On April 30, 2026, Texas executed James Broadnax, a Black man who was sentenced to death for the robbery and murder of two men in 2008.

Before the jury was seated, the prosecutor moved to dismiss each of the seven Black people from the jury pool. Citing court documents, CNN noted that he “(utilized) a spreadsheet during jury selection that bolded only the names of every Black juror” and none of the white or Latino people. After defense objections, the judge reseated one Black juror, citing the otherwise all-white jury.

The trial proceeded with 11 white jurors and one Black juror.

A jury with that racial composition is likely to deliberate in a different way than one that is more racially diverse. According to Duke University law professor James Coleman, “Juries with two or more members of color deliberate longer, discuss a wider range of evidence, and collectively are more accurate in their statements about cases, regardless of the race of the defendant.”

A 2012 Duke University study of two Florida counties found that juries “formed from all-white jury pools convicted Black defendants 16% more often than white defendants, a gap that was nearly eliminated when at least one member of the jury pool was Black.”

Broadnax was executed on the 40th anniversary of Batson v. Kentucky, in which the Supreme Court ruled that prosecutors cannot exclude jurors solely on account of their race.

But Broadnax’s case is not an outlier. Similar efforts to “whiten” juries in capital cases regularly occur in states that authorize the death penalty. A 2025 analysis of Alabama’s death row by the Equal Justice Initiative found that across 122 capital cases – involving Black and white defendants in roughly equal numbers – more than one-third were decided by juries with no Black jurors or, like Broadnax’s case, only one.

As a death penalty scholar who has tracked the role of race in the death penalty system, I believed Batson was a step forward in the effort to address a long history of excluding Black people from jury service. But 40 years have shown that Batson merely scratched the surface of the problem.

A long history

The exclusion of Black people from jury service is as old as the republic itself.

Before the Civil War, one way this was done was by limiting eligibility for such service to those who could vote. Some states went further, saying only whites could serve on juries. A Tennessee law dating from 1858 is a good example: “Every white male citizen who is a freeholder, or householder, and twenty-one years of age, is legally qualified to act as a grand or petit juror.”

It was only after the Civil War and the passage of the 13th, 14th and 15th amendments to the Constitution that Black people were entitled to serve on juries nationwide – at least in theory.

Some states resisted. For example, West Virginia law specified that “all white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors.”

In 1880, 12 years after the ratification of the 14th Amendment – which guarantees equal protection of the law – the Supreme Court struck down that West Virginia law. It did so in the case of a former slave who was convicted in a capital case by an all-white jury and given a death sentence – a preview, I believe, of the kind of thing that happened to Broadnax.

The court held that the West Virginia law that “denies to colored citizens the right and privilege of participating in the administration of the law as jurors because of their color … is, practically, a brand upon them, and a discrimination against them which is forbidden by the [14th] amendment.”

Despite the court’s unequivocal ruling, the door to jury service remained closed to Black people. As legal scholar Sarah Claxton argued in 2022, “States across the country enacted vague and subjective standards for juror eligibility – requiring good moral character, honest and intelligent men, persons having educational qualifications – whose discriminatory application excluded Black citizens from juries.”

The modern story

The story of racial discrimination in jury selection is not simply a story of a now discredited past.

In 1965, the Supreme Court refused to remedy the exclusion of Black people from juries that its 1880 decision was supposed to have ended. It held, in Swain v. Alabama, that “a defendant in a criminal case is not constitutionally entitled to a proportionate number of his race on the trial jury or the jury panel.”

Two decades passed before the court again took up the glaring problem of racial discrimination by prosecutors seeking to keep Black people off juries.

In Batson v. Kentucky, the court considered a case in which the prosecuting attorney “used his peremptory challenges to strike all four black persons” in the jury pool and managed to seat an all-white jury. And on April 30, 1986, it reaffirmed that “a State denies a Black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.”

The court then created a process for challenging jury selection. First, the defendant must point to evidence – based on how the prosecutor used their strikes – that suggests racial discrimination. If they can, the prosecutor must then come forward with “a neutral explanation for challenging Black jurors.” Finally, the trial judge weighs all the evidence to decide whether the prosecutor’s stated reason is genuine or a cover for bias. In practice, this means a Batson challenge will fail as long as the prosecutor can offer any nonracial reason for excluding Black jurors, however thin.

When Batson v. Kentucky was decided, Justice Thurgood Marshall, drawing on his years of experience as an NAACP Legal Defense Fund lawyer, warned that the decision would not end racial discrimination in jury selection. “Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge,” he explained.

He predicted that “any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.”

40 years of Batson

History has proved Marshall right.

In the Broadnax case, prosecutors claimed that their efforts to remove Black jurors had nothing to do with their race. They suggested that they were dismissed because they could not be impartial or they had reservations about the death penalty, disqualifying them from service on a jury in a capital murder trial.

The Batson test has not been much of an obstacle for prosecutors in other capital cases either. In fact, in 2025 the Death Penalty Information Center reported that in the years after Batson, “prosecutors soon learned how to successfully defend race-based challenges, and courts generally accepted even the flimsiest excuses.” That’s why defendants rarely win Batson challenges “despite powerful evidence of racial bias.”

In the 40 years since Batson was decided, the Death Penalty Information Center has identified only 68 cases across 16 states in which a capital defendant succeeded in getting a conviction or death sentence reversed because of racial discrimination in jury selection.

The picture is similar in California, where more comprehensive data exists. According to a 2020 Berkeley Law report, the California Supreme Court reviewed 142 cases involving Batson claims over 30 years and found a violation in only three. At the time the report was published, it had been more than three decades since that court found a Batson violation involving the strike of a Black prospective juror.

Looking at what has happened since Batson v. Kentucky, Elisabeth Semel, a UC Berkeley law professor and co-director of the school’s Death Penalty Clinic, said in an interview with the Death Penalty Information Center that she would give Batson a grade of “F.” As she explained, “It certainly has failed to achieve its promise.”

Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.