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Twins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes

By Samuel Buisman. Full Text.

While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially and sexually discriminatory peremptory juror strikes, the Court’s abysmal standard for nondiscriminatory strike justifications ensures only the egregious discrimination by uncreative lawyers is screened out. Moreover, the procedure’s subjective inquiry does nothing to cure for when a lawyer’s peremptory strike is motivated by implicit bias.

In reaction to these shortcomings, many states have adopted their own procedural methods to prevent discrimination in jury selection. Some states have chosen to raise the bar for what race- neutral reasons may justify a strike above the Supreme Court’s embarrassing floor. Others have shifted their Batson test from a subjective to an objective inquiry in an attempt to account for implicit bias. Arizona has taken the most drastic route and abolished peremptory strikes altogether. Minnesota, on the other hand, recognizes many of Batson’s failures but has done nothing to cure for them. Its courts still use peremptory strikes and apply the Supreme Court’s procedure and standards when one is challenged as discriminatory.

This piece argues that ending the practice of peremptory strikes is the most efficacious and feasible way for Minnesota to restore Batson’s protections in a manner that aligns with and advances its state-specific judiciary goals. First, the piece introduces the Batson case and its initial expansion. Next, the piece discusses two critiques of the Batson doctrine before surveying state solutions to these problems. Finally, the piece situates Batson in Minnesotan state court jurisprudence and argues the state’s express interest in eliminating implicit bias would be best served by eliminating peremptory strikes.