WILKINSON, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al. v. AUSTIN et al.

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Syllabus
WILKINSON, DIRECTOR, OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION, et al. v.
AUSTIN et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 04–495. Argued March 30, 2005—Decided June 13, 2005
“Supermax” prisons are maximum-security facilities with highly restric
tive conditions, designed to segregate the most dangerous prisoners
from the general prison population. Their use has increased in recent
years, in part as a response to the rise in prison gangs and prison vio
lence. Ohio opened its only Supermax facility, the Ohio State Peniten
tiary (OSP), after a riot in one of its maximum-security prisons. In the
OSP almost every aspect of an inmate’s life is controlled and monitored.
Incarceration there is synonymous with extreme isolation. Opportuni
ties for visitation are rare and are always conducted through glass walls.
Inmates are deprived of almost any environmental or sensory stimuli
and of almost all human contact. Placement at OSP is for an indefinite
period, limited only by an inmate’s sentence. Inmates otherwise eligi
ble for parole lose their eligibility while incarcerated at OSP.
When OSP first became operational, no official policy governing place
ment there was in effect, and the procedures used to assign inmates to
the facility were inconsistent and undefined, resulting in haphazard and
erroneous placements. In an effort to establish guidelines for the selec
tion and classification of OSP inmates, Ohio issued its Policy 111–07.
Relevant here are two versions of the policy: the “Old Policy” and the
“New Policy.” Because assignment problems persisted after the Old
Policy took effect, Ohio promulgated the New Policy to provide more
guidance regarding the factors to be considered in placement decisions
and to afford inmates more procedural protection against erroneous
placement. Under the New Policy, a prison official conducts a classifi
cation review either (1) upon entry into the prison system if the inmate
was convicted of certain offenses, e. g., organized crime, or (2) during
the incarceration if the inmate engages in specified conduct, e. g., leads
a prison gang. The New Policy also provides for a three-tier review
process after a recommendation that an inmate be placed in OSP.
Among other things, the inmate must receive notice of the factual basis
leading to consideration for OSP placement and a fair opportunity for
rebuttal at a hearing, although he may not call witnesses. In addition,
the inmate is invited to submit objections prior to the final level of re

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210 WILKINSON v. AUSTIN
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view. Although a subsequent reviewer may overturn an affirmative
recommendation for OSP placement at any level, the reverse is not true;
if one reviewer declines to recommend OSP placement, the process ter
minates. Ohio also provides for a placement review within 30 days of
an inmate’s initial assignment to OSP, and annual review thereafter.
A class of current and former OSP inmates filed this suit for equitable
relief under 42 U. S. C. § 1983, alleging, inter alia, that the Old Policy,
which was then in effect, violated the Fourteenth Amendment’s Due
Process Clause. On the eve of trial, Ohio promulgated its New Policy
and represented that it contained the procedures to be followed in the
future. After extensive evidence was presented, the District Court
made findings and conclusions and issued a detailed remedial order.
First, relying on Sandin v. Conner, 515 U. S. 472, the court found that
inmates have a liberty interest in avoiding assignment to OSP. Second,
it found Ohio had denied the inmates due process by failing to afford
many of them notice and an adequate opportunity to be heard before
transfer; failing to give them sufficient notice of the grounds for their
retention at OSP; and failing to give them sufficient opportunity to un
derstand the reasoning and evidence used to retain them at OSP.
Third, it held that, although the New Policy provided more procedural
safeguards than the Old Policy, it was nonetheless inadequate to meet
procedural due process requirements. The court therefore ordered
modifications to the New Policy, including substantive modifications nar
rowing the grounds that Ohio could consider in recommending assign
ment to OSP, and various specific procedural modifications. The Sixth
Circuit affirmed the District Court’s conclusion that the inmates had a
liberty interest in avoiding OSP placement and upheld the lower court’s
procedural modifications in their entirety, but set aside the far-reaching
substantive modifications on the ground they exceeded the District
Court’s authority.
Held: The procedures by which Ohio’s New Policy classifies prisoners for
placement at its Supermax facility provide prisoners with sufficient pro
tection to comply with the Due Process Clause. Pp. 221–230.
(a) Inmates have a constitutionally protected liberty interest in
avoiding assignment at OSP. Such an interest may arise from state
policies or regulations, subject to the important limitations set forth
in Sandin, which requires a determination whether OSP assignment
“imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” 515 U. S., at 483. The Court is
satisfied that assignment to OSP imposes such a hardship compared to
any plausible baseline from which to measure the Ohio prison system.
For an inmate placed in OSP, almost all human contact is prohibited,

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211 Cite as: 545 U. S. 209 (2005)
Syllabus
even to the point that conversation is not permitted from cell to cell; his
cell’s light may be dimmed, but is on for 24 hours; and he may exercise
only one hour per day in a small indoor room. Save perhaps for the
especially severe limitations on all human contact, these conditions
likely would apply to most solitary confinement facilities, but here there
are two added components. First is the duration. Unlike the 30-day
placement in segregated confinement at issue in Sandin, placement at
OSP is indefinite and, after an initial 30-day review, is reviewed just
annually. Second is that placement disqualifies an otherwise eligible
inmate for parole consideration. Taken together these conditions im
pose an atypical and significant hardship within the correctional con
text. Pp. 221–224.
(b) The New Policy’s procedures are sufficient to satisfy due process.
Evaluating the sufficiency of particular prison procedures requires con
sideration of three distinct factors: (1) the private interest that will be
affected by the official action; (2) the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and (3) the gov
ernment’s interest, including the function involved and the fiscal and
administrative burdens that additional or substitute procedural require
ment would entail. Mathews v. Eldridge, 424 U. S. 319, 335. Applying
those factors demonstrates that Ohio’s New Policy provides a sufficient
level of process. First, the inmate’s interest in avoiding erroneous
placement at OSP, while more than minimal, must nonetheless be evalu
ated within the context of the prison system and its attendant curtail
ment of liberties. The liberty of prisoners in lawful confinement is cur
tailed by definition, so their procedural protections are more limited
than in cases where the right at stake is the right to be free from all
confinement. Second, the risk of an erroneous placement is minimized
by the New Policy’s requirements. Ohio provides multiple levels of re
view for any decision recommending OSP placement, with power to
overturn the recommendation at each level. In addition, Ohio reduces
the risk of erroneous placement by providing for a placement review
within 30 days of an inmate’s initial assignment to OSP. Notice of the
factual basis for a decision and a fair opportunity for rebuttal are among
the most important procedural mechanisms for purposes of avoiding er
roneous deprivations. See, e. g., Greenholtz v. Inmates of Neb. Penal
and Correctional Complex, 442 U. S. 1, 15. Third, in the context of
prison management and the specific circumstances of this case, Ohio’s
interest is a dominant consideration. Ohio’s first obligation must be to
ensure the safety of guards and prison personnel, the public, and the
prisoners themselves. See Hewitt v. Helms, 459 U. S. 460, 473. Prison
security, imperiled by the brutal reality of prison gangs, provides the

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212 WILKINSON v. AUSTIN
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backdrop of the State’s interest. Another component of Ohio’s interest
is the problem of scarce resources. The high cost of maintaining an
inmate at OSP would make it difficult to fund more effective education
and vocational assistance programs to improve prisoners’ lives. Courts
must give substantial deference to prison management decisions before
mandating additional expenditures for elaborate procedural safeguards
when correctional officials conclude that a prisoner has engaged in dis
ruptive behavior. Were Ohio required to provide other attributes of
an adversary hearing before ordering transfer to OSP, both the State’s
immediate objective of controlling the prisoner and its greater objective
of controlling the prison could be defeated. Where, as here, the inquiry
draws more on the experience of prison administrators, and where the
State’s interest implicates the safety of other inmates and prison person
nel, the informal, nonadversary procedures set forth in Greenholtz and
Hewitt provide the appropriate model. If an inmate were to demon
strate that the New Policy did not in practice operate in the fashion
described, any cognizable injury could be the subject of an appropriate
future challenge. In light of the foregoing, the procedural modifications
ordered by the District Court and affirmed by the Sixth Circuit were in
error. Pp. 224–230.
372 F. 3d 346, affirmed in part, reversed in part, and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
Jim Petro, Attorney General of Ohio, argued the cause for
petitioners. With him on the briefs were Douglas R. Cole,
State Solicitor, Stephen P. Carney, Senior Deputy Solicitor,
and Todd R. Marti and Franklin E. Crawford, Assistant
Solicitors.
Deanne E. Maynard argued the cause for the United
States as amicus curiae urging reversal. With her on the
brief were Acting Solicitor General Clement, Assistant At
torney General Wray, Deputy Solicitor General Dreeben,
Jonathan L. Marcus, and Steven L. Lane.
Jules Lobel argued the cause for respondents. With him
on the brief was Staughton Lynd.*
*A brief of amici curiae urging reversal was filed for the State of Cali
fornia et al. by Bill Lockyer, Attorney General of California, Manuel M.
Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Frances T. Grunder, Senior Assistant Attorney Gen

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Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
This case involves the process by which Ohio classifies
prisoners for placement at its highest security prison, known
as a “Supermax” facility. Supermax facilities are maximum
security prisons with highly restrictive conditions, designed
to segregate the most dangerous prisoners from the general
prison population. We must consider what process the
Fourteenth Amendment to the United States Constitution
requires Ohio to afford to inmates before assigning them to
Supermax. We hold that the procedures Ohio has adopted
provide sufficient procedural protection to comply with due
process requirements.
I
The use of Supermax prisons has increased over the last
20 years, in part as a response to the rise in prison gangs
and prison violence. See generally U. S. Dept. of Justice,
National Institute of Corrections, C. Riveland, Supermax
Prisons: Overview and General Considerations 1 (1999),
http://www.nicic.org/pubs/1999/014937.pdf (as visited June 9,
2005, and available in Clerk of Court’s case file). About 30
States now operate Supermax prisons, in addition to the two
somewhat comparable facilities operated by the Federal Gov
eral, and Thomas S. Patterson, Supervising Deputy Attorney General, by
John W. Suthers, Interim Attorney General of Colorado, and by the Attor
neys General for their respective States as follows: Gregg D. Renkes of
Alaska, Terry Goddard of Arizona, M. Jane Brady of Delaware, Mark J.
Bennett of Hawaii, Lisa Madigan of Illinois, G. Steven Rowe of Maine,
Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri,
Jon Bruning of Nebraska, Brian Sandoval of Nevada, W. A. Drew Ed
mondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr.,
of Pennsylvania, Henry D. McMaster of South Carolina, Greg Abbott of
Texas, Jerry W. Kilgore of Virginia, and Rob McKenna of Washington.
Briefs of amici curiae urging affirmance were filed for Corrections Pro
fessionals by Walter J. Dickey; for Human Rights Watch et al. by Geoffrey
F. Aronow, Molly Wieser, Thomas F. Geraghty, and Andrea D. Lyon; for
Professors and Practitioners of Psychology and Psychiatry by Michael E.
Deutsch; and for Percy Pitzer by Joseph Margulies.

