In 1963, James Baldwin, literary giant and social critic, wrote perhaps the most astute analysis of the American racial dichotomy, titled The Fire Next Time.^[i] Baldwin closes the book with the following prophecy of the biblical story of Noah that was later recreated in the song of a slave: “God gave Noah the rainbow sign, No more water, the fire next time!”^[ii] In the biblical tale of Noah’s ark, God cursed the earth.^[iii] However, God declared Noah and his descendants a species to never be destroyed. Noah was predestined to lift this curse. In order to survive the oncoming flood that was to destroy the earth, Noah built an ark.^[iv] In poetic fashion, Baldwin uses Noah’s survival of the disastrous storm, and the rainbow that followed as a metaphor to warn America that if she fails to rise from the racial nightmare and achieve her country; God’s wrath will be in the form of fire next time.^[v]

In 1986, the United States Supreme Court held in Batson v. Kentucky that the Constitution does not permit the use of racially discriminatory use of peremptory challenges.^[vi] However, thirty years after Batson, and countless misapplications of Batson, have allowed the racially motivated use of peremptory challenges to plague our jury system.^[vii] This notion is one that Justice Thurgood Marshall forewarned us of in his concurring opinion in Batson, where he reasoned that, “[t]he 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.”^[viii]

In Foster v. Chatman, there was a capital murder case involving an elderly white victim and a black defendant, in which the prosecution struck all four black prospective jurors.^[ix] During the state habeas proceeding, Foster gained access to the prosecution’s jury selection notes under the Georgia Open Records Act. These notes detailed an elaborate plan to deliberately exclude black prospective jurors. In spite of this compelling evidence of racial discrimination, the Georgia courts, yet again, denied Foster’s Batson challenge.

This Note argues that although the Supreme Court held in Foster that the State’s striking of two black prospective jurors were racially motivated, the fact-specific majority opinion in Foster, fails to expand the protections of Batson and furthers the racism that peremptory strikes inject into the jury system. As the Court continues to misapply Batson, blacks remain woefully underrepresented within one of the most integral parts of America civic life, the jury process. Accordingly, we are left with no choice, but to acknowledge Justice Marshall’s warning that there is no jurisprudential test that can remove racial discrimination from our jury system. Thus, this Note concludes that in order to escape the wrath of the fire next time, peremptory challenges must be eliminated entirely.

 Before the Storm

The jury system is a central part of the American democracy. The right to trial by jury is embedded within the fibers of several fundamental legal documents in American society. Despite being lauded as a political system committed to principles of justice and equality, without context, one could easily ignore the American jury system’s legacy of contradictions. Today, racial discrimination and exclusion within the jury selection process is widespread, perhaps more than any other civic arena, and continues to obstruct the administration of justice.

During the Civil War era, jury service was reserved, almost universally, to white men.^[x] In many jurisdictions, state officials codified race-based jury requirements, which excluded African-Americans from jury service for an additional hundred years. Consequently, African-American participation in the jury selection process became part of the American political discourse. Black Americans began organizing behind a movement for representative trial juries. Markedly, Congress passed the Civil Rights Act of 1875 barring racial discrimination in jury service.^[xi]

A. Empty Rhetoric: Strauder v. West Virginia

In 1880, in Strauder v. West Virginia, the United States Supreme Court invalidated a state law that reserved jury service solely to white men.^[xii] Here, the Court held that the purposeful exclusion of black prospective jurors constituted a denial of the Equal Protection Clause. Consequently, the Court reasoned that juries should consist “of the peers or equals of the person whose rights it is selected or summoned to determine.” ^[xiii]  Seemingly, this decision served as one of the earliest frameworks for eliminating the exclusion of blacks from the jury selection process. However, in effect Strauder had no appreciable impact on the erasure of Blacks from the jury selection process. Despite its rhetorical force, state officials committed to the precepts of white supremacy, easily bypassed Strauder.  In fact, post-Strauder, several states adopted facially neutral means of excluding blacks from jury rolls.^[xiv] For instance, some jurisdictions implemented exclusionary jury service requirements such as intelligence, experience, or good moral character. These exclusionary efforts are part and parcel of a larger systemic effort that continues to plague our criminal justice system. In application, these requirements represented “no blacks allowed” policies; thus, racial exclusion reigned supreme.^[xv]

