Tolerating Deception and Discrimination After Batson
Ethical issues arise when courts rule that, under Batson, attorneys have exercised unconstitutional discriminatory peremptory challenges. The strikes themselves and the pretextual explanations offered in an effort to defend the strikes may provide grounds for levying personal sanctions against the striking attorneys. This article explores the wisdom and propriety of imposing personal liability on attorneys who exercise discriminatory strikes. In the course of doing so, it examines the meaning of "pretext, " the nature of "discriminatory intent" in equal protection jurisprudence, and the likely culpability or mens rea of attorneys as they engage in the prohibited conduct. It concludes that the costs of imposing such sanctions-including the risk of undeserved punishment and the adverse effect on the enforcement ofBatson's antidiscrimination principlemilitate against personally punishing the attorneys in addition to remedying the unconstitutional strikes, despite the fact that some deception and discrimination will inevitably be tolerated as a result.