HOLLAND v. ILLINOIS
No. 88-5050
Supreme Court of the United States
Argued October 11, 1989—Decided January 22, 1990
493 U.S. 474
Donald S. Honchell argued the cause for petitioner. With him on the briefs were Randolph N. Stone, Alison Edwards, and Ronald P. Alwin.
Inge Fryklund argued the cause for respondent. With her on the brief were Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, Terence M. Madsen, Assistant Attorney General, and Cecil A. Partee.*
JUSTICE SCALIA delivered the opinion of the Court.
The questions presented by this case are (1) whether a white defendant has standing to raise a Sixth Amendment
I
Petitioner Daniel Holland was charged in the Circuit Court of Cook County, Illinois, with aggravated kidnaping, rape, deviate sexual assault, armed robbery, and aggravated battery. According to his allegations, a venire of 30 potential jurors was assembled, 2 of whom were black. Petitioner‘s counsel objected to those of the State‘s peremptory challenges that struck the two black venire members from the petit jury, on the ground that petitioner had a Sixth Amendment right to “be tried by a representative cross section of the community.” App. 7-8. The trial judge overruled the objection, and petitioner was subsequently convicted of all except the aggravated battery charge. The convictions were reversed by the Illinois Appellate Court, First District, 147 Ill. App. 3d 323, 497 N. E. 2d 1230 (1986), on grounds that are irrelevant here, but on further appeal by the State were reinstated by the Illinois Supreme Court, which rejected petitioner‘s Equal Protection Clause and Sixth Amendment challenges to the еxclusion of the black jurors. 121 Ill. 2d 136, 520 N. E. 2d 270 (1987). We granted Holland‘s petition for certiorari asserting that the Sixth Amendment holding was error. 489 U. S. 1051 (1989).
II
The threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does.
In Batson v. Kentucky, 476 U. S. 79, 96 (1986), we said that to establish a prima facie Equal Protection Clause violation in the discriminatory exclusion of petit jurors, the defendant “must show that he is a member of a cognizable racial
“The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor‘s claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service.” Id., at 526.
Of course, in this case petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury—but that variation calls into question the scope of the Sixth Amendment guarantee, not his standing to assert it. We proceed, then, to the merits of the claim.
III
Petitioner asserts that the prosecutor intentionally used his peremptory challenges to strike all black prospective jurors solely on the basis of their race, thereby preventing a distinctive group in the community from being represented
We reject petitioner‘s fundamental thesis that a prosecutor‘s use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the “fair possibility” of a representative jury. While statements in our prior cases have alluded to such a “fair possibility” requirement, satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see Lockhart v. McCree, 476 U. S. 162 (1986); Duren, supra; Taylor, supra, and the use of a jury numbering at least six persons, see Ballew v. Georgia, 435 U. S. 223 (1978); Williams v. Florida, 399 U. S. 78 (1970). A prohibition upоn the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.
It has long been established that racial groups cannot be excluded from the venire from which a jury is selected. That constitutional principle was first set forth not under the Sixth Amendment but under the Equal Protection Clause.
“[I]t is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man оf his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?” Strauder, supra, at 309.
Four Terms ago, in Batson, we squarely held that race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage—not because the two stages are inseparably linked, but because the intransigent prohibition of racial discrimination contained in the Fourteenth Amendment applies to both of them.
“[The peremptory challenge] is often exercised . . . on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or natiоnality is in fact partial, but whether one from a different group is less likely to be.” Id., at 220-221 (citation and footnote omitted).
The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield
But to say that the Sixth Amendment deprives the State of the ability to “stack the deck” in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see
date the use of either for-cause or peremptory challenges to
The fundamental principle underlying today‘s decision is the same principle that underlay Lockhart, which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called “Witherspoon-excludables“) violates the fair-cross-section requirement. It does not violate that requirement, we said, to disqualify a group for a reason that is related “to the ability of members of the group to serve as jurors in a particular case.” 476 U. S., at 175 (emphasis added). The “representativeness” constitutionally required at the venire stage can be disrupted at the jury-panel stage to serve a State‘s “legitimate interest.” Ibid. In Lockhart the legitimate interest was “obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.” Id., at 175-176. Here the legitimate interest is the assurance of impartiаlity that the system of peremptory challenges has traditionally provided.
The rule we announce today is not only the only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment‘s central purpose as well. Although the constitutional guarantee runs only to the individual and not to the State, the goal it expresses is jury impartiality with respect to both contestants: neither the defendant nor the State should be favored. This goal, it seems to us,
Petitioner seeks to minimize the harm that recognition of his claim would cause to the peremptory challenge system by assuring us that the striking of identifiable community groups other than blacks need not be accorded similar treatment. That is a comforting assurance, but the theory of petitioner‘s case is not compatible with it. If the goal of the Sixth Amendment is representation of a fair cross section of the community on the petit jury, then intentionally using peremptory challenges to exclude any identifiable group should be impermissible—which would, as we said in Lockhart, “likely require the elimination of peremptory challenges.” 476 U. S., at 178.
