The End of Purposeful Discrimination: The Shift to an Objective Batson Standard

In Batson v. Kentucky, the U.S. Supreme Court instituted a three-step analysis to prohibit the discriminatory use of peremptory challenges in jury selection. Many courts and advocates have criticized that analysis as confusing, ineffective, and impervious to implicit discrimination. As a result, courts have modified the Batson analysis many times in its thirty-year history. Since 2018, however, numerous state courts adopted a reformed Batson standard that fundamentally changes the use of peremptory challenges. Most significantly, the rule lowers the prima facie showing of discrimination at step one, lists “presumptively invalid” justifications for challenges at step two, and requires courts to determine only if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge” at step three. Other state courts are using jury selection task forces to consider if they should adopt the objective Batson standard in their jurisdiction. This Note analyzes the recent Batson reforms in Washington, California, and Connecticut, the earliest states to adopt a version of the objective Batson standard, and argues that, despite the efficacy of the objective observer standard in eliminating some discriminatory challenges, it poses significant burdens on litigants, courts, and communities at large. As an alternative to that standard, this Note concludes that jurisdictions should instead abolish the use of peremptory challenges outright and engage in comprehensive jury reform, including public jury selection databases, more precise juror summoning, and targeted juror outreach and education efforts to systemically underrepresented communities.