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May 02, 2022 Feature

Racial Bias in Jury Selection Must Be Addressed

By Annie H. Sloan

The problem of racial bias in jury selection has long plagued the American criminal legal system, undermining constitutional guarantees of a fair jury trial and equal justice under law. Recently, some states have begun to tackle this fundamental issue with renewed vigor and creativity. An aggressive effort to combat this longstanding injustice should not only continue but also accelerate, both as a matter of statewide reforms and as an urgent necessity in every individual case in every state.

Racial Bias Permeates Jury Selection

Kevin Strickland’s tale of injustice shines a light on the problem of racial bias in jury selection. In April 1979, Kevin Strickland, a Black 19-year-old, was wrongfully convicted of murder in Kansas City, Missouri, and sentenced to life in prison without the possibility of parole. His first trial ended in a 11–1 hung jury with the only Black juror voting for acquittal. Six months later, Strickland faced a second trial. This time, the prosecutor’s use of peremptory challenges to strike Black jurors resulted in an all-white jury. The all-white jury convicted Strickland after deliberating just one hour. In November 2021, after more than four decades of wrongful imprisonment, Strickland was exonerated and finally freed.1 While there was never a formal finding of race discrimination in his jury selection, it is telling that the only juror in two trials who voted against a wrongful conviction was the only Black juror. And, just as telling, the prosecutor made sure to use his peremptory challenges to strike all of the Black prospective jurors in the second trial.2

Unfortunately, Strickland’s life-robbing experience with juries is not unique in the American legal system. To the contrary, jury selection in America is deeply rooted in anti-Blackness and racial bias. This first manifested through openly racist laws banning Black people from jury service and later through purportedly race-neutral laws tying jury service to alleged “intelligence” tests.3 In aggravation, white communities regularly used racial terror to prevent Black citizens from serving on juries.4

Today, racial bias in jury selection—and the resulting all-white (or nearly all-white) jury—has endured in part through the use of peremptory challenges against prospective Black jurors. The jury selection process provides two ways to strike prospective jurors: (1) for-cause challenges and (2) peremptory challenges. Unlike challenges for cause, a party can use a peremptory challenge to strike a proposed juror without needing to provide any justification. Recent high-profile trials with nearly all-white juries have shined a new public spotlight on the exercise of peremptory challenges to exclude Black people from jury service. Although some recent trials involved white defendants (for example, Kyle Rittenhouse in Wisconsin and Travis McMichael, Gregory McMichael, and William Bryan, the three men who killed Ahmaud Arbery, in Georgia) and the defense’s use of peremptory challenges to remove Black jurors, it is the prosecutor who has historically brandished peremptory challenges as a tool to exclude Black people from the jury—as was the case with Strickland.5

In any event, the bottom line is no matter the circumstances, the current practice of peremptory challenges serves to reduce jury diversity and harm jurors of color, defendants of color, and communities of color. More must be done, urgently, to address this crisis in our legal system. Racial bias, after all, is “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”6

Racial Bias and the Use of Peremptory Challenges

In 1965, in Swain v. Alabama, the U.S. Supreme Court held the “systematic” use of peremptory challenges to intentionally discriminate against prospective jurors on the basis of their race violated a defendant’s equal protection rights.7 But because the Court imposed the near-impossible task of proving a long-running pattern of exclusion of Black jurors, the decision did little, if anything, to change jury selection procedures in practice.

Two decades later, the Court changed course in the well-known and widely cited decision Batson v. Kentucky.8 Recognizing the Constitution bars even a single act of invidious discrimination, the Batson Court prohibited all cases of purposeful racially discriminatory peremptory strikes. In doing so, the Court created a three-part framework to adjudicate claims of discrimination. First, the objecting party must make a prima facie showing of purposeful discrimination. Second, the burden shifts to the striking party to respond with a race-neutral explanation for its strike. Third, the trial court makes credibility findings and determines whether the objecting party has proven a case of purposeful discrimination.9 Until recently, the three-part Batson framework remained the law in all states across the country.

Unfortunately, Batson has overwhelmingly failed to curb, let alone prevent, racial discrimination in jury selection. Striking parties have wide latitude to assert purportedly facially race-neutral explanations to strike a juror, which courts are quick to accept. For example, courts commonly allow strikes purportedly based on a prospective juror’s demeanor, e.g., a potential juror’s failure to make eye contact—an enormous loophole that all too frequently permits a blank check for racially based peremptories. Courts also accept explanations having a disproportionate correlation with prospective jurors of color, e.g., a potential juror’s belief that law enforcement engages in racial profiling. Moreover, structural racism and racial disparities in the criminal legal system make the practice of excluding prospective jurors based on their income level, neighborhood, or contact with the legal system doubly discriminatory.10 Discriminatory strikes may also be due to the “unconscious racism” or “implicit bias” of lawyers and judges, making the strikes impossible to address under Batson’s purposeful discrimination framework.11