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ernment. See Brief for United States as Amicus Curiae 2.
In 1998, Ohio opened its only Supermax facility, the Ohio
State Penitentiary (OSP), after a riot in one of its maximum
security prisons. OSP has the capacity to house up to 504
inmates in single-inmate cells and is designed to “ ‘separate
the most predatory and dangerous prisoners from the rest of
the . . . general [prison] population.’ ” See 189 F. Supp. 2d
719, 723 (ND Ohio 2002) (Austin I) (quoting deposition of
R. Wilkinson, pp. 24–25).
Conditions at OSP are more restrictive than any other
form of incarceration in Ohio, including conditions on its
death row or in its administrative control units. The latter
are themselves a highly restrictive form of solitary confine
ment. See Austin I, supra, at 724–725, and n. 5 (citing Ohio
Admin. Code § 5120–9–13 (2001) (rescinded 2004)). In OSP
almost every aspect of an inmate’s life is controlled and moni
tored. Inmates must remain in their cells, which measure 7
by 14 feet, for 23 hours per day. A light remains on in the
cell at all times, though it is sometimes dimmed, and an in
mate who attempts to shield the light to sleep is subject to
further discipline. During the one hour per day that an in
mate may leave his cell, access is limited to one of two indoor
recreation cells.
Incarceration at OSP is synonymous with extreme isola
tion. In contrast to any other Ohio prison, including any
segregation unit, OSP cells have solid metal doors with
metal strips along their sides and bottoms which prevent
conversation or communication with other inmates. All
meals are taken alone in the inmate’s cell instead of in a
common eating area. Opportunities for visitation are rare
and in all events are conducted through glass walls. It is
fair to say OSP inmates are deprived of almost any environ
mental or sensory stimuli and of almost all human contact.
Aside from the severity of the conditions, placement at
OSP is for an indefinite period of time, limited only by an

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inmate’s sentence. For an inmate serving a life sentence,
there is no indication how long he may be incarcerated at
OSP once assigned there. Austin I, supra, at 740. In
mates otherwise eligible for parole lose their eligibility while
incarcerated at OSP. 189 F. Supp. 2d, at 728.
Placement at OSP is determined in the following manner:
Upon entering the prison system, all Ohio inmates are as
signed a numerical security classification from level 1
through level 5, with 1 the lowest security risk and 5 the
highest. See Brief for Petitioners 7. The initial security
classification is based on numerous factors (e. g., the nature
of the underlying offense, criminal history, or gang affilia
tion) but is subject to modification at any time during the
inmate’s prison term if, for instance, he engages in miscon
duct or is deemed a security risk. Ibid. Level 5 inmates
are placed in OSP, and levels 1 through 4 inmates are placed
at lower security facilities throughout the State. Ibid.
Ohio concedes that when OSP first became operational, the
procedures used to assign inmates to the facility were incon
sistent and undefined. For a time, no official policy govern
ing placement was in effect. See Austin I, supra, at 726–
727. Haphazard placements were not uncommon, and some
individuals who did not pose high-security risks were desig
nated, nonetheless, for OSP. In an effort to establish guide
lines for the selection and classification of inmates suitable
for OSP, Ohio issued Department of Rehabilitation and Cor
rection Policy 111–07 (Aug. 31, 1998). This policy has been
revised at various points but relevant here are two versions:
the “Old Policy” and the “New Policy.” The Old Policy took
effect on January 28, 1999, but problems with assignment
appear to have persisted even under this written set of
standards. 189 F. Supp. 2d, at 727–736. After forming a
committee to study the matter and retaining a national ex
pert in prison security, Ohio promulgated the New Policy in
early 2002. The New Policy provided more guidance re

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216 WILKINSON v. AUSTIN
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garding the factors to be considered in placement decisions
and afforded inmates more procedural protection against er
roneous placement at OSP.
Although the record is not altogether clear regarding the
precise manner in which the New Policy operates, we con
strue it based on the policy’s text, the accompanying forms,
and the parties’ representations at oral argument and in
their briefs. The New Policy appears to operate as follows:
A classification review for OSP placement can occur either
(1) upon entry into the prison system if the inmate was con
victed of certain offenses, e. g., organized crime, or (2) during
the term of incarceration if an inmate engages in specified
conduct, e. g., leads a prison gang. App. 42–43. The review
process begins when a prison official prepares a “Security
Designation Long Form” (Long Form). Id., at 20. This
three-page form details matters such as the inmate’s recent
violence, escape attempts, gang affiliation, underlying of
fense, and other pertinent details. Id., at 20, 38–45.
A three-member Classification Committee (Committee)
convenes to review the proposed classification and to hold a
hearing. At least 48 hours before the hearing, the inmate
is provided with written notice summarizing the conduct or
offense triggering the review. Id., at 22, 58. At the time
of notice, the inmate also has access to the Long Form, which
details why the review was initiated. See Tr. of Oral Arg.
13–17. The inmate may attend the hearing, may “offer any
pertinent information, explanation and/or objections to
[OSP] placement,” and may submit a written statement.
App. 22. He may not call witnesses.
If the Committee does not recommend OSP placement, the
process terminates. Id., at 62, 65. See also Brief for Peti
tioners 9. If the Committee does recommend OSP place
ment, it documents the decision on a “Classification Commit
tee Report” (CCR), setting forth “the nature of the threat
the inmate presents and the committee’s reasons for the rec
ommendation,” App. 64, as well as a summary of any informa

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tion presented at the hearing, id., at 59–65. The Committee
sends the completed CCR to the warden of the prison where
the inmate is housed or, in the case of an inmate just entering
the prison system, to another designated official. Id., at 23.
If, after reviewing the CCR, the warden (or the designated
official) disagrees and concludes that OSP is inappropriate,
the process terminates and the inmate is not placed in OSP.
If the warden agrees, he indicates his approval on the CCR,
provides his reasons, and forwards the annotated CCR to
the Bureau of Classification (Bureau) for a final decision.
Id., at 64. (The Bureau is a body of Ohio prison officials
vested with final decisionmaking authority over all Ohio in
mate assignments.) The annotated CCR is served upon the
inmate, notifying him of the Committee’s and warden’s rec
ommendations and reasons. Id., at 65. The inmate has 15
days to file any objections with the Bureau. Ibid.
After the 15-day period, the Bureau reviews the CCR and
makes a final determination. If it concludes OSP placement
is inappropriate, the process terminates. If the Bureau ap
proves the warden’s recommendation, the inmate is trans
ferred to OSP. The Bureau’s chief notes the reasons for the
decision on the CCR, and the CCR is again provided to the
inmate. Ibid.
Inmates assigned to OSP receive another review within 30
days of their arrival. That review is conducted by a desig
nated OSP staff member, who examines the inmate’s file.
Id., at 25. If the OSP staff member deems the inmate inap
propriately placed, he prepares a written recommendation to
the OSP warden that the inmate be transferred to a lower
security institution. Brief for Petitioners 9; App. 25. If the
OSP warden concurs, he forwards that transfer recommen
dation to the Bureau for appropriate action. If the inmate
is deemed properly placed, he remains in OSP and his place
ment is reviewed on at least an annual basis according to the
initial three-tier classification review process outlined above.
Brief for Petitioners 9–10.

