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Thirteenth Amendment As a Prohibition Against the Racial Use of Peremptory Challenges Douglas L Cornell Law Review Volume 76 Article 1 Issue 1 November 1990 Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges Douglas L. Colbert Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges , 76 Cornell L. Rev. 1 (1990) Available at: http://scholarship.law.cornell.edu/clr/vol76/iss1/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. CHALLENGING THE CHALLENGE: THIRTEENTH AMENDMENT AS A PROHIBITION AGAINST THE RACIAL USE OF PEREMPTORY CHALLENGES Douglas L. Colbertt TABLE OF CONTENTS INTRODUCTION .............................................. 2 I. ORIGIN AND PURPOSE OF THE PEREMPTORY CHALLENGE 9 II. COLONIAL AND POST-REVOLUTIONARY LAWS: FIXING A "[S]TIGMA OF THE DEEPEST DEGRADATION ... UPON THE WHOLE [AFRICAN-AMERICAN] RACE"tt ................. 13 A. Southern Colonial Justice for the African-American Defendant ......................................... 16 B. Southern Colonial Justice for the African-American Complainant ..................................... 18 C. Post-Revolutionary Developments in the South .... 20 D. Northern Colonial Justice for the African-American Defendant ......................................... 25 E. Northern Colonial Justice for the African-American Complainant ...................................... 28 F. Post-Revolutionary Developments in the North .... 29 III. THE THIRTEENTH AMENDMENT .......................... 32 A. Legislative Intent .................................. 33 B. The Southern Response: White Violence and the Black Codes ....................................... 39 C. Civil Rights Act of 1866 ........................... 43 D. Judicial Interpretation of the Thirteenth Amendment 1866-1871 ............................ 51 t Associate Professor of Law, Hofstra Law School. I would like to thank my col- leagues who participated at a Hofstra Law School faculty workshop, and to Les Balti- more, John Brittain, Robert A. Baruch Bush, Carol ,Grumbach, Jay Hickey, Sheri Johnson, Charles Jones, Robert Kaczorowski, Lawrence Kessler, Alan Levine, David Rudovsky, and Michael Tigar for their thoughtful comments in reading earlier drafts or sections of this article. Special thanks to Eric Freedman and Dwight Greene for their devoted assistance, Arthur Kinoy for his inspiration, and Suzanne Sangree for the enor- mous support and invaluable contributions she made throughout the writing of this arti- cle. I also want to thank Pat Wright, who spent long hours performing logistical magic, and the many law students who provided research assistance, particularly Christine Szevar and Deirdre Dennin-Drake. tt Dred Scott v. Sandford, 60 U.S. 393, 409 (1857). CORNELL LA W REVIEW [Vol. 76:1 E. Judicial Interpretation 1872-1874 .................. 56 1. Blyew v. United States ......................... 56 2. The Slaughterhouse Cases ..................... 59 3. United States v. Cruikshank .................... 60 F. The Civil Rights Act of 1875 ....................... 62 G. Judicial Interpretation of the Jury Anti- Discrimination Statute 1880-1881 .................. 65 H. The Obliteration of the Thirteenth Amendment ... 71 1. The Civil Rights Cases ......................... 71 2. Plessy v. Ferguson ............................. 74 IV. POST-RECONSTRUCTION: THE INSTITUTION OF THE ALL- W HITE JURY ............................................ 75 A. From Norris to Swain: Equal Protection Challenges 1935-1965 ........................................ 81 B. The Norris v. Alabama Breakthrough ................ 81 C. Southern Violence 1945-1965 ..................... 86 D. Exclusion of Black Jurors in the North ............. 88 E. Swain, Batson, and the Peremptory Challenge ....... 93 V. THE THIRTEENTH AMENDMENT: THE CONSTITUTIONALITY OF THE ALL-WHITE JURY ................................ 101 A. Jones v. Alfred H. Mayer Co.: The Amendment's Resurrection ...................................... 101 B. Empirical Evidence: The All-White Jury Is Not Always Impartial .................................. 110 C. The Unconstitutionality of the Racially Inspired Peremptory Challenge ............................. 115 D. The Thirteenth Amendment's Prohibition of the Peremptory Challenge in Criminal and Civil Cases. 117 E. The Remedy for a Thirteenth Amendment Violation .......................................... 120 CONCLUSION ................................................ 