B. A Crippling Burden of Proof

By the 1960’s, blatant racial exclusion from jury lists and venires had diminished. Although this may be true, by this time, jury discrimination had taken a different form. Increases in minority inclusion on jury lists were foiled by the discriminatory use of peremptory challenges. In 1965, Swain v. Alabama marked the first time the United States Supreme Court examined the racially motivated use of peremptory challenges.^[xvi]

Robert Swain, a black man, was tried and convicted by an all-white jury panel.^[xvii] However, this case presented a more nuanced racial dilemma. In Talladega County, Alabama, no African-American had served on jury in a criminal or civil trial since 1950.^[xviii] Despite being included on jury pool lists in Talladega County, the racially motivated use of peremptory strikes ensured the erasure of black prospective jurors. During his trial, Swain moved to quash the State’s jury selections. Swain claimed that the State’s use of peremptory strikes were racially discriminatory. However, the trial court, and later the Alabama Supreme Court denied the motion. The United States Supreme Court granted certiorari.^[xix]

Swain contended that the State’s deliberate removal of jurors on the basis of race violated the Equal Protection Clause. In support of his claim, he provided data evidencing that since 1950, no African-American had served on a trial jury. In spite of this evidence, the Supreme Court held that Swain failed to prove that the State intentionally discriminated against black potential jurors.^[xx] Here, the Court established a crippling standard for proving discriminatory intent. Under this standard, in order to prove racial discrimination the moving party must compile information from numerous cases that evidences a long-standing pattern of systemic discrimination. The impracticality of the Swain standard was heavily criticized and rejected by numerous state courts.^[xxi] For this reason, in twenty years no litigant successfully argued a Swain claim. Post-Swain, the systemic racial exclusion of black from jury pools continued.^[xxii]

C. The Peremptory Problem

In 1986, the Supreme Court revisited the issue of prosecutors’ racially motivated use of peremptory challenges to exclude blacks from the jury selection process in Batson.^[xxiii] James Batson, an African-American male, was tried and convicted by an all-white jury. During the jury selection process, the State used its peremptory challenges to strike all four black prospective jurors. Subsequently, Batson moved to discharge the jury, claiming that the State’s removal of the black prospective jurors was racially motivated. The trial court denied the motion, and the Kentucky Supreme Court upheld the lower court’s finding. The United States Supreme granted certiorari.^[xxiv]

The Supreme Court upheld the Swain ruling that the Equal Protection Clause forbids prosecutorial use of peremptory challenges to exclude potential jurors solely on account of race. ^[xxv] The Court lowered the burden of proof established in Swain, to a presumably less burdensome standard. In support of this shift, the majority noted that “Swain has placed on defendants a crippling burden of proof, prosecutors’ peremptory challenges are now largely immune from constitutional scrutiny.” This ruling made proving claims of discriminatory peremptory strikes virtually impossible.^[xxvi]

In an attempt to repair the Swain court’s blunder, the majority held that a defendant can prove purposeful racial discrimination based on the inference of discriminatory use of peremptory challenges.^[xxvii]  In order to establish a case, first, the defendant must show that he is a member of a clearly identifiable racial group, and that the prosecution has struck members of the defendant’s race, and that his racial group is one capable of being singled out.^[xxviii] In proving establishing its case, a defendant may prove the following: that members of his race have been excluded from jury service for an extended period of time, or that members of his race have been systemically excluded from the jury process.^[xxix] Moreover, the defendant may rely on the fact that peremptory challenges allow individuals to possess a discriminatory intent. Finally, the defendant must show that these facts give the inference that the prosecution has excluded jurors on the basis of race.^[xxx]

