During jury selection at his state court trial for aggravated
murder and related offenses, petitioner Powers, a white man,
objected to the State's use of peremptory challenges to remove
seven black venirepersons from the jury. Powers' objections, which
were based on
Batson v. Kentucky, 476 U. S.
79, were overruled, the impaneled jury convicted him on
several counts, and he was sentenced to prison. On appeal, he
contended that the State's discriminatory use of peremptories
violated,
inter alia, the Fourteenth Amendment's Equal
Protection Clause, and that his own race was irrelevant to the
right to object to the peremptories. The Ohio Court of Appeals
affirmed his conviction.
Held: Under the Equal Protection Clause, a criminal
defendant may object to race-based exclusions of jurors through
peremptory challenges whether or not the defendant and the excluded
jurors share the same race. Pp.
499 U. S.
404-416.
(a) The Equal Protection Clause prohibits a prosecutor from
using the State's peremptory challenges to exclude otherwise
qualified and unbiased persons from the petit jury solely by reason
of their race.
See, e.g., Batson, supra, at
476 U. S. 84;
Holland v. Illinois, 493 U. S. 474.
Contrary to Ohio's contention, racial identity between the
objecting defendant and the excluded jurors does not constitute a
relevant precondition for a
Batson challenge, and would,
in fact, contravene the substantive guarantees of the Equal
Protection Clause and the policies underlying federal statutory
law. Although
Batson did involve such an identity, it
recognized that the State's discriminatory use of peremptories
harms the excluded jurors by depriving them of a significant
opportunity to participate in civil life. 476 U.S. at
476 U. S. 87.
Moreover, the discriminatory selection of jurors has been the
subject of a federal criminal prohibition since Congress enacted
the Civil Rights Act of 1875. Thus, although an individual juror
does not have the right to sit on any particular petit jury, he or
she does possess the right not to be excluded from one on account
of race. This Court rejects, as contrary to accepted equal
protection principles, the arguments that no particular stigma or
dishonor results if a prosecutor uses the raw fact of skin color to
determine a juror's objectivity or qualifications,
see Batson,
supra, at
476 U. S. 87,
and that race-based
Page 499 U. S. 401
peremptory challenges are permissible when visited upon members
of all races in equal degree,
see Loving v. Virginia,
388 U. S. 1. Pp.
499 U. S.
410-416.
(b) A criminal defendant has standing to raise the third-party
equal protection claims of jurors excluded by the prosecution
because of their race.
Cf., e.g., Singleton v. Wulff,
428 U. S. 106,
428 U. S.
112-116. First, the discriminatory use of peremptory
challenges causes the defendant cognizable injury, and he or she
has a concrete interest in challenging the practice, because racial
discrimination in jury selection casts doubt on the integrity of
the judicial process and places the fairness of the criminal
proceeding in doubt. Second, the relationship between the defendant
and the excluded jurors is such that he or she is fully as
effective a proponent of their rights as they themselves would be,
since both have a common interest in eliminating racial
discrimination from the courtroom, and there can be no doubt that
the defendant will be a motivated, effective advocate because proof
of a discriminatorily constituted jury may lead to the reversal of
the conviction under
Batson, supra, 476 U.S. at
476 U. S. 100.
Third, it is unlikely that a juror dismissed because of race will
possess sufficient incentive to set in motion the arduous process
needed to vindicate his or her own rights. Thus, the fact that
Powers' race differs from that of the excluded jurors is irrelevant
to his standing to object to the discriminatory use of
peremptories. Pp.
499 U. S.
410-416.
Reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
joined,
post, p.
499 U. S.
417.
Page 499 U. S. 402
JUSTICE KENNEDY delivered the opinion of the Court.
Jury service is an exercise of responsible citizenship by all
members of the community, including those who otherwise might not
have the opportunity to contribute to our civic life. Congress
recognized this over a century ago in the Civil Rights Act of 1875,
which made it a criminal offense to exclude persons from jury
service on account of their race.
See 18 U.S.C. § 243. In
a trilogy of cases decided soon after enactment of this
prohibition, our Court confirmed the validity of the statute, as
well as the broader constitutional imperative of race-neutrality in
jury selection.
See Strauder v. West Virginia,
100 U. S. 303
(1880);
Virginia v. Rives, 100 U.
S. 313 (1880);
Ex parte Virginia, 100 U.
S. 339 (1880). In the many times we have confronted the
issue since those cases, we have not questioned the premise that
racial discrimination in the qualification or selection of jurors
offends the dignity of persons and the integrity of the courts.
Despite the clarity of these commands to eliminate the taint of
racial discrimination in the administration of justice, allegations
of bias in the jury selection process persist. In this case,
petitioner alleges race discrimination in the prosecution's use of
peremptory challenges. Invoking the Equal Protection Clause and
federal statutory law, and relying upon well-established principles
of standing, we hold that a criminal defendant may object to
race-based exclusions of jurors effected through peremptory
challenges whether or not the defendant and the excluded juror
share the same race.
I
Petitioner Larry Joe Powers, a white man, was indicted in
Franklin County, Ohio on two counts of aggravated murder and one
count of attempted aggravated murder. Each count also included a
separate allegation that petitioner had a firearm while committing
the offense. Powers pleaded not guilty and invoked his right to a
jury trial.
Page 499 U. S. 403
In the jury selection process, Powers objected when the
prosecutor exercised his first peremptory challenge to remove a
black venireperson. Powers requested the trial court to compel the
prosecutor to explain, on the record, his reasons for excluding a
black person. The trial court denied the request and excused the
juror. The State proceeded to use nine more peremptory challenges,
six of which removed black venirepersons from the jury. Each time
the prosecution challenged a black prospective juror, Powers
renewed his objections, citing our decision in
Batson v.
Kentucky, 476 U. S. 79
(1986). His objections were overruled. The record does not indicate
that race was somehow implicated in the crime or the trial; nor
does it reveal whether any black persons sat on petitioner's petit
jury or if any of the nine jurors the petitioner excused by
peremptory challenges were black persons.
The impaneled jury convicted Powers on counts of murder,
aggravated murder, and attempted aggravated murder, each with the
firearm specifications, and the trial court sentenced him to a term
of imprisonment of 53 years to life. Powers appealed his conviction
to the Ohio Court of Appeals, contending that the prosecutor's
discriminatory use of peremptories violated the Sixth Amendment's
guarantee of a fair cross-section in his petit jury, the Fourteenth
Amendment's Equal Protection Clause, and Article I, §§ 10 and 16,
of the Ohio Constitution. Powers contended that his own race was
irrelevant to the right to object to the prosecution's peremptory
challenges. The Court of Appeals affirmed the conviction, and the
Supreme Court of Ohio dismissed Powers' appeal on the ground that
it presented no substantial constitutional question.
Petitioner sought review before us, renewing his Sixth Amendment
fair cross-section and Fourteenth Amendment equal protection
claims. While the petition for certiorari was pending, we decided
Holland v. Illinois, 493 U. S. 474
(1990). In
Holland, it was alleged the prosecution had
used its peremptory challenges to exclude from the jury members
Page 499 U. S. 404
of a race other than the defendant's. We held the Sixth
Amendment did not restrict the exclusion of a racial group at the
peremptory challenge stage. Five members of the Court there said a
defendant might be able to make the objection on equal protection
grounds.
