Holland v. Illinois/Dissent Stevens
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,  which in turn was composed at random,  from a broad cross section of the community.  At the commencement of voir dire, however, the State abandoned this neutral selection process. Rather than eliminating jurors on an individualized basis on the grounds of partiality or necessity, the prosecutor allegedly removed all the black jurors in the belief that no black citizen could be a satisfactory juror or could fairly try the case. As the Court acknowledges, that practice is "obviously" unlawful. Ante, at 487. The Court nonetheless does not reach the equal protection issue and, with respect to petitioner's Sixth Amendment claim, holds that the fair-cross-section principle of that Amendment does not "require anything beyond the inclusion of all cognizable groups in the venire." Ante, at 478. In my opinion, it is appropriate to review petitioner's equal protection claim, because a showing that black jurors have been eliminated solely on account of their race not only is sufficient to establish a violation of the Fourteenth Amendment but also is sufficient to establish a violation of the Sixth Amendment. A jury that is the product of such a racially discriminatory selection process cannot possibly be an "impartial jury" within the meaning of the Sixth Amendment.
* 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 Constitution. First, he argued that the discriminatory exclusion of all the potential black jurors from his jury violated his personal right under the Sixth Amendment to a jury drawn from a cross section of the community. Second, he argued that the State's discriminatory use of peremptory challenges also violated the jurors' equal protection rights which he had third-party standing to assert. The state court addressed and rejected both claims on the merits.
The Court today decides only petitioner's Sixth Amendment claim and refuses to reach the equal protection argument, even though we are unanimous in agreeing that "the systematic exclusion of blacks from the jury system through peremptory challenges" is "obviously" unlawful. Ante, at 486-487; see ante, at 488 (KENNEDY, J., concurring); ante, at 491 (MARSHALL, J., dissenting). It does so because petitioner did not reiterate before this Court his argument that the discriminatory exclusion of black jurors violated the Equal Protection Clause. The same situation was presented in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). There, as here, the petitioner declined to challenge the discriminatory exercise of peremptory challenges on equal protection grounds, framing the issue at argument and in his briefs in Sixth Amendment terms. See id., at 112-115, 106 S.Ct., at 1731 -33 (Burger, C.J., dissenting).  We nonetheless prescinded the Sixth Amendment question, id., at 85, n. 4, 106 S.Ct., at 1716, n. 4, and rested our decision in the petitioner's favor entirely on the Equal Protection Clause. Our decision in Batson makes it appropriate to begin our analysis by recognizing that petitioner's equal protection argument is plainly meritorious and entitles him to relief.
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, 106 S.Ct., at 1718. "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.  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. 
"[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case." Id., at 89, 106 S.Ct., at 1719. As Justice KENNEDY states, while the inference that the discriminatory motive is at work is stronger when the excluded jurors are of the same race or ethnicity as the defendant, the discriminatory use of peremptory challenges is not limited to that situation but may be present when, as here, the excluded jurors are not of the same race as the defendant. Ante, at 490 (concurring opinion). Petitioner, however, was not permitted to present any evidence to support his claim because the state court ruled that he did not have standing to assert the rights of the excluded jurors. For the reasons stated by Justice KENNEDY, that ruling was plainly wrong. My opinion, however, that petitioner should have been permitted to prove that the exclusion of black jurors violated the Equal Protection Clause also leads me to the conclusion that petitioner should be entitled to prove that the State has violated the fair-cross-section principle of the Sixth Amendment.
Fifteen years ago, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), we unambiguously held that "the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community." Id., at 527, 95 S.Ct., at 696. Although Taylor § reliance on the Sixth Amendment was novel, the constitutional principle that it vindicated was ancient. Long before Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), held that the Sixth Amendment is applicable to the States, it was "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," Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), and exclusion of a cognizable group from jury service was considered to "contraven[e] the very idea of a jury," Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 524, 24 L.Ed.2d 549 (1970).  We stated over a century ago-and have often reiterated since- that a defendant is entitled to "an impartial jury trial, by jurors indifferently selected or chosen without discrimination against such jurors because of their color." Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1880) (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)). Just as the potential juror has the right not to be excluded from jury service solely on account of race, so "[a]n accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race." Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 631-32, 94 L.Ed. 839 (1950) (plurality opinion); see also id., at 295, 70 S.Ct., at 635-36 (Frankfurter, J., concurring) ("The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. . . . The basis of selection cannot consciously take color into account. Such is the command of the Constitution").