After the defendant has successfully established a prima facie case, the burden shifts to the prosecution to supply a race-neutral justification for the strike.^[xxxi] Theoretically, this burden reflected a shift away from the requirement to show a long-standing pattern of racism required by Swain. Seemingly, in Batson, the Court attempted to enforce the core guarantees of the Equal Protection Clause. However, this finding did not apply retroactively. Thus, defendants whose appeals were competed prior to 1986 were denied the protections of Batson, even if their case demonstrated a noticeable violation of the Constitution.^[xxxii] 

In effect, the application of the Batson standard has proliferated the problem of racial discrimination in the jury selection process. In failing to establish more stringent requirements for race-neutral justifications, state courts have accepted baseless justifications for striking jurors.^[xxxiii] Justice Thurgood Marshall cogently echoes these shortcomings in his Batson concurrence.^[xxxiv]

Forecasting the Storm

Justice Thurgood Marshall agreed with the Batson majority’s decision to overturn the holding in Swain, and he noted that the Batson decision signified an important step in eliminating the abhorrent practice of racial discrimination in the jury selection process.^[xxxv] However, Justice Marshall reasoned, “the [majority] opinion also ably demonstrates the inadequacy of any burden of proof for racially discriminatory use of peremptories . . . .”^[xxxvi] In other words, there is no jurisprudential test which can remove the racially discriminatory use of peremptory challenges from the jury selection process. Moreover, Justice Marshall forcefully reasoned jurisprudential tests “requires that justice [] sit supinely by[] and be flouted” as racial discrimination continues to wreak havoc on the jury selection process.^[xxxvii] Thus, Justice Marshall opined that the goal of eliminating racial discrimination “can be accomplished only by eliminating peremptory challenges entirely.”^[xxxviii]

In support of this conclusion, Justice Marshall pointed to the shortcomings of states that had codified the standard adopted in Batson prior to that decision, and countless lower court blunders.^[xxxix]  First, Justice Marshall explained that, absent incidents of blatant racial discrimination, defendants cannot attack prosecutorial use of peremptory challenges, leaving “prosecutors free to discriminate against blacks in jury selection.”^[xl] Second, he pointed to the trial court’s difficulty in determining the prosecutors’ intent in cases where the defendant does, in fact, establish a prima facie case. He warned his fellow justices that, under this standard, trial courts would be unable to examine the easily generated race-neutral justifications for striking a juror provided by prosecutors. Finally, he emphasized the role racism has in influencing the, conscious and subconscious, logic of the prosecutors’ decision-making process. He reasoned that prosecutors may be led, to believe that a prospective black juror is more “distant” or “sullen” than a white juror who exhibits similar behavioral patterns.^[xli]  Also, Justice Marshall pointed to the inevitability of peremptory prejudice by noting that even the best-intentioned individuals are placed with the virtually impossible burden of overcoming their own racism.^[xlii]

History dictates that Justice Marshall’s concerns with the Batson holding was well placed. Today, countless defendants have been convicted and in many cases executed as a result of the shortcomings in Batson.^[xliii] Despite sizeable evidence of uracial discrimination in the jury selection process scores of people have been erased, socially and literally, from American life.

The Flood: Foster v. Chatman

In 1986, Georgia law enforcement officials arrested Timothy Foster, a black male, for the murder of Queen White following a tip given by Foster’s significant other.^[xliv] Officers found White’s possessions in Foster’s home. During police interrogations, Foster confessed to the murder and burglary. Foster was indicted and charged by the State of Georgia with malice murder and burglary.^[xlv]

During the jury selection process, counsel for the State and defense reviewed questionnaires completed by each prospective juror. Both sides were given the opportunity to question each of the ninety prospective jurors and exercise challenges for cause. In the second phase of jury selection, both parties were given the opportunity to use peremptory challenges. During this phase, the State struck all four of the remaining black jurors. Accordingly, Foster timely raised a Batson challenge claiming that the State’s striking of the four remaining black jurors was racially motivated. The trial court found that the defense proved a prima facie case. Thus, the prosecution was required to justify the exercise of the peremptory challenges. The trial court held that the State successfully justified its use of peremptory strikes. Later, the jury found Foster guilty of all charges and sentenced him to death.^[xlvi]