See id. at
493 U. S. 488
(KENNEDY, J., concurring);
id. at
493 U. S. 490
(MARSHALL, J., dissenting, joined by Brennan and BLACKMUN, JJ.);
id. at
493 U. S. 504
(STEVENS, J., dissenting). After our decision in
Holland,
we granted Powers' petition for certiorari limited to the question
whether, based on the Equal Protection Clause, a white defendant
may object to the prosecution's peremptory challenges of black
venirepersons.
493 U. S. 474
(1990). We now reverse and remand.
II
For over a century, this Court has been unyielding in its
position that a defendant is denied equal protection of the laws
when tried before a jury from which members of his or her race have
been excluded by the State's purposeful conduct.
"The Equal Protection Clause guarantees the defendant that the
State will not exclude members of his race from the jury venire on
account of race,
Strauder, [100 U.S.] at
100 U. S.
305, or on the false assumption that members of his race
as a group are not qualified to serve as jurors,
see Norris v.
Alabama, 294 U. S. 587,
294 U. S.
599 (1935);
Neal v. Delaware, 103 U. S.
370,
103 U. S. 397 (1881)."
Batson, supra, 476 U.S. at
476 U. S. 86.
Although a defendant has no right to a "petit jury composed in
whole or in part of persons of [the defendant's] own race,"
Strauder, 100 U.S. at
200 U. S. 305,
he or she does have the right to be tried by a jury whose members
are selected by nondiscriminatory criteria.
We confronted the use of peremptory challenges as a device to
exclude jurors because of their race for the first time in
Swain v. Alabama, 380 U. S. 202
(1965).
Swain involved a challenge to the so-called struck
jury system, a procedure designed to allow both the prosecution and
the defense a maximum number of peremptory challenges. The venire
in
Page 499 U. S. 405
noncapital cases started with about 35 potential jurors, from
which the defense and the prosecution alternated with strikes until
a petit panel of 12 jurors remained. The defendant in
Swain, who was himself black, alleged that the prosecutor
had used the struck jury system and its numerous peremptory
challenges for the purpose of excluding black persons from his
petit jury. In finding that no constitutional harm was alleged, the
Court in
Swain sought to reconcile the command of racial
neutrality in jury selection with the utility, and the tradition,
of peremptory challenges. The Court declined to permit an equal
protection claim premised on a pattern of jury strikes in a
particular case, but acknowledged that proof of systematic
exclusion of black persons through the use of peremptories over a
period of time might establish an equal protection violation.
Id. at
380 U. S.
222-228.
We returned to the problem of a prosecutor's discriminatory use
of peremptory challenges in
Batson v. Kentucky. There, we
considered a situation similar to the one before us today, but with
one exception: Batson, the defendant who complained that black
persons were being excluded from his petit jury, was himself black.
During the
voir dire examination of the venire for
Batson's trial, the prosecutor used his peremptory challenges to
strike all four black persons on the venire, resulting in a petit
jury composed only of white persons. Batson's counsel moved without
success to discharge the jury before it was impaneled on the ground
that the prosecutor's removal of black venirepersons violated his
rights under the Sixth and Fourteenth Amendments. Relying upon the
Equal Protection Clause alone, we overruled
Swain to the
extent it foreclosed objections to the discriminatory use of
peremptories in the course of a specific trial. 476 U.S. at
476 U. S. 90-93.
In
Batson, we held that a defendant can raise an equal
protection challenge to the use of peremptories at his own trial by
showing that the prosecutor used them for the purpose of excluding
members of the defendant's race.
Id. at
476 U. S.
96.
Page 499 U. S. 406
The State contends that our holding in the case now before us
must be limited to the circumstances prevailing in
Batson,
and that in equal protection analysis the race of the objecting
defendant constitutes a relevant precondition for a
Batson
challenge. Because Powers is white, the State argues, he cannot
object to the exclusion of black prospective jurors. This
limitation on a defendant's right to object conforms neither with
our accepted rules of standing to raise a constitutional claim nor
with the substantive guarantees of the Equal Protection Clause and
the policies underlying federal statutory law.
In
Batson, we spoke of the harm caused when a defendant
is tried by a tribunal from which members of his own race have been
excluded. But we did not limit our discussion in
Batson to
that one aspect of the harm caused by the violation.
Batson "was designed
to serve multiple ends,'" only
one of which was to protect individual defendants from
discrimination in the selection of jurors. Allen v. Hardy,
478 U. S. 255,
478 U. S. 259
(1986) (per curiam) (quoting Brown v. Louisiana,
447 U. S. 323,
447 U. S. 329
(1980)). Batson recognized that a prosecutor's
discriminatory use of peremptory challenges harms the excluded
jurors and the community at large. 476 U.S. at 476 U. S. 87.
The opportunity for ordinary citizens to participate in the
administration of justice has long been recognized as one of the
principal justifications for retaining the jury system. See
Duncan v. Louisiana, 391 U. S. 145,
391 U. S.
147-158 (1968). In Balzac v. Porto Rico,
258 U. S. 298
(1922), Chief Justice Taft wrote for the Court:
"The jury system postulates a conscious duty of participation in
the machinery of justice. . . . One of its greatest benefits is in
the security it gives the people that they, as jurors actual or
possible, being part of the judicial system of the country can
prevent its arbitrary use or abuse."
Id. at
258 U. S. 310.
And, over 150 years ago, Alexis De Tocqueville remarked:
Page 499 U. S. 407
"[T]he institution of the jury raises the people itself, or at
least a class of citizens, to the bench of judicial authority [and]
invests the people, or that class of citizens, with the direction
of society."
* * * *
". . . The jury . . . invests each citizen with a kind of
magistracy; it makes them all feel the duties which they are bound
to discharge towards society; and the part which they take in the
Government. By obliging men to turn their attention to affairs
which are not exclusively their own, it rubs off that individual
egotism which is the rust of society."
* * * *
"I do not know whether the jury is useful to those who are in
litigation; but I am certain it is highly beneficial to those who
decide the litigation; and I look upon it as one of the most
efficacious means for the education of the people which society can
employ."
1 Democracy in America 334-337 (Schocken 1st ed.1961).
Jury service preserves the democratic element of the law, as it
guards the rights of the parties and insures continued acceptance
of the laws by all of the people.
See Green v. United
States, 356 U. S. 165,
356 U. S. 215
(1958) (Black, J., dissenting). It
"affords ordinary citizens a valuable opportunity to participate
in a process of government, an experience fostering, one hopes, a
respect for law."
Duncan, supra, 391 U.S. at
391 U. S. 187
(Harlan, J., dissenting). Indeed, with the exception of voting, for
most citizens the honor and privilege of jury duty is their most
significant opportunity to participate in the democratic
process.
While States may prescribe relevant qualifications for their
jurors,
see Carter v. Jury Comm'n of Greene County,
396 U. S. 320,
396 U. S. 332
(1970), a member of the community may not be excluded from jury
service on account of his or her race.
See Batson, supra,
476 U.S. at
476 U. S. 84;
Swain, 380 U.S. at
380 U. S.
203-204;
Carter, supra, 396 U.S. at
396 U. S.
329-330;
Thiel v. Southern Pacific
Co., 328 U.S.
Page 499 U. S. 408
217,
328 U. S.
220-221 (1946);
Neal v. Delaware, 103 U.