JUSTICE MARSHALL argues that prohibiting purposeful peremptory challenge of members of distinctive groups “would leave the peremptory challenge system almost entirely untouched” because the Court is unlikely to recognize many groups as “distinctive.” Post, at 502. Misplaced optimism on this subject is cost free to those who in any event “would
. . . eliminat[e] peremptory challenges entirely in criminal
Dispassionate analysis does not bear out JUSTICE MARSHALL‘S contentions that we have “ignor[ed] precedent after precedent,” post, at 503, “reject[ed] . . . the principles underlying a whole line of cases,” ibid., and suffer from “selective amnesia with respect to our cases in this area,” post, at 500. His dissent acknowledges that the fair-cross-section decisions it discusses—Taylor, Duren, and Lockhart—“referr[ed] to exclusion of prospective jurors from venires, not their exclusiоn from petit juries by means of peremptory challenges,” post, at 496. It nonetheless counts those cases as “well-grounded precedents,” post, at 490, because “the particular context does not affect the analysis,” post, at 496. That may be the dissent‘s view, but it was assuredly not the view expressed in the cases themselves. As noted earlier, all three
JUSTICE MARSHALL‘S dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination—which will lose its intimidating effect if it continues to be fired so randomly. It is not remotely true that our opinion today “lightly . . . set[s] aside” the constitutional goal of “eliminat[ing] racial discrimination in our system of criminal justice.” Post, at 503-504. Thе defendant in this case is not a black man, but a convicted white rapist who seeks to use the striking of blacks from his jury to overturn his conviction. His Sixth Amendment claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups. Race as such has nothing to do with the legal issue in this case. We do not hold that the systematic exclusion of
To be sure, as JUSTICE MARSHALL says, the Sixth Amendment sometimes operates “as a weapon to combat racial discrimination,” post, at 504, n. 2—just as statutes against murder sometimes operate that way. But it is no more reasonable to portray this as a civil rights case than it is to characterize a proposal for increased murder penalties as an antidiscrimination law. Since only the Sixth Amendment claim, and not the equal protection claim, is at issue, the question before us is not whether the defendant has been unlawfully discriminated against because he was white, or whether the excluded jurors have been unlawfully discrimi-
nated against because they were black, but whether the
The judgment of the Illinois Supreme Court is
Affirmed.
JUSTICE KENNEDY, concurring.
I join JUSTICE SCALIA‘s opinion and agree with him that we must reject petitioner‘s claim that the fair-cross-section requirement under the Sixth Amendment was violated. The contention is not supported by our precedents and admits of no limiting principle to make it workable in practice. I write this separate concurrence to note that our disposition of the Sixth Amendment claim does not alter what I think to be the established rule, which is that exclusion of a juror on the basis of race, whether or not by use of a peremptory challenge, is a violation of the juror‘s constitutional rights. Batson v. Kentucky, 476 U. S. 79 (1986). I agree with JUSTICE MARSHALL, post, at 490-491, that this case does not resolve the question whether a defendant of a race different from that of the juror may challenge the race-motivated exclusion of jurors under the constitutional principles that underpin Batson. Like JUSTICE MARSHALL, I find it essential to make clear that if the claim here were based on the Fourteenth Amendment Equal Protection Clause, it would have merit.
Many of the concerns expressed in Batson, a case where a black defendant objected to the exclusion of black jurors, support as well an equal protection claim by a defendant whose race or ethnicity is different from the dismissed juror‘s. To bar the claim whenever the defendant‘s race is not the same as the juror‘s would be to concede that racial exclusion of citizens from the duty, and honor, of jury service will
Support can be drawn also from our established rules of standing, given the premise that a juror‘s right to equal protection is violated when he is excluded because of his race. See Batson, supra, at 87. Individual jurors subjected to peremptory racial exclusion have the legal right to bring suit on their own behalf, Carter v. Jury Comm‘n of Greene County, 396 U. S. 320 (1970), but as a practical matter this sort of challenge is most unlikely. The reality is that a juror dismissed because of his race will leave the courtroom with a lasting sense of exclusion from the experience of jury participation, but possessing little incentive or resources to set in motion the arduous process needed to vindicate his own rights. We have noted that a substantial relation may entitle one party to raise the rights of another. See Singleton v. Wulff, 428 U. S. 106, 114-115 (1976). An important bond of this type links the accused and an excluded juror. In sum, the availability of a Fourteenth Amendment claim by a defendant not of the same race as the excluded juror is foreclosed neither by today‘s decision nor by Batson.
