# Swain v. Alabama/Dissent Goldberg

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United States Supreme Court
380 U.S. 202
Swain v. Alabama
Argued: Dec. 8, 1964. --- Decided: March 8, 1965
Mr. Justice GOLDBERG, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
In 1880 this Court, in Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, one of the first cases applying the Fourteenth Amendment to racial discrimination, held that under the Equal Protection Clause, a State cannot systematically exclude persons from juries solely because of their race or color. Since Strauder and until today this Court has consistently applied this constitutional principle. See Ex parte State of Virginia, 100 U.S. 339, 25 L.Ed. 676; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Hale v. Com. of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Arnold v. State of North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77.
The rationale upon which these decisions rest was clearly stated in Norris v. State of Alabama, supra, 294 U.S., at 589, 55 S.Ct., at 580:
'There is no controversy as to the constitutional principle involved. * * * Summing up precisely the effect of earlier decisions, this Court thus stated the principle in Carter v. (State of) Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839, in relation to exclusion from service on grand juries: 'Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. (State of) West Virginia, 100 U.S. 303, 25 L.Ed. 664; Neal v. (State of) Delaware, 103 U.S. 370, 397, 26 L.Ed. 567, 574; Gibson v. (State of) Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075.' This statement was repeated in the same terms in Rogers v. (State of) Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 48 L.Ed. 417, and again in Martin v. (State of) Texas, 200 U.S. 316, 319, 26 S.Ct. 338, 50 L.Ed. 497. The principle is equally applicable to a similar exclusion of negroes from service on petit juries. Strauder v. (State of) West Virginia, supra; Martin v. (State of) Texas, supra. And although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination. Neal v. (State of) Delaware, supra; Carter v. (State of) Texas, supra. Compare (State of) Virginia v. Rives, 100 U.S. 313, 322, 323, 25 L.Ed. 667; In re Wood, 140 U.S. 278, 285, 11 S.Ct. 738, 35 L.Ed. 505; Thomas v. (State of) Texas, 212 U.S. 278, 282, 283, 29 S.Ct. 393, 53 L.Ed. 512.'
This set of principles was recently and explicitly reaffirmed by this Court in Eubanks v. State of Louisiana, supra, and Arnold v. North Carolina, supra.
The reasons underlying the Court's decisions in these cases were well expressed in Strauder:
'The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, 'The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter'. It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called 'packing juries.' It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.' 100 U.S., at 308-309.
Moreover,
'(t)he very fact that colored people are singled out and expressly denied by a statute 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.' 100 U.S. at 308.
The principles and reasoning upon which this long line of decisions rests are sould. The need for their reaffirmation is present. The United States Commission on Civil Rights in its 1961 Report, Justice 103, after exhaustive study of the practice of descrimination in jury selection, concluded that '(t) he practice of racial exclusion from juries persists today even though it has long stood indicted as a serious violation of the 14th amendment.' It is unthinkable, therefore, that the principles of Strauder and the cases following should be in any way weakened or undermined at this late date particularly when this Court has made it clear in other areas, where the course of decision has not been so uniform, that the States may not discriminate on the basis of race. Compare Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; compare Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207, with McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283.
Regrettably, however, the Court today while referring with approval to Strauder and the cases which have followed, seriously impairs their authority and creates additional barriers to the elimination of jury discrimination practices which have operated in many communities to nullify the command of the Equal Protection Clause. This is evident from an analysis of the Court's holding as applied to the facts which are virtually undisputed.
Petitioner, a 19-year-old Negro, was indicted in Talladega County for the rape of a 17-year-old white girl, found guilty, and sentenced to death by an all-white jury. The petitioner established by competent evidence and without contradiction that not only was there no Negro on the jury that convicted and sentenced him, but also that no Negro within the memory of persons now living has ever served on any petit jury in any civil or criminal case tried in Talladega County, Alabama. Yet, of the group designated by Alabama as generally eligible for jury service in that county, 74% (12,125) were white and 26% (4,281) were Negro.
Under well-established principles this evidence clearly makes out 'a prima facie case of the denial of the equal protection which the Constitution guarantees.' Norris v. State of Alabama, supra, 294 U.S., at 591, 55 S.Ct., at 581. The case here is at least as strong as that in Norris where
'Proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time, was held to constitute prima facie proof of the systematic exclusion of Negroes from jury service. This holding, sometimes called the 'rule of exclusion,' has been applied in other cases, and it is available in supplying proof of descrimination against any delineated class.' Hernandez v. State of Texas, supra, 347 U.S. at 480, 74 S.Ct., at 671.