125 INTRODUCTION The United States Supreme Court's 1965 decision in Swain v. Alabama I and its more recent 1986 decision, Batson v. Kentucky, 2 gen- erated a plethora of scholarly commentary concerning the racially discriminatory use of the peremptory challenge. 3 Although most 1 380 U.S. 202 (1965) (rejecting the argument that the state's use of the peremp- tory challenge to exclude African-American jurors violated the equal protection clause). 2 476 U.S. 79 (1986) (state's use of peremptory challenge is subject to commands of the equal protection clause when a defendant establishes a prima facie case that a prosecutor used peremptory challenges to remove prospective jurors of defendant's race). 3 A peremptory challenge is a "challenge to a juror to be exercised by a party to a civil action or criminal prosecution without assignment of reason or cause," and is lim- 1990] PEREMPTORY CHALLENGES 3 scholars have condemned Swain as a green light to prosecutors' use of the peremptory challenge to disqualify African-American jurors,4 and many have criticized the effectiveness of the Batson remedy, 5 few ited in number by statute. BALLENTINE'S LAw DICTIONARY 933 (3d ed. 1969). Such chal- lenges are distinct from challenges for cause which require ajudicial finding that there is a "narrowly specified, provable and legally cognizable basis of [a juror's] partiality." Swain, 380 U.S. at 220. Challenges for cause are unlimited, but are frequently denied by trial courts because of the difficulty of establishing a juror's bias during voir dire or jury selection. See Barbara Allen Babcock, Voir Dire: Preserving "Its Wonderfid Power", 27 STAN. L. REv. 545, 546-50 (1975). This commentator noted that cause challenges rarely pro- vide "effective[ ] screen[ing] [of] those who share biases and prejudices common to a racial or ethnic group" unless those jurors admit their biases. Id at 554; see also infra note 585. 4 JoN M. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMrrMENT TO REPRESENTATIVE PANELS 166-67 (1977); Frederick L. Brown, Frank T. McGuire & Mary S. Winters, The Peremptory Challenge as a Manipulative Device in Criminal Tials: Tradi- tional Use or Abuse, 14 NEw ENG. L. REv. 192, 197 (1978); Carl H. Imlay, FederalJury Reformation: Saving a Democratic Institution, 6 Loy. L.A.L. REv. 247, 268-70 (1973); Roger Kuhn,Jury Discrimination: The Next Phase, 41 S. CAL. L. REv. 235, 283-303 (1968); John Andrew Martin, The Fifth Circuit andJury Selection Cases: The Negro Defendant and His Peerless jury, 4 Hous. L. REv. 448 (1966); BruceJ. Winick, ProsecutorialPeremptory ChallengePractice in Capital Cases: An Empirical Study and a ConstitutionalAnalysis, 81 MICH. L. REv. 1 (1982); Note, Racial Discrimination inJury Selection-Limiting the prosecutor's right of peremptory chal- lenge to prevent a systematic exclusion of blacksfrom criminal trialjuries. United States v. Robinson, 41 ALB. L. REv. 623 (1977); Note, The Defendant's Right to Oject to ProsecutorialMisuse of the Peremptory Challenge, 92 HARV. L. REv. 1770 (1979); Note, Peremptory Challenge-Systematic Exclusion of ProspectiveJurors on the Basis of Race, 39 Miss. L.J. 157 (1967) (authored by Gary L. Geeslin); Note, The Casefor Black Juries, 79 YALE L.J. 531 (1970) (authored by Harold A. McDougall, III) [hereinafter BlackJuries]; Note, Limiting the Peremptory Challenge: Representation of Groups on PetitJuries, 86 YALE L.J. 1715 (1977) (authored by Bradley S. Philips); Note, FairJury Selection Procedures, 75 YALE L.J. 322, 325 (1965); Recent Deci- sion,Juries-SystematicExercise of Peremptory Challenges to Exclude NegroJurors May Violate the Equal ProtectionClause, 1965 U. ILL. L. F. 588 (authored by David W. Schoenberg); Com- ment, A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process, 18 ST. Louis U.LJ. 662 (1974) (authored by Lisa Van Amburg); Comment, Swain v. Alabama: A ConstitutionalBlueprint for the Perpetuationof the All-White Jury, 52 VA. L. REv. 1157 (1966) (authored by. F.R.D.) [hereinafter Blueprint]. Some commentators have defended Swain and the unfettered use of peremptory challenges. See, e.g., Stephan A. Saltzburg & Mary Ellen Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 MD. L. REv. 337 (1982); Irving Younger, Unlawful Peremptory Challenges, 7 LITIGATION 23 (Fall 1980). 5 Batson represented a significant improvement from Swain's "insurmountable" defense burden of proving that a prosecutor systematically excluded African-American jurors over a substantial time period. Swain, 380 U.S. at 224. Once the defense estab- lishes prima facie evidence of racial exclusion, Batson requires the prosecutor to provide a race-neutral reason
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