The effects of excluding jurors of color are significant and cannot be overstated. First, racial diversity on juries results in fairer trials and verdicts. Juries composed of individuals with distinct life experiences and perspectives prompt richer and more insightful debate during deliberations. In fact, studies show that racially diverse juries spend more time deliberating and make fewer errors.12 Other studies show that all-white juries are more likely to convict Black defendants.13 The repercussions of this on individual-defendants, their families, and their communities are staggering. Consider Strickland’s experience as just one stark example of the lived impact of homogenous juries. Second, discriminatory strikes of potential jurors of color prevent them from fulfilling a civic duty and participating fully in American society. Third, the underrepresentation of jurors of color raises deep concerns about the integrity of a judicial system implicated in such racially exclusionary history and practices.

State Reforms on Peremptory Challenges

Despite widespread and persistent critiques of Batson, ideas for reform remained solely hypothetical and academic for more than four decades. But in the past several years, states have begun to address the insufficiency of Batson and amend the toothless framework.

First came Washington State. In 2018, the Washington Supreme Court adopted a rule rejecting Batson’s focus on purposeful discrimination. The court recognized Batson created serious obstacles to jury diversity and tarnished judicial integrity. It thus sought to enact a new framework to make it easier to reject strikes based on racial bias. The express intent of the Washington rule is to “eliminate the unfair exclusion” of prospective jurors based on their race.14 To do so, the Washington rule addresses implicit and institutional racism and instructs a court to deny a peremptory challenge if it determines, having considered the totality of circumstances, an “objective observer” “could view” race as “a factor” in the use of the challenge.15

Notably, the Washington rule presumes invalid the following purportedly race-neutral reasons historically associated with discrimination: (i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief law enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (iv) living in a high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; and (vii) not being a native English speaker.16 In addition, strikes based on a juror’s demeanor, such as failing to make eye contact or exhibiting a “problematic” attitude, must be corroborated by the judge or opposing counsel.17

Washington’s ambitious changes to the Batson framework are groundbreaking. The state is an example of potential reform for other jurisdictions grappling with their own deep-rooted histories of discriminatory jury selection. Sure enough, just two years later, in 2020, California followed Washington’s lead and passed legislation replacing the Batson framework in a fashion similar to the Washington rule.18

In 2021, the reform momentum continued in Arizona. Rather than embrace the approach taken in Washington and California, however, Arizona forged its own path. After weighing multiple reform proposals, Arizona eliminated peremptory challenges altogether, thus becoming the first state to do so. Arizona’s decision to abolish peremptory challenges harkens back to Justice Thurgood Marshall’s Batson concurrence, in which he called for the end of peremptory challenges out of concern they would continue to “inject” racial discrimination into jury selection. Justice Marshall’s warning, of course, proved prescient.

Arizona will likely not be the last state to embark on reforming Batson. Indeed, other states are studying the issue. Although not all reform efforts have been successful, as of yet, other states, including Colorado, Connecticut, and New Jersey, have begun exploring alternatives to Batson.19

This reform movement is vitally important. Every state should be considering how it can strengthen protections against the pernicious use of race in jury selection. And, even when a state has not adopted widespread reforms, individual judges must be vigilant and aggressive in challenging camouflaged uses of race, such as race-laden objections to demeanor or perspectives on the criminal legal system.

Ongoing Debate about Racial Bias in Jury Selection

It should be noted that reforming the peremptory challenge process, while laudable and important, will not necessarily end debates about race and jury selection. The Washington rule and California law appropriately put race front and center by requiring judges to consider whether a racially biased reason for a strike exists, thereby flipping the presumptions of Batson’s ineffectual framework.

The Arizona approach abolishing peremptory challenges altogether may have simply redirected the focus of debates about racial bias in jury selection away from the peremptory challenge process to challenges for cause. A system without peremptory challenges turns the trial judge into the sole gatekeeper of juror bias, including racial bias. Though for-cause challenges should theoretically rid a jury pool of jurors so biased against a particular side they are unable to impartially evaluate and weigh the evidence, litigants—and, in particular, criminal defendants whose liberties are at risk—may not trust the use of for-cause challenges to weed out racially biased jurors.

Other Obstacles to Achieving Racial Jury Diversity

No amount of adjustment to the peremptory challenge process alone will fix America’s legacy of juror exclusion. Notably, jury pools (or jury venires)—not just jury panels (or the petit juries)—lack racial diversity. As background, the Constitution guarantees a criminal defendant’s right to an impartial jury. The U.S. Supreme Court has held that only jury pools—not jury panels—are required to reflect a fair cross-section of the community.20 And yet, many troubling systemic factors coalesce to create the widespread whitewashing of jury pools.

