Batson Basics: What Are Jurors Protected From?

October 25, 2016
By Hanging Out with Carl Gunn


  • Batson requires an affirmative intent to discriminate, not just disparate impact.
  • Disparate impact is simply evidence of discrimination.
  • Still, some characteristics may be so closely tied to race that they serve as a surrogate for race under Batson.



In a related vein to my post last week, how are the protected groups protected?  Put a slightly different way, what are they protected from?  Put in the terms used in equal protection and civil rights litigation, is a disparate impact enough, or must there be an affirmative intent to discriminate?  Unfortunately, both the Supreme Court and the lower courts have held there must be an affirmative intent to discriminate and that disparate impact is not enough, though it may be evidence of an intent to discriminate.  As the Supreme Court explained in Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion):

[D]isparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson inquiry.  An argument relating to the impact of a classification does not alone show its purpose.  (Citation omitted.)  Equal protection analysis turns on the intended consequences of government classifications.  Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality.

Id. at 362.  See also United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993) (noting that “Batson derives from the Equal Protection Clause; a successful claim therefore depends upon a showing of intentional discrimination,” that “disparate impact does not, by itself, a Batson violation make,” and that “the role of disparate impact in the Batson analysis is as circumstantial evidence of discriminatory intent”).

There’s a caveat to this general rule that disparate impact is not in of itself sufficient, however – suggested by United States v. Bishop, 959 F.2d 820 (9th Cir. 1992), and the Supreme Court Hernandez opinion cited above.  The prosecutor in Bishop had challenged a juror simply because she lived in Compton, which at that time was a low-income, largely African-American neighborhood with high rates of crime and violence.  The Ninth Circuit held this was not a race-neutral reason acceptable under Batson.  It began by distinguishing the Supreme Court decision in Hernandez, in which the Court had permitted challenges based on jurors’ Spanish proficiency where the jurors were uncertain as to whether they could set that proficiency aside in considering the official interpreter’s translation during trial.

[I]n concluding the plurality opinion [in Hernandez], Justice Kennedy noted:

We would face a quite different case if the prosecutor had justified his peremptory challenge with the explanation that he did not want Spanish-speaking jurors. . . . As we make clear, a policy of striking all who speak a given language without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination.

Id. at [371-72].  The prosecutor in Hernandez, in other words, did not rely on Spanish proficiency alone.  He justified his decision by pointing to the prospective jurors’ avowed uncertainty as to whether they could set aside their own understanding of Spanish and listen only to the interpreter’s version.  Thus, there was a nexus between the jurors’ characteristic – bilingualism – and their possible approach to a specific trial.

No such nexus can be found here.  For this case to be controlled by Hernandez, the government would have had to believe, based on Ms. Burr’s conduct during voir dire, (1) that she had witnessed or heard of incidents of violence or police behavior in Compton, and (2) that as a result, she would have found it difficult to assess the credibility of a particular witness fairly and impartially.  (Citation omitted.)   For example, her responses to certain questions might have given rise to the prosecutor’s impression. In contrast, the proffered reasons (that people from Compton are likely to be hostile to the police because they have witnessed police activity and are inured to violence) are generic reasons, group-based presuppositions applicable in all criminal trials to residents of poor, predominantly black neighborhoods. They amounted to little more than the assumption that one who lives in an area heavily populated by poor black people could not fairly try a black defendant.

Bishop, 959 F.2d at 825.  The Court then held it was not permissible to challenge jurors based on such stereotypical assumptions.

To strike black jurors who reside in such communities on the assumption they will sympathize with a black defendant rather than the police is akin to striking jurors who speak Spanish merely because the case involves Spanish-speaking witnesses. The Court in Hernandez strongly suggested that more was required – namely, the prosecutor’s belief that the particular juror might not accept the proposed translation.  (Footnote and citation omitted.)

The prosecutor’s justification in this case, unlike in Hernandez, referred to collective experiences and feelings that he just as easily could have ascribed to vast portions of the African-American community. Implicitly equating low-income, black neighborhoods with violence, and the experience of violence with its acceptance, it referred to assumptions that African-Americans face, and from which they suffer, on a daily basis. Ultimately, the invocation of residence both reflected and conveyed deeply ingrained and pernicious stereotypes. Compare Hernandez, [500 U.S. at 360].  Government acts based on such prejudice and stereotypical thinking are precisely the type of acts prohibited by the equal protection clause of the Constitution.

Bishop, 959 F.2d at 825.

Bishop was held to have been limited, or even partially overruled, in Boyde v. Brown, 404 F.3d 1159 (9th Cir. 2005).  Boyde noted that the intervening Supreme Court case of Purkett v. Elem, 514 U.S. 765 (1995), prevents consideration of the persuasiveness of a prosecutor’s reliance on residence in deciding whether it is a race-neutral reason.  See Boyde, 404 F.3d at 1171 n.10.  This still leaves Bishop’s implicit holding that residence may in some circumstances serve as a surrogate for race, however.  See also Hernandez, 500 U.S. at 371 (recognizing that “[i]t may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis”).

So there’s a second “Batson basic.”  And there’s a few more to come.