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SUPREME COURT OF THE UNITED STATES No. 89-5011 111 S. Ct. 1364, 499 U.S. 400, 113 L. Ed. 2d 411, 59 U.S.L.W. 4268, 1991.SCT.41999 <> decided: April 1, 1991. POWERSv.OHIO CERTIORARI TO THE COURT OF APPEALS OF OHIO, FRANKLIN COUNTY. Robert L. Lane, by appointment of the Court, 494 U.S. 1054, argued the cause for petitioner. With him on the brief were Randall M. Dana, Gregory L. Ayers, and Jill E. Stone. Alan Craig Travis argued the cause for respondent. With him on the brief was Michael Miller.*fn* Kennedy, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Stevens, O'Connor, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 417. Author: Kennedy


Kennedy, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Stevens, O'Connor, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 417.

Author: Kennedy

 Jury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civic life. Congress recognized this over a century ago in the Civil Rights Act of 1875, which made it a criminal offense to exclude persons from jury service on account of their race. See 18 U. S. C. § 243. In a trilogy of cases decided soon after enactment of this prohibition, our Court confirmed the validity of the statute, as well as the broader constitutional imperative of race neutrality in jury selection. See Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives, 100 U.S. 313 (1880); Ex parte Virginia, 100 U.S. 339 (1880). In the many times we have confronted the issue since those cases, we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts. Despite the clarity of these commands to eliminate the taint of racial discrimination in the administration of justice, allegations of bias in the jury selection process persist. In this case, petitioner alleges race discrimination in the prosecution's use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.


Petitioner Larry Joe Powers, a white man, was indicted in Franklin County, Ohio, on two counts of aggravated murder and one count of attempted aggravated murder. Each count also included a separate allegation that petitioner had a firearm while committing the offense. Powers pleaded not guilty and invoked his right to a jury trial. In the jury selection process, Powers objected when the prosecutor exercised his first peremptory challenge to remove a black venireperson. Powers requested the trial court to compel the prosecutor to explain, on the record, his reasons for excluding a black person. The trial court denied the request and excused the juror. The State proceeded to use nine more peremptory challenges, six of which removed black venirepersons from the jury. Each time the prosecution challenged a black prospective juror, Powers renewed his objections, citing our decision in Batson v. Kentucky, 476 U.S. 79 (1986). His objections were overruled. The record does not indicate that race was somehow implicated in the crime or the trial; nor does it reveal whether any black persons sat on petitioner's petit jury or if any of the nine jurors petitioner excused by peremptory challenges were black persons.

The empaneled jury convicted Powers on counts of murder, aggravated murder, and attempted aggravated murder, each with the firearm specifications, and the trial court sentenced him to a term of imprisonment of 53 years to life. Powers appealed his conviction to the Ohio Court of Appeals, contending that the prosecutor's discriminatory use of peremptories violated the Sixth Amendment's guarantee of a fair cross section in his petit jury, the Fourteenth Amendment's Equal Protection Clause, and Article I, §§ 10 and 16, of the Ohio Constitution. Powers contended that his own race was irrelevant to the right to object to the prosecution's peremptory challenges. The Court of Appeals affirmed the conviction, and the Supreme Court of Ohio dismissed Powers' appeal on the ground that it presented no substantial constitutional question.

Petitioner sought review before us, renewing his Sixth Amendment fair-cross-section and Fourteenth Amendment equal protection claims. While the petition for certiorari was pending, we decided Holland v. Illinois, 493 U.S. 474 (1990). In Holland it was alleged the prosecution had used its peremptory challenges to exclude from the jury members of a race other than the defendant's. We held the Sixth Amendment did not restrict the exclusion of a racial group at the peremptory challenge stage. Five members of the Court there said a defendant might be able to make the objection on equal protection grounds. See id., at 488 (Kennedy, J., concurring); id., at 490 (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting); id., at 504 (Stevens, J., dissenting). After our decision in Holland, we granted Powers' petition for certiorari limited to the question whether, based on the Equal Protection Clause, a white defendant may object to the prosecution's peremptory challenges of black venirepersons. 493 U.S. 1068 (1990). We now reverse and remand.


For over a century, this Court has been unyielding in its position that a defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the State's purposeful conduct. "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, [100 U.S.,] at 305, or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, 294 U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397 (1881). " Batson, supra, at 86 (footnote omitted). Although a defendant has no right to a "petit jury composed in whole or in part of persons of [the defendant's] own race," Strauder, 100 U.S., at 305, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.