Batson did contain language indicating that the peremptory challenge of jurors of the same race as the defendant presents a different situation from the peremptory challenge of jurors of another race, but I consider the significance of the discussion to be procedural. An explicit part of the eviden-
With these observations touching upon the matters raised in JUSTICE MARSHALL‘S dissent, I concur in the opinion of the Court.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, dissenting.
The Court decides today that a prosecutor‘s racially motivated exclusion of Afro-Americans from the petit jury does not violate the fair-cross-section requirement of the Sixth Amendment. To reach this startling result, the majority misrepresents the values underlying the fair-cross-section requirement, overstates the difficulties associated with the elimination of racial discrimination in jury selection, and ignores the clear import of well-grounded precedents. I dissent.
I
Before proceeding to what the Court does decide, I pause to note what it does not. For reasons that are not immediately apparent, petitioner expressly disavows the argument that a white defendant has standing to raise an equal protection challenge, based on our decision in Batson v. Kentucky, 476 U. S. 79 (1986), to a prosecutor‘s racially motivated peremptory strikes of Afro-American venirepersons. See Brief for Petitioner 6, 17; Reply Brief for Petitioner 2; Tr. of
As a majority of this Court has now concluded, a close reading of Batson shows that a defendant‘s race is irrelevant to his standing to raise the equal protection claim recognized in that case. See infra this page and 492; ante, at 488-490 (KENNEDY, J., concurring); post, at 505-508 (STEVENS, J., dissenting). Because Batson was Afro-American, it is not surprising that the Court held that he could make out a prima facie case of an equal protection violation by showing, inter alia, that “the prosecutor ha[d] exercised peremptory challenges to remove from the venire members of the defendant‘s race.” 476 U. S., at 96. Nowhere did the Court state, however, that a white defendant could not make out a prima facie case based upon the exclusion of Afro-American jurors, and the logic of the Court‘s decision would not have supported such a conclusion.
The fundamental principle undergirding the decision in Batson was that “a ‘State‘s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.‘” Id., at 84 (quoting Swain v. Alabama, 380 U. S. 202, 203-204 (1965)). This principle, Justice Powell explained for the Court, has three bases: the right of the de-
In any event, the question whether a defendant‘s race affects his standing to invoke Batson is one on which the Court has not ruled. For the reader who seeks guidance on how the Court would rule if the issue were presented and argued, the agreement of five Justices that a defendant‘s race is irrelevant to the Fourteenth Amendment standing inquiry is far more illuminating than the majority‘s veiled intimations and cryptic turns of phrase.
II
The issue that is presented and decided today is whether a prosecutor‘s exercise of peremptory challenges for the sole
The fundamental premise underlying the majority‘s analysis in this case is the assertion that the sole purpose of the Sixth Amendment‘s jury trial requirement is to secure for the defendant an impartial jury. The majority defends this thesis by constructing a false dichotomy: the fair-cross-section requirement either protects impartiality or guarantees a pеtit jury that mirrors the community from which it is drawn. From these two options, the majority selects impartiality as its governing principle. See ante, at 480 (“The Sixth Amendment requirement of fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)“). The remainder of its analysis proceeds from and is dependent upon the assumption that impartiality is the sole end of the fair-cross-section requirement. That assumption is flatly false, and the conclusion to which it leads is one that I cannot imagine that even the majority would accept in all its implications.1
A
The Sixth Amendment guarantees criminal defendants the right to a trial “by an impartial jury.” Obviously, then, impartiality is one concern addressed by the Amendment. Just as self-evident is the proposition that a criminal defendant is entitled to have his case decided by a “jury.” We have made clear that “jury” is a term of art, and that a body of people assembled to decide a case must meet certain constitutional minimums before it qualifies as a “jury” in the constitutional sense. See, e. g., Ballew v. Georgia, 435 U. S. 223 (1978) (holding, without relying on the impartiality require-
Thus, in Taylor v. Louisiana, 419 U. S. 522, 527 (1975), we stated:
“[T]he Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community. A unanimous Court stated in Smith v. Texas, 311 U. S. 128, 130 (1940), that ‘[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.’ To exclude racial groups from jury service was said to be ‘at war with our basic concepts of a democratic society and a representative government.‘”
Indeed, we recognized in Taylor that the fair-cross-section requirement and the impartiality requirement provide distinct protections, and that the
That the two protections are distinct is shown as well by Duren v. Missouri, 439 U. S. 357 (1979), where we reaffirmed Taylor in holding that a state law permitting women, but not men, to opt out of jury service violated the fair-cross-section requirement. Duren did not contend that any juror was biased against him. Rather, he claimed that his right to a jury trial was violated by the de facto exclusion of women from his venire. Only the dissent in Duren suggested that the
More recently, in Lockhart v. McCree, 476 U. S. 162 (1986), the Court, in an opinion written by JUSTICE REHNQUIST, again confirmed that the fair-cross-section requirement and the impartiality requirement are different constitutional mandates serving different purposes. The Court therefore analyzed the two requirements separately, never suggesting that its resolution of the impartiality question in any way affected its resolution of the fair-cross-section issue. Compare id., at 174-177 (class of prospective jurors unalterably opposed to the death penalty does not constitute “distinctive group” for purposes of the fair-cross-section requirement), with id., at 177-184 (rejecting “alternative” argument that resulting jury was “slanted” in favor of a guilty verdict in violation of impartiality requirement).
