Mississippi Today Ideas is a platform for thoughtful Mississippians to share their ideas about our state’s past, present and future. Opinions expressed in guest essays are the author’s own and do not necessarily represent those of Mississippi Today. You can read more about the section here. The U.S. Supreme Court recently  decided Pitchford v. Cain, a case from Grenada, Mississippi. The court ruled that Mississippi courts improperly handled Terry Pitchford’s challenge that the prosecutor removed Black jurors because of their race. In the 5-4 decision, the court concluded that the trial judge should have given Pitchford’s attorney an opportunity to argue that the prosecutor’s reasons for striking Black jurors were merely pretextual and that the strikes were discriminatory. READ MORE: A Mississippi death penalty jury was seated. With one Black juror READ MORE: US Supreme Court rules for Black death row inmate from Mississippi over racial bias in makeup of jury Matthew Kim Credit: Courtesy photo The ruling is a victory for Pitchford. But it is a missed opportunity for the court. Both Justice Brett Kavanaugh’s majority opinion and Justice Neil Gorsuch’s dissenting opinion treated the Batson framework, named after the landmark 1986 decision Batson v. Kentucky that prohibited prosecutors from striking jurors because of their race, as a functioning safeguard against racial discrimination in jury selection. Their disagreement concerned only whether Mississippi courts properly followed Batson’s procedural requirements. Neither side seriously confronted a more fundamental question: Does Batson actually work? Forty years of experience and my research, forthcoming in the Florida Law Review, suggest the answer is no. The flawed Batson framework Under Batson, once a defendant claims that the prosecutor struck a juror because of the juror’s race, the prosecutor needs to provide a race-neutral explanation for the strike. Then, the defendant must be allowed to argue that the race-neutral explanation is merely pretextual or a fabricated reason and that the prosecutor’s strike is, in fact, discriminatory. However, courts have routinely accepted explanations ranging from a juror’s age, employment status, demeanor, marital status, neighborhood, body language, family history or countless other factors as genuine. The result is a system in which proving discrimination has become extraordinarily difficult. Indeed, the facts of Pitchford illustrate the problem. In a case involving a Black defendant, the prosecutor struck four of the five Black prospective jurors. The prosecutor’s reasons were that one juror returned late from lunch, two had relatives with criminal convictions and another was an unmarried father like the defendant. Whether those reasons were genuine or pretextual was never fully explored because the trial court did not allow Pitchford’s attorney to argue pretext. But even if Pitchford’s attorney had that opportunity, the trial judge could have easily rejected those arguments and decided that the prosecutor’s reasons were not pretextual, as countless other judges have done. Implications for Mississippi What makes Pitchford striking is that both the majority and dissent doubled down on the flawed Batson framework, refusing to acknowledge the overwhelming evidence that Batson does not prevent racial discrimination. And that refusal matters in Mississippi. No state has played a bigger role in the Supreme Court’s Batson jurisprudence. Mississippi courts have repeatedly grappled with allegations of discriminatory jury selection. Mississippi produced Flowers v. Mississippi, one of the court’s most important recent jury discrimination decisions. For Mississippi defendants, Pitchford may offer a modest procedural benefit. Trial judges will likely be more careful to allow defendants to argue that the prosecutor’s reasons for striking Black jurors are pretextual. And defense attorneys will cite this case when arguing that they must be given a meaningful opportunity to argue pretext. Perhaps that will help at the margins. But Mississippians should not mistake this marginal procedural benefit for substantive reform. After 40 years of experience, Mississippi defendants and the public more generally have reason to ask whether a framework that depends on judges discerning the true motivations behind peremptory strikes is capable of delivering what Batson promised in the first place – racial equality at jury selection. If Pitchford was a missed opportunity to reconsider Batson, what might a better alternative look like? In 2022, Arizona became the first state in the nation to abolish peremptory strikes altogether. Arizona’s reform reflects a simple insight: if attorneys are not permitted to strike jurors without cause, they cannot disguise discriminatory strikes behind a veneer of neutrality. Rather than continuing to refine a framework that has proven ineffective in practice, Mississippi should consider more fundamental reforms like those adopted in Arizona. The Supreme Court used Pitchford to remind Mississippi courts to follow Batson to prevent racial discrimination in the courtroom. What it should have done is ask whether Batson itself remains equal to the task.  Matthew Kim, J.D., Ph.D.is an assistant professor of law at the University of Florida. He teaches and writes about jury decision-making, empirical legal studies and procedural justice. ...read more read less