First, the processes by which states summon individuals for jury duty continue to yield pools lacking diversity, particularly in terms of race, ethnicity, age, and socioeconomic status. The way jury rolls are assembled varies by state. They are often put together by pulling from Department of Motor Vehicles records or voter registration rolls, thereby excluding swaths of the community who may not appear on those lists.21 Furthermore, individuals who make it onto a jury wheel may never actually receive a jury summons. This could happen for a multitude of reasons, including a lack of steady housing, thus causing summonses to be returned as undeliverable.

Second, a pressing inequity is the costs associated with jury service. States tend to pay jurors between $10 and $40 per day. Trials can last days, weeks, or even months at a time. Not everyone is independently wealthy enough to give up their paycheck to serve jury duty. The pay system thus makes it prohibitive right off the bat for many prospective jurors—often working-age individuals from lower-income brackets—to show up when summoned, let alone serve as a juror on a multiday trial.

Third, federal and state laws across the country bar people with criminal records from serving on juries, effectively excluding millions of individuals from jury service.22 These laws disproportionately affect individuals belonging to nonwhite communities, who are arrested and convicted at disproportionate rates.23 Though advocates have recently fought to restore jury service for individuals with felony convictions, jury exclusion remains a significant collateral consequence of a criminal conviction.


“Some toxins,” Chief Justice John G. Roberts emphasized about racism in a capital case, “can be deadly in small doses.”24 Racism in jury-building is surely one of those toxins. Some states—led by Washington’s pathbreaking work—are undertaking overdue reforms of the jury selection process to combat this evil, and others are considering similar changes. This reform movement is necessary—just as it is essential for every judge in every courtroom, regardless of whether formal statewide reform has been adopted, to take every measure to ensure the absence of racial discrimination in jury selection. Our system of justice demands it.


1. Ken Otterbourg, Kevin Strickland, Nat’l Registry of Exonerations (Dec. 6, 2018),

2. Id.

3. See Alyson A. Grine & Emily Coward, Raising Issues of Race in North Carolina Criminal Cases, § 7.3: Selection of the Trial Jury: Peremptory Challenges (2014) (describing the development of law surrounding jury selection after Reconstruction); see also Equal Just. Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 9–11 (2010), (outlining the exclusion of Black people from jury service since the Civil War).

4. See, e.g., Equal Just. Initiative, supra note 3.

5. Id.

6. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868–70 (2017).

7. 380 U.S. 202, 222–24 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

8. 476 U.S. 79.

9. Id. at 97–98.

10. See Vida B. Johnson, Arresting Batson: How Striking Jurors Based on Arrest Records Violates Batson, 34 Yale L. & Pol’y Rev. 387, 394 (2016) (arguing that prosecutors often strike prospective jurors based on their arrest records as a means of excluding nonwhite jurors and discussing that nonwhite communities are overpoliced and disproportionately arrested).

11. 476 U.S. at 106 (Marshall, J., concurring) (warning about prosecutors’ “unconscious racism”); Judge Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 149 (2010) (describing implicit biases as the “plethora of fears, feelings, perceptions, and stereotypes that lie deep within our subconscious).

12. See, e.g., Alicia Arman et al., Flowers Case: Effects of the Racial Makeup of Juries, Cornell Univ. Law Sch.: Soc. Sci. & Law,

13. See, e.g., id.

14. Wash. Ct. Gen. R. 37; see also Annie Sloan, “What to Do About Batson?”: Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Cal. L. Rev. 233 (2020).

15. Wash. Ct. Gen. R. 37.

16. Id.

17. Id.

18. See Cal. AB 3070; see also Elisabeth Semel et al., Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors (June 2020).

19. See Batson Reform: State by State, Berkeley Law Death Penalty Clinic,

20. Taylor v. Louisiana, 419 U.S. 522 (1975).

21. Jacinta M. Gau, A Jury of Whose Peers? The Impact of Selection Procedures on Racial Composition and the Prevalence of Majority-White Juries, 39 J. Crime & Just. 75 (2016).

22. See Ginger Jackson-Gleich, Rigging the Jury: How Each State Reduces Jury Diversity by Excluding People with Criminal Records, Prison Pol’y Initiative (Feb. 18, 2021),

23. See id.

24. Buck v. Davis, 137 S. Ct. 759, 777 (2017).

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Annie H. Sloan

Sanford Heisler Sharp, LLP

Annie H. Sloan is an attorney at Sanford Heisler Sharp, LLP, where her practice has focused on employment discrimination and harassment. She previously clerked on the U.S. District Court for the Western District of Pennsylvania, and her research on racial bias in jury selection was recently featured in The New York Times.