B
Our precedents thus belie the majority‘s assertion that the fair-cross-section requirement is merely “a means of assuring” impartiality. Ante, at 480. Rather, the fair-cross-section requirement serves entirely different purposes. In Lockhart, the Court identified these purposes as “(1) ‘guard[ing] against the exercise of arbitrary power’ and ensuring that the ‘commonsense judgment of the community’ will act as ‘a hedge against the overzealous or mistaken prosecutor,’ (2) preserving ‘public confidence in the fairness of the criminal justice system,’ and (3) implementing our belief that ‘sharing in the administration of justice is a phase of civic responsibility.‘” 476 U. S., at 174-175 (quoting Taylor, supra, at 530-531).
Had the mаjority in this case acknowledged that the fair-cross-section requirement serves these purposes, it would have been hard pressed to deny that the exclusion of Afro-Americans from petit juries on the basis of their race violates the
To be sure, the Court was referring to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges. But the particular context does not affect the analysis. A defendant‘s interest in obtaining the “commonsense judgment of the community” is impaired by the exclusion from his jury of a significant segment of the community; whether the exclusion is accomplished in the selection of the venire or by peremptory challenge is immaterial. Batson v. Kentucky, 476 U. S. 79, 86 (1986). A prosecutor‘s race-based peremptоry challenge of all Afro-American venirepersons, no less than a State‘s exclusion of Afro-Americans from the venire, destroys even the possibility that this distinctive group will be represented on the defendant‘s petit jury.
Likewise, the second purpose animating the fair-cross-section requirement—preserving public confidence in the fairness of our criminal justice system—applies equally to the
Finally, the goal of ensuring that no distinctive group be excluded from full participation in our criminal justice system is impaired when the prosecutor implies, through the use of racially motivated peremptory challenges, that he does not trust Afro-Americans to be fair enough or intelligent enough to serve on the case he is trying. Id., at 87. That the juror may eventually be seated on a jury in another case is immaterial; no one can be expected to perceive himself to be a full participant in our system of criminal justice, or in our society as a whole, when he is told by a representative of the government that, because of his race, he is too stupid or too biased to serve on a particular jury. That he might not have to suffer such an indignity in every case is not an answer to the injury inflicted by the one instance of racism he is forced to endure.
Thus, no rational distinction can be drawn in the context of our fair-cross-section jurisprudence between the claims we accepted in Taylor and Duren and the claim at issue here. The majority avoids reaching this conclusion only by the exрedient of ignoring the clear import of our cases. It justifies its refusal to confront the logic underlying those cases by suggesting that “all three of those opinions [Taylor, Duren, and Lockhart] specifically disclaimed application of their analysis to the petit jury.” Ante, at 485-486. The majority‘s semantic games aside, these cases do not suggest that fair-cross-section principles are inapplicable to the petit jury; the cases simply recognize that those principles do not mandate a petit jury that mirrors the population of distinctive groups in the community. See Taylor, supra, at 538 (“[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive
A “[d]ispassionate analysis” of our cases, ante, at 485, thus makes clear that fair-cross-section principles do apply to the petit jury. Moreover, I have shown, supra, at 495-498, and the majority does not attempt to deny, that when analyzed in terms of those principles, petitioner‘s claim is clearly meritorious. The conclusion the majority reaches thus rests entirely on its refusal to apply those principles to this case. So far as I can discern, that refusal, in turn, rests entirely on a claim the majority presents almost as an afterthought—that acceptance of Holland‘s argument would be the first step down a slippery slope leading to a criminal justice system in which trial judges would be required to engineer each jury to reflect, in its few members, all of the myriad demographic groups of which American society is composed. See, e. g., ante, at 482-483, 484. Of course, as the majority is forced to admit, ante, at 484, petitioner disclaims any argument that such a regime is constitutionally compelled, or even possible. Thus, the majority is not frightened by petitioner‘s argument, but by the consequences that the majority fancies would flow from our acceptance of that argument.