S. 370,
103 U. S. 386
(1881);
Strauder, 100 U.S. at
100 U. S.
308.
"Whether jury service be deemed a right, a privilege, or a duty,
the State may no more extend it to some of its citizens and deny it
to others on racial grounds than it may invidiously discriminate in
the offering and withholding of the elective franchise."
Carter, supra, 396 U.S. at
396 U. S. 330.
Over a century ago, we recognized that:
"The very fact that [members of a particular race] are singled
out and expressly denied . . . all right to participate in the
administration of the law, as jurors, because of their color,
though they are citizens, and may be in other respects fully
qualified, is practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to individuals of the
race that equal justice which the law aims to secure to all
others."
Strauder, supra, 100 U.S. at
100 U. S.
308.
Discrimination in the jury selection process is the subject of a
federal criminal prohibition, and has been since Congress enacted
the Civil Rights Act of 1875. The prohibition has been codified at
18 U.S.C. § 243, which provides:
"No citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State on
account of race, color, or previous condition of servitude; and
whoever, being an officer or other person charged with any duty in
the selection or summoning of jurors, excludes or fails to summon
any citizen for such cause, shall be fined not more than
$5,000."
In
Peters v. Kiff, 407 U. S. 493
(1972), JUSTICE WHITE spoke of "the strong statutory policy of §
243, which reflects the central concern of the Fourteenth
Amendment."
Id. at
407 U. S. 507
(concurring in judgment). The Court permitted a white defendant to
challenge the systematic exclusion
Page 499 U. S. 409
of black persons from grand and petit juries. While
Peters did not produce a single majority opinion, six of
the Justices agreed that racial discrimination in the jury
selection process cannot be tolerated, and that the race of the
defendant has no relevance to his or her standing to raise the
claim.
See id. at
407 U. S. 504-505 (opinion of MARSHALL, J.);
id. at
407 U. S.
506-507 (WHITE, J., concurring in judgment).
Racial discrimination in the selection of jurors in the context
of an individual trial violates these same prohibitions. A State
"may not draw up its jury lists pursuant to neutral procedures, but
then resort to discrimination at
other stages in the selection
process.'" Batson, supra, 476 U.S. at 476 U. S. 88
(quoting Avery v. Georgia, 345 U.
S. 559, 345 U. S. 562
(1953)). We so held in Batson, and reaffirmed that holding
in Holland. See 493 U.S. at 493 U. S. 479.
In Holland, the Court held that a defendant could not rely
on the Sixth Amendment to object to the exclusion of members of any
distinctive group at the peremptory challenge stage. We noted that
the peremptory challenge procedure has acceptance in our legal
tradition. See id. at 493 U. S. 481.
On this reasoning, we declined to permit an objection to the
peremptory challenge of a juror on racial grounds as a Sixth
Amendment matter. As the Holland Court made explicit,
however, racial exclusion of prospective jurors violates the
overriding command of the Equal Protection Clause, and "race-based
exclusion is no more permissible at the individual petit jury stage
than at the venire stage." Id. at 493 U. S.
479.
We hold that the Equal Protection Clause prohibits a prosecutor
from using the State's peremptory challenges to exclude otherwise
qualified and unbiased persons from the petit jury solely by reason
of their race, a practice that forecloses a significant opportunity
to participate in civic life. An individual juror does not have a
right to sit on any particular petit jury, but he or she does
possess the right not to be excluded from one on account of
race.
Page 499 U. S. 410
It is suggested that no particular stigma or dishonor results if
a prosecutor uses the raw fact of skin color to determine the
objectivity or qualifications of a juror. We do not believe a
victim of the classification would endorse this view; the
assumption that no stigma or dishonor attaches contravenes accepted
equal protection principles. Race cannot be a proxy for determining
juror bias or competence. "A person's race simply
is unrelated
to his fitness as a juror.'" Batson, supra, 476 U.S. at
476 U. S. 87
(quoting Thiel v. Southern Pacific Co., supra, 328 U.S. at
328 U. S. 227
(Frankfurter, J., dissenting)). We may not accept as a defense to
racial discrimination the very stereotype the law
condemns.
We reject as well the view that race-based peremptory challenges
survive equal protection scrutiny because members of all races are
subject to like treatment, which is to say that white jurors are
subject to the same risk of peremptory challenges based on race as
are all other jurors. The suggestion that racial classifications
may survive when visited upon all persons is no more authoritative
today than the case which advanced the theorem,
Plessy v.
Ferguson, 163 U. S. 537
(1896). This idea has no place in our modern equal protection
jurisprudence. It is axiomatic that racial classifications do not
become legitimate on the assumption that all persons suffer them in
equal degree.
Loving v. Virginia, 388 U. S.
1 (1967).
III
We must consider whether a criminal defendant has standing to
raise the equal protection rights of a juror excluded from service
in violation of these principles. In the ordinary course, a
litigant must assert his or her own legal rights and interests, and
cannot rest a claim to relief premised on the legal rights or
interests of third parties.
United States Dept. of Labor v.
Triplett, 494 U. S. 715,
494 U. S. 720
(1990);
Singleton v. Wulff, 428 U.
S. 106 (1976). This fundamental restriction on our
authority admits of certain, limited exceptions. We have recognized
the right of litigants to bring actions on behalf of
Page 499 U. S. 411
third parties, provided three important criteria are satisfied:
the litigant must have suffered an "injury-in-fact," thus giving
him or her a "sufficiently concrete interest" in the outcome of the
issue in dispute,
Singleton, supra, at
428 U. S. 112;
the litigant must have a close relation to the third party,
id. at
428 U. S.
113-114; and there must exist some hindrance to the
third party's ability to protect his or her own interests.
Id. at
428 U. S.
115-116.
See also Craig v. Boren, 429 U.
S. 190 (1976). These criteria have been satisfied in
cases where we have permitted criminal defendants to challenge
their convictions by raising the rights of third parties.
See,
e.g., Eisenstadt v. Baird, 405 U. S. 438
(1972);
Griswold v. Connecticut, 381 U.
S. 479 (1965);
see also McGowan v. Maryland,
366 U. S. 420
(1961). By similar reasoning, we have permitted litigants to raise
third-party right; in order to prevent possible future prosecution.
See, e.g., Doe v. Bolton, 410 U.
S. 179 (1973).
The discriminatory use of peremptory challenges by the
prosecution causes a criminal defendant cognizable injury, and the
defendant has a concrete interest in challenging the practice.
See Allen v. Hardy, 478 U.S. at
478 U. S. 259
(recognizing a defendant's interest in "neutral jury selection
procedures"). This is not because the individual jurors dismissed
by the prosecution may have been predisposed to favor the
defendant; if that were true, the jurors might have been excused
for cause. Rather, it is because racial discrimination in the
selection of jurors "casts doubt on the integrity of the judicial
process,"
Rose v. Mitchell, 443 U.
S. 545,
443 U. S. 556
(1979), and places the fairness of a criminal proceeding in
doubt.
The jury acts as a vital check against wrongful exercise of
power by the State and its prosecutors.
Batson, supra, 476
U.S. at
476 U. S. 86.
The intrusion of racial discrimination into the jury selection
process damages both the fact and the perception of this
guarantee.