It is also at least a strong as the case in Patton v. State of Mississippi, supra, where the Court stated:
'It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very strong showing that during that period Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination.' 332 U.S. at 466, 68 S.Ct., at 186.
It is clear that, unless the State here can 'justify such an exclusion as having been brought about for some reason other than racial discrimination,' Patton v. State of Mississippi, ibid., this conviction 'cannot stand.' Id., at 469, 48 S.Ct., at 187. Norris v. State of Alabama, supra, 294 U.S., at 596-598, 55 S.Ct., at 582-583; Arnold v. North Carolina, supra, 376 U.S., at 774, 84 S.Ct., at 1032. 'Long continued omission of Negroes from jury service establishes a prima facie case of systematic discrimination. The burden of proof is then upon the State to refute it.' Harper v. State of Mississippi, 251 Miss. 699, 707, 171 So.2d 129, 132-133.
Alabama here does not deny that Negroes as a race are excluded from serving on juries in Talladega County. The State seeks to justify this admitted exclusion of Negroes from jury service by contending that the fact that no Negro has ever served on a petit jury in Talladega County has resulted from use of the jury-striking system, which is a form of peremptory challenge. While recognizing that no Negro has ever served on any petit jury in Talladega County, that the method of venire selection was inadequate, that the prosecutor in this case used the peremptory challenge system to exclude all Negroes as a class, and that the systematic misuse by the State of a peremptory challenge system to exclude all Negroes from all juries is prohibited by the Fourteenth Amendment, the Court affirms petitioner's conviction on the ground that petitioner has 'failed to carry' his burden of proof. The Court holds this because it believes the record is silent as to whether the State participated in this total exclusion of all Negroes in previous cases; it would require petitioner specifically to negative the possibility that total exclusion of Negroes from jury service in all other cases was produced solely by the action of defense attorneys.
I cannot agree that the record is silent as to the State's involvement in the total exclusion of Negroes from jury service in Talladega County. The Alabama Supreme Court found that 'Negroes are commonly on trial venires but are always struck by attorneys in selecting the trial jury.' 275 Ala. 508, 515, 156 So.2d 368, 375. In response to a question concerning the operation of the jury-striking system, the Circuit Solicitor, the state prosecuting attorney, stated:
'Sometimes, it depends on who is involved in a case. We have been very fortunate in this county, we have not had any white against black or black against white. If we have-where we have a situation arising in a case such as that, in the cases that we have had-we have had no capital felonies, but, we strike a jury different from what if it was two white men involved or two colored men.'
This statement, it seems to me, plainly indicates that, at the very least, the State-'we'-participates, in Talladega County, in employing the striking or peremptory challenge system to exclude Negroes from jury service in cases where white men are involved.
Also, the state prosecuting attorney testified as follows:
'Many times I have asked Mr. Love for instance, I would say there are so many colored men on this jury venire, do you want to use any of them, and he would say, my client doesn't want them, or we don't see fit to use them. And then if I didn't see fit to use them, then we would take them off. We would strike them first or take them off.
'If I am trying a case for the State, I will ask them what is their wish, do they want them (Negro jurors), and they will as a rule discuss it with their client, and then they will say, we don't want them. If we are not going to want them, if he doesn't want them, and if I don't want them, what we do then is just take them off. Strike them first.' These quotations show either that the State 'many times' abandons even the facade of the jury-striking system and agrees with the defense to remove all Negroes as a class from the jury lists even before the striking begins, or that pursuant to an agreement the State directly participates in the striking system to remove Negroes from the venire. Indeed the Court recognizes that '(a) pparently in some cases, the prosecution agreed with the defense to remove Negroes.' Ante, at 224-225. The Court, however, goes on to state that '(t)he record makes clear that this was not a general practice * * *.' Ante, at 225, n. 31. With all deference, it seems clear to me that the record statement quoted by the Court to support this conclusion, cuts against rather than in favor of the Court's statement and inference that the general practice was not to exclude Negroes by agreement between the prosecution and defense or by the State acting alone. The prosecutor, in the quoted statement, denied that he had stated that Negro defendants 'generally do not want' Negroes to serve on juries and stated that there had only 'been occasion here when that has happened.' Ante, at 225, n. 31. Since it is undisputed that no Negro has ever served on a jury in the history of the county, and a great number of cases have involved Negroes, the only logical conclusion from the record statement that only on occasion have Negro defendants desired to exclude Negroes from jury service, is that in a good many cases Negroes have been excluded by the state prosecutor, either acting alone or as a participant in arranging agreements with the defense.
