Article by Susan N. Herman
In this Article, I will discuss the Court's virtually exclusive reliance on this line of jury selection cases as its response to the problem of racism in the criminal justice system, and the newly narrowed focus of these cases on the rights of prospective jurors. In Part II, I will discuss how and why the Court came to decide jury selection cases on the basis of jurors' rights, a rationale that enables the Court to avoid confronting some difficult questions Batson poses about the meaning of equality. These questions include inquiries into the value of colorblindness, the evils of stereotyping, and the potential tension between the goals of Batson and the goals of cases implementing the Sixth Amendment right to trial by a jury representing a fair cross-section of the community. This discussion includes an exploration of the nature of the connection between defendants' rights and the race of those selected as jurors. Part III discusses the probable impact of Batson and questions whether focusing on the rights of jurors rather than the rights of defendants is likely to make a difference, for better or worse, for defendants. Part IV discusses why the Batson approach, especially in its current incarnation, is an inadequate judicial response to the problem of racial bias. Part IV will also discuss the application of representation-reinforcement theory in the criminal context, and some recent work of critical race theorists that points in the direction of more ambitious solutions. One common question underlying all of these discussions is how well process in general, and the jury selection process in particular, can serve the goal of equality.
About the Author
Susan N. Herman. Professor of Law, Brooklyn Law School. A.B., 1968, Barnard College; J.D., 1974, New York University School of Law.
Citation
67 Tul. L. Rev. 1807 (1993)