"Jury selection is the primary means by which a court may
enforce a defendant's right to be tried by a jury free from ethnic,
racial, or political prejudice,
Rosales-Lopez v. United
States, 451 U. S. 182,
451 U. S.
188 (1981);
Page 499 U. S. 412
Ham v. South Carolina, 409 U. S.
524 (1973);
Dennis v. United States,
339 U. S.
162 (1950), or predisposition about the defendant's
culpability,
Irvin v. Dowd, 366 U. S.
717 (1961)."
Gomez v. United States, 490 U.
S. 858,
490 U. S. 873
(1989). Active discrimination by a prosecutor during this process
condones violations of the United States Constitution within the
very institution entrusted with its enforcement, and so invites
cynicism respecting the jury's neutrality and its obligation to
adhere to the law. The cynicism may be aggravated if race is
implicated in the trial, either in a direct way as with an alleged
racial motivation of the defendant or a victim, or in some more
subtle manner as by casting doubt upon the credibility or dignity
of a witness, or even upon the standing or due regard of an
attorney who appears in the cause.
Unlike the instances where a defendant seeks to object to the
introduction of evidence obtained illegally from a third party,
see, e.g., United States v. Payner, 447 U.
S. 727 (1980), here petitioner alleges that the primary
constitutional violation occurred during the trial itself. A
prosecutor's wrongful exclusion of a juror by a race-based
peremptory challenge is a constitutional violation committed in
open court at the outset of the proceedings. The overt wrong, often
apparent to the entire jury panel, casts doubt over the obligation
of the parties, the jury, and indeed the court to adhere to the law
throughout the trial of the cause. The
voir dire phase of
the trial represents the "jurors' first introduction to the
substantive factual and legal issues in a case."
Gomez,
supra, 490 U.S. at
490 U. S. 874.
The influence of the
voir dire process may persist through
the whole course of the trial proceedings.
Ibid. If the
defendant has no right to object to the prosecutor's improper
exclusion of jurors, and if the trial court has no duty to make a
prompt inquiry when the defendant shows, by adequate grounds, a
likelihood of impropriety in the exercise of a challenge, there
arise legitimate doubts that the jury has been chosen by proper
means. The composition of the
Page 499 U. S. 413
trier of fact itself is called in question, and the irregularity
may pervade all the proceedings that follow.
The purpose of the jury system is to impress upon the criminal
defendant and the community as a whole that a verdict of conviction
or acquittal is given in accordance with the law by persons who are
fair. The verdict will not be accepted or understood in these terms
if the jury is chosen by unlawful means at the outset. Upon these
considerations, we find that a criminal defendant suffers a real
injury when the prosecutor excludes jurors at his or her own trial
on account of race.
We noted in
Singleton that, in certain
circumstances,
"the relationship between the litigant and the third party may
be such that the former is fully, or very nearly, as effective a
proponent of the right as the latter."
428 U.S. at
428 U. S. 115.
Here, the relation between petitioner and the excluded jurors is as
close as, if not closer than, those we have recognized to convey
third-party standing in our prior cases.
See, e.g., Griswold v.
Connecticut, supra, (Planned Parenthood official and a
licensed physician can raise the constitutional rights of
contraceptive users with whom they had professional relationships);
Craig, supra, (licensed beer vendor has standing to raise
the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the
age of 21 and to females under the age of 18);
Triplett,
supra, (attorney may challenge an attorney's fees restriction
by asserting the due process rights of the client).
Voir
dire permits a party to establish a relation, if not a bond of
trust, with the jurors. This relation continues throughout the
entire trial, and may in some cases extend to the sentencing as
well.
Both the excluded juror and the criminal defendant have a common
interest in eliminating racial discrimination from the courtroom. A
venireperson excluded from jury service because of race suffers a
profound personal humiliation heightened
Page 499 U. S. 414
by its public character. The rejected juror may lose confidence
in the court and its verdicts, as may the defendant if his or her
objections cannot be heard. This congruence of interests makes it
necessary and appropriate for the defendant to raise the rights of
the juror. And there can be no doubt that petitioner will be a
motivated, effective advocate for the excluded venirepersons'
rights. Petitioner has much at stake in proving that his jury was
improperly constituted due to an equal protection violation, for we
have recognized that discrimination in the jury selection process
may lead to the reversal of a conviction.
See Batson,
supra, 476 U.S. at
476 U. S. 100;
Vasquez v. Hillery, 474 U. S. 254,
474 U. S. 264
(1986);
Rose v. Mitchell, supra, 443 U.S. at
443 U. S. 551;
Cassell v. Texas, 339 U. S. 282
(1950). Thus, "
there seems little loss in terms of effective
advocacy from allowing [the assertion of this claim] by' the
present jus tertii champion." Craig, supra, 429
U.S. at 429 U. S. 194
(quoting Singleton, supra, 428 U.S. at 428 U. S.
118).
The final inquiry in our third-party standing analysis involves
the likelihood and ability of the third parties, the excluded
venirepersons, to assert their own rights.
See Singleton,
supra, at
428 U. S.
115-116. We have held that individual jurors subjected
to racial exclusion have the legal right to bring suit on their own
behalf.
Carter, 396 U.S. at
396 U. S.
329-330. As a practical matter, however, these
challenges are rare.
See Alschuler, The Supreme Court and
the Jury: Voir Dire, Peremptory Challenges and the Review of Jury
Verdicts, 56 U.Chi.L.Rev. 153, 193-195 (1989). Indeed. it took
nearly a century after the Fourteenth Amendment and the Civil
Rights Act of 1875 came into being for the first such case to reach
this Court.
See Carter, supra, at
396 U. S. 320.
The barriers to a suit by an excluded juror are daunting.
Potential jurors are not parties to the jury selection process, and
have no opportunity to be heard at the time of their exclusion. Nor
can excluded jurors easily obtain declaratory or injunctive relief
when discrimination occurs through an individual prosecutor's
exercise of peremptory challenges.
Page 499 U. S. 415
Unlike a challenge to systematic practices of the jury clerk and
commissioners such as we considered in
Carter, it would be
difficult for an individual juror to show a likelihood that
discrimination against him at the
voir dire stage will
recur.
See Los Angeles v. Lyons, 461 U. S.
95,
461 U. S.
105-110 (1983). And there exist considerable practical
barriers to suit by the excluded juror because of the small
financial stake involved and the economic burdens of litigation.
See Vasquez, supra, 474 U.S. at
474 U. S. 262,
n. 5;
Rose v. Mitchell, supra, 443 U.S. at
443 U. S. 558.
The reality is that a juror dismissed because of race probably will
leave the courtroom possessing little incentive to set in motion
the arduous process needed to vindicate his own rights.
See
Barrows v. Jackson, 346 U. S. 249,
346 U. S. 257
(1953).
We conclude that a defendant in a criminal case can raise the
third-party equal protection claims of jurors excluded by the
prosecution because of their race. In so doing, we once again
decline "to reverse a course of decisions of long standing directed
against racial discrimination in the administration of justice."
Cassell v. Texas, 339 U. S. 282,
339 U. S. 290
(1950) (Frankfurter, J., concurring in judgment). To bar
petitioner's claim because his race differs from that of the
excluded jurors would be to condone the arbitrary exclusion of
citizens from the duty, honor, and privilege of jury service. In
Holland and
Batson, we spoke of the significant
role peremptory challenges play in our trial procedures, but we
noted also that the utility of the peremptory challenge system must
be accommodated to the command of racial neutrality.