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II
This action began when a class of current and former OSP
inmates brought suit under Rev. Stat. § 1979, 42 U. S. C.
§ 1983, in the United States District Court for the Northern
District of Ohio against various Ohio prison officials. We
refer to the class of plaintiff inmates, respondents here, col
lectively as “the inmates.” We refer to the prison officials,
petitioners here, as “Ohio.”
The inmates’ complaint alleged that Ohio’s Old Policy,
which was in effect at the time the suit was brought, violated
due process. In addition the inmates brought a claim that
certain conditions at OSP violated the Eighth Amendment’s
ban on cruel and unusual punishments, but that claim was
settled in the District Court. The extent to which the set
tlement resolved the practices that were the subject of the
inmates’ Eighth Amendment claim is unclear but, in any
event, that issue is not before us. The inmates’ suit sought
declaratory and injunctive relief. On the eve of trial Ohio
promulgated its New Policy and represented that it con
tained the procedures to be followed in the future. The Dis
trict Court and Court of Appeals evaluated the adequacy
of the New Policy, and it therefore forms the basis for our
determination here.
After an 8-day trial with extensive evidence, including tes
timony from expert witnesses, the District Court made find
ings and conclusions and issued a detailed remedial order.
First, relying on this Court’s decision in Sandin v. Conner,
515 U. S. 472 (1995), the District Court found that the in
mates have a liberty interest in avoiding assignment to OSP.
Austin I, 189 F. Supp. 2d, at 738–740. Second, the District
Court found Ohio had denied the inmates due process by
failing to afford a large number of them notice and an ade
quate opportunity to be heard before transfer; failing to give
inmates sufficient notice of the grounds serving as the basis
for their retention at OSP; and failing to give the inmates
sufficient opportunity to understand the reasoning and evi

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dence used to retain them at OSP. Id., at 749. Third, the
District Court held that, although Ohio’s New Policy pro
vided more procedural safeguards than its Old Policy, it was
nonetheless inadequate to meet procedural due process re
quirements. Id., at 736, 750–754. In a separate order it di
rected extensive modifications to that policy. 204 F. Supp.
2d 1024 (ND Ohio 2002).
The modifications the District Court ordered to Ohio’s
New Policy included both substantive and procedural re
forms. The former narrowed the grounds that Ohio could
consider in recommending assignment to OSP. For in
stance, possession of drugs in small amounts, according to
the District Court, could not serve as the basis for an OSP
assignment. Id., at 1028. The following are some of the
procedural modifications the District Court ordered:
(1) Finding that the notice provisions of Ohio’s New Policy
were inadequate, the District Court ordered Ohio to provide
the inmates with an exhaustive list of grounds believed to
justify placement at OSP and a summary of all evidence upon
which the Committee would rely. Matters not so identified,
the District Court ordered, could not be considered by the
Committee. Id., at 1026.
(2) The District Court supplemented the inmate’s oppor
tunity to appear before the Committee and to make an oral
or written statement by ordering Ohio to allow inmates to
present documentary evidence and call witnesses before the
Committee, provided that doing so would not be unduly haz
ardous or burdensome. The District Court further ordered
that Ohio must attempt to secure the participation of any
witness housed within the prison system. Id., at 1026–1027.
(3) Finding the New Policy’s provision of a brief state
ment of reasons for a recommendation of OSP placement
inadequate, the District Court ordered the Committee to
summarize all evidence supporting its recommendation.
Id., at 1027. Likewise, the District Court ordered the Bu
reau to prepare a “detailed and specific” statement “set[ting]

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220 WILKINSON v. AUSTIN
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out all grounds” justifying OSP placement including “facts
relied upon and reasoning used.” Ibid. The statement
shall “not use conclusory,” “vague,” or “boilerplate lan
guage,” and must be delivered to the inmate within five
days. Id., at 1027–1028.
(4) The District Court supplemented the New Policy’s 30
day and annual review processes, ordering Ohio to notify the
inmate twice per year both in writing and orally of his prog
ress toward a security level reduction. Specifically, that no
tice must “advise the inmate what specific conduct is nec
essary for that prisoner to be reduced from Level 5 and
the amount of time it will take before [Ohio] reduce[s] the
inmate’s security level classification.” Id., at 1028.
Ohio appealed. First, it maintained that the inmates
lacked a constitutionally protected liberty interest in avoid
ing placement at OSP. Second, it argued that, even assum
ing a liberty interest, its New Policy provides constitu
tionally adequate procedures and thus the District Court’s
modifications were unnecessary. The Court of Appeals for
the Sixth Circuit affirmed the District Court’s conclusion
that the inmates had a liberty interest in avoiding placement
at OSP. 372 F. 3d 346, 356 (2004). The Court of Appeals
also affirmed the District Court’s procedural modifications
in their entirety. Id., at 359–360. Finally, it set aside the
District Court’s far-reaching substantive modifications, con
cluding they exceeded the scope of the District Court’s au
thority. This last aspect of the Court of Appeals’ ruling is
not the subject of review in this Court.
We granted certiorari to consider what process an inmate
must be afforded under the Due Process Clause when he is
considered for placement at OSP. 543 U. S. 1032 (2004).
For reasons discussed below, we conclude that the inmates
have a protected liberty interest in avoiding assignment at
OSP. We further hold that the procedures set forth in the
New Policy are sufficient to satisfy the Constitution’s re
quirements; it follows, then, that the procedural modifica

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tions ordered by the District Court and affirmed by the
Court of Appeals were in error.
III
Withdrawing from the position taken in the Court of Ap
peals, Ohio in its briefs to this Court conceded that the in
mates have a liberty interest in avoiding assignment at OSP.
See Pet. for Cert. i; Brief for Petitioners i. The United
States, supporting Ohio as amicus curiae, disagrees with
Ohio’s concession and argues that the inmates have no lib
erty interest in avoiding assignment to a prison facility with
more restrictive conditions of confinement. See Brief for
United States 10. At oral argument Ohio initially adhered
to its earlier concession, see Tr. of Oral Arg. 5, but when
pressed, the State backtracked. See id., at 6–7. We need
reach the question of what process is due only if the inmates
establish a constitutionally protected liberty interest, so it is
appropriate to address this threshold question at the outset.
The Fourteenth Amendment’s Due Process Clause pro
tects persons against deprivations of life, liberty, or prop
erty; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake. A
liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word “liberty,” see, e. g.,
Vitek v. Jones, 445 U. S. 480, 493–494 (1980) (liberty interest
in avoiding involuntary psychiatric treatment and transfer
to mental institution), or it may arise from an expectation or
interest created by state laws or policies, see, e. g., Wolff v.
McDonnell, 418 U. S. 539, 556–558 (1974) (liberty interest in
avoiding withdrawal of state-created system of good-time
credits).
We have held that the Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse
conditions of confinement. Meachum v. Fano, 427 U. S. 215,
225 (1976) (no liberty interest arising from Due Process
Clause itself in transfer from low- to maximum-security

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222 WILKINSON v. AUSTIN
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prison because “[c]onfinement in any of the State’s institu
tions is within the normal limits or range of custody which
the conviction has authorized the State to impose”). We
have also held, however, that a liberty interest in avoiding
particular conditions of confinement may arise from state
policies or regulations, subject to the important limitations
set forth in Sandin v. Conner, 515 U. S. 472 (1995).
Sandin involved prisoners’ claims to procedural due proc
ess protection before placement in segregated confinement
for 30 days, imposed as discipline for disruptive behavior.
Sandin observed that some of our earlier cases, Hewitt v.
Helms, 459 U. S. 460 (1983), in particular, had employed a
methodology for identifying state-created liberty interests
that emphasized “the language of a particular [prison] regu
lation” instead of “the nature of the deprivation.” Sandin,
515 U. S., at 481. In Sandin, we criticized this methodology
as creating a disincentive for States to promulgate proce
dures for prison management, and as involving the federal
courts in the day-to-day management of prisons. Id., at
482–483. For these reasons, we abrogated the methodology
of parsing the language of particular regulations.
“[T]he search for a negative implication from mandatory
language in prisoner regulations has strayed from the
real concerns undergirding the liberty protected by the
Due Process Clause. The time has come to return to
the due process principles we believe were correctly es
tablished in and applied in Wolff and Meachum. Fol
lowing Wolff, we recognize that States may under cer
tain circumstances create liberty interests which are
protected by the Due Process Clause. But these inter
ests will generally be limited to freedom from restraint
which, while not exceeding the sentence in such an unex
pected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in rela

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tion to the ordinary incidents of prison life.” Id., at
483–484 (citations and footnote omitted).
After Sandin, it is clear that the touchstone of the inquiry
into the existence of a protected, state-created liberty inter
est in avoiding restrictive conditions of confinement is not
the language of regulations regarding those conditions but
the nature of those conditions themselves “in relation to the
ordinary incidents of prison life.” Id., at 484.
Applying this refined inquiry, Sandin found no liberty in
terest protecting against a 30-day assignment to segregated
confinement because it did not “present a dramatic departure
from the basic conditions of [the inmate’s] sentence.” Id.,
at 485. We noted, for example, that inmates in the general
population experienced “significant amounts of ‘lockdown
time’ ” and that the degree of confinement in disciplinary seg
regation was not excessive. Id., at 486. We did not find,
moreover, the short duration of segregation to work a major
disruption in the inmate’s environment. Ibid.
The Sandin standard requires us to determine if assign
ment to OSP “imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.” Id., at 484. In Sandin’s wake the Courts of Appeals
have not reached consistent conclusions for identifying the
baseline from which to measure what is atypical and sig
nificant in any particular prison system. Compare, e. g.,
Beverati v. Smith, 120 F. 3d 500, 504 (CA4 1997), and Keenan
v. Hall, 83 F. 3d 1083, 1089 (CA9 1996), with Hatch v. District
of Columbia, 184 F. 3d 846, 847 (CADC 1999). See also
Wagner v. Hanks, 128 F. 3d 1173, 1177 (CA7 1997). This
divergence indicates the difficulty of locating the appropriate
baseline, an issue that was not explored at length in the
briefs. We need not resolve the issue here, however, for we
are satisfied that assignment to OSP imposes an atypical and
significant hardship under any plausible baseline.
For an inmate placed in OSP, almost all human contact is
prohibited, even to the point that conversation is not permit