Moreover, the record shows that in one case, the only one apparently in the history of the county where the State offered Negroes an opportunity to sit on a petit jury, the state prosecutor offered a Negro accused an all-Negro jury where the case involved an alleged crime against another Negro. The offer was refused but it tends to confirm the conclusion that the State joins in systematically excluding Negroes from jury service because it objects to any mixing of Negro and white jurors and to a Negro sitting in a case in which a white man is in any way involved.
Furthermore, the State concededly is responsible for the selection of the jury venire. As the Court recognizes, ante, at 205, the evidence showed that while Negroes represent 26% of the population generally available to be called for jury service in Talladega County, Negroes constituted a lesser proportion, generally estimated from 10% to 15%, of the average venire. The Alabama Supreme Court noted that under state law 'the jury commission is required to keep a roll containing the names of all male citizens living in the county who possess the qualifications prescribed by law and who are not exempted by law from serving on juries,' supra, 275 Ala., at 514, 156 So.2d, at 374, and, in fact, this had not been done in Talladega County. The alabama Supreme Court concluded that the method of jury selection in Talladega County was 'not exhaustive enough to insure the inclusion of all qualified persons,' ibid., and this Court admits it is 'imperfect,' ante, at 209, and that '(v)enires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community.' Ante, at 208. It may be, for the reasons stated by the Court, that this 'haphazard' method of jury selection standing alone as an alleged constitutional violation does not show unlawful jury discrimination. However, this method of venire selection cannot be viewed in isolation and must be considered in connection with the peremptory challenge system with which it is inextricably bound. When this is done it is evident that the maintenance by the State of the disproportionately low number of Negroes on jury panels enables the prosecutor, alone or in agreement with defense attorneys, to strike all Negroes from panels without materially impairing the number of peremptory challenges available for trial strategy purposes.
Finally, it is clear that Negroes were removed from the venire and excluded from service by the prosecutor's use of the peremptory challenge system in this case and that they have never served on the jury in any case in the history of the county. On these facts, and the inferences reasonably drawn from them, it seems clear that petitioner has affirmatively proved a pattern of racial discrimination in which the State is significantly involved, cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323, or for which the State is responsible, cf. Terry v. Adams, 345 U.S. 461, 473, 73 S.Ct. 809, 815, 97 L.Ed. 1152. As this Court held in Strauder, systematic exclusion of Negroes from jury service constitutes a brand of inferiority affixed upon them and state involvement in affixing such a brand is forbidden by the Fourteenth Amendment.
There is, however, a more fundamental defect in the Court's holding. Even if the Court were correct that the record is silent as to state involvement in previous cases in which Negroes have been systematically excluded from jury service, nevertheless, it is undisputed that no Negro has ever served on any petit jury in the history of Talladega County. Under Norris, Patton and the other cases discussed above, it is clear that petitioner by proving this made out a prima facie case of unlawful jury exclusion. The burden of proof then shifted to the State to prove, if it could, that this exclusion was brought about for some reason other than racial discrimination in which the State participated.
This established principle is well illustrated by the recent decision of the Mississippi Supreme Court, Harper v. State of Mississippi, supra, in which that court rejected an argument of the State of Mississippi strikingly similar to the one advanced here by the State of Alabama and accepted by this Court. In the Mississippi case a Negro defendant made out a prima facie case of jury exclusion by showing that only a token number of Negroes had served on juries in the county in question. The State attempted to rebut this prima facie case by contending that the exclusion resulted from a perfectly neutral system of employing voting registration lists to select prospective jurors and the fact that the number of Negroes selected was in proportion to their number on the voting registration lists. The Mississippi Supreme Court, held, however, that this did not rebut the prima facie case of jury exclusion unless the State could additionally prove that the disproportionately low number of Negroes on the voting registration list was caused by factors other than state-involved racial discrimination. Similarly in the instant case, it seems to me indisputable that Alabama did not rebut petitioner's prima facie case, which here is based on a showing of total exclusion, by the contention that it is the result of a neutral peremptory challenge system unless the State additionally proved that the peremptory challenge system is not being used in a way constituting state-involved discrimination. That it did not do so is uncontested.