Holland,
supra, 493 U.S. at
493 U. S.
486-487;
Batson, supra, 476 U.S. at
476 U. S.
98-99.
The Fourteenth Amendment's mandate that race discrimination be
eliminated from all official acts and proceedings of the State is
most compelling in the judicial system.
Rose v. Mitchell,
supra, 443 U.S. at
443 U. S. 555.
We have held, for example, that prosecutorial discretion cannot be
exercised on the basis of race,
Wayte v. United States,
470 U. S. 598,
470 U. S. 608
(1985), and that, where racial bias is likely to influence a jury,
an inquiry must be made into such bias.
Ristaino
v. Ross, 424 U.S.
Page 499 U. S. 416
589,
424 U. S. 596
(1976);
see also Turner v. Murray, 476 U. S.
28 (1986). The statutory prohibition on discrimination
in the selection of jurors, 18 U.S.C. § 243, enacted pursuant to
the Fourteenth Amendment's Enabling Clause, makes race-neutrality
in jury selection a visible, and inevitable, measure of the
judicial system's own commitment to the commands of the
Constitution. The courts are under an affirmative duty to enforce
the strong statutory and constitutional policies embodied in that
prohibition.
See Peters v. Kiff, 407 U.S. at
407 U. S. 507
(WHITE, J., concurring in judgment);
see also id. at
407 U. S. 505
(opinion of MARSHALL, J.).
The emphasis in
Batson on racial identity between the
defendant and the excused prospective juror is not inconsistent
with our holding today that race is irrelevant to a defendant's
standing to object to the discriminatory use of peremptory
challenges. Racial identity between the defendant and the excused
person might in some cases be the explanation for the prosecution's
adoption of the forbidden stereotype, and if the alleged race bias
takes this form, it may provide one of the easier cases to
establish both a
prima facie case and a conclusive showing
that wrongful discrimination has occurred. But to say that the race
of the defendant may be relevant to discerning bias in some cases
does not mean that it will be a factor in others, for race
prejudice stems from various causes, and may manifest itself in
different forms.
It remains for the trial courts to develop rules, without
unnecessary disruption of the jury selection process, to permit
legitimate and well-founded objections to the use of peremptory
challenges as a mask for race prejudice. In this case, the State
concede that, if we find the petitioner has standing to object to
the prosecution's use of the peremptory challenges, the case should
be remanded. We find that petitioner does have standing. The
judgment is reversed, and the case is remanded for further
proceedings not inconsistent with our opinion.
It is so ordered.
Page 499 U. S. 417
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins,
dissenting
Since, in my view, today's decision contradicts well established
law in the area of equal protection and of standing, I respectfully
dissent.
I
The Court portrays its holding as merely the logical application
of our prior jurisprudence concerning equal protection challenges
to criminal convictions. It is far from that.
Over a century ago, in
Strauder v. West Virginia,
100 U. S. 303
(1880), we held that a statute barring blacks from service on grand
or petit juries denied equal protection of the laws to a black man
convicted of murder by an all-white jury. Interpreting the recently
enacted Fourteenth Amendment, we concluded that the statute
violated the black defendant's equal protection right for the
following reason:
"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 of his race, because of color alone,
however well qualified in other respects, is not a denial to him of
equal legal protection?"
Id. at
100 U. S. 309.
It was not suggested in
Strauder, and I am sure it was
quite unthinkable, that a
white defendant could have had
his conviction reversed on the basis of the same statute. The
statute did not exclude members of
his race, and thus did
not deprive
him of the equal protection of the laws.
Page 499 U. S. 418
Since
Strauder, we have repeatedly invalidated criminal
convictions on equal protection grounds where state laws or
practices excluded potential jurors from service on the basis of
race.
See Vasquez v. Hillery, 474 U.
S. 254 (1986);
Castaneda v. Partida,
430 U. S. 482
(1977);
Alexander v. Louisiana, 405 U.
S. 625 (1972);
Sims v. Georgia, 389 U.
S. 404 (1967) (per curiam);
Jones v. Georgia,
389 U. S. 24 (1967)
(per curiam);
Whitus v. Georgia, 385 U.
S. 545 (1967);
Coleman v. Alabama, 377 U.
S. 129 (1964);
Arnold v. North Carolina,
376 U. S. 773
(1964) (per curiam);
Eubanks v. Louisiana, 356 U.
S. 584 (1958);
Reece v. Georgia, 350 U. S.
85 (1955);
Williams v. Georgia, 349 U.
S. 375 (1955);
Hernandez v. Texas, 347 U.
S. 475 (1954);
Avery v. Georgia, 345 U.
S. 559 (1953),
Cassell v. Texas, 339 U.
S. 282 (1950);
Patton v. Mississippi,
332 U. S. 463
(1947);
Hill v. Texas, 316 U. S. 400
(1942);
Smith v. Texas, 311 U. S. 128
(1940);
Pierre v. Louisiana, 306 U.
S. 354 (1939);
Hale v. Kentucky, 303 U.
S. 613 (1938) (per curiam);
Hollins v.
Oklahoma, 295 U. S. 394
(1935) (per curiam);
Norris v. Alabama, 294 U.
S. 587 (1935);
Rogers v. Alabama, 192 U.
S. 226 (1904);
Carter v. Texas, 177 U.
S. 442 (1900);
Bush v. Kentucky, 107 U.
S. 110 (1883);
Neal v. Delaware, 103 U.
S. 370 (1881). In all these cases, the basis for our
decision was that the State had violated the
defendant's
right to equal protection, because it had excluded jurors of
his race. As we said in
Carter v. Texas:
"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."
177 U.S. at
177 U. S. 447
(emphasis added).
Twenty-six years ago, in
Swain v. Alabama, 380 U.
S. 202 (1965), we first considered an equal protection
claim against peremptory challenges by the prosecution. In that
case, a
Page 499 U. S. 419
black man had been convicted and sentenced to death by an
all-white jury, the prosecutor having peremptorily struck six
prospective black jurors from the venire. We rejected the
defendant's equal protection claim. Our opinion set forth at length
the "very old credentials" of the peremptory challenge,
id. at
380 U. S. 212,
see id. at
380 U. S.
212-219, discussed the reasons for the "long and widely
held belief" that it is "a necessary part of trial by jury,"
id. at
380 U. S. 219,
see id. at
380 U. S.
219-221, and observed that it is
"frequently 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,"
id. at
380 U. S. 220.
To accept petitioner's equal protection claim, we said, "would
establish a rule wholly at odds with the peremptory challenge
system as we know it,"
id. at
380 U. S. 222,
a system in which "Negro and white, Protestant and Catholic, are
alike subject to being challenged without cause,"
id. at
380 U. S. 221.
But while permitting race-based challenges for the traditional
purpose of eliminating "irrational . . . suspicions and
antagonisms,"
id. at
380 U. S. 224,
"related to the case [the prosecutor] is trying, the particular
defendant involved and the particular crime charged,"
id.
at
380 U. S. 223,
we strongly suggested that it would violate the Equal Protection
Clause to use race-based challenges as a surrogate for segregated
jury lists, employing them "in case after case, whatever the
circumstances, whatever the crime and whoever the defendant or the
victim,"
ibid. in order to "deny the Negro the same right
and opportunity to participate in the administration of justice
enjoyed by the white population,"
id. at
380 U. S.
224.