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224 WILKINSON v. AUSTIN
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ted from cell to cell; the light, though it may be dimmed, is
on for 24 hours; exercise is for 1 hour per day, but only in a
small indoor room. Save perhaps for the especially severe
limitations on all human contact, these conditions likely
would apply to most solitary confinement facilities, but here
there are two added components. First is the duration.
Unlike the 30-day placement in Sandin, placement at OSP is
indefinite and, after an initial 30-day review, is reviewed just
annually. Second is that placement disqualifies an other
wise eligible inmate for parole consideration. Austin I, 189
F. Supp. 2d, at 728. While any of these conditions standing
alone might not be sufficient to create a liberty interest,
taken together they impose an atypical and significant hard
ship within the correctional context. It follows that re
spondents have a liberty interest in avoiding assignment to
OSP. Sandin, supra, at 483.
OSP’s harsh conditions may well be necessary and appro
priate in light of the danger that high-risk inmates pose both
to prison officials and to other prisoners. See infra, at 227.
That necessity, however, does not diminish our conclusion
that the conditions give rise to a liberty interest in their
avoidance.
IV
A liberty interest having been established, we turn to the
question of what process is due an inmate whom Ohio seeks
to place in OSP. Because the requirements of due process
are “flexible and cal[l] for such procedural protections as the
particular situation demands,” Morrissey v. Brewer, 408
U. S. 471, 481 (1972), we generally have declined to establish
rigid rules and instead have embraced a framework to evalu
ate the sufficiency of particular procedures. The frame
work, established in Mathews v. Eldridge, 424 U. S. 319
(1976), requires consideration of three distinct factors:
“First, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva

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tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute pro
cedural safeguards; and finally, the Government’s inter
est, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.” Id., at 335.
The Court of Appeals upheld the District Court’s proce
dural modifications under the assumption that Sandin al
tered the first Mathews factor. It reasoned that, “[i]n this
first factor, Sandin affects the due process balance: because
only those conditions that constitute ‘atypical and significant
hardships’ give rise to liberty interests, those interests will
necessarily be of a weight requiring greater due process
protection.” 372 F. 3d, at 358–359. This proposition does
not follow from Sandin. Sandin concerned only whether
a state-created liberty interest existed so as to trigger
Mathews balancing at all. Having found no liberty interest
to be at stake, Sandin had no occasion to consider whether
the private interest was weighty vis-a` -vis the remaining
Mathews factors.
Applying the three factors set forth in Mathews, we find
Ohio’s New Policy provides a sufficient level of process. We
first consider the significance of the inmate’s interest in
avoiding erroneous placement at OSP. Prisoners held in
lawful confinement have their liberty curtailed by definition,
so the procedural protections to which they are entitled are
more limited than in cases where the right at stake is the
right to be free from confinement at all. See, e. g., Gerstein
v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The pri
vate interest at stake here, while more than minimal, must
be evaluated, nonetheless, within the context of the prison
system and its attendant curtailment of liberties.
The second factor addresses the risk of an erroneous place
ment under the procedures in place, and the probable value,
if any, of additional or alternative procedural safeguards.
The New Policy provides that an inmate must receive notice

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226 WILKINSON v. AUSTIN
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of the factual basis leading to consideration for OSP place
ment and a fair opportunity for rebuttal. Our procedural
due process cases have consistently observed that these are
among the most important procedural mechanisms for pur
poses of avoiding erroneous deprivations. See Greenholtz v.
Inmates of Neb. Penal and Correctional Complex, 442 U. S.
1, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U. S.
532, 543 (1985); Fuentes v. Shevin, 407 U. S. 67, 80 (1972)
(“For more than a century the central meaning of procedural
due process has been clear: ‘Parties whose rights are to be
affected are entitled to be heard; and in order that they may
enjoy that right they must first be notified’ ” (quoting Bald
win v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to
provide a brief summary of the factual basis for the classifi
cation review and allowing the inmate a rebuttal opportunity
safeguards against the inmate’s being mistaken for another
or singled out for insufficient reason. In addition to having
the opportunity to be heard at the Committee stage, Ohio
also invites the inmate to submit objections prior to the final
level of review. This second opportunity further reduces
the possibility of an erroneous deprivation.
Although a subsequent reviewer may overturn an affirm
ative recommendation for OSP placement, the reverse is not
true; if one reviewer declines to recommend OSP placement,
the process terminates. This avoids one of the problems ap
parently present under the Old Policy, where, even if two
levels of reviewers recommended against placement, a later
reviewer could overturn their recommendation without
explanation.
If the recommendation is OSP placement, Ohio requires
that the decisionmaker provide a short statement of reasons.
This requirement guards against arbitrary decisionmaking
while also providing the inmate a basis for objection before
the next decisionmaker or in a subsequent classification
review. The statement also serves as a guide for future
behavior. See Greenholtz, supra, at 16.

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As we have noted, Ohio provides multiple levels of review
for any decision recommending OSP placement, with power
to overturn the recommendation at each level. In addition
to these safeguards, Ohio further reduces the risk of errone
ous placement by providing for a placement review within
30 days of an inmate’s initial assignment to OSP.
The third Mathews factor addresses the State’s interest.
In the context of prison management, and in the specific cir
cumstances of this case, this interest is a dominant consider
ation. Ohio has responsibility for imprisoning nearly 44,000
inmates. Austin I, 189 F. Supp. 2d, at 727. The State’s
first obligation must be to ensure the safety of guards and
prison personnel, the public, and the prisoners themselves.
See Hewitt, 459 U. S., at 473.
Prison security, imperiled by the brutal reality of prison
gangs, provides the backdrop of the State’s interest. Clan
destine, organized, fueled by race-based hostility, and com
mitted to fear and violence as a means of disciplining their
own members and their rivals, gangs seek nothing less than
to control prison life and to extend their power outside
prison walls. See Brief for State of California et al. as
Amici Curiae 6. Murder of an inmate, a guard, or one of
their family members on the outside is a common form of
gang discipline and control, as well as a condition for mem
bership in some gangs. See, e. g., United States v. Santiago,
46 F. 3d 885, 888 (CA9 1995); United States v. Silverstein,
732 F. 2d 1338, 1341 (CA7 1984). Testifying against, or oth
erwise informing on, gang activities can invite one’s own
death sentence. It is worth noting in this regard that for
prison gang members serving life sentences, some without
the possibility of parole, the deterrent effects of ordinary
criminal punishment may be substantially diminished. See
id., at 1343 (“[T]o many inmates of Marion’s Control Unit the
price of murder must not be high and to some it must be
close to zero”).

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228 WILKINSON v. AUSTIN
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The problem of scarce resources is another component of
the State’s interest. The cost of keeping a single prisoner
in one of Ohio’s ordinary maximum-security prisons is
$34,167 per year, and the cost to maintain each inmate at
OSP is $49,007 per year. See Austin I, supra, at 734, n. 17.
We can assume that Ohio, or any other penal system, faced
with costs like these will find it difficult to fund more effec
tive education and vocational assistance programs to im
prove the lives of the prisoners. It follows that courts must
give substantial deference to prison management decisions
before mandating additional expenditures for elaborate pro
cedural safeguards when correctional officials conclude that
a prisoner has engaged in disruptive behavior.
The State’s interest must be understood against this back
ground. Were Ohio to allow an inmate to call witnesses or
provide other attributes of an adversary hearing before or
dering transfer to OSP, both the State’s immediate objective
of controlling the prisoner and its greater objective of con
trolling the prison could be defeated. This problem, more
over, is not alleviated by providing an exemption for wit
nesses who pose a hazard, for nothing in the record indicates
simple mechanisms exist to determine when witnesses may
be called without fear of reprisal. The danger to witnesses,
and the difficulty in obtaining their cooperation, make the
probable value of an adversary-type hearing doubtful in com
parison to its obvious costs.
A balance of the Mathews factors yields the conclusion
that Ohio’s New Policy is adequate to safeguard an inmate’s
liberty interest in not being assigned to OSP. Ohio is not,
for example, attempting to remove an inmate from free soci
ety for a specific parole violation, see, e. g., Morrissey, 408
U. S., at 481, or to revoke good-time credits for specific, seri
ous misbehavior, see, e. g., Wolff, 418 U. S., at 539, where
more formal, adversary-type procedures might be useful.
Where the inquiry draws more on the experience of prison
administrators, and where the State’s interest implicates the

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229 Cite as: 545 U. S. 209 (2005)
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safety of other inmates and prison personnel, the informal,
nonadversary procedures set forth in Greenholtz, 442 U. S. 1,
and Hewitt v. Helms, supra, provide the appropriate model.
Greenholtz, supra, at 16 (level of process due for inmates
being considered for release on parole includes opportunity
to be heard and notice of any adverse decision); Hewitt,
supra, at 473–476 (level of process due for inmates being
considered for transfer to administrative segregation in
cludes some notice of charges and an opportunity to be
heard). Although Sandin abrogated Greenholtz’s and Hew
itt’s methodology for establishing the liberty interest, these
cases remain instructive for their discussion of the appro
priate level of procedural safeguards. Ohio’s New Policy
provides informal, nonadversary procedures comparable to
those we upheld in Greenholtz and Hewitt, and no further
procedural modifications are necessary in order to satisfy
due process under the Mathews test. Neither the District
Court nor the Court of Appeals should have ordered the
New Policy altered.
The effect of the Prison Litigation Reform Act of 1995, in
particular 18 U. S. C. § 3626(a)(1)(A), in this case has not been
discussed at any length in the briefs. In view of our disposi
tion it is unnecessary to address its application here.
Prolonged confinement in Supermax may be the State’s
only option for the control of some inmates, and claims alleg
ing violation of the Eighth Amendment’s prohibition of cruel
and unusual punishments were resolved, or withdrawn, by
settlement in an early phase of this case. Here, any claim
of excessive punishment in individual circumstances is not
before us.
The complaint challenged OSP assignments under the Old
Policy, and the unwritten policies that preceded it, and al
leged injuries resulting from those systems. Ohio conceded
that assignments made under the Old Policy were, to say the
least, imprecise. The District Court found constitutional vi
olations had arisen under those earlier versions, and held

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230 WILKINSON v. AUSTIN
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that the New Policy would produce many of the same consti
tutional problems. Austin I, 189 F. Supp. 2d, at 749–754.
We now hold that the New Policy as described in this opinion
strikes a constitutionally permissible balance between the
factors of the Mathews framework. If an inmate were to
demonstrate that the New Policy did not in practice operate
in this fashion, resulting in a cognizable injury, that could be
the subject of an appropriate future challenge. On remand,
the Court of Appeals, or the District Court, may consider
in the first instance what, if any, prospective relief is still
a necessary and appropriate remedy for due process viola
tions under Ohio’s previous policies. Any such relief must,
of course, satisfy the conditions set forth in 18 U. S. C.
§ 3626(a)(1)(A).
* * *
The Court of Appeals was correct to find the inmates pos
sess a liberty interest in avoiding assignment at OSP. The
Court of Appeals was incorrect, however, to sustain the pro
cedural modifications ordered by the District Court. The
portion of the Court of Appeals’ opinion reversing the Dis
trict Court’s substantive modifications was not the subject of
review upon certiorari and is unaltered by our decision.
The judgment of the Court of Appeals is affirmed in part
and reversed in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.

