For Cause: Rethinking Racial Exclusion and the American Jury

Thomas Ward Frampton*

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of racial exclusion in criminal adjudication.

Challenges for cause are racially skewed, in part, because the Supreme Court has insulated the challenge-for-cause process from meaningful review. Scholars frequently write that jury selection was “constitutionalized” in the 1970s and 1980s, but this doctrinal account is incomplete. In the interstices of the Court’s fair-cross-section, equal protection, and due process jurisprudence, there is a “missing” law of challenges for cause. By overlooking challenges for cause, scholars have failed to notice the important ways in which jury selection remains free from constitutional regulation.

Challenges for cause as they exist today—effectively standardless, insulated from meaningful review, and racially skewed—do more harm than good. They hinder, more than help, the jury in its central roles: (1) protecting the individual against governmental overreach; (2) allowing the community a democratic voice in articulating public values; (3) finding facts; (4) bolstering the perceived legitimacy and fairness of criminal verdicts; and (5) educating jurors as citizens. We need to rethink who is qualified to serve as a juror and how we select them.

*Climenko Fellow and Lecturer on Law, Harvard Law School. This project benefited tremendously from feedback received during the Climenko “Half-Baked” Workshop, the Colorado Junior Criminal Law Workshop, CrimFest 2019, and several additional talks; many thanks to the participants and organizers. I’m indebted in particular to Valena Beety, Jon Booth, Ryan Copus, Jack Chin, Erin Collins, George Frampton, Aya Gruber, Eve Hanan, Sheri Lynn Johnson, Emma Kaufman, Michael Klarman, Benjamin Levin, Nancy Marder, Justin Murray, Patrick Mulvaney, William Ortman, Shaun Ossei Owusu, Anna Roberts, Mary Rose, Carol Steiker, William Thomas, Susannah Barton Tobin, and Ronald Wright. Part I of this Article builds on the extraordinary work of journalists at The New Orleans Advocate (particularly Jeff Adelson, Gordon Russell, and John Simerman) and American Public Media (particularly Will Craft). Many thanks to my research assistants—Zachary Buchanan, Madeleine O’Neill, and Gege Wang—and the team of editors with the Michigan Law Review.

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