The fair-cross-section principle is central to our understanding of the Sixth Amendment. It has been upon the basis of the promise of the fair cross section that we have held that a six-person jury does not contravene the Constitution, see Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) ("As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e.g., Carter v. Jury Commission, 396 U.S. 320, 329-330, 90 S.Ct. 518, 523-524, 24 L.Ed.2d 549 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one"), and that we have permitted nonunanimous verdicts, see Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972) (opinion of WHITE, J.) ("All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels ") (emphasis added). It has also been on the basis of the fair-cross-section requirement that we have refused to scrutinize jury verdicts under the Equal Protection Clause, see McCleskey v. Kemp, 481 U.S. 279, 309-310, 107 S.Ct. 1756, 1775-1776, 95 L.Ed.2d 262 (1987) ("Because of the risk that the factor of race may enter the criminal justice process, we have engaged in 'unceasing efforts' to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U.S. 79, 85 [106 S.Ct. 1712, 1716-17, 90 L.Ed.2d 69] (1986). Our efforts have been guided by our recognition that 'the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice,' Ex parte Milligan, 4 Wall. 2, 123 [18 L.Ed. 281] (1866). Thus, it is the jury that is a criminal defendant's fundamental 'protection of life and liberty against race or color prejudice.' Strauder v. West Virginia, 100 U.S. 303, 309 [25 L.Ed. 664] (1880)"). 
The fair-cross-section requirement mandates the use of a neutral selection mechanism to generate a jury representative of the community. It does not dictate that any particular group or race have representation on a jury. See Lockhart v. McCree, 476 U.S. 162, 173, 178, 106 S.Ct. 1758, 1767-68, 90 L.Ed.2d 137 (1986); Taylor, 419 U.S., at 538, 95 S.Ct., at 701-02; Apodaca, 406 U.S., at 413, 92 S.Ct., at 1634 (opinion of WHITE, J.); Cassell, 339 U.S., at 286-287, 70 S.Ct., at 631-632. The Constitution does not permit the easy assumption that a community would be fairly represented by a jury selected by proportional representation of different races any more than it does that a community would be represented by a jury composed of quotas of jurors of different classes. Cf. Castaneda v. Partida, 430 U.S. 482, 499-500, 97 S.Ct. 1272, 1282-1283, 51 L.Ed.2d 498 (1977); see also id., at 503, 97 S.Ct., at 1283-1284 (MARSHALL, J., concurring).  In fact, while a racially balanced jury would be representative of the racial groups in a community, the focus on race would likely distort the jury's reflection of other groups in society, characterized by age, sex, ethnicity, religion, education level, or economic class.  What the Constitution does require is "a fair possibility for obtaining a representative cross-section of the community." Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1906; see also Ballew v. Georgia, 435 U.S., at 236-237, 98 S.Ct., at 1037-1038 (plurality opinion); id., at 245, 98 S.Ct., at 1041-42 (WHITE, J., concurring in judgment).
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 Sixth Amendment right to a jury drawn from a fair cross section of the community." 419 U.S., at 534, 95 S.Ct., at 699-700. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), a Missouri provision gave women an automatic exemption from jury service. Like the Louisiana provision in Taylor, Missouri's automatic exemption resulted in underrepresentation of women at the venire stage and was justified only by the stereotype that most women would be unable to serve because of their domestic responsibilities. 439 U.S., at 369, 99 S.Ct., at 671.  We therefore held the provision unlawful.