Five years ago we revisited the issue, and overruled
Swain. In
Batson v. Kentucky, 476 U. S.
79 (1986), we held that
"a defendant may make a
prima facie showing of
purposeful racial discrimination in selection of the venire by
relying solely on the facts concerning its selection
in his
case,"
id. at
476 U. S. 95
(emphasis in original), whereupon the prosecution would be required
to justify its strikes on race-neutral
Page 499 U. S. 420
grounds.
Batson, however, like all our other cases
upholding an equal protection challenge to the composition of
criminal juries, referred to -- indeed, it
emphasized --
the necessity of racial identity between the defendant and the
excluded jurors. "[T]he defendant," we said,
"first must show that
he is a member of a cognizable racial
group, and that the prosecutor has exercised peremptory
challenges to remove from the venire
members of the defendant's
race."
Id. at
476 U. S. 96
(emphasis added, citation omitted). This requirement was repeated
several times. "The defendant initially must show that
he
is a member of a racial roup capable of being singled out for
differential treatment."
Id. at
476 U. S. 94
(emphasis added).
"The Equal Protection Clause guarantees the defendant that the
State will not exclude members of
his race from the jury
venire on account of race."
Id. at
476 U. S. 86
(emphasis added). JUSTICE WHITE, concurring, concluded that the
abandonment of
Swain was justified because
"[i]t appears . . . that the practice of peremptorily
eliminating blacks from petit juries
in cases with black
defendants remains widespread, so much so that I agree that an
opportunity to inquire should be afforded when this occurs."
Id. at
476 U. S. 101
(emphasis added). Today's opinion for the Court is correct in
noting that
Batson asserted that "a prosecutor's
discriminatory use of peremptory challenges harms the excluded
jurors and the community at large,"
ante at
499 U. S. 406.
But there is no contradiction, and
Batson obviously saw
none, between that proposition and the longstanding and reiterated
principle that no defendant except one
of the same race as the
excluded juror is deprived of equal protection of the
laws.
On only two occasions in the past have we considered claims by a
criminal defendant of one race that the prosecution had
discriminated against prospective jurors of another race. Last
Term, in
Holland v. Illinois, 493 U.
S. 474 (1990), we held that the prosecution's use of
peremptory strikes against black jurors did not deprive a white
defendant of his Sixth Amendment right to an impartial jury. No
Page 499 U. S. 421
equal protection claim was made in that case. Such a claim was
made, however, in
Peters v. Kiff, 407 U.
S. 493 (1972). There the petitioner, a white man,
contended that the State, through its use of segregated jury lists,
had excluded blacks from his grand and petit juries, thus denying
him due process and equal protection. The case produced no majority
opinion, but it is significant that
no Justice relied upon
the petitioner's equal protection argument. JUSTICE MARSHALL,
joined by Justice Douglas and Justice Stewart, asserted that a
defendant has a due process right not to be subjected "to
indictment or trial by a jury that has been selected in an
arbitrary and discriminatory manner."
Id. at
407 U. S. 502.
JUSTICE WHITE, joined by Justice Brennan and Justice Powell,
concluded that "the strong statutory policy" contained in the 1875
criminal statute prohibiting disqualification from jury service on
racial grounds, 18 U.S.C. § 243, entitled the petitioner to
challenge the exclusion of blacks from the grand jury that indicted
him. 407 U.S. at
407 U. S. 507.
Chief Justice Burger, joined by JUSTICE BLACKMUN and then-JUSTICE
REHNQUIST, contended that there was no basis for assuming that the
petitioner had been injured in any way by the alleged
discrimination, and noted that
"the Court has never intimated that a defendant is the victim of
unconstitutional discrimination if he does not claim that members
of his own race have been excluded."
Id. at
407 U. S.
503.
Alexander v. Louisiana, 405 U.
S. 625 (1972), involved precisely the sort of claim made
here, in the context of an alleged denial of equal protection on
the basis of sex. In that case, a black male defendant contended
that the State's manner of composing its jury lists had excluded
blacks and women from his grand jury, thereby denying him equal
protection of the laws. We ultimately found it unnecessary to reach
his claim regarding the exclusion of women, but only after saying
the following:
"This claim is novel in this Court and, when urged by a male,
finds no support in our past cases. The strong
Page 499 U. S. 422
constitutional and statutory policy against racial
discrimination has permitted Negro defendants in criminal cases to
challenge the systematic exclusion of Negroes from the grand juries
that indicted them. . . . [T]here is nothing in past adjudications
suggesting that petitioner
himself has been denied equal
protection by the alleged exclusion of women from grand jury
service."
Id. at
405 U. S. 633
(emphasis added). Similarly, in
Castaneda v. Partida,
430 U. S. 482
(1977), in holding that the respondent had successfully established
a
prima facie case of discrimination against
Mexican-Americans in the selection of grand jurors, we said
that,
"in order to show that an equal protection violation has
occurred in the context of grand jury selection, the defendant must
show that the procedure employed resulted in substantial
under-representation of
his race or of the identifiable group
to which he belongs."
Id. at 4
430 U. S. 94
(emphasis added).
Thus, both before and after
Batson, and right down to
the release of today's opinion, our jurisprudence contained neither
a case holding, nor even a dictum suggesting, that a defendant
could raise an equal protection challenge based upon the exclusion
of a juror of another race; and our opinions contained a vast body
of clear statement to the contrary. We had reaffirmed the point
just last Term in
Holland, supra. After quoting the
language from
Batson requiring the defendant to show that
he is a member of the racial group alleged to have been removed
from the jury, we contrasted the requirements for standing under
the Fourteenth Amendment's Equal Protection Clause and the Sixth
Amendment:
"We have never suggested, however, that such a
requirement
of correlation between the group identification of the
defendant and the group identification of excluded venire members
is necessary for Sixth Amendment standing.
To the
contrary, our cases hold that the Sixth Amendment entitles
every defendant to object to a venire that is not designed to
represent a fair cross-section of the community, whether
Page 499 U. S. 423
or not the systematically excluded groups are groups to which he
himself belongs."
493 U.S. at
493 U. S. 477
(emphasis added).
Thus, today's holding cannot be considered in accordance with
our prior law. It is a clear departure.
II
In an apparent attempt to portray the question before us as a
novel one, the Court devotes a large portion of its opinion to
third-party standing -- as though that obvious avenue of rendering
the Equal Protection Clause applicable had not occurred to us in
the many cases discussed above. Granted, the argument goes, that
this white defendant has not
himself been denied equal
protection, but he has third-party standing to challenge the denial
of equal protection to the stricken black jurors. The Court's
discussion of third-party standing is no more faithful to our
precedent than its description of our earlier equal protection
cases. Before reaching that point, however, there is a prior one:
the
first-party right upon which the Court seeks to
base third-party standing has not hitherto been held to
exist.
All citizens have the equal protection right not to be excluded
from jury service (
i.e., not to be excluded from grand and
petit jury lists) on the basis of irrelevant factors such as race,
Carter v. Jury Commission of Greene County, 396 U.
S. 320 (1970), or employment status,
cf. Thiel v.
