Batson’s reform left a loophole allowing race-neutral pretexts for biased strikes.

Evidence

The courts first addressed the potential for racially biased peremptory challenges in Swain v. Alabama (1965). The Swain court denied a petitioner’s appeal of his conviction, arguing that to prove the existence of racially biased peremptory challenges, defendants would need to demonstrate a pattern of minorities’ exclusion from juries across an entire county. In a landmark ruling, the U.S. Supreme Court held that challenging jurors (i.e., removing them from jury service) based on their membership in a racial/ethnic group was unconstitutional (Batson v. Kentucky, 1986). The Batson standard developed a two-step process for attorneys to make claims of discriminatory peremptory challenges. First, an attorney must make a prima facie case for discrimination and establish some basis to believe that the opposing attorney challenged a potential juror because of his or her race. If the judge agrees that the challenge could be race-based, the opposing attorney may offer a race-neutral explanation for why the juror was struck. The judge may either accept or reject this explanation. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 884

Categorization

• XREF: Batson’s two-step process is a clean legal-institutional instance of correction that can be gamed — relevant to the reader’s question of whether rational correction backfires against threat-hardened belief.
• corroborated: 2 independent passages support this claim — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 884