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OCTOBER TERM, 2004 231
Syllabus
MILLER-EL v. DRETKE, DIRECTOR, TEXAS DE-
PARTMENT OF CRIMINAL JUSTICE, COR-
RECTIONAL INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 03–9659. Argued December 6, 2004—Decided June 13, 2005
When Dallas County prosecutors used peremptory strikes against 10 of
the 11 qualified black venire members during jury selection for peti
tioner Miller-El’s capital murder trial, he objected, claiming that the
strikes were based on race and could not be presumed legitimate since
the District Attorney’s Office had a history of excluding blacks from
criminal juries. The trial court denied his request for a new jury, and
his trial ended with a death sentence. While his appeal was pending,
this Court decided, in Batson v. Kentucky, 476 U. S. 79, that discrimina
tion by a prosecutor in selecting a defendant’s jury violated the Four
teenth Amendment. On remand, the trial court reviewed the voir dire
record, heard prosecutor Macaluso’s justifications for the strikes that
were not explained during voir dire, and found no showing that prospec
tive black jurors were struck because of their race. The State Court of
Criminal Appeals affirmed. Subsequently, the Federal District Court
denied Miller-El federal habeas relief, and the Fifth Circuit denied a
certificate of appealability. This Court reversed, finding that the mer
its of Miller-El’s Batson claim were, at least, debatable by jurists of
reason. Miller-El v. Cockrell, 537 U. S. 322. The Fifth Circuit granted
a certificate of appealability but rejected Miller-El’s Batson claim on
the merits.
Held: Miller-El is entitled to prevail on his Batson claim and, thus, enti
tled to habeas relief. Pp. 237–266.
(a) “[T]his Court consistently and repeatedly has reaffirmed that ra
cial discrimination by the State in jury selection offends the Equal Pro
tection Clause.” Georgia v. McCollum, 505 U. S. 42, 44. The rub has
been the practical difficulty of ferreting out discrimination in selections
discretionary by nature and subject to a myriad of legitimate influences.
The Batson Court held that a defendant can make out a prima facie case
of discriminatory jury selection by “the totality of the relevant facts”
about a prosecutor’s conduct during the defendant’s own trial. 476
U. S., at 94. Once that showing is made, the burden shifts to the State
to come forward with a neutral explanation, id., at 97, and the trial court

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232 MILLER-EL v. DRETKE
Syllabus
must determine if the defendant has shown “purposeful discrimination,”
id., at 98, in light of “all relevant circumstances,” id., at 96–97. Since
this case is on review of a denial of habeas relief under 28 U. S. C. § 2254,
and since the Texas trial court’s prior determination that the State’s
race-neutral explanations were true is a factual determination, Miller-El
may obtain relief only by showing the trial court’s conclusion to be “an
unreasonable determination of the facts in light of the evidence pre
sented in the State court proceeding,” § 2254(d)(2). Pp. 237–240.
(b) The prosecutors used peremptory strikes to exclude 91% of the
eligible black venire panelists, a disparity unlikely to have been
produced by happenstance. Miller-El v. Cockrell, 537 U. S., at 342.
More powerful than the bare statistics are side-by-side comparisons of
some black venire panelists who were struck and white ones who were
not. If a prosecutor’s proffered reason for striking a black panelist ap
plies just as well to a white panelist allowed to serve, that is evidence
tending to prove purposeful discrimination. The details of two panel
member comparisons bear out this Court’s observation, id., at 343, that
the prosecution’s reason for exercising peremptory strikes against some
black panel members appeared to apply equally to some white jurors.
There are strong similarities and some differences between Billy Jean
Fields, a black venireman who expressed unwavering support for the
death penalty but was struck, and similarly situated nonblack jurors;
but the differences seem far from significant, particularly when reading
Fields’s voir dire testimony in its entirety. Upon that reading, Fields
should have been an ideal juror in the eyes of a prosecutor seeking a
death sentence, and the prosecutors’ explanations for the strike, that
Fields would not vote for death if rehabilitation were possible, a mis
characterization of his testimony, cannot reasonably be accepted when
there were nonblack veniremen expressing comparable views on reha
bilitation who were not struck. The prosecution’s reason that Fields’s
brother had prior convictions is not creditable in light of its failure to
enquire about the matter. The prosecution’s proffered reasons for
striking Joe Warren, another black venireman, are comparably unlikely.
The fact that the reason for striking him, that he thought death was an
easy way out and defendants should be made to suffer more, also applied
to nonblack panel members who were selected is evidence of pretext.
The suggestion of pretext is not, moreover, mitigated by Macaluso’s ex
planation that Warren was struck when the State could afford to be
liberal in using its 10 remaining peremptory challenges. Were that the
explanation for striking Warren and later accepting similar panel mem
bers, prosecutors would have struck white panel member Jenkins, who
was examined and accepted before Warren despite her similar views.
Macaluso’s explanation also weakens any suggestion that the State’s ac

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233 Cite as: 545 U. S. 231 (2005)
Syllabus
ceptance of Woods, the one black juror, shows that race was not in play.
When he was selected as the eighth juror, the State had used 11 of its
15 peremptory challenges, 7 on black panel members; and the record
shows that at least 3 of the remaining venire panel opposed capital pun
ishment. Because the prosecutors had to exercise prudent restraint,
the late-stage decision to accept a black panel member willing to impose
the death penalty does not neutralize the early-stage decision to chal
lenge a comparable venireman, Warren. The Fifth Circuit’s substituted
reason for the elimination, Warren’s general ambivalence about the pen
alty, was erroneous as a matter of fact and law. As to fact, Macaluso
said nothing about general ambivalence, and Warren’s answer to several
questions was that he could impose the death penalty. As for law, the
Batson rule provides the prosecutor an opportunity to give the reason
for striking a juror and requires the judge to assess the reason’s plausi
bility in light of all of the evidence, but it does not call for a mere
exercise in thinking up any rational basis. Because a prosecutor is re
sponsible for the reason he gave, the Fifth Circuit’s substitution of a
reason for excluding Warren does nothing to satisfy the prosecutors’
burden of stating a racially neutral explanation for their own actions.
Comparing Warren’s strike with the treatment of panel members with
similar views supports a conclusion that race was significant in deter
mining who was challenged and who was not. Pp. 240–252.
(c) The prosecution’s broader patterns of practice during jury selec
tion also support the case for discrimination. Texas law permits either
side to shuffle the cards bearing panel member names to rearrange the
order in which they are questioned. Members seated in the back may
escape voir dire, for those not questioned by the end of each week are
dismissed. Here, the prosecution shuffled the cards when a number of
black members were seated at the front of the panel at the beginning
of the second week. The third week, they shuffled when the first four
members were black, placing them in the back. After the defense re
shuffled the cards, and the black members reappeared in the front, the
court denied the prosecution’s request for another shuffle. No racially
neutral reason for the shuffling has ever been offered, and nothing stops
the suspicion of discriminatory intent from rising to an inference. The
contrasting voir dire questions posed respectively to black and nonblack
panel members also indicate that the State was trying to avoid black
jurors. Prosecutors gave a bland description of the death penalty to
94% of white venire panel members before asking about the individual’s
feelings on the subject, but used a script describing imposition of the
death penalty in graphic terms for 53% of the black venire members.
The argument that prosecutors used the graphic script to weed out am
bivalent panel members simply does not fit the facts. Black venire

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234 MILLER-EL v. DRETKE
Syllabus
members were more likely to receive that script regardless of their ex
pressions of certainty or ambivalence about the death penalty, and the
State’s chosen explanation failed for four out of the eight black panel
members who received it: two received it after clearly stating their op
position to the death penalty and two received it even though they un
ambiguously favored that penalty. The State’s explanation misses the
mark four out of five times with regard to the nonblacks who received
the graphic description. Ambivalent black panel members were also
more likely to receive the graphic script than nonblack ambivalent ones.
The State’s attempt at a race-neutral rationalization fails to explain
what the prosecutors did. The explanation that the prosecutors’ first
object was to use the graphic script to make a case for excluding black
panel members opposed to, or ambivalent about, the death penalty is
more persuasive than the State’s explanation, and the reasonable infer
ence is that race was the major consideration when the prosecution
chose to follow the graphic script. The same is true for another kind of
disparate questioning. The prosecutors asked all black panel members
opposed to, or ambivalent about, the death penalty how low a sentence
they would consider imposing for murder without telling them that the
State requires a 5-year minimum, but prosecutors did not put that ques
tion to most white panel members who had expressed similar views.
The final body of evidence confirming the conclusion here is that the
Dallas County District Attorney’s Office had, for decades, followed a
specific policy of systematically excluding blacks from juries. The
Miller-El prosecutors’ notes of the race of each panel member show that
they took direction from a jury selection manual that included racial
stereotypes. Pp. 253–264.
(d) The Fifth Circuit’s conclusion that Miller-El failed to show by
clear and convincing evidence that the state court’s no-discrimination
finding was wrong is as unsupportable as the “dismissive and strained
interpretation” of his evidence that this Court disapproved when decid
ing that he was entitled to a certificate of appealability, Miller-El,
supra, at 344. Ten of the eleven black venire members were perempto
rily struck. At least two of them were ostensibly acceptable to prose
cutors seeking the death penalty. The prosecutors’ chosen race-neutral
reasons for the strikes do not hold up and are so far at odds with the
evidence that pretext is the fair conclusion. The selection process was
replete with evidence that prosecutors were selecting and rejecting po
tential jurors because of race. And the prosecutors took their cues
from a manual on jury selection with an emphasis on race. It blinks
reality to deny that the State struck Fields and Warren because they
were black. The facts correlate to nothing as well as to race. The