Southern Pacific Co., 328 U. S. 217
(1946). As
Swain suggested, this principle would also
prohibit the systematic exclusion of a particular race or
occupation from all jury service through peremptory challenges.
When a particular group has been singled out in this fashion, its
members have been treated
differently, and have suffered
the deprivation of a right and responsibility of citizenship. But
when that group,
like all others, has been made subject to
peremptory challenge on the basis of its group characteristic, its
members have been treated not differently, but the same. In fact,
it would constitute
Page 499 U. S. 424
discrimination to
exempt them from the peremptory
strike exposure to which all others are subject. If, for example,
men were permitted to be struck but not women, or fundamentalists
but not atheists, or blacks but not whites, members of the former
groups would plainly be the object of discrimination.
In reply to this, it could be argued that discrimination is not
legitimated by being applied, so to speak, indiscriminately; that
the unlawfulness of treating one person differently on irrelevant
grounds is not erased by subjecting everyone else to the same
unlawfulness. The response to this is that the stricken juror has
not been "treated differently" in the only pertinent sense
-- that is, in the sense of being deprived of any benefit or
subjected to any slight or obloquy. The strike does not deprecate
his group, and thereby "stigmatize" his own personality. Unlike the
categorical exclusion of a group from jury service, which implies
that all its members are incompetent or untrustworthy, a peremptory
strike on the basis of group membership implies nothing more than
the undeniable reality (upon which the peremptory strike system is
largely based) that all groups tend to have particular sympathies
and hostilities -- most notably, sympathies towards their own group
members. Since that reality is acknowledged as to
all
groups, and forms the basis for peremptory strikes as to all of
them, there is no implied criticism or dishonor to a strike. Nor is
the juror who is struck because of his group membership deprived of
any benefit. It is obvious, as
Strauder acknowledged, that
a defendant belonging to an identifiable group is benefited by
having members of that group on his jury, but it is impossible to
understand how a juror is benefited by sitting in judgment of a
member of his own group, rather than of another. All qualified
citizens have a civic right, of course, to serve as jurors, but
none has the right to serve as a juror in a particular case.
Otherwise, we would have to permit stricken jurors to complain not
only of peremptory challenges that supposedly deny
Page 499 U. S. 425
them equal protection, but also of erroneously allowed
challenges for cause.
To affirm that the Equal Protection Clause applies to strikes of
individual jurors is effectively to abolish the peremptory
challenge. As discussed in
Swain, "irrelevant" personal
characteristics are, by definition, the basis for using that
device;
relevant characteristics would produce recusal
for cause. And as
Swain also pointed out, the
irrelevant characteristics relied upon are frequently those that
would promptly trigger invalidation in other contexts -- not only
race, but religion, sex, age, political views, economic status. Not
only is it implausible that such a permanent and universal feature
of our jury trial system is unconstitutional, but it is unlikely
that its elimination would be desirable. The peremptory challenge
system has endured so long because it has unquestionable
advantages. As we described in
Holland, 493 U.S. at
493 U. S. 484,
it is a means of winnowing out possible (though not demonstrable)
sympathies and antagonisms on both sides, to the end that the jury
will be the fairest possible. In a criminal law system in which a
single biased juror can prevent a deserved conviction or a deserved
acquittal, the importance of this device should not be
minimized.
Until
Batson, our jurisprudence affirmed the
categorical validity of peremptory strikes so long as they were not
used as a substitute for segregated jury lists.
Batson
made an exception, but one that was narrow in principle, and hence
limited in effect. It announced an equal protection right, not of
prospective jurors to be seated without regard to their race, but
of
defendants not to be tried by juries from which members
of
their race have been intentionally excluded. While the
opinion refers to "[t]he harm" that "discriminatory jury selection"
inflicts upon "the excluded juror," 476 U.S. at
476 U. S. 87,
that is not a clear recognition, even in dictum, that the excluded
juror has his own cause of action -- any more than its accompanying
reference to the harm inflicted upon "the entire community,"
ibid., suggests that the entire community
Page 499 U. S. 426
has a cause of action. To the contrary, an independent cause of
action on the juror's part is quite incompatible with the opinion's
repeated insistence that the stricken juror must be
of the same
race as the defendant. It would be absurd to suppose that a
black juror has a right not to be discriminated against, through
peremptory strike, in the trial of a black defendant, but not in
the trial of a white defendant.
In sum, we have
never held, or even said, that a juror
has an equal protection right not to be excluded from a particular
case through peremptory challenge; and the existence of such a
right would call into question the continuing existence of a
centuries-old system that has important beneficial effects. Thus,
even if the Court's discussion of Powers' third-party standing to
raise the rights of stricken jurors were correct, it would merely
replace the mystery of why
he has a cause of action with
the mystery of why
they do.
III
In any event, the Court's third-party standing analysis is not
correct. The Court fails to establish what we have described as the
very first element of third-party standing: the requirement of
"injury in fact."
See, e.g., Caplin & Drysdale, Chartered
v. United States, 491 U. S. 617,
491 U. S. 623,
n. 3 (1989);
Secretary of State of Maryland v. Joseph H. Munson
Co., 467 U. S. 947,
467 U. S.
954-955 (1984). The Court's attempt at constructing an
injury in fact to petitioner goes as follows: when the prosecution
takes race into account in exercising its peremptory challenges, it
"casts doubt on the integrity of the judicial process," and
"invites cynicism respecting the jury's neutrality and its
obligation to adhere to the law,"
ante at
499 U. S. 411,
499 U. S. 412
(internal quotations omitted), as a result of which "[t]he verdict
will not be accepted or understood [as fair],"
ante at
499 U. S. 413.
The Court must, of course, speak in terms of the
perception of fairness, rather than its reality, since
only last Term we held categorically that the exclusion of members
of a particular race from a jury does
not produce
Page 499 U. S. 427
an unfair jury, and suggested that, in some circumstances, it
may increase fairness.
See Holland, supra, at
493 U. S.
480-481. But in any event, how do these alleged
perceptions of unfairness, these "castings of doubt" and
"invitations to cynicism," establish that the defendant has been
injured
in fact? They plainly do not. Every criminal
defendant objecting to the introduction of some piece of evidence
or to some trial procedure on the ground that it violates the
rights of a third party can claim a similar "perception of
unfairness," but we deny standing. "Injury in perception" would
seem to be the very
antithesis of "injury in fact." As the
very words suggest, the latter sort of injury must be "distinct
and palpable,"
Warth v. Seldin, 422 U.
S. 490,
422 U. S. 501
(1975) (emphasis added), "particular
[and] concrete,"
United States v. Richardson, 418 U.
S. 166,
418 U. S. 177
(1974) (emphasis added), "specific
[and] objective,"
Laird v. Tatum, 408 U. S. 1,
408 U. S. 14
(1972) (emphasis added). Today's opinion makes a mockery of that
requirement. It does not even pretend that the peremptory
challenges here have caused this defendant tangible injury and
concrete harm -- but rather (with careful selection of both
adjectives and nouns) only a "
cognizable injury,"
producing a "concrete
interest in challenging the
practice."
Ante at
499 U. S. 411
(emphasis added). I have no doubt he now has a cognizable injury;
the Court has made it true by saying so. And I have no doubt he has
a concrete interest in challenging the practice at issue here; he
would have a concrete interest in challenging a mispronunciation of
one of the jurors' names, if that would overturn his conviction.