A. Denial at Every Turn

Following his conviction, Foster reasserted his Batson claim by motion for a new trial.^[xlvii] However, after an evidentiary hearing, the trial court denied Foster’s motion for a new trial. Later, Foster appealed the lower court’s determination, raising numerous reasons why the lower court’s finding was, in fact, erroneous. The Georgia Supreme Court granted certiorari. ^[xlviii]

First, Foster contended that the trial court erred by excusing one prospective juror for cause, instead of the other eight prospective jurors. Here, the Court held that Foster’s contention was without merit.^[xlix] In making its determination, the Court explained that the evidence presented by Foster indicated that some of these prospective jurors knew the victim. Nevertheless, the Court reasoned that because the jurors were not close to the victim, and testified that they could be fair and impartial if empaneled, the trial court did not err in overruling Foster’s challenges.^[l]

Second, Foster contended that the trial court erred in finding that the State successfully rebutted the prima facie case.^[li]  The Georgia Supreme Court held that in explaining the use of a peremptory strike need not rise to the level of a challenge for cause.^[lii] Instead, the explanation must be neutral, related to the case, and reasonably specific. Here, the Court reasoned that the lower court did not err in finding the State’s explanation sufficiently neutral and legitimate. Moreover, the Court reasoned, pursuant to Batson, the trial court’s ruling is entitled to “great deference.”^[liii]

Third, Foster contended that the trial court erred in denying his motion to review the prosecution’s jury-selection notes as exculpatory evidence under Brady v. Maryland.^[liv] However, the Court held that the trial court did not err in denying Foster’s post-trial motion. Here, the Court noted that a defendant’s right to exculpatory evidence under Brady does not extend to the State’s jury selection notes.^[lv] Thus, the Court deemed the prosecution’s jury-selection notes non-discoverable attorney work-product.^[lvi]

B. Turning a Blind Eye to Injustice

Foster reasserted his Batson claim by filing a writ of habeas corpus to the Superior Court.^[lvii] During this proceeding, Foster gained access to the prosecution’s notes under the Georgia Open Records Act. These notes included the following: Copies of the State’s jury venire list. Each black prospective jurors’ name was highlighted in green. An affidavit drafted by District Attorney Lanier in response to Foster’s motion for a new trial. The affidavit contained detailed notes reflecting Clayton Lundy’s, a state investigator, opinions of the black prospective jurors. In one of the notes, Lundy wrote the following:

If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . .if we had to pick a black juror I recommend that [this juror] be one of the jurors.^[lviii]

Notes on three black prospective jurors listed, as “B#1,” “B#2,” and “B#3.” A list of the remaining jurors after voir dire was completed. This list contained “Ns” next to ten jurors’ names, signifying the jurors that the State intended to strike during the jury selection process. These “Ns” appeared next to the names of the remaining five black prospective jurors. A document used in preparation for trial titled “definite NO’s” containing the names of all five black prospective jurors.^[lix]  A document titled “Church of Christ” with a note stating “NO. No Black Church.” Completed questionnaires of black prospective jurors; each questionnaire contained circles around the juror’s response indicating his or her race.  In response, the State provided short affidavits from Pullen and Lanier. Lanier stated,  “I did not make any of the highlighted marks on the jury venire list. . . [and] I did not instruct anyone to make the green highlighted marks.” Pullen’s affidavit similarly stated: “I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. [Also,] I did not rely on the highlighted jury venire list in making my decision on how to use my [strikes].”^[lx]