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235 Cite as: 545 U. S. 231 (2005)
Opinion of the Court
state court’s contrary conclusion was unreasonable as well as errone
ous. Pp. 265–266.
361 F. 3d 849, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Kennedy, Ginsburg, and Breyer, JJ., joined. Breyer, J.,
filed a concurring opinion, post, p. 266. Thomas, J., filed a dissenting opin
ion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 274.
Seth P. Waxman argued the cause for petitioner. With
him on the briefs were Jim Marcus and David W. Ogden.
Gena Bunn, Assistant Attorney General of Texas, argued
the cause for respondent. With her on the brief were Greg
Abbott, Attorney General, Barry R. McBee, First Assistant
Attorney General, and Don Clemmer, Deputy Attorney
General.*
Justice Souter delivered the opinion of the Court.
Two years ago, we ordered that a certificate of appealabil
ity, under 28 U. S. C. § 2253(c), be issued to habeas petitioner
Miller-El, affording review of the District Court’s rejection
of the claim that prosecutors in his capital murder trial made
peremptory strikes of potential jurors based on race. Today
we find Miller-El entitled to prevail on that claim and order
relief under § 2254.
I
In the course of robbing a Holiday Inn in Dallas, Texas, in
late 1985, Miller-El and his accomplices bound and gagged
*Briefs of amici curiae urging reversal were filed for the NAACP Legal
Defense and Educational Fund, Inc., et al. by Theodore M. Shaw, Norman
J. Chachkin, Deborah Fins, Miriam Gohara, and Christina Swarns; and
for Former Prosecutors and Judges by Elisabeth Semel, Charles D. Weis
selberg, Carter G. Phillips, Jeffrey T. Green, and Scott D. Marcus.
A brief of amicus curiae was filed for the State of California by Bill
Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General,
Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Senior Assistant Attorney General, Steven T. Oetting, Supervising Deputy
Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General.

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Opinion of the Court
two hotel employees, whom Miller-El then shot, killing one
and severely injuring the other. During jury selection in
Miller-El’s trial for capital murder, prosecutors used peremp
tory strikes against 10 qualified black venire members.
Miller-El objected that the strikes were based on race and
could not be presumed legitimate, given a history of exclud
ing black members from criminal juries by the Dallas County
District Attorney’s Office. The trial court received evidence
of the practice alleged but found no “systematic exclusion of
blacks as a matter of policy” by that office, App. 882–883, and
therefore no entitlement to relief under Swain v. Alabama,
380 U. S. 202 (1965), the case then defining and marking the
limits of relief from racially biased jury selection. The court
denied Miller-El’s request to pick a new jury, and the trial
ended with his death sentence for capital murder.
While an appeal was pending, this Court decided Batson
v. Kentucky, 476 U. S. 79 (1986), which replaced Swain’s
threshold requirement to prove systemic discrimination
under a Fourteenth Amendment jury claim, with the rule
that discrimination by the prosecutor in selecting the defend
ant’s jury sufficed to establish the constitutional violation.
The Texas Court of Criminal Appeals then remanded the
matter to the trial court to determine whether Miller-El
could show that prosecutors in his case peremptorily struck
prospective black jurors because of race. Miller-El v. State,
748 S. W. 2d 459 (1988) (en banc).
The trial court found no such demonstration. After re
viewing the voir dire record of the explanations given for
some of the challenged strikes, and after hearing one of the
prosecutors, Paul Macaluso, give his justification for those
previously unexplained, the trial court accepted the stated
race-neutral reasons for the strikes, which the judge called
“completely credible [and] sufficient” as the grounds for a
finding of “no purposeful discrimination.” Findings of Fact
and Conclusions of Law Upon Remand from the Court of
Criminal Appeals in State v. Miller-El, No. 8668–NL (5th
Crim. Dist. Ct., Dallas County, Tex., Jan. 13, 1989), pp. 5–6,

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App. 928–929. The Court of Criminal Appeals affirmed,
stating it found “ample support” in the voir dire record for
the race-neutral explanations offered by prosecutors for the
peremptory strikes. Miller-El v. State, No. 69,677 (Sept. 16,
1992) (per curiam), p. 2, App. 931.
Miller-El then sought habeas relief under 28 U. S. C.
§ 2254, again pressing his Batson claim, among others not
now before us. The District Court denied relief, Miller-El
v. Johnson, Civil No. 3:96–CV–1992–H (ND Tex., June 5,
2000), App. 987, and the Court of Appeals for the Fifth Cir
cuit precluded appeal by denying a certificate of appealabil
ity, Miller-El v. Johnson, 261 F. 3d 445 (2001). We granted
certiorari to consider whether Miller-El was entitled to re
view on the Batson claim, Miller-El v. Cockrell, 534 U. S.
1122 (2002), and reversed the Court of Appeals. After
examining the record of Miller-El’s extensive evidence of
purposeful discrimination by the Dallas County District
Attorney’s Office before and during his trial, we found an
appeal was in order, since the merits of the Batson claim
were, at the least, debatable by jurists of reason. Miller-El
v. Cockrell, 537 U. S. 322 (2003). After granting a certificate
of appealability, the Fifth Circuit rejected Miller-El’s Bat
son claim on the merits. 361 F. 3d 849 (2004). We again
granted certiorari, 542 U. S. 936 (2004), and again we reverse.
II
A
“It is well known that prejudices often exist against par
ticular 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 protec
tion which others enjoy.” Strauder v. West Virginia, 100
U. S. 303, 309 (1880); see also Batson v. Kentucky, supra,
at 86. Defendants are harmed, of course, when racial dis
crimination in jury selection compromises the right of trial
by impartial jury, Strauder v. West Virginia, supra, at 308,
but racial minorities are harmed more generally, for prosecu

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tors drawing racial lines in picking juries establish “state
sponsored group stereotypes rooted in, and reflective of, his
torical prejudice,” J. E. B. v. Alabama ex rel. T. B., 511 U. S.
127, 128 (1994).
Nor is the harm confined to minorities. When the govern
ment’s choice of jurors is tainted with racial bias, that “overt
wrong . . . casts doubt over the obligation of the parties, the
jury, and indeed the court to adhere to the law throughout
the trial . . . .” Powers v. Ohio, 499 U. S. 400, 412 (1991).
That is, the very integrity of the courts is jeopardized when a
prosecutor’s discrimination “invites cynicism respecting the
jury’s neutrality,” ibid., and undermines public confidence in
adjudication, Georgia v. McCollum, 505 U. S. 42, 49 (1992);
Edmonson v. Leesville Concrete Co., 500 U. S. 614, 628
(1991); Batson v. Kentucky, supra, at 87. So, “[f]or more
than a century, this Court consistently and repeatedly has
reaffirmed that racial discrimination by the State in jury se
lection offends the Equal Protection Clause.” Georgia v.
McCollum, supra, at 44; see Strauder v. West Virginia,
supra, at 308, 310; Norris v. Alabama, 294 U. S. 587, 596
(1935); Swain v. Alabama, supra, at 223–224; Batson v. Ken
tucky, supra, at 84; Powers v. Ohio, supra, at 404.
The rub has been the practical difficulty of ferreting out
discrimination in selections discretionary by nature, and
choices subject to myriad legitimate influences, whatever the
race of the individuals on the panel from which jurors are
selected. In Swain v. Alabama, we tackled the problem of
“the quantum of proof necessary” to show purposeful dis
crimination, 380 U. S., at 205, with an eye to preserving each
side’s historical prerogative to make a peremptory strike or
challenge, the very nature of which is traditionally “without
a reason stated,” id., at 220. The Swain Court tried to re
late peremptory challenge to equal protection by presuming
the legitimacy of prosecutors’ strikes except in the face of a
longstanding pattern of discrimination: when “in case after
case, whatever the circumstances,” no blacks served on ju

