Fixing Forty Years of Failure: Objective Solutions to Batson’s Subjective Shortfalls

Authors

• Katherine E. Donoghue, Stetson University College of LawFollow

Abstract

It is a sunny afternoon in rural Georgia. A young Black man goes for a jog. On his route, he crosses the train tracks and heads into a predominantly White neighborhood. As his sneakers rhythmically hit the pavement, he hears the rev of a pickup truck behind him. Shortly after, he hears a second truck. The young jogger picks up his pace, but so do the trucks. The trucks chase him and eventually surround him. Two White men get out with shotguns. One stands ready, barrel raised. The other approaches the jogger and fires a bullet into his chest.

That is the story of Ahmaud Arbery’s murder in February 2020. During jury selection at his killers’ trial the following year, defense counsel removed almost every Black juror eligible to serve. The prosecutor made a Batson challenge, but the judge denied it. Despite finding there had been “intentional discrimination,” the judge said defense counsel had provided “race-neutral” reasons for removing the Black jurors. Although the judge made clear he did not “feel like” those were the true reasons, he said Batson’s “limitations” prevented him from finding otherwise.

For forty years, the Batson test has consistently failed to remedy the problem it attempted to solve—racial discrimination in jury selection. This Article explores the well-known failures of Batson and boils them down to one word —subjectivity. It discusses solutions that have been proposed to fix the problem, including eliminating peremptory challenges entirely. However, this Article explains that peremptory challenges play an important role in our adversarial system, and we do not need to throw the proverbial baby out with the bath water to fix this problem. Rather, this Article analyzes how four states have recently created objective solutions to Batson’s subjective problem, fulfilling the promise of Equal Protection that Batson aspired to achieve but fell short of delivering.

Disciplines

Civil Rights and Discrimination | Courts | Criminal Procedure | Law and Race

Recommended Citation

Katherine E. Donoghue, Fixing Forty Years of Failure: Objective Solutions to Batson’s Subjective Shortfalls, 47 Cardozo L. Rev. 1173 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss4/16