With President Bush’s two appointees in the majority, the U.S. Supreme Court this week righted an injustice by ordering a new trial for a black death row inmate convicted by a jury from which African Americans were excluded. Unfortunately, the high court can’t correct every miscarriage of justice. A surer safeguard would be the abolition of so-called peremptory challenges that allow prosecutors stealthily to secure all-white juries.
In 1996, Allen Snyder was convicted by a Louisiana jury of murdering his estranged wife’s boyfriend. The jury voted for the death penalty after the prosecutor compared the case to the O.J. Simpson trial, in which, he said, the defendant “got away with it.” At oral arguments in December, Chief Justice John G. Roberts Jr. asked a lawyer for the state: “Do you think the prosecutor would have made the analogy if there had been a black juror on the jury?”
No one can know for sure, because the prosecutor made sure that all five African Americans of a 36-member jury pool were removed through peremptory challenges, which, unlike challenges “for cause,” require no explanation. In 1986, however, the Supreme Court ruled that peremptory challenges based on race were unconstitutional. Henceforth, if the defense suspected that a juror was being stricken because of his or her race, the judge could demand a “race-neutral” explanation, however flimsy.
In Snyder’s case, the prosecutor said he removed Jeffrey Brooks, a black college student, out of a fear that Brooks would be in a rush to return to his student-teaching obligations and might resist voting for a first-degree murder verdict that would prolong his service. In fact, a university official had told the judge’s staff that he had no problem with Brooks serving. The Supreme Court this week rejected that explanation in a 7-2 decision. In the majority opinion, also signed by Roberts, Justice Samuel A. Alito Jr. noted that the prosecutor accepted white jurors with scheduling conflicts “at least as serious as Mr. Brooks’.”
Welcome as this ruling is, it won’t prevent prosecutors in innumerable other cases from concealing racial bias in jury selection. The way to end that abuse, as Justice Stephen G. Breyer argued in a 2005 case, is to do away with all peremptory challenges, requiring prosecutors and defense attorneys alike to challenge jurors only for cause. The court should use its authority under the Constitution to mandate that change the next time it encounters a case in which a challenge for “no reason” is a challenge for the worst reason of all.