We confronted the use of peremptory challenges as a device to exclude jurors because of their race for the first time in Swain v. Alabama, 380 U.S. 202 (1965). Swain involved a challenge to the so-called struck jury system, a procedure designed to allow both the prosecution and the defense a maximum number of peremptory challenges. The venire in non-capital cases started with about 35 potential jurors, from which the defense and the prosecution alternated with strikes until a petit panel of 12 jurors remained. The defendant in Swain, who was himself black, alleged that the prosecutor had used the struck jury system and its numerous peremptory challenges for the purpose of excluding black persons from his petit jury. In finding that no constitutional harm was alleged, the Court in Swain sought to reconcile the command of racial neutrality in jury selection with the utility, and the tradition, of peremptory challenges. The Court declined to permit an equal protection claim premised on a pattern of jury strikes in a particular case, but acknowledged that proof of systematic exclusion of black persons through the use of peremptories over a period of time might establish an equal protection violation. Id., at 222-228.

We returned to the problem of a prosecutor's discriminatory use of peremptory challenges in Batson v. Kentucky. There, we considered a situation similar to the one before us today, but with one exception: Batson, the defendant who complained that black persons were being excluded from his petit jury, was himself black. During the voir dire examination of the venire for Batson's trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, resulting in a petit jury composed only of white persons. Batson's counsel moved without success to discharge the jury before it was empaneled on the ground that the prosecutor's removal of black venirepersons violated his rights under the Sixth and Fourteenth Amendments. Relying upon the Equal Protection Clause alone, we overruled Swain to the extent it foreclosed objections to the discriminatory use of peremptories in the course of a specific trial. 476 U.S., at 90-93. In Batson we held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant's race. Id., at 96. The State contends that our holding in the case now before us must be limited to the circumstances prevailing in Batson and that in equal protection analysis the race of the objecting defendant constitutes a relevant precondition for a Batson challenge. Because Powers is white, the State argues, he cannot object to the exclusion of black prospective jurors. This limitation on a defendant's right to object conforms neither with our accepted rules of standing to raise a constitutional claim nor with the substantive guarantees of the Equal Protection Clause and the policies underlying federal statutory law.

In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson "was designed 'to serve multiple ends,'" only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, 478 U.S. 255, 259 (1986) (per curiam) (quoting Brown v. Louisiana, 447 U.S. 323, 329 (1980)). Batson recognized that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large. 476 U.S., at 87.

The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. See Duncan v. Louisiana, 391 U.S. 145, 147-158 (1968). In Balzac v. Porto Rico, 258 U.S. 298 (1922), Chief Justice Taft wrote for the Court:

"The jury system postulates a conscious duty of participation in the machinery of justice. . . . One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse." Id., at 310.

And, over 150 years ago, Alexis de Tocqueville remarked: "The institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests the people, or that class of citizens, with the direction of society.

". . . The jury . . . invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.

"I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ." 1 Democracy in America 334-337 (Schocken 1st ed. 1961).

Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people. See Green v. United States, 356 U.S. 165, 215 (1958) (Black, J., dissenting). It "affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law." Duncan, supra, at 187 (Harlan, J., dissenting). Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.

While States may prescribe relevant qualifications for their jurors, see Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 332 (1970), a member of the community may not be excluded from jury service on account of his or her race. See Batson, supra, at 84; Swain, 380 U.S., at 203-204; Carter, supra, at 329-330; Thiel v. Southern Pacific Co., 328 U.S. 217, 220-221 (1946); Neal v. Delaware, 103 U.S. 370, 386 (1881); Strauder, 100 U.S., at 308. "Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise." Carter, supra, at 330. Over a century ago, we recognized that:

"The very fact that [members of a particular race] are singled out and expressly denied . . . all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Strauder, supra, at 308.

Discrimination in the jury selection process is the subject of a federal criminal prohibition, and has been since Congress enacted the Civil Rights Act of 1875. The prohibition has been codified at 18 U. S. C. § 243, which provides:

"No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000."

In Peters v. Kiff, 407 U.S. 493 (1972), Justice White spoke of "the strong statutory policy of § 243, which reflects the central concern of the Fourteenth Amendment." Id., at 507 (opinion concurring in judgment). The Court permitted a white defendant to challenge the systematic exclusion of black persons from grand and petit juries. While Peters did not produce a single majority opinion, six of the Justices agreed that racial discrimination in the jury selection process cannot be tolerated and that the race of the defendant has no relevance to ...

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