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ries, then “giving even the widest leeway to the operation
of irrational but trial-related suspicions and antagonisms, it
would appear that the purposes of the peremptory challenge
[were] being perverted.” Id., at 223–224.
Swain’s demand to make out a continuity of discrimination
over time, however, turned out to be difficult to the point of
unworkable, and in Batson v. Kentucky, we recognized that
this requirement to show an extended pattern imposed a
“crippling burden of proof ” that left prosecutors’ use of pe
remptories “largely immune from constitutional scrutiny.”
476 U. S., at 92–93. By Batson’s day, the law implementing
equal protection elsewhere had evolved into less discourag
ing standards for assessing a claim of purposeful discrimina
tion, id., at 93–95 (citing, e. g., Washington v. Davis, 426 U. S.
229 (1976), and Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252 (1977)), and we accordingly
held that a defendant could make out a prima facie case of
discriminatory jury selection by “the totality of the relevant
facts” about a prosecutor’s conduct during the defendant’s
own trial. Batson v. Kentucky, 476 U. S., at 94, 96. “Once
the defendant makes a prima facie showing, the burden
shifts to the State to come forward with a neutral explana
tion for challenging . . . jurors” within an arguably targeted
class. Id., at 97. Although there may be “any number of
bases on which a prosecutor reasonably [might] believe that
it is desirable to strike a juror who is not excusable for
cause . . . , the prosecutor must give a clear and reasonably
specific explanation of his legitimate reasons for exercising
the challeng[e].” Id., at 98, n. 20 (internal quotation marks
omitted). “The trial court then will have the duty to deter
mine if the defendant has established purposeful discrimina
tion.” Id., at 98.
Although the move from Swain to Batson left a defendant
free to challenge the prosecution without having to cast
Swain’s wide net, the net was not entirely consigned to his
tory, for Batson’s individualized focus came with a weakness

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of its own owing to its very emphasis on the particular rea
sons a prosecutor might give. If any facially neutral reason
sufficed to answer a Batson challenge, then Batson would
not amount to much more than Swain. Some stated reasons
are false, and although some false reasons are shown up
within the four corners of a given case, sometimes a court
may not be sure unless it looks beyond the case at hand.
Hence Batson’s explanation that a defendant may rely on “all
relevant circumstances” to raise an inference of purposeful
discrimination. 476 U. S., at 96–97.
B
This case comes to us on review of a denial of habeas relief
sought under 28 U. S. C. § 2254, following the Texas trial
court’s prior determination of fact that the State’s race
neutral explanations were true, see Purkett v. Elem, 514
U. S. 765, 769 (1995) (per curiam); Batson v. Kentucky,
supra, at 98, n. 21.
Under the Antiterrorism and Effective Death Penalty Act
of 1996, Miller-El may obtain relief only by showing the
Texas conclusion to be “an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U. S. C. § 2254(d)(2). Thus we presume the
Texas court’s factual findings to be sound unless Miller-El
rebuts the “presumption of correctness by clear and con
vincing evidence.” § 2254(e)(1). The standard is demand
ing but not insatiable; as we said the last time this case was
here, “[d]eference does not by definition preclude relief.”
Miller-El v. Cockrell, 537 U. S., at 340.
III
A
The numbers describing the prosecution’s use of perempto
ries are remarkable. Out of 20 black members of the 108
person venire panel for Miller-El’s trial, only 1 served. Al
though 9 were excused for cause or by agreement, 10 were

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peremptorily struck by the prosecution. Id., at 331. “The
prosecutors used their peremptory strikes to exclude 91% of
the eligible African-American venire members . . . . Hap
penstance is unlikely to produce this disparity.” Id., at 342.
More powerful than these bare statistics, however, are
side-by-side comparisons of some black venire panelists who
were struck and white panelists allowed to serve. If a
prosecutor’s proffered reason for striking a black panelist ap
plies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove pur
poseful discrimination to be considered at Batson’s third
step. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530
U. S. 133, 147 (2000) (in employment discrimination cases,
“[p]roof that the defendant’s explanation is unworthy of cre
dence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite
persuasive”). While we did not develop a comparative juror
analysis last time, we did note that the prosecution’s reasons
for exercising peremptory strikes against some black panel
members appeared equally on point as to some white jurors
who served. Miller-El v. Cockrell, supra, at 343.1 The de
tails of two panel member comparisons bear this out.2
1 While many of these explanations were offered contemporaneously,
“the state trial court had no occasion to judge the credibility of these
explanations at that time because our equal protection jurisprudence then,
dictated by Swain, did not require it.” Miller-El v. Cockrell, 537 U. S.,
at 343. Other evidence was presented in the Batson v. Kentucky, 476
U. S. 79 (1986), hearing, but this was offered two years after trial and “was
subject to the usual risks of imprecision and distortion from the passage
of time.” 537 U. S., at 343.
2 The dissent contends that comparisons of black and nonblack venire
panelists, along with Miller-El’s arguments about the prosecution’s dispar
ate questioning of black and nonblack panelists and its use of jury shuffles,
are not properly before this Court, not having been “put before the Texas
courts.” Post, at 279 (opinion of Thomas, J.). But the dissent conflates
the difference between evidence that must be presented to the state courts
to be considered by federal courts in habeas proceedings and theories
about that evidence. See 28 U. S. C. § 2254(d)(2) (state-court factfinding

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The prosecution used its second peremptory strike to ex
clude Billy Jean Fields, a black man who expressed unwaver
ing support for the death penalty. On the questionnaire
filled out by all panel members before individual examination
on the stand, Fields said that he believed in capital punish
ment, Joint Lodging 14, and during questioning he disclosed
his belief that the State acts on God’s behalf when it imposes
the death penalty. “Therefore, if the State exacts death,
then that’s what it should be.” App. 174. He testified that
he had no religious or philosophical reservations about the
death penalty and that the death penalty deterred crime.
Id., at 174–175. He twice averred, without apparent hesita
tion, that he could sit on Miller-El’s jury and make a decision
to impose this penalty. Id., at 176–177.
Although at one point in the questioning, Fields indicated
that the possibility of rehabilitation might be relevant to the
likelihood that a defendant would commit future acts of vio
lence, id., at 183, he responded to ensuing questions by say
ing that although he believed anyone could be rehabilitated,
this belief would not stand in the way of a decision to impose
the death penalty:
“[B]ased on what you [the prosecutor] said as far as the
crime goes, there are only two things that could be ren
dered, death or life in prison. If for some reason the
testimony didn’t warrant death, then life imprisonment
must be assessed “in light of the evidence presented in the State court
proceeding”); Miller-El v. Cockrell, supra, at 348 (habeas petitioner must
show unreasonability “in light of the record before the [state] court”).
There can be no question that the transcript of voir dire, recording the
evidence on which Miller-El bases his arguments and on which we base
our result, was before the state courts, nor does the dissent contend that
Miller-El did not “fairly presen[t]” his Batson claim to the state courts.
Picard v. Connor, 404 U. S. 270, 275 (1971).
Only as to the juror questionnaires and information cards is there ques
tion about what was before the state courts. Unlike the dissent, see post,
at 281–282, we reach no decision about whether the limitation on evidence
in § 2254(d)(2) is waiveable. See infra, at 256–257, n. 15.

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would give an individual an opportunity to rehabilitate.
But, you know, you said that the jurors didn’t have the
opportunity to make a personal decision in the matter
with reference to what I thought or felt, but it was just
based on the questions according to the way the law has
been handed down.” Id., at 185 (alteration omitted).
Fields also noted on his questionnaire that his brother had
a criminal history. Joint Lodging 13. During questioning,
the prosecution went into this, too:
“Q Could you tell me a little bit about that?
“A He was arrested and convicted on [a] number of oc
casions for possession of a controlled substance.
“Q Was that here in Dallas?
“A Yes.
“Q Was he involved in any trials or anything like that?
“A I suppose of sorts. I don’t really know too much
about it.
“Q Was he ever convicted?
“A Yeah, he served time.
“Q Do you feel that that would in any way interfere
with your service on this jury at all?
“A No.” App. 190 (alteration omitted).
Fields was struck peremptorily by the prosecution, with
prosecutor James Nelson offering a race-neutral reason:
“[W]e . . . have concern with reference to some of his
statements as to the death penalty in that he said that
he could only give death if he thought a person could
not be rehabilitated and he later made the comment that
any person could be rehabilitated if they find God or are
introduced to God and the fact that we have a concern
that his religious feelings may affect his jury service in
this case.” Id., at 197 (alteration omitted).

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Thus, Nelson simply mischaracterized Fields’s testimony.
He represented that Fields said he would not vote for death
if rehabilitation was possible, whereas Fields unequivocally
stated that he could impose the death penalty regardless of
the possibility of rehabilitation. Perhaps Nelson misunder
stood, but unless he had an ulterior reason for keeping Fields
off the jury we think he would have proceeded differently.
In light of Fields’s outspoken support for the death penalty,
we expect the prosecutor would have cleared up any misun
derstanding by asking further questions before getting to
the point of exercising a strike.
If, indeed, Fields’s thoughts on rehabilitation did make the
prosecutor uneasy, he should have worried about a number
of white panel members he accepted with no evident reserva
tions. Sandra Hearn said that she believed in the death
penalty “if a criminal cannot be rehabilitated and continues
to commit the same type of crime.” Id., at 429.3 Hearn
went so far as to express doubt that at the penalty phase of
a capital case she could conclude that a convicted murderer
“would probably commit some criminal acts of violence in
the future.” Id., at 440. “People change,” she said, making
it hard to assess the risk of someone’s future dangerousness.
“[T]he evidence would have to be awful strong.” Ibid. But
the prosecution did not respond to Hearn the way it did to
Fields, and without delving into her views about rehabilita
tion with any further question, it raised no objection to her
serving on the jury. White panelist Mary Witt said she
would take the possibility of rehabilitation into account in
deciding at the penalty phase of the trial about a defendant’s
probability of future dangerousness, 6 Record of Voir Dire
2433 (hereinafter Record), but the prosecutors asked her no
further question about her views on reformation, and they
3 Hearn could give the death penalty for murder if the defendant had
committed a prior offense of robbery, in which case she would judge “ac
cording to the situation,” App. 430, and she thought the death penalty
might be appropriate for offenses like “[e]xtreme child abuse,” ibid.