Despite the fact that the petitioner therefore has made out what is, under the settled decisions of this Court, a prima facie case of jury exclusion which the State has not rebutted, the Court today affirms petitioner's conviction because, according to the Court, petitioner has 'failed to carry' his burden of proof. Ante, at 226. The Court concedes that if this case involved exclusion of Negroes from jury panels, under Norris and Patton a prima facie case of unconstitutional jury exclusion would be made out. However, the Court argues that because this case involved exclusion from the jury itself and not from the jury venire, the burden of proof on a defendant should be greater. This distinction is novel to say the least.
The Court's jury decisions, read together, have never distinguished between exclusion from the jury panel and exclusion from the jury itself. Indeed, no such distinction can be drawn. The very point of all these cases is to prevent that deliberate and systematic discrimination against Negroes or any other racial group that would prevent them, not merely from being placed upon the panel, but from serving on the jury. The Court quotes from Hernandez v. State of Texas, supra, to show that the prima facie rule applies only where no Negro 'had been called for jury service,' ante, at 226, but such a view is rejected by Patton's statement of the rule, for Patton held that a prima facie case was made out when it was shown that 'no Negro had served on a criminal court grand or petit jury for a period of thirty years.' 332 U.S., at 466, 68 S.Ct., at 186. (Emphasis added.) And, Patton is confirmed by our very recent cases. Eubanks v. State of Louisiana, supra, and Arnold v. North Carolina, supra, which also speak only in terms of jury 'service' and jury 'duty.' 'The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment.' Hernandez v. State of Texas, supra, 347 U.S., at 479, 74 S.Ct., at 671. (Emphasis added.)
The rule of exclusion set forth in these cases is a highly pragmatic one. It is designed to operate in jury cases so that once the defendant has made a showing of total exclusion, the burden of going forward with the evidence is placed upon the State, the party in the better position to develop the facts as to how the exclusion came about. The defendant is a party to one proceeding only, and his access to relevant evidence is obviously limited. The State is a party to all criminal cases and has greater access to the evidence, if any, which would tend to negative the State's involvement in discriminatory jury selection. The burden of proof rule developed in Norris, Patton, and other cases, which until today the Court has uniformly applied, is a simple and workable one designed to effectuate the Constitution's command. This is demonstrated by our past cases, as well as state cases. Because the same factors-availability of evidence, simplicity, and workability-exist whether exclusion from the jury panel or exclusion from the jury itself is involved, to apply the prima facie rule of Norris and Patton to this case is neither 'blind' nor 'wooden,' but is realistic and sensible.
I agree with the Court that it is a reasonable inference that the State is involved in unconstitutional discrimination where total exclusion of Negroes from all venires is established. I believe that it is also a reasonable inference that the State is involved where, although some Negroes are on venires, none has ever served on a jury, cf. Eubanks v. State of Louisiana, supra; Arnold v. North Carolina, supra, and the State in the case at bar has excluded from jury service the Negroes on the venire by exercise of its peremptory challenges. The Court in Patton and in other cases rejected the State's argument, and held that it would be unreasonable to assume where Negroes were totally excluded from venires that this came about because all Negroes were unqualified, unwilling, or unable to serve. It would be similarly unreasonable to assume where total exclusion from service has been established and the prosecutor has used peremptory challenges to exclude all Negroes from the jury in the given case that in all previous cases Negroes were excluded solely by defense attorneys without any state involvement. If the instant case is really a unique case, as the Court implies, surely the burden of proof should be on the State to show it.
Finally, the Court's reasoning on this point completely overlooks the fact that the total exclusion of Negroes from juries in Talladega County results from the interlocking of an inadequate venire selection system, for which the State concededly is responsible, and the use of peremptory challenges. All of these factors confirm my view that no good reason exists to fashion a new rule of burden of proof, which will make it more difficult to put an end to discriminatory selection of juries on racial grounds and will thereby impair the constitutional promise of 'Equal Protection of the Laws,' made effective by Strauder and the cases which follow it. By undermining the doctrine of the prima facie case while paying lip service to Strauder the Court today allies itself with those 'that keep the word of promise to our ear and break it to our hope.'
