Forty years after Batson v. Kentucky, prosecutors and defense lawyers still strike jurors because of their race. They just do not say so. A juror was "too young," "too old," "smiled too much," or "listened too intently." Under Batson, a reason like that does not have to be persuasive, or even plausible, to survive. So the practice continues, and almost no lawyer has ever been disciplined for it.
In this TalksOnLaw interview, recorded in 2021, Joel Cohen speaks with Peter Joy, the Henry Hitchcock Professor of Law and Director of the Criminal Justice Clinic at Washington University in St. Louis School of Law and a leading scholar of legal ethics, about why the Batson framework fails, what the Rules of Professional Conduct say about race-based strikes, and what reforms might work.
From Exclusion by Law to Exclusion by Strike
Joy traces the history: Black Americans were barred from juries outright until the Civil Rights Act of 1875, then kept off them for another century through voter-registration-based jury lists and "key man" systems that let prominent citizens pick the pool. Even today, pools drawn from voter rolls and driver's license lists leave many citizens out. He then explains the two ways a lawyer removes a prospective juror: a challenge for cause, which a judge must approve, and the peremptory challenge, which historically required no reason at all and which each side gets in equal numbers, typically four to six, multiplied in cases with multiple defendants.
Why Batson Fails
In Batson (1986), the prosecutor struck all four Black members of the venire in a burglary case, and the Supreme Court held that the Equal Protection Clause forbids race-based peremptory strikes. Joy walks through the three-step test and identifies what he calls the "defect" at its heart: at step two, the striking lawyer need only offer a race-neutral reason, and the Court has said that reason need not be persuasive or even plausible. The result is a culture of pretext. Joy describes prosecutor training materials coaching lawyers on how to defeat Batson challenges, Bryan Stevenson's story of a juror struck because the prosecutor confused a Masonic order with brick masonry, and research showing that implicit bias is most dangerous in cases where race is not obviously at issue.
The Ethics of a Pretextual Strike
Joy argues that a race-based strike violates the ethics rules on several fronts: it is conduct prejudicial to the administration of justice under Rule 8.4(d), it breaches the duty of candor to the tribunal under Rule 3.3 when a lawyer offers a reason that is not the real one, and it betrays a prosecutor's role as a "minister of justice" under Rule 3.8. He is sharply critical of Comment 5 to Model Rule 8.4(g), which says a judge's finding of a Batson violation does not by itself establish an ethics violation, and notes that even in Foster v. Chatman (2016), where the prosecution's own file listed Black jurors with a "B" and ranked them in case "it comes down to having to pick one of the black jurors," no lawyer was publicly disciplined.
What Would Work
Joy points to Washington's 2018 court rule, which asks whether an objective observer could view race as a factor in a strike and treats "classic" pretexts as presumptively invalid, as the most promising reform. He also discusses more representative venires, peremptory "inclusions," data collection on strikes, and the simple step of disciplinary authorities taking Batson findings seriously.
What to Know Now
Washington is no longer alone. Arizona abolished peremptory challenges in all criminal and civil cases effective January 1, 2022, the first state to do so. California's Code of Civil Procedure § 231.7 brought an objective-observer standard and a list of presumptively invalid reasons to criminal trials in 2022; a 2025 law made the statute's exemption for most civil cases permanent. Connecticut adopted a comparable rule for trials beginning October 1, 2022, and New Jersey's Rule 1:8-3A took effect for all trials on January 1, 2023. Washington's Supreme Court has since held that violations of its rule are reviewed without deference and require reversal regardless of the lawyer's intent. Proposals in Colorado, Massachusetts, Mississippi and New York have stalled, and a Colorado Supreme Court justice has suggested that abolishing peremptories may be the only real fix.
The ethics gap Joy identifies has narrowed. In July 2025 the ABA issued Formal Opinion 517, concluding that a lawyer who knows or reasonably should know that a peremptory strike is unlawful discrimination violates Model Rule 8.4(g), and that the lawyer cannot avoid responsibility by attributing the strike to a client, a jury consultant, or an AI tool. Comment 5's statement that a judge's Batson finding alone does not establish a violation remains, but the Opinion makes clear it is not a safe harbor. Public discipline for race-based strikes is still essentially unheard of.
The Supreme Court continues to police the framework itself. In Flowers v. Mississippi (2019) it reversed a conviction where a prosecutor had struck 41 of 42 Black prospective jurors over six trials, and in Pitchford v. Cain (May 2026) it held, 5–4, that a trial court may not skip Batson's third step: the defense must always be given the chance to show that a proffered reason is pretext.