The majority‘s apparent concern that applying the fair-cross-section requirement to the petit jury would, as a logical
It is arguably true that the first purpose underlying the fair-cross-section requirement—the defendant‘s interest in obtaining the commonsense judgment of the community—would be served by a requirement that all distinctive groups in the community be represented on each petit jury. But see post, at 512, and n. 10 (STEVENS, J., dissenting) (showing that representative jury requirement might well interfere with a jury‘s expression of the commonsense judgment of the community). Lockhart‘s second and third purposes, however, do not support such a requirement. The public is unlikely to perceive that our system of criminal justice is unfair simply because a particular jury does not represent every segment of the community, especially where the jury‘s composition is merely the result of a spin of the jury wheel. Public confidence is undermined by the appearance that the government is trying to stack the deck against criminal defendants and to remove Afro-Americans from jury service solely because of their race. No similar inference can be drawn from the operations of chance. Similarly, the fair-cross-section requirement‘s goal of ensuring that each dis-
Finally, this Court‘s refusal to read the fair-cross-section requirement as mandating a petit jury representing all of the community‘s distinctive groups is born not of principle, but of necessity, of the recognition that no such requirement could as a practical matter be enforced. As the Court stated in Lockhart, “[t]he limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly ‘representative’ petit jury.” 476 U. S., at 173-174 (citing Batson v. Kentucky, 476 U. S., at 85-86, n. 6).
As we demonstrated in deciding Batson, however, it is emphatically not impоssible to prohibit prosecutors from excluding Afro-American jurors on account of their race, and the majority does not suggest that such a prohibition would be more difficult to enforce in the circumstances presented by this case. To the extent that the limitations on the reach of the fair-cross-section requirement are those of feasibility, then, the Court‘s result in this case is indefensible.
Rather than join issue on the real arguments presented by this case—whether the several purposes served by the fair-cross-section requirement do or do not dictate that it apply in these circumstances—the majority seeks to avoid the issue by acting as if impartiality were the only goal of our fair-cross-section cases, despite this Court‘s repeated and explicit statements that such is not the case. In so doing, the majority glosses over not only a few, but quite literally every single fair-cross-section case that this Court has decided.
C
If the majority‘s selective amnesia with respect to our cases in this area is surprising, its suggestion that recognition of petitioner‘s
First, as even the majority admits, ante, at 481-482, this Court has repeatedly recognized that a State need not permit peremptory challenges. See, e. g., Stilson v. United States, 250 U. S. 583, 586 (1919). It is difficult to reconcile that holding with the notion that peremptory challenges are somehow essential to an impartial jury, the right to which is constitutionally protected. Thаt “[o]ne could plausibly argue” that the peremptory challenge system is constitutionally compelled, ante, at 481, is hardly an answer to the contrary statements in our cases. Plausible arguments can be made for many erroneous propositions, but that does not make them any less wrong. Moreover, JUSTICE STEVENS clearly demonstrates that invocations of our “venerable” peremptory challenge system are insufficient to defeat Holland‘s claims. See post, at 517-518, and n. 15.
In support of the second step in its analysis, the majority quotes Swain v. Alabama, 380 U. S. 202, 219 (1965), for the proposition that even racially motivated peremptory challenges are essential to eliminate “extremes of partiality on both sides.” Ante, at 484. What the majority neglects to mention is that Batson, in overruling Swain in part, expressly rejected the proposition for which the majority cites Swain:
“The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. . . . While we recognize, of course, that the peremptory challenge occupies an important position in our
trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision . . . furthers the ends of justice.” 476 U. S., at 98-99 (footnote omitted).
A prohibition on the use of peremptory challenges purposely to exclude members of distinctive groups on the basis of their “distinctive” attribute would leave the peremptory challenge system almost entirely untouched. The majority‘s exaggerated claim that “postmen, or lawyers, or clergymen” are distinctive groups within the meaning of our fair-cross-section cases, ante, at 486, will no doubt be quickly interred if ever a litigant reaches the Supreme Court claiming that such groups are “distinctive.” To date, at least, this Court has found only women and certain racial minorities to have the sorts of characteristics that would make a group “distinctive” for fair-cross-section purposes. See Lockhart, supra, at 175 (citing cases).