After reviewing the State’s jury selection notes, the Court denied Foster’s Batson claim. Here, the Court held that Foster’s claim was barred under the doctrine of res judicata because it had been raised and denied on appeal to the Georgia Supreme Court. Despite its procedural finding, the Court reviewed Foster’s Batson claim, holding that it was without merit because Foster failed to supply evidence of purposeful discrimination. Accordingly, the Court turned a blind eye to a laundry list of juror discrimination. Thus, for the second time, Foster filed a writ of certiorari to the United States Supreme Court, which was granted.^[lxi]

C.  Justice Robert’s Majority Opinion

Justice John Roberts, writing for the majority, began by addressing the unique route the case took from the lower courts of Georgia to the Supreme Court.^[lxii]  Accordingly, Justice Roberts noted that the state court erred with respect to the issue of res judicata. Next, the majority shifted its focus to the third prong of Batson. The Court was left to make a factual determination as to whether Foster had proved purposeful discrimination. Despite, the questions regarding the authorship of the prosecution’s notes, the majority stated that it could not be oblivious to the existence of these documents. Ultimately, the Court established that, at a minimum, someone from the district attorney’s office authored all of the documents.^[lxiii]

1.  A Multitude of Misrepresentations

In addressing Foster’s Batson claim, the majority focused on the State’s striking of  black prospective jurors, Marilyn Garrett and Eddie Hood.^[lxiv] In examining the State’s strike of Marilyn Garrett, the Court examined the following justifications: she worked with disadvantaged children in her job; she kept looking at the ground during questioning; she gave short answers during voir dire; she looked nervous;  she was too young;  she misrepresented her familiarity with the location of the crime; she did not disclose that her cousin had been arrested on a drug charge;  she was divorced;  she had two children and two jobs; she was asked questions by the defense; and  she did not ask to be excused by the jury.^[lxv]

After reviewing these justifications, the majority found that although the State’s reasons for the strikes seem plausible, they were not grounded in fact.^[lxvi] The Court further noted that Lanier had made several misrepresentations to the trial court. For example, the Court pointed to the State’s account that Garrett was a last-minute race-neutral choice. However, Garrett was one of the six names listed on its “definite NO’s” file. The Court noted that the State was committed to excluding every juror named on its “definite NO’s” list.^[lxvii] Moreover, the State attempted to rectify the discrepancy between its “definite NO’s” list and Lanier’s testimony as a case of misspeaking. However, the majority disagreed with this contention. Instead, the Court held that such “an intricate story expounded [in] writing, laid out over three single-spaced pages in a brief filed to the trial court,” could not be “some off-the-cuff remark.”^[lxviii]

Next, the majority highlighted other contradictory aspects of the State’s justifications for striking Garrett. Two of the justifications examined by the Court were of particular significance, as they evidenced a reckless disregard for the truth. First, Lanier told the trial court that Garret was struck because the State was in search of older jurors.^[lxix] However, at the time of the trial, Garrett was 34, and the State elected not to strike eight other white prospective jurors under the age of 36. Two of these white jurors were selected to serve on the jury. Second, Lanier testified that he struck Garrett because “she was less than truthful” regarding her place of residence and familiarity with the location of the victim’s residence. In support of this testimony, the State directed the trial court’s attention to Garrett’s responses to during voir dire. Here, the Court explained that generally it would not take issue with the striking of jurors who were dishonest during voir dire.^[lxx] However, this justification was difficult to accept because the State accepted a similar response from a white prospective juror who lived less than 250 yards from the victim’s residence. Thus, the majority concluded that the State made a multitude of misrepresentations evidencing purposeful discrimination under Batson.^[lxxi]

2. A Commitment to Racial Discrimination

In addressing the State’s decision to strike Eddie Hood, the Court examined Lanier’s pretrial testimony in which he stated that Hood was the prototypical juror in terms of age, employment and marital status.^[lxxii]  First, the Court reviewed the following justifications provided by the State: Hood’s son had been convicted of a crime and was the same age as the defendant; Hood’s wife was employed by a mental health institution; Hood had food poisoning during voir dire; Hood responded slowly to questions; Hood was a member of the Church of Christ; Hood’s brother counseled drug offenders; the defense did not ask Hood enough questions; and Hood asked to be excused from the jury.^[lxxiii]

