The Unconventional Equal Protection Jurisprudence of Jury Selection

This article traces the development of equal protection jurisprudence as it has been applied to one aspect of the criminal justice system, to wit, selection of juries. It demonstrates that the United States Supreme Court's approach has been inconsistent with conventional equal protection doctrine in two ways. Unlike conventional doctrine, which requires proof of subjective intent to discriminate to make out a prima facie case, the Court has found that the mere use of a jury selection process that has a proven statistically disparate negative impact on the selection of African-American jurors is sufficient to establish a prima facie violation of the Equal Protection Clause. The article further demonstrates that conventional "level of review" doctrine, including the requirement that government action may never be arbitrary, does not apply to jury selection, and has held that individuals other than those in protected groups may be removed from a jury without any rational basis for the decision.