The Court departs from the long-established burden of proof rule in this area, and imposes sustantial additional burdens upon Negro defendants such as petitioner, because of its view of the importance of retaining inviolate the right of the State to use peremptory challenges. I believe, however, that the preference granted by the Court to the State's use of the peremptory challenge is both unwarranted and unnecessary.
To begin with, the peremptory challenge area, and imposes substantial additional as a device to protect defendants. As stated by Blackstone in a passage quoted with approval by this Court:
'(I)n criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons.
'1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.
'2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.' 4 Bl.Comm. 353.
Quoted with approval in Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011; see also United States v. Marchant, 12 Wheat. 480, 482, 6 L.Ed. 700.
Indeed in England, as the Court points out, ante, at 212-213, although the Crown at early common law had an unlimited number of peremptory challenges, as early as 1305 that right was taken away, and since that time in England peremptories may be exercised only by the defendant. Orfield, Criminal Procedure From Arrest to Appeal 355 (1947). Harris, Criminal Law 443 (20th ed. 1960). It appears that in modern times peremptories are rarely used in England, even by defendants. Ibid.
While peremptory challenges are commonly used in this country both by the prosecution and by the defense, we have long recognized that the right to challenge peremptorily is not a fundamental right, constitutionally guaranteed, even as applied to a defendant, much less to the State. Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154. This Court has sanctioned numerous incursions upon the right to challenge peremptorily. Defendants may be tried together even though the exercise by one of his right to challenge peremptorily may deprive his codefendant of a juror he desires or may require that codefendant to use his challenges in a way other than he wishes. United States v. Marchant, supra. A defendant may be required to exercise his challenges prior to the State, so that some may be wasted on jurors whom the State would have challenged. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208. Congress may regulate the number of peremptory challenges available to defendants by statute and may require codefendants to be treated as a single defendant so that each has only a small portion of the number of peremptories he would have if tried separately. Stilson v. United States, supra. In Stilson this Court stated, 'There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured.' 250 U.S., at 586, 40 S.Ct., at 30. The Fourteenth Amendment would impose no greater obligation upon the States. Today this Court reverses Stilson's maxim, in effect holding that 'There is nothing in the Constitution of the United States which requires the State to grant trial by an impartial jury so long as the inviolability of the peremptory challenge is secured.'
Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, settled beyond doubt that when a constitutional claim is opposed by a nonconstitutional one, the former must prevail. But no such choice is compelled in this situation. The holding called for by this case, is that where as here, a Negro defendant proves that Negroes constitute a substantial segment of the population, that Negroes are qualified to serve as jurors, and that none or only a token number has served on juries over an extended period of time, a prima facie case of the exclusion of Negroes from juries is then made out; that the State, under our settled decisions, is then called upon to show that such exclusion has been brought about 'for some reason other than racial discrimination,' Patton v. State of Mississippi, supra, 332 U.S., at 466, 68 S.Ct., at 186; and that the State wholly fails to meet the prima facie case of systematic and purposeful racial discrimination by showing that it has been accomplished by the use of a peremptory challenge system unless the State also shows that it is not involved in the misuse of such a system to prevent all Negroes from ever sitting on any jury. Such a holding would not interfere with the rights of defendants to use peremptories, nor the right of the State to use peremptories as they normally and traditionally have been used.
It would not mean, as the Court's prior decisions, to which I would adhere make clear, that Negroes are entitled to proportionate representation on a jury. Cassell v. State of Texas, supra, 339 U.S., at 286-287, 70 S.Ct., at 631 (opinion of Mr. Justice Reed). Nor would it mean that where systematic exclusion of Negroes from jury service has not been shown, a prosecutor's motives are subject to question or judicial inquiry when he excludes Negroes or any other group from sitting on a jury in a particular case. Only where systematic exclusion has been shown, would the State be called upon to justify its use of peremptories or to negative the State's involvement in discriminatory jury selection.