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 Sixth Amendment: a State surely could not place all of its citizens in the jury pool, but then arbitrarily provide that members of certain cognizable groups would not be permitted to serve on a jury or could only serve if they overcame a special hurdle not applicable to other jurors. The Sixth Amendment guarantees the accused "an impartial jury," not just an impartial jury venire or jury pool. The State may remove jurors at any stage on the grounds, among others, that service would cause hardship to the individual or community, see Taylor, 419 U.S., at 534, 95 S.Ct., at 699-700; Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906), or that the individual juror is unable to render an impartial verdict, see Lockhart v. McCree, 476 U.S., at 175, 106 S.Ct., at 1766; cf. Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 835-36, 13 L.Ed.2d 759 (1965) ("[T]he view in this country has been that the system should guarantee 'not only freedom from any bias against the accused, but also from any prejudice against his prosecution' ") (quoting Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887)). By the same token, however, the State may never arbitrarily remove jurors on a discriminatory basis unrelated to their ability to serve as jurors. Cf. Lockhart, 476 U.S., at 175, 106 S.Ct., at 1766. The Sixth Amendment's protection is not so frail that it can be defeated by the State's creation of an additional level of selection.  Rather, by providing that juries be drawn through fair and neutral selection procedures from a broad cross section of the community, that Amendment insures a jury that will best reflect the views of the community-one that is not arbitrarily skewed for or against any particular group or characteristic.
Applying these principles, it is manifest that petitioner has stated a claim under the Sixth Amendment. Petitioner claimed at trial that the prosecutor systematically eliminated all the black jurors from his venire on the basis not that they were partial but that no black juror was competent to serve.  The state courts rejected this claim without a hearing, holding that the exercise of peremptory challenges can never violate the fair-cross-section requirement. Prior to our decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), I assume that that ruling would have been correct and that petitioner's argument would not have been successful. For Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), had established a virtually irrebuttable presumption that "the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court." Id., at 222, 85 S.Ct., at 837. That presumption could not be overcome by the prosecutor's use of peremptories to eliminate all the black jurors on the venire, ibid., but only by a showing that "the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Id., at 223, 85 S.Ct., at 837. Under previous law, the Illinois Supreme Court and this Court would have been correct in presuming along with the Swain Court that all peremptory challenges are exercised for nondiscriminatory reasons.
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, 106 S.Ct., at 1721, 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, 106 S.Ct., at 1725 (WHITE, J., concurring), and that the State is operating a discriminatory "selection procedure," id., at 87, 106 S.Ct., at 1718, that same showing necessarily establishes that the defendant does not have a fair possibility of obtaining a representative cross section for Sixth Amendment purposes. As we have explained, Batson has underpinnings both in the juror's equal protection right to be free of discrimination and in the defendant's right to a fair and impartial factfinder:
"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 [106 S.Ct. 2878, 2880, 92 L.Ed.2d 199] (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 Sixth Amendment right to a jury chosen from a fair cross section of the community than it is a violation of the juror's right to equal protection. 
The Court rejects petitioner's Sixth Amendment claim on the basis of three assumptions, two explicit and one implicit. First, it asserts that the tradition of peremptory challenges for the prosecution was "venerable" at the time of the ratification of the Sixth Amendment and thereby presumably immune from challenge. This assertion is both misleading  and an insufficient response to petitioner's claim that the State operated a system of discriminatory peremptory challenges. The Court has forsworn reliance on venerable history to give meaning to the Sixth Amendment's numerosity and unanimity requirements, see Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); the less venerable history of nondiscriminatory peremptory challenges surely cannot resolve any conflict between the fair-cross-section requirement and the exercise of discriminatory peremptory challenges.
Second, the Court contends that the exercise of peremptory challenges always serves the State's "legitimate 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.  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 Sixth Amendment right "would cripple the device of peremptory challenge." Ante, at 484. The same argument was made in Batson in the same context: a defendant's claim that peremptory challenges were used to discriminate against black jurors. After our recognition that a defendant could bring an equal protection challenge to the removal of black jurors in a single case, it is difficult to see why recognition of a Sixth Amendment right would impose any additional burden. In any event, our answer to the State in Batson is a sufficient response to the Court here:
"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, 106 S.Ct., at 1724-25 (footnotes omitted).
I respectfully dissent.