After reviewing these justifications, the majority held that the State’s justifications were baseless.^[lxxiv] In coming to this determination, the Court noted that the continual shift in the State’s justifications for striking Hood were pretextual. For instance, the Court highlighted the fact that during the pretrial hearing Lanier stated, the age of juror Hood’s son in relation to the defendant was their primary concern.^[lxxv] However, when Foster motioned for a new trial Lanier indicated that Hood’s membership to the Church of Christ, “was the most important factor behind the strike.”^[lxxvi] Consequently, the majority found that even if it were to find that Lanier merely misspoke, it would expect at least one of the two justifications to withstand scrutiny. Moreover, the Court reasoned that the State’s purported issues with Hood’s son were meritless because the State accepted two white prospective jurors, who had sons ages 17 and 20.

D. The Facilitation of Social Injustice

Justice Clarence Thomas, the only African-American on the Supreme Court, disagreed with his fellow justices in his Foster dissent. First, he noted that Foster’s claim was procedurally barred by res judicata. Accordingly, he reasoned that, “[the lower court] already considered [Foster’s] claim and rejected it decades ago. [Thus, prohibiting] Foster from raising the same claim anew in his state habeas petition.” Moreover, he dangerously reasoned in failing to procedurally bar Foster’s claim, the majority set a precedent that will allow, “state prisoners [to] raise old claims again and again until they are declared victorious and finality would mean nothing.”^[lxxvii] Next, Justice Thomas opined that the majority erred in finding merit in Foster’s Batson claim. Here, he reasoned that Foster’s Batson claim was a credibility determination for which the trial court’s initial finding, that the State’s strikes of Hood and Garret were reasonable, must be given great deference. In examining the State’s strike of Eddie Hood, Justice Thomas reasoned that his demeanor and ties to the Church of Christ evidenced that he may be less likely to impose the death penalty. With respect to the State’s strike of Marilyn Garret, Justice Thomas reasoned, the State’s fear that her work with low-income and underprivileged people, as well as her familial relation to someone with a drug or alcohol problem were reasonable grounds for the strike.^[lxxviii]

III.  Where There is Smoke, There is Fire

Although the Court in Foster held that the State’s strikes of two black prospective jurors were racially motivated, this author argues that the fact-specific majority opinion fails to expand the protections of Batson and furthers the racially motivated use of peremptory strikes as a device for excluding blacks from the jury process. Also, this author argues that race-neutral justifications supplied by state officials for striking black jurors have allowed racism to infect the American jury system.  Thus, this author recommends, in order to successfully eliminate racial discrimination from the jury selection process, peremptory challenges must be eliminated altogether.

A. Isn’t this as clear a Batson violation as a court is ever going to see?

The Foster majority opinion, as Justice Marshall stated in Batson, “ably demonstrates the inadequacy of a burden of proof for racially discriminatory use of peremptories.”^[lxxix] In an attempt to outlaw a prosecutor’s racially motivated use of the peremptory strike, the Foster majority opinion woefully missed the mark in expanding the Batson analysis. The Foster majority’s blunder is due, in large part, to the fact that Foster gained access to the prosecution’s jury selection notes, detailing an elaborate scheme of racial exclusion, twenty-nine years after he had been convicted. It is unlikely that a case with a similar factual scenario will ever present itself again. In fact, Justice Elena Kagan noted during oral arguments in Foster,  “isn’t this as clear a Batson violation as a court is ever going to see?”^[lxxx] In focusing its attention so closely to the factual evidence in Foster’s case, the majority did not further the scope of Batson. Consequently, absent incidents of blatant racial discrimination defendants cannot attack prosecutorial challenges at all, which leaves prosecutors free to discriminate against blacks in the jury selection process.  Thus, excluding cases where the defense gains access to the prosecution’s notes, detailing a plan to exclude black jurors, the impact of the Foster decision will be minimal.