More fundamentally, the majority‘s conclusion proves far more than I think even it intends. Unless it is limited by some principle that is not apparent on its face, the Court‘s decision today provides that the fair-cross-section requirement is unconcerned even with a prosecutor‘s systematic use of peremptory challenges to exclude Afro-American prospective jurors on the ground that they, as a class, lack the intelligence or impartiality fairly to fill the juror‘s role. Indeed, there is no principle by which the majority could distinguish such a case from a similar policy of the state attorney general‘s office. Although I cannot conceive that the majority intends any such holding, the lack of a limiting principle makes me wonder on what basis I should be so sanguine.
Perhaps the most obvious answer to the majority‘s concerns about destruction of the peremptory challenge system is that the acceptance of Holland‘s argument in this case will have absolutely no effect on the peremptory challenge system. We have held that the
III
The majority today insulates an especially invidious form of racial discrimination in the selection of petit juries from
Even had the majority marshaled the sorts of arguments that normally accompany the rejection of the principles underlying a whole line of cases, I would remain dubious. The elimination of racial discrimination in our system of criminal justice is not a constitutional goal that should lightly be
JUSTICE STEVENS, dissenting.
When jury selection began for petitioner Daniel Holland‘s trial, he was presented with up to 40 jurors eligible for service. In accordance with Illinois law, the panel was blindly drawn from an active jury list,1 which in turn was composed at random,2 from a broad cross section of the com-
I
Petitioner presented two arguments to the Illinois Supreme Court in support of his claim that the racially discriminatory exclusion of black jurors from his jury violated the Federal
The Court today decides only petitioner‘s
AS JUSTICE KENNEDY and JUSTICE MARSHALL note, the concerns that were expressed in Batson are not properly confined to the context in which a defendant objects to the exclusion of jurors of his own race but support also “an equal protection claim by a defendant whose race or ethnicity is different from the dismissed juror‘s.” Ante, at 488 (KENNEDY, J., concurring); see ante, at 491-492 (MARSHALL, J., dissenting). Our decision in Batson was based on the conclusion that “[r]acial discrimination in the selection of jurors harms not only the accused whose life or liberty they are summoned to try,” but also “the excluded juror.” 476 U. S., at 87. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Ibid. Batson was a black citizen, but he had no interest in serving as a juror and thus was not a member of the excluded class. His standing to vindicate the interests of potential black jurors was based on his status as a defendant.5 Indeed, the suggestion that only defendants of the same race or ethnicity as the excluded jurors can enforce the jurors’ right to equal treatment and equal respect recognized in Batson is itself inconsistent with the central message of the Equal Protection Clause.6
II
Fifteen years ago, in Taylor v. Louisiana, 419 U. S. 522 (1975), we unambiguously held that “the American concept of
The fair-cross-section principle is central to our understanding of the
Our previous cases explain the operation of the fair-cross-section requirement. In Taylor, we held unconstitutional a state provision that required women, but not men, to file a written declaration before they were placed in the jury pool. Because the provision was directed at excluding a distinctive group from jury service and was not based on any legitimate state purpose, it ran afoul of the “defendant‘s
Taylor and Duren insure that the jury pool and venire will be reasonably representative of the community. A reasonably representative jury pool, however, is not the ultimate goal of the
Applying these principles, it is manifest that petitioner has stated a claim under the
Batson, however, created an important, though limited, exception to the Swain presumption. Under Batson, a defendant is permitted to establish from “the totality of relevant facts,” 476 U. S., at 94, that black jurors have been excluded on the basis of race and that the system of peremptory challenges has been operated in a discriminatory fashion. The peremptory challenge procedure, when it is used to remove members of a particular racial group, is no longer presumed to serve the State‘s interest in obtaining a fair and impartial jury. If a defendant is able to prove for equal protection purposes that the prosecutor‘s “strikes were based on the belief that no black citizen could be a satisfactory juror or fairly try” the case, id., at 101 (WHITE, J., concurring), and that the State is operating a discriminatory “selection procedure,” id., at 87, that same showing necessarily establishes that the defendant does not have a fair possibility of obtaining a representative cross section for
“By serving a criminal defendant‘s interest in neutral jury selection procedures, the rule in Batson may have some bearing on the truthfinding function of a criminal trial. . . . Significantly, the new rule joins other procedures that protect a defendant‘s interest in a neutral factfinder. Those other mechanisms existed prior to our decisions in Batson, creating a high probability that the individual jurors seated in a particular case were free from bias.” Allen v. Hardy, 478 U. S. 255, 259 (1986) (footnote omitted).
The operation of a facially neutral peremptory challenge procedure in a discriminatory manner is no less a violation of the defendant‘s
The Court rejects petitioner‘s
Second, the Court contends that the exercise of peremptory challenges always serves the State‘s “lеgitimate interest” in obtaining an impartial jury. Ante, at 483. That contention rests on the assumption that a black juror may be presumed to be partial simply because he is black—an assumption that is impermissible since Batson. Petitioner‘s claim is that the State may not operate a jury selection mechanism, including a system of peremptory challenges, that eliminates black jurors solely on account of race.16 It hardly answers petitioner‘s claim to state that the system of peremptory challenges “traditional[ly]” operates “by allowing both the accused and the State to eliminate persons thought to be inclined against their interests.” Ante, at 480.
