Today, the state of Texas plans to execute James Broadnax, a Black man who challenged the state for its discriminatory use of peremptory strikes to exclude every Black juror at his trial, in violation of the U.S. Supreme Court’s landmark decision in Batson v. Kentucky (1986). Barring a last-minute stay, Mr. Broadnax’s execution will coincide with the 40th anniversary of Batson that put race at the forefront of the jury selection process.
An 1887 cartoon invokes racist stereotypes in depicting a jury of Black people.
Racial bias in jury selection has been a feature of capital punishment throughout American history. In states across the south, 18th century laws strictly limited jury participation to white male property owners. The Constitution denied Black people the right to serve on juries and the right to a trial by jury by deeming enslaved Black people as property. It was not until the year 1880 in Strauder v. West Virginia that the U.S. Supreme Court affirmed the legal right of Black men to serve on juries. However, the intentional exclusion of Black people from juries persisted. In Norris v. Alabama (1935), the Supreme Court heard arguments on the discriminatory exclusion Black people from a capital jury. Chief Justice Charles Evans Hughes, delivering the opinion, concluded, “Whenever, by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States.” Later, in Swain v. Alabama (1965), the Court again heard the case of a Black man sentenced to death for rape by an all-white jury, in a countywhere no Black person had served on a jury in over a decade. The Court held that the exclusion of potential Black jurors was not evidence enough, on its own, to prove a violation of equal protection; a defendant was also required to show that prosecutors had purposefully discriminated against Black jurors in his own case and systematically discriminated against Black jurors in other cases. However, it soon became apparent that the Swain test created an all-but-impossible burden for defendants to meet. Not a single defendant prevailed on a claim of race discrimination in jury selection under the Swain test for the next twenty years.
A headline in the March 14, 1903, issue of South Carolina’s Lancaster Ledger newspaper reported the U.S. Supreme Court’s decision in Brownfield v. South Carolina, 189 U.S. 426 (1903).
Decades post-Swain, the systematic exclusion of Black potential jurors was, again, confronted in Batson v. Kentucky (1986). James Kirkland Batson, a Black man, was charged with second-degree burglary and receipt of stolen goods. During voir dire, the prosecutor used his peremptory challenges — once called by Author Morris B. Hoffman “the last best tool of Jim Crow” — to exclude all Black jurors from the venire, resulting in an entirely white jury. Mr. Batson challenged the removal of the Black potential jurors as a violation of the Equal Protection Clause under the Fourteenth Amendment. The defense’s motion to discharge the jury based on discrimination was denied at trial, and Mr. Batson was convicted on both counts.
On appeal to the U.S. Supreme Court, the Court held that race-based peremptory strikes during jury selection were unconstitutional under the Equal Protection Clause and implemented a new three-part test for proving racial discrimination: (1) the defendant must establish a prima facie showing that the prosecutor excluded people of color; (2) the burden then shifts to the prosecutor to provide a race-neutral reason for striking the challenged jurors; (3) the trial court considers whether there is evidence that the race-neutral explanation is a pretext for discrimination. In a concurring opinion, Justice Thurgood Marshall wrote:
I join Justice Powell’s eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. The Court’s opinion cogently explains the pernicious nature of the racially discriminatory use of peremptory challenges, and the repugnancy of such discrimination to the Equal Protection Clause. The Court’s opinion also ably demonstrates the inadequacy of any burden of proof for racially discriminatory use of peremptories that requires that “justice … sit supinely by” and be flouted in case after case before a remedy is available. I nonetheless write separately to express my views. 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.
The Limits of Batson: Why Legal Protections Fell Short
Cases like Gamble v. State (1987), Foster v. Chatman (2015) and Flowers v. Mississippi (2019) show the potential power of Batson, but many more cases during the last 40 years show that Justice Marshall correctly predicted the limited impact of the decision.
Research supports the reality that discriminatory jury selection processes lead to unpredictable and discriminatory outcomes. Law professor Ann Eisenberg observes “Unrepresentative juries are also particularly problematic in capital cases. Most critically, death-qualified juries are more inclined to return convictions and death sentences, undermining defendants’ rights to an impartial jury.”
Prosecutors have learned — and some have been specifically trained — to successfully defend race-based challenges in the 2nd step of the Batson test by offering subjective and “unverifiable assertions” for their decision. A report from the Equal Justice Initiative (EJI) examined jury selection decisions across southern states and found that Black people have been excluded “because they appeared to have low intelligence; wore eyeglasses; were single, married, or separated; or were too old for jury service at age 43 or too young at 28. They have been barred for having relatives who attended historically black colleges; for the way they walk; for chewing gum; and, frequently, for living in predominantly black neighborhoods.”
There is abundant evidence showing intentional efforts to disproportionately exclude jurors and conceal their racial bias. The EJI report identified North Carolina Conference of District Attorneys training sessions in 1995 and 2011 that taughtprosecutors how to strike Black prospective jurors without triggering judicial scrutiny. Another finding included a 2004 Texas District and County Attorney Association trial skills course that encouraged prosecutors to offer reasons like “watching gospel TV programs” and “views in favor of the O.J. Simpson verdict” to justify strikes against Black jurors — all of which are designed to deny meaningful participation to Black people in jury proceedings.
In his Batson concurrence, Justice Marshall warned of the shortcomings of the test in identifying bias:
“It is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.” A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported…Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels — a challenge I doubt all of them can meet.”
In a 2024 interview with DPI, discussing the impact of Batson, Clinical Professor of Law at the University of California-Berkeley Elisabeth Semel gave its impact an F grade.