 B. The Batson Charade

The Batson standard falls woefully short of its goal of barring racial discrimination from the jury selection process.^[lxxxi] As Justice Marshall forecasted in in Batson, prosecutors can easily circumvent the safeguards of Batson by asserting facially neutral justifications for striking a juror.^[lxxxii] In fact, numerous jurisdictions district attorney’s offices have developed training programs for its employees in an effort to purposefully exclude blacks from the juries.^[lxxxiii]

In 1987, Philadelphia Assistant District Attorney Jack McMahon recorded a training video where he is instructing prosecutors on how to circumvent the Batson safeguards while questioning black jurors during voir dire.^[lxxxiv] Similarly, during the 1990s, the North Carolina prosecutor’s association distributed pamphlets during its training sessions titled, “Batson Justifications: Articulating Juror Negatives.”^[lxxxv] In theory, the Batson standard was developed to eliminate the racially discriminatory use of peremptory strikes. However, not long after Batson, a consensus within the legal community soon formed around its shortcomings. In 1996, an Illinois appellate judge reasoned that the Batson process has become a charade by noting that prosecutors are probably given training manuals titled “Handy-Race-Neutral Explanations.”^[lxxxvi] Circumventing Batson has become a tool of choice for prosecutors across the country seeking to exclude black prospective jurors. In effect, the application of the Batson standard has proliferated the problem of racial discrimination in the jury selection process. In failing to establish more stringent requirements for race-neutral justifications, state appellate courts have accepted baseless justifications for striking jurors; and prosecutors across the country have been able to exclude jurors on the basis of race, under the guise of race-neutrality.^[lxxxvii]

When closely examined, the racially motivated use of peremptory strikes against blacks should come as no surprise. As blacks are the only immigrants to arrive in America against their own will in the form of property. The issue of race has presented itself at every turn of American history. The American court system, where color should be of no importance has been no different.  According to the Federal Bureau of Prisons, blacks are five times more likely to be incarcerated than whites.^[lxxxviii] Despite only representing 13.3 percent of the population, blacks represent more than half the prison population in eleven states. ^[lxxxix] Given the glaring racial disparities within the criminal justice system, prosecutors are more likely to believe that a black juror is less likely to side with the government. Thus, in order to successfully eliminate racial discrimination from the jury selection process, peremptory strikes must be eliminated altogether.

C. Stereotyping and Race-Neutral Justifications

Race-neutral justification supplied by prosecutors in cases where defendants have challenged the exclusion of blacks from juries has led to widespread underrepresentation of blacks on jury panels. Prosecutors commonly cite racial stereotypes such as low intelligence, lack of education, or living in a high crime area as justification for striking black jurors.^[xc] Although these types of justifications are not always recognized as pretexts for discrimination. There are instances were courts have upheld stereotypes as reasonable justifications. For instance, an Alabama court upheld a prosecutor’s strike of a black prospective juror for their affiliation with a historically black college.^[xci] Pretextual race-neutral justifications of this kind evidence a gross disregard for every citizen’s equal right to sit on a jury.^[xcii]  As it stands, trial courts have been unable to determine prosecutor’s intent in cases where the defendant does establish a prima facie case.^[xciii] Consequently, trial courts have been unable to examine the easily generated race-neutral justifications for striking a juror supplied by prosecutors.^[xciv] The application of the toothless Batson standard has proliferated the problem of racial discrimination in the jury selection process. Thus, in order to eliminate racial discrimination from the jury selection process, peremptory challenges must be eliminated altogether.

Conclusion

To ignore the peremptory problem, is to ignore a legacy of racial exclusion. To ignore the inevitability of peremptory prejudice, is to ignore the role that racism plays in informing the conscious and subconscious logic of prosecutors’ decision-making process. To ignore the erasure of blacks from the jury process, is to ignore the warnings of Justice Marshall and welcome the wrath of the fire next time. However, all is not lost, if we take heed to the words of Baldwin, and if we cease fleeing from reality and begin to change it, we can make America what America must become and avoid the fire the next time.