This holding would mean, however, that a conviction cannot stand where, as here, a Negro defendant, by showing widespread systematic exclusion, makes out a prima facie case of unconstitutional discrimination which the State does not rebut. Drawing the line in this fashion, in my view, achieves a practical accommodation of the constitutional right and the operation of the peremptory challenge system without doing violence to either.
I deplore the Court's departure from its holdings in Strauder and Norris. By affirming petitioner's conviction on this clear record of jury exclusion because of race, the Court condones the highly discriminatory procedures used in Talladega County under which Negroes never have served on any petit jury in that county. By adding to the present heavy burden of proof required of defendants in these cases, the Court creates additional barriers to the elimination of practices which have operated in many communities throughout the Nation to nullify the command of the Equal Protection Clause in this important area in the administration of justice. See 1961 United States Commission on Civil Rights Report, Justice 81-103.
I would be faithful to the teachings of this Court in its prior jury exclusion cases and the view, repeatedly expressed by this Court, that distinctions between citizens solely because of their race, religion, or ancestry, are odious to the Fourteenth Amendment. I would reaffirm and apply here what this Court said in Smith v. State of Texas, supra, 311 U.S., at 130, 61 S.Ct., at 165:
'It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government. * * * The fact that the written words of a state's laws hold out a promise that no such discrimination will be practiced is not enough. The Fourteenth Amendment requires that equal protection to all must be given not merely promised.'
Applying these principles, I would reverse. This, of course, would 'not mean that a guilty defendant must go free.' Patton v. State of Mississippi, supra, 332 U.S., at 469, 68 S.Ct., at 187; see Hill v. State of Texas, supra, 316 U.S., at 406, 62 S.Ct., at 1162. For, as the Court pointed out in Patton v. State of Mississippi, supra, 332 U.S., at 469, 68 S.Ct., at 187, the State, if it so desired, could retry petitioner by a jury 'selected as the Constitution commands.'

## Notes

* ↑ See also State v. Lawry, 263 N.C. 536, 139 S.E.2d 870.
* ↑ I believe that the record shows that agreement between the State and the defense to exclude Negroes has occurred 'many times.' The Court itself admits that at least 'in some cases, the prosecution agreed with the defense to remove Negroes.' Ante, at 224-225. It concludes, however, that this is not sufficient on the ground that '(t)here is no evidence, however, of what the prosecution did or did not do on its own account in any cases other than the one at bar.' Ibid. (Emphasis added.) This Court, however, has never held in any case involving racial discrimination under the Fourteenth Amendment that such discrimination is unconstitutional only if it is brought about by the State acting alone. The test which has been applied is whether the State 'to some significant extent * * * has been * * * involved.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45. See Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338. 'The vital requirement is State responsibility-that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which colored citizens are denied * * * rights merely because they are colored.' Terry v. Adams, 345 U.S. 461, 473, 73 S.Ct. 809, 815, 97 L.Ed. 1152 (separate opinion of Mr. Justice Frankfurter). The State's agreement with the defense, which the record establishes, to remove Negroes from jury venires, under the Court's settled decisions meets the 'state action' requirement of the Fourteenth Amendment. Under the principles of Strauder and the cases following, it constitutes 'action of a state * * * through its * * * administrative officers' excluding persons 'solely because of their race or color' from serving on juries. Carter v. State of Texas, supra, 177 U.S., at 447, 20 S.Ct., at 689.
* ↑ See Harper v. State of Mississippi, supra; State v. Lowry, supra.
* ↑ The Crown's right to challenge peremptorily was removed in that year by 33 Edw. 1, Stat. 4, because the King's right to challenge without showing cause 'was mischievous to the subject, tending to infinite delayes and danger.' Coke on Littleton 156 (14th ed. 1791). Since 33 Edw. 1, Stat. 4, the Crown can only require jurors whom it wishes to challenge to stand aside from the panel until the defendant has exercised all his challenges. Then, if a jury has not been selected, the jurors, who have been 'stood aside' will be used unless the Crown can challenge them for cause. Orfield, supra, at 356, Harris, supra, at 443, III Bacon's Abridgment 764 (5th ed. 1798). Even this limited procedure as the Court notes, ante, at 213, n. 12, however, is rarely used today. Orfield, supra, at 355; Harris, supra, at 443.
* ↑ See Cassell v. State of Texas, supra; Harper v. State of Mississippi, supra.
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