[Batson] certainly has failed to achieve its promise. Its promise was to eliminate race discrimination in the exercise of peremptory challenges…but it has failed the defendants who have been tried since Batson. And by that I mean, particularly defendants of color, and it has failed prospective jurors, that is citizens of this country, especially Black citizens, in their right to serve as jurors in criminal and civil cases.
Statistical Patterns of Exclusion
Curtis Flowers, who was exonerated after enduring 6 capital trials before all-white or nearly all-white juries
Motivated by the clear evidence of racial bias in jury selection in Flowers v. Mississippi, a March 2026 study analyzed criminal trial data from 1992 – 2017 from Mississippi’s Fifth Circuit Court. Looking at juror strike rates within that jurisdiction, it found that Black potential jurors face nearly 7 times the odds of being struck compared to similarly situated white jurors. In the 2025 report Fatal Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury, the ACLU references astudy of South Carolina capital trials that occurred from 1997 to 2012, finding that 32% of Black potential jurors were excluded based on their opposition to the death penalty, compared to only 8% of white potential jurors. Similarly in Wake County, North Carolina, Professors Catherine M. Grosso and Barabara O’Brien’s analysis of eleven capital trials between 2008 and 2009 discovered that 57% of eligible Black women were removed through prosecutors’ peremptory strikes, compared to 28% of all other eligible venire members. Although Black individuals represented just 18% of the potential juror pool, they accounted for peremptory strikes at a rate of 51%, whereas white individuals — who made up 82% of the pool — were struck at a significantly lower rate of 25%.
Research shows that a whiter jury pool results in an increased likelihood of a death sentence, particularly for Black defendants, and lower quality deliberations in cases involving Black defendants. Having at least one Black man on the jury reduced the likelihood of a death sentence in cases with Black defendants and white victims by almost thirty percent.1
DPI has identified at least 68 cases across 16 states in which a court vacated a conviction or death sentence based on jury discrimination.
Batson Today: Ongoing Legal Battles and Reforms
To remedy the failures of Batson, in 2022 the Arizona Supreme Court abolished peremptory strikes to “counter racial exclusion in the selection of juries after decades of federal inaction.” By implementing what is called “Batson-plus” standards that require “heightened scrutiny” on whether a peremptory strike is “impermissibly discriminatory,” these new procedures focus on the disparate outcomes rather than discriminatory intent. Professor Khiara M. Bridges of UC Berkeley Law School commented on these new standards:
[N]onwhite people cannot expect the courts to intervene in the race-neutral processes that do most of the heavy lifting of reproducing racial disadvantage and reiterating racial hierarchy in the post-Civil Rights Era.
One other death eligible state, California, followed suit in 2020, implementing an objective observer test. Rather than requiring proof of “purposeful discrimination,” the procedure “[questions] whether such an objective observer could find that ‘implicit, institutional, and unconscious biases…[resulted in the unfair exclusion of potential jurors in the state].” This considers what an external observer could reasonably perceive, separate from the attorney’s reason for the exclusion.
Despite overwhelming evidence of Batson’s shortcomings, many lawyers support continued use of peremptory strikes. One claimed that eliminating peremptory strikes signals the “loss of faith in America.”
On March 31, 2026 the actions of Mississippi officials were again challenged at the U.S. Supreme Court in Pitchford v. Cain. Terry Pitchford was convicted of capital murder in a county that was about 40% Black at the time. The district attorney used peremptory challenges to remove four potential jurors — all of whom were Black — for reasons such as the venirepersons’ criminal histories, perceived mental health issues, or similarities to the defendant. These reasons were ultimately deemed “race-neutral” by the trial judge. At the center of this case is Doug Evans, a Mississippi district attorney whose conduct has drawn repeated scrutiny. DA Evans was the same prosecutor excoriated by the Supreme Court in 2019 for repeatedly and illegally striking Black jurors in the prosecution of Curtis Flowers.
The defense team argued these strikes violated Batson. However, the state’s highest court rejected the argument and ruledthat Mr. Pitchford waived his Batson claim by failing to offer arguments rebutting the prosecutor’s stated “race-neutral” explanations for striking the four Black venire members. The U.S. Supreme Court is now considering whether the trial court correctly permitted the empaneled jury — without the four Black people — to convict and sentence Mr. Pitchford to death. Missing from the oral argument was any mention of the principles of fairness and equal protection that underpin the Batson decision. A decision is expected by summer 2026.
Unless a Texas court steps in, today, on the 40th anniversary of Batson, a ruling that was intended to “…enforce[s] the mandate of equal protection and further[s] the ends of justice,” will also be the day James Broadnax will be put to death. Despite the evidence of abuse of peremptory strikes to eliminate every Black juror from his trial, declarations from three Black venire members confirming their “pretextual” exclusion, and a “race-marked” juror spreadsheet evidencing systematic exclusion of Black potential jurors, Mr. Broadnax’s petition for certiorari based on these findings was denied three days ahead of his scheduled execution.
Rosel, M. R. (1999). The peremptory challenge accused of race or gender discrimination? Some data from one county. Law and Human Behavior, 23(6).Davis Vanguard. (2026). Batson challenge and jury selection. Retrieved from https://davisvanguard.org/2026/04/batson-challenge-jury-selection/Columbia Law Review. (n.d.). The end of Batson? Rulemaking, race, and criminal procedure reform. Retrieved from https://www.columbialawreview.org/content/the-end-of-batson-rulemaking-race-and-criminal-procedure-reform/New Jersey Courts. (n.d.). Attachment D: Jury reforms. Retrieved from https://www.njcourts.gov/sites/default/files/attorneys/jury-reforms/attachmentd.pdf