Finally, the Court contends that recognition of the
“While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.
“Nor are we persuaded by the State‘s suggestion that our holding will create serious administrative difficulties. In those States applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens, and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant‘s timely objection to a prosecutor‘s challenges.” Batson v. Kentucky, 476 U. S., at 98-99 (footnotes omitted).
I respectfully dissent.
Notes
JUSTICE STEVENS asserts that our “historical claims are significantly overstated,” and that we “will have to do better than Blackstone and the 1790 Congress” for support. Post, at 518, n. 15. As to the former, he quotes “[w]hat Blackstone actually said“—namely, that the King had no peremptory challenges but only challenges for cause. Ibid. But JUSTICE STEVENS’ quotation should have continued to the next two sentences of what Blackstone actually said: “However it is held, that the king need not assign his cause of challenge, till all the panel is gone through, and unless there cannot be a full jury without the persons so challenged. And then, and not sooner, the king‘s counsel must shew the cause: otherwise the juror shall be sworn.” 4 W. Blackstone, Commentaries 347 (1769).
The 1790 legislation provided that if, in a treason or capital prosecution, the defendant should refuse to plead, or should repeatedly exercise peremptory challenges past a certain number (35 for treason, 20 for other capital cases), “the court . . . shall notwithstanding proceed to . . . trial . . . as if [the defendant] had pleaded not guilty.” 1 Stat. 119. The statute‘s relevance to the present inquiry is that it constitutes acknowledgment of the common-law practice of peremptory challenge, a practice that unquestionably extended to defense and prosecution alike. The Supreme Court decision cited in text, United States v. Marchant, 12 Wheat. 480 (1827), specifically interpreted the Act to permit “[t]he acknowledged right of peremptory challenge existing in the crown before the statute of 33 Edw. I., and the uniform practice which has prevailed since that statute,” id., at 484 (emphasis added). JUSTICE STEVENS relies upon a later case, United States v. Shackleford, 18 How. 588, 590 (1856), which said that the 1790 Act does not demand that prosecutorial peremptory challenges remain available in all federal courts despite the
JUSTICE STEVENS contends that the historical record is in any event of not much importance to the question before us, since “[t]he Court has forsworn reliance on venerable history to give meaning to the Sixth Amendment‘s numerosity and unanimity requirements,” and so should not rely upon it here either. Post, at 518. We have certainly held that a departure from historical practice regarding number and unanimity of jurors does not necessarily deny the right of jury trial. But that is quite different from saying that adherence to historical practice can deny the right of jury trial. Under a historically unenсumbered Sixth Amendment of the sort JUSTICE STEVENS apparently envisions, it would be conceivable that a 12-person or a unanimous jury is unconstitutional.
Indeed, as JUSTICE STEVENS has persuasively shown, post, at 508-520 (dissenting opinion), even if impartiality were the only goal the fair-cross-section requirement is designed to serve, peremptory exclusion of Afro-American jurors on account of their race makes a truly impartial jury impossible to achieve and thus violates the Sixth Amendment. Illinois provides two methods of drawing petit jurors—both random—for single county circuits and other than single county circuits respectively. The provision applicable to petitioner‘s case,“In single county circuits, the chief judge of the circuit court of the county shall certify to the clerk of the court the number of petit jurors required each month. The clerk shall then repair to the office of the jury commissioners and there, in the presence of the persons mentioned in Section 8 of this Act, proceed to draw by lot the necessary number of names from those made available for such drawing as in Section 8 of this act provided.”
The record is somewhat unclear as to the number of prospective jurors drawn for petitioner‘s petit jury. See Brief for Petitioner 2 (30, 35, or 40 prospective jurors).“In such manner as may be prescribed by rules to be adopted by majority vote of said judges, the jury commissioners shall also:
“(a) From time to time prepare a secondary list to be known as the active jury list, containing such number of names taken from the general jury list, not less than 5% of the aggregate thereof, as shall be appointed by the said rules, and in addition thereto, such other lists, to be known as period jury lists, as the said rules may require. Such period jury lists, if provided for, shall contain the names of prospective jurors who shall have indicated, either before or after being summoned for jury duty, at what time of the year they would most conveniently serve. The active jury list and, except as to the names of persons certified back by the clerk of the court as provided in Section 10 of this act, the period jury lists, shall be prepared by selecting every twentieth name, or other whole number rate necessary to obtain the number required, or, in counties having a population greater than 1,000,000, in a manner prescribed by the judge in charge of jury selection, from the general jury list which shall be arranged by towns or precincts for this purpose. The count shall run continuously rather than starting over with each town or precinct.”
