HSEC WINNER: The Inadequacy of Foster v. Chatman


The prevalence of racism in jury selections and deliberations is a legal issue that is often overlooked in favor of more prominent discussions concerning topics such as free speech or the Second Amendment. This is unsurprising — Americans generally view jury duty as a compulsory chore at best, and a tedious financial burden at worst. Most will never be put in a position that forces them to appreciate the Sixth Amendment’s guarantee of an impartial jury. Even so, it is important to recognize that this issue underpins many contemporary legal controversies; in particular, juries play a role in mass incarceration and the well-documented racial disparities in the criminal justice system. It is difficult to discuss, for example, the acquittals of white police officers charged with murder, or the wrongful convictions of people of color, without examining the complexities surrounding this important twelve-person body.

The U.S. Supreme Court addressed the issue of racism in jury selection when it decided the case Foster v. Chatman in May 2016.[1] In 1986, a black man named Timothy Foster was convicted of murder and sentenced to death by an all-white jury after Georgia prosecutors used peremptory strikes to remove all of the potential black jurors from the venire. Foster claimed that his Fourteenth Amendment rights were being violated, citing the 1986 Supreme Court decision Batson v. Kentucky, which states that using peremptory challenges to eliminate jurors based on their race contradicts the equal protection clause.[2] However, pursuant to a three-step procedure outlined in Batson, prosecutors presented ostensibly race-neutral reasons for striking the black jurors; these reasons were accepted by a trial judge, overriding Foster’s challenge. Not until after Foster’s counsel obtained records documenting blatant racial discrimination by the prosecution — including the labeling of some black jurors as B#1, B#2, and B#3 — did the Supreme Court grant certiorari to hear Foster’s case, and, after months of deliberation, rule in his favor.[3]

In retrospect, the Supreme Court’s verdict — recognizing that, under Batson, the prosecution’s actions were in clear violation of equal protection — seems like a no-brainer. After all, the racial discrimination in the peremptory strikes by Georgia’s prosecutors was quite evident and extensively documented (including the highlighting of all the potential black jurors’ names on a list); additionally, the rationale they used to counter the Batson challenge was faulty (factors such as age that had supposedly justified the removal of black jurors were ignored for white jurors).[4] During the hearings, Justice Elena Kagan remarked, “[this is] as clear a Batson violation as this court is ever going to see.”[5] Citing the 2008 case Snyder v. Louisiana, which addressed a similar issue, Chief Justice John Roberts wrote in the majority opinion: “We are left with the firm conviction that the [peremptory] strikes ... were ‘motivated in substantial part by discriminatory intent.’”[6] Thus, when looked at individually, Foster delivers a sound verdict, giving the accused another chance at justice — with the impartial jury and equal protection he is constitutionally entitled to.

However, the particularly egregious nature of the racial discrimination in Foster also casts doubts on whether or not the decision itself can be reliably harnessed as judicial precedent to bolster future challenges to more insidious forms of racism in the courtroom, ultimately limiting the scope of its implications. Most glaringly, the fundamental limitations of the Batson decision were not addressed — specifically, the ease with which a prosecutor can offer race-neutral explanations to disguise racial prejudice in response to a Batson challenge, as well as the willingness of judges (often former prosecutors themselves) to accept these explanations.[7] According to a 2010 report by the Equal Justice Initiative, some prosecutors are even trained to convincingly disguise racist motives for removing potential jurors.[8]

To address these tangible shortcomings, some have advocated eliminating peremptory strikes altogether. In his 1986 concurring opinion in Batson, former Justice Thurgood Marshall predicted that “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”[9] Justice Stephen Breyer concurs, having observed in Miller-El v. Dretke “the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge.”[10] There is certainly no constitutional mention or guarantee of peremptory challenges, and a unanimous 2009 Supreme Court decision maintained that “the loss of a peremptory challenge ... is not a matter of federal constitutional concern.”[11] Given the long history of racial bias in this country, juries curated by race may be inevitable as long as peremptory challenges exist. Thus, there is strong support for the notion that peremptory challenges should be eliminated and their role assumed by the “challenge for cause” procedure in jury selection, which would fulfill a similar role in the courtroom while preventing race-based strikes due to more intensive scrutiny from both judges and opposing counsel.

In short, Foster’s consequences are profound — perhaps not because of the decision itself, but rather because of the severe, debilitating shortcomings of Batson that the facts of Timothy Foster’s ordeal necessarily imply. These shortcomings effectively allow prosecutors to exploit human prejudice while selecting a jury, and perpetuate the inevitable racism of peremptory strikes.

Perhaps Foster v. Chatman should be interpreted as another wake-up call to those still ambivalent about mass incarceration and America’s punitive criminal justice system. It certainly serves as a reminder of a jury’s vulnerability to bias and discrimination, as well as the immense discretion and considerable impunity that prosecutors regularly exercise and enjoy. But unfortunately, with over two million human beings already languishing in prisons or on death row, such a warning comes far too late.

[1] Foster v. Chatman, 578 U.S. ___ (2016).

[2] Batson v. Kentucky, 476 U.S. 79 (1986).

[3] Foster v. Chatman, Oyez, https://www.oyez.org/cases/2015/14-8349 (last visited Apr 1, 2018).

[4] “Foster v. Chatman”, Death Penalty Information Center, https://deathpenaltyinfo.org/fostervchatman (last visited Apr 1, 2018).

[5] Lopez, “A Supreme Court case about juries could have a big impact on racism in the justice system”, Vox (2016), https://www.vox.com/2016/5/23/11650830/foster-v-chatman-supreme-court-decision-ruling (last visited Apr 1, 2018).

[6] Foster v. Chatman, 578 U.S. ___ (2016).

[7] David Alan Sklansky, “Foster v. Chatman and the Folly of Peremptory Challenges”, Stanford Law School, https://law.stanford.edu/2016/05/25/foster-v-chatman-and-the-folly-of-peremptory-challenges/ (last visited Apr 1, 2018).

[8] “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” (2010), https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf (last visited Apr 1, 2018).

[9] Batson v. Kentucky, 476 U.S. 79 (1986).

[10] qtd. in “Jury selection, peremptory challenges and discrimination” (2009), American Psychological Association, http://www.apa.org/monitor/2009/01/jn.aspx (last visited April 1, 2018).

[11] Rivera v. Illinois, 556 U.S. 148 (2009).