But none of this has anything to do with injury in fact.
In response, however, it could be asserted that the requirement
of injury in fact -- and, more specifically, that element of the
requirement which demands that the cause-and-effect relationship
between the illegality and the alleged harm be
more than
speculative, see Allen v. Wright, 468 U.
S. 737,
468 U. S.
750-752 (1984);
Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U. S. 26,
426 U. S. 40-46
(1976) -- has
Page 499 U. S. 428
never been applied to a litigant's claim of illegality relating
to an aspect of criminal or civil procedure. The available concrete
injury in such cases, of course, is the conviction or judgment --
or more precisely, the punishment that attends the conviction and
the economic or other loss that attends the judgment. But courts
have never required that injury to be connected with the alleged
procedure-related illegality by anything more than speculation. If,
for example, one of the elements of criminal due process has been
denied, or one of the constitutionally specified attributes of a
prosecution has been omitted, we do not require the defendant to
establish, by more than speculation, that he would not otherwise
have been convicted. To the contrary, standing is accorded, and
relief will be granted unless the government can establish beyond a
reasonable doubt that the error was harmless.
See, e.g., Rose
v. Clark, 478 U. S. 570
(1986).
We do not, however, extend this special treatment of injury in
fact in the litigation context to third-party standing. Indeed, we
do not even
recognize third-party standing in the
litigation context -- that is, permit a civil or criminal litigant
to upset an adverse judgment because the process by which it was
obtained involved the violation of someone else's rights -- even
when the
normal injury-in-fact standard is amply met. If,
for example, the
only evidence supporting a conviction (so
that the causality is not remotely speculative) consists of the
fruit of a search and seizure that violated a third party's Fourth
Amendment rights, we will not permit those rights to be asserted by
the defendant.
See, e.g., Rawlings v. Kentucky,
448 U. S. 98
(1980);
United States v. Payner, 447 U.
S. 727 (1980);
Rakas v. Illinois, 439 U.
S. 128 (1978). We would reach the same result with
respect to reliable evidence obtained in violation of another
person's Fifth Amendment right against self-incrimination,
cf.
id. at
439 U. S. 140.
Likewise (assuming we follow the common law) with respect to
evidence introduced in violation of someone else's confidentiality
privilege.
See, e.g., Commonwealth v. McKenna,
Page 499 U. S. 429
206 Pa.Super. 317, 322, 213 A.2d 223, 226 (1965);
Butz v.
State, 221 Md. 68, 73, 156 A.2d 423, 426 (1959);
see
generally Annot., 2 A.L.R.2d 645 (1948). These cases can, to
be sure, be explained on the basis that the rights in question are
"personal," rather than on the basis of lack of third-party
standing, but the result comes to the same. It is difficult to
accept the proposition that, even though introduction of the fruits
of a third party's illegally obtained confession, which
unquestionably produces the defendant's conviction, is not a ground
for reversal, racial discrimination against a prospective juror,
which only speculatively produces the conviction, is. There is, in
short, no sound basis for abandoning the normal injury-in-fact
requirements applicable to third-party standing, and supplanting
them with an "interest in challenging the practice" standard,
simply because a trial-related violation is at issue. If anything,
that consideration should lead to the conclusion that there is no
third-party standing at all.
IV
Last Term, in
Holland, we noted that
"[t]he tradition of peremptory challenges for both the
prosecution and the accused was already venerable at the time of
Blackstone, . . . was reflected in a federal statute enacted by the
same Congress that proposed the Bill of Rights, . . . was
recognized in an opinion by Justice Story to be part of the common
law of the United States, . . . and has endured through two
centuries in all the States. . . ."
493 U.S. at
493 U. S. 481.
We concluded from this that "[a]ny theory of the Sixth Amendment
leading to [the] result" that "each side may not . . . use
peremptory challenges to eliminate prospective jurors belonging to
groups it believes would unduly favor the other side" is
"implausible."
Ibid. What is true with respect to the
Sixth Amendment is true with respect to the Equal Protection Clause
as well.
Batson was, as noted earlier, a clear departure from
our jurisprudence, and the precise scope of the exception it
has
Page 499 U. S. 430
created remains to be determined. It is unclear, for example,
whether it applies to government peremptories in civil cases;
whether it applies to peremptories by parties other than the
government; and whether it applies to peremptories based on the
defendant's sex, religion, age, economic status and
any
other personal characteristic unrelated to the capacity for
responsible jury service. All these extensions are arguably within
the logic of the decision. This case, however, involves not a
clarification of
Batson, but the creation of an
additional,
ultra-Batson departure from established law.
Petitioner seeks not some further elaboration of the right to have
his racial identity disregarded in the selection of his jury, but
rather the announcement of a new right to have his jury immune from
the exclusion of people of
any race; or the announcement
of a new power to assert a new right of jurors never to be excluded
from any jury on the basis of their race. Not only does this exceed
the rationale of
Batson, but it exceeds
Batson's
emotional and symbolic justification as well. Notwithstanding
history, precedent, and the significant benefits of the peremptory
challenge system, it is intolerably offensive for the State to
imprison a person on the basis of a conviction rendered by a jury
from which members of that person's minority race were carefully
excluded. I am unmoved, however, and I think most Americans would
be, by this white defendant's complaint that he was sought to be
tried by an all-white jury, or that he should be permitted to press
black jurors' unlodged complaint that they were not allowed to sit
in judgment of him.
The Court's decision today is unprecedented in law, but not in
approach. It is a reprise, so to speak, of
Miranda v.
Arizona, 384 U. S. 436
(1966), in that the Court uses its key to the jail-house door not
to free the arguably innocent, but to threaten release upon the
society of the unquestionably guilty unless law enforcement
officers take certain steps that the Court newly announces to be
required by law. It goes beyond
Miranda, however, in that
there, at least, the mandated
Page 499 U. S. 431
teps related to the defendant's own rights, if not to his guilt.
Here they relate to neither. The sum and substance of the Court's
lengthy analysis is that, since a denial of equal protection to
other people occurred at the defendant's trial, though it did not
affect the fairness of that trial, the defendant must go free. Even
if I agreed that the exercise of peremptory strikes constitutes
unlawful discrimination (which I do not), I would not understand
why the release of a convicted murderer who has not been harmed by
those strikes is an appropriate remedy.
Judging from the Court's opinion, we can expect further,
wide-ranging use of the jailhouse key to combat discrimination.
Convictions are to be overturned, apparently,
whenever
"race is implicated in the trial" --
"by casting doubt upon the credibility or dignity of a witness,
or . . . upon the standing or due regard of an attorney who appears
in the cause,"
or even by suggesting "an alleged racial motivation of the
defendant or a victim."
Ante at
499 U. S. 412.
To me, this makes no sense. Lofty aims do not justify every step
intended to achieve them. Today's supposed blow against racism,
while enormously self-satisfying, is unmeasured and misdirected. If
for any reason the State is unable to reconvict Powers for the
double murder at issue here, later victims may pay the price for
our extravagance. Even if such a tragedy, in this or any case,
never occurs, the prosecutorial efforts devoted to retrials will
necessarily be withheld from other endeavors, as will the
prosecutorial efforts devoted to meeting the innumerable
Powers claims that defendants of all races can be relied
upon to present -- again with the result that crime goes unpunished
and criminals go free.
I respectfully dissent.