As noted at the outset, petitioner did not seek review of the denial of his Equal Protection Clause claim. Our grant of certiorari was limited to the Sixth Amendment question, and the equal protection question has been neither briefed nor argued.
JUSTICE STEVENS’ contention that the equal protection question should nonetheless be decided, post, at 506-507, contradicts this Court‘s Rule 14.1(a), which states: “Only the questions set forth in the petition, or fairly included therein, will be considered by the Court.” It is almost unprecedented to accept certiorari on a question involving one constitutional provision and then to decide the case under a different constitutional provision neither presented, briefed, nor argued. The exception was Batson, where, as accurately described in Chief Justice Burger‘s dissent, “the Court depart[ed] dramatically from its normal procedure without any explanation.” 476 U. S., at 115. JUSTICE STEVENS asserts that Batson “makes it appropriate” to reach the equal protection claim here, post, at 507. We decline to convert Batson from an unexplained departure to an unexplained rule.
“The said commissioners upon entering upon the duties of their office, and every 4 years thereafter, shall prepare a list of all legal voters or if they desire it may include the Illinois driver‘s license holders of each town or precinct of the county possessing the necessary legal qualifications for jury duty, to be known as the jury list. The list may be revised and amended annually in the discretion of the commissioners.”
At the time of petitioner‘s trial, Illinois provided exemptions, common to many States, for public officials, practicing physicians, and practicing attorneys, among others.“If defendants were allowed to challenge the exclusion only of members of their own races, a defendant whose grandparents were black, Hispanic, Asian, and Native American apparently would be permitted to challenge the exclusion of members of all of these groups. A defendant whose ancestry was less diverse would have less power to object to a prosecutor‘s racial discrimination. In determining precisely what ancestry would qualify a defendant as black, white, brown or red, courts might find guidance in some older decisions of states that practiced de jure segregation, in the opinions of South African tribunals, and in the precedents of Nazi Germany.” Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 191-192 (1989) (footnote omitted).
See also Ristaino v. Ross, 424 U. S. 589, 596, n. 8 (1976) (“In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption—as a per se rule—that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion“).It should not be surprising that the
“So many identifiable interests have already emеrged that the mathematical problems are almost insurmountable. The computer attempting to structure each jury would have to consider the race, sex, age, income, occupation, educational level, and religion of each juror—and perhaps other factors as well—in order to be sure that all relevant demographic characteristics would be considered. Furthermore, a juror selected under this system might feel that she or he is filling some predetermined ‘slot’ and might attempt to give the view generally associated with those demographic characteristics rather than the juror‘s personal feelings about the case. The jurors might find it harder to work together as a group because they may be more conscious of their identified differences than the much stronger common bonds that unite them as people.
“The logical, and desirable, way to impanel an impartial and representative jury—and the method chosen by Congress—is to put together a complete list of eligible jurors and select randomly from it, on the assumption that the laws of statistics will produce representative juries most of the time. This approach safeguards the selection process from possible manipulation and ensures the independence of the jury. Such a randomly selected jury will not necessarily be ‘impartial’ in the strict sense of that term, because the jurors bring to the jury box prejudice and perspectives gained from their lifetimes of experience. But they will be impartial in the sense that they will reflect the range of the community‘s attitudes, which is the best we can do. The random approach recognizes that our ‘community’ has enlarged because of the technological revolution that has provided us with communiсation links and common sources of information, but it also ensures that the diversity within our society is reflected on our juries because each population group is represented insofar as possible in proportion to its strength in the population.” J. Van Dyke, Jury Selection Procedures 18 (1977).
Cf. Amar, Choosing Representatives by Lottery Voting, 93 Yale L. J. 1283, 1288-1289, 1293 (1984) (choice of jurors by random selection best replicates underlying distribution of views in community).“Under the sixth amendment, a defendant is entitled to a fair cross-section of the community on the jury. Taylor v. Louisiana, 419 U. S. 522 (1975). This has been interpreted to guarantee that the jury venire be selected in a nondiscriminatory manner from a source fairly representative of the community, even though Taylor does not go so far as to guarantee a representative petit jury. But as already mentioned, Batson has added an additional dimension to this analysis: although a petit jury selected from a proper panel need not necessarily reflect a cross-section of the community, discriminatory tactics designed to manipulate the ultimate composition of the petit jury will no longer be tolerated.” 121 Ill. 2d 136, 184-185, 520 N. E. 2d 270, 292 (1987).