. In Philadelphia, the disparity was two-fold over 20 years, with little change after Batson. Another study documented the same dynamics in Alabama and Georgia, with many capital trials going before all-white juries. State supreme courts have similarly concluded that “racially motivated jury selection is still prevalent 20 years after Batson.” Surveys of practicing attorneys confirm the same.

Why has Batson been so ineffective? For the most part, it is because when defendants challenge peremptory strikes of black jurors, trial judges tend to accept whatever explanation the prosecution offers. Granting a Batson challenge places a judge in the awkward position of having to rule that prosecutors both discriminated and lied. Judges and prosecutors interact in case after case, and many judges are themselves former prosecutors.

The results are often farcical. Judges routinely allow explanations that the juror was too young, too old, married, single, uneducated, too educated, employed, unemployed—the list goes on. Prosecutors know this and openly exchange notes on how to justify race-based strikes. The reasons offered in Foster are prime examples. They included: asking to get off the jury; not asking to get off the jury; working for Head Start, because it “deals with low income, underprivileged children”; being a social worker (the potential juror was actually a teacher’s aide). Prosecutors struck a 34-year-old black juror for being too close in age to the 19-year-old defendant; eight white jurors aged 35 and under were allowed to remain. These are the kinds of strategies prosecutors know to use, because they tend to work.

Even so, because of the jury-selection notes, it’s likely that the Supreme Court will rule for Foster. In previous cases where race-based jury manipulation was obvious, seven justices have been willing to throw out the conviction. But what’s most unsettling about the case is that without the (extremely rare) smoking-gun evidence uncovered by the defense, that list of implausible reasons probably would have worked. It was certainly enough for the Georgia courts that reviewed the case before it reached the Supreme Court.


This is an embarrassing situation for a legal system premised on the power of rational argument. What is to be done? Some have called for small adjustments to jury-selection procedures that a state legislature or court might adopt (these procedures are governed by state law), including harsher penalties for Batson violations, new ethics rules, switching to a written questionnaire, and expanding the juror interview process. The problem with most reform proposals is that they would still allow prosecutors to strike jurors without explanation. As long as peremptory strikes exist, it seems clear that many prosecutors will try to use them to strike jurors of an undesired race. (So will defense attorneys.)

The most common proposal is to eliminate peremptory strikes altogether. Many judges and legal scholars have called for this solution. This would not be so simple. For one thing, defense attorneys also rely on peremptory strikes, which give them a form of protection in case the judge fails to remove jurors who might be biased against the defendant. And most states give the defense more strikes than the prosecution. Peremptory strikes are also a deeply ingrained feature of American trial procedure. (They date all the way back to Ancient Rome, by some accounts.) Complete abolition will be a tough sell.

Then again, various Supreme Court justices have raised the possibility over the years, dating back to 1965, when Justice Arthur Goldberg declared that, if forced to choose between fair trials and peremptory strikes, “the Constitution compels a choice of the former.” Justice Thurgood Marshall made the same point in 1986 in Batson. In England, which similarly allowed peremptory strikes for centuries, the practice was abolished in 1988. Most recently, in 2005, Justice Stephen Breyer announced that he “believe[d] it necessary to reconsider Batson's test and the peremptory challenge system as a whole.”

Foster has not asked the Supreme Court, in this case, to do away with peremptory strikes altogether, so the Court will probably not consider doing that. It is extremely rare for the Court to decide a major issue that has not been raised or argued. (The Court occasionally asks for further briefing). But if more justices begin to question the ongoing validity of peremptory strikes, a defendant might soon ask the Court to reconsider.

For now, the Court’s challenge will be to come up with legal doctrine that saves Batson from its present fictional status. There is plenty of clean-up work to do. In a 1995 opinion, the Court seemed to encourage thin rationales for striking black jurors when it said that prosecutors’ stated reasons did not even need to be “minimally persuasive,” and that trial judges could accept reasons that were “silly or superstitious.” This is strange doctrine. To be sure, the Court’s point was not that trial courts should accept preposterous reasons; indeed, it expected that, in the final analysis, trial judges would probably reject “implausible or fantastic justifications.” But its holding did leave open the possibility, for once the prosecutor gives any race-neutral reason at all, it is up to the judge.

Knowing what we know about how hard it is for trial judges to rule against prosecutors, there is no reason to leave judges free to credit “implausible or fantastic justifications.” In more recent cases, the Court has thrown out convictions in which prosecutors offered lists of clearly pretextual reasons for striking black jurors. But it has emphasized that trial judges have wide discretion and do not need to explain their Batson rulings in any detail. Foster v. Chatman presents an opportunity for the Court to clarify their responsibilities, and to instruct them how to actually engage when prosecutors repeatedly excuse black jurors. For instance, the Court could require greater scrutiny of reasons based on jurors’ demeanor, or it could discourage the practice of giving laundry lists of reasons in the hope that one will stick. As the Court put it in a 2005 case, “A Batson challenge does not call for a mere exercise in thinking up any rational basis.”

Perhaps no doctrine can implement Batson’s promise, in which case the Court will have to choose between continuing the tradition of all-white jury trials and abolishing peremptory strikes. On Monday, we should get a glimpse of what the justices are willing to try.