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accepted her as a juror, id., at 2464–2465.4 Latino venire
man Fernando Gutierrez, who served on the jury, said that
he would consider the death penalty for someone who could
not be rehabilitated, App. 777, but the prosecutors did not
question him further about this view. In sum, nonblack ju
rors whose remarks on rehabilitation could well have sig
naled a limit on their willingness to impose a death sentence
were not questioned further and drew no objection, but the
prosecution expressed apprehension about a black juror’s be
lief in the possibility of reformation even though he repeat
edly stated his approval of the death penalty and testified
that he could impose it according to state legal standards
even when the alternative sentence of life imprisonment
would give a defendant (like everyone else in the world) the
opportunity to reform.5
The unlikelihood that his position on rehabilitation had
anything to do with the peremptory strike of Fields is under
scored by the prosecution’s response after Miller-El’s lawyer
pointed out that the prosecutor had misrepresented Fields’s
responses on the subject. A moment earlier the prosecutor
4 Witt ultimately did not serve because she was peremptorily struck by
the defense. 6 Record 2465. The fact that Witt and other venire mem
bers discussed here were peremptorily struck by the defense is not rele
vant to our point. For each of them, the defense did not make a decision
to exercise a peremptory until after the prosecution decided whether to
accept or reject, so each was accepted by the prosecution before being
ultimately struck by the defense. And the underlying question is not
what the defense thought about these jurors but whether the State was
concerned about views on rehabilitation when the venireperson was not
black.
The dissent offers other reasons why these nonblack panel members
who expressed views on rehabilitation similar to Fields’s were otherwise
more acceptable to the prosecution than he was. See post, at 293–296.
In doing so, the dissent focuses on reasons the prosecution itself did not
offer. See infra, at 252.
5 Prosecutors did exercise peremptory strikes on Penny Crowson and
Charlotte Whaley, who expressed views about rehabilitation similar to
those of Witt and Gutierrez. App. 554, 715.

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had finished his misdescription of Fields’s views on potential
rehabilitation with the words, “Those are our reasons for
exercising our . . . strike at this time.” Id., at 197. When
defense counsel called him on his misstatement, he neither
defended what he said nor withdrew the strike. Id., at 198.
Instead, he suddenly came up with Fields’s brother’s prior
conviction as another reason for the strike. Id., at 199.
It would be difficult to credit the State’s new explanation,
which reeks of afterthought. While the Court of Appeals
tried to bolster it with the observation that no seated juror
was in Fields’s position with respect to his brother, 361 F. 3d,
at 859–860, the court’s readiness to accept the State’s substi
tute reason ignores not only its pretextual timing but the
other reasons rendering it implausible. Fields’s testimony
indicated he was not close to his brother, App. 190 (“I don’t
really know too much about it”), and the prosecution asked
nothing further about the influence his brother’s history
might have had on Fields, as it probably would have done if
the family history had actually mattered. See, e. g., Ex
parte Travis, 776 So. 2d 874, 881 (Ala. 2000) (“[T]he State’s
failure to engage in any meaningful voir dire examination on
a subject the State alleges it is concerned about is evidence
suggesting that the explanation is a sham and a pretext for
discrimination”). There is no good reason to doubt that the
State’s afterthought about Fields’s brother was anything
but makeweight.
The Court of Appeals’s judgment on the Fields strike is
unsupportable for the same reason the State’s first explana
tion is itself unsupportable. The Appeals Court’s descrip
tion of Fields’s voir dire testimony mentioned only his state
ments that everyone could be rehabilitated, failing to note
that Fields affirmed that he could give the death penalty if
the law and evidence called for it, regardless of the possibil
ity of divine grace. The Court of Appeals made no mention
of the fact that the prosecution mischaracterized Fields as

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saying he could not give death if rehabilitation were possible.
361 F. 3d, at 856.
In sum, when we look for nonblack jurors similarly situ
ated to Fields, we find strong similarities as well as some
differences.6 But the differences seem far from significant,
particularly when we read Fields’s voir dire testimony in its
entirety. Upon that reading, Fields should have been an
ideal juror in the eyes of a prosecutor seeking a death sen
tence, and the prosecutors’ explanations for the strike cannot
reasonably be accepted. See Miller-El v. Cockrell, 537
U. S., at 339 (the credibility of reasons given can be measured
by “how reasonable, or how improbable, the explanations
are; and by whether the proffered rationale has some basis
in accepted trial strategy”).
The prosecution’s proffered reasons for striking Joe War
ren, another black venireman, are comparably unlikely.
Warren gave this answer when he was asked what the death
penalty accomplished:
“I don’t know. It’s really hard to say because I know
sometimes you feel that it might help to deter crime
and then you feel that the person is not really suffering.
You’re taking the suffering away from him. So it’s
like I said, sometimes you have mixed feelings about
whether or not this is punishment or, you know, you’re
6 The dissent contends that there are no white panelists similarly situ
ated to Fields and to panel member Joe Warren because “ ‘ “[s]imilarly
situated” does not mean matching any one of several reasons the prosecu
tion gave for striking a potential juror—it means matching all of them.’ ”
Post, at 291 (quoting Miller-El v. Cockrell, 537 U. S., at 362–363 (Thomas,
J., dissenting)). None of our cases announces a rule that no comparison
is probative unless the situation of the individuals compared is identical in
all respects, and there is no reason to accept one. Nothing in the combi
nation of Fields’s statements about rehabilitation and his brother’s history
discredits our grounds for inferring that these purported reasons were
pretextual. A per se rule that a defendant cannot win a Batson claim
unless there is an exactly identical white juror would leave Batson inoper
able; potential jurors are not products of a set of cookie cutters.

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relieving personal punishment.” App. 205; 3 Record
1532.
The prosecution said nothing about these remarks when it
struck Warren from the panel, but prosecutor Paul Macaluso
referred to this answer as the first of his reasons when he
testified at the later Batson hearing:
“I thought [Warren’s statements on voir dire] were in
consistent responses. At one point he says, you know,
on a case-by-case basis and at another point he said,
well, I think—I got the impression, at least, that he sug
gested that the death penalty was an easy way out, that
they should be made to suffer more.” App. 909.
On the face of it, the explanation is reasonable from the
State’s point of view, but its plausibility is severely undercut
by the prosecution’s failure to object to other panel members
who expressed views much like Warren’s. Kevin Duke, who
served on the jury, said, “sometimes death would be better
to me than—being in prison would be like dying every day
and, if you were in prison for life with no hope of parole, I[’d]
just as soon have it over with than be in prison for the rest
of your life.” Id., at 372. Troy Woods, the one black panel
ist to serve as juror, said that capital punishment “is too easy.
I think that’s a quick relief. . . . I feel like [hard labor is] more
of a punishment than putting them to sleep.” Id., at 408.
Sandra Jenkins, whom the State accepted (but who was then
struck by the defense) testified that she thought “a harsher
treatment is life imprisonment with no parole.” Id., at 542.
Leta Girard, accepted by the State (but also struck by the
defense) gave her opinion that “living sometimes is a
worse—is worse to me than dying would be.” Id., at 624.
The fact that Macaluso’s reason also applied to these other
panel members, most of them white, none of them struck, is
evidence of pretext.

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The suggestion of pretext is not, moreover, mitigated
much by Macaluso’s explanation that Warren was struck
when the State had 10 peremptory challenges left and could
afford to be liberal in using them. Id., at 908. If that were
the explanation for striking Warren and later accepting panel
members who thought death would be too easy, the prosecu
tors should have struck Sandra Jenkins, whom they exam
ined and accepted before Warren. Indeed, the disparate
treatment is the more remarkable for the fact that the prose
cutors repeatedly questioned Warren on his capacity and
willingness to impose a sentence of death and elicited state
ments of his ability to do so if the evidence supported that
result and the answer to each special question was yes, id.,
at 202.2, 202.3, 205, 207, whereas the record before us dis
closes no attempt to determine whether Jenkins would be
able to vote for death in spite of her view that it was easy
on the convict, id., at 541–546. Yet the prosecutors accepted
the white panel member Jenkins and struck the black venire
man Warren.
Macaluso’s explanation that the prosecutors grew more
sparing with peremptory challenges as the jury selection
wore on does, however, weaken any suggestion that the
State’s acceptance of Woods, the one black juror, shows that
race was not in play. Woods was the eighth juror, qualified
in the fifth week of jury selection. Joint Lodging 125.
When the State accepted him, 11 of its 15 peremptory strikes
were gone, 7 of them used to strike black panel members.
Id., at 137. The juror questionnaires show that at least
three members of the venire panel yet to be questioned
on the stand were opposed to capital punishment, Janice
Mackey, id., at 79; Paul Bailey, id., at 63; and Anna Keaton,
id., at 55.7 With at least three remaining panel members
7 Each of them was black and each was peremptorily struck by the State
after Woods’s acceptance. It is unclear whether the prosecutors knew
they were black prior to the voir dire questioning on the stand, though

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highly undesirable to the State, the prosecutors had to exer
cise prudent restraint in using strikes. This late-stage deci
sion to accept a black panel member willing to impose a
death sentence does not, therefore, neutralize the early-stage
decision to challenge a comparable venireman, Warren. In
fact, if the prosecutors were going to accept any black juror
to obscure the otherwise consistent pattern of opposition to
seating one, the time to do so was getting late.8
The Court of Appeals pretermitted these difficulties by
stating that the prosecution’s reason for striking Warren was
a more general ambivalence about the penalty and his ability
to impose it, 361 F. 3d, at 856–857 (and the dissent presses
that explanation here, post, at 286–289). But this rational
ization was erroneous as a matter of fact and as a matter
of law.
As to fact, Macaluso said nothing about any general ambiv
alence. He simply alluded to the possibility that Warren
might think the death penalty too easy on some defendants,
saying nothing about Warren’s ability to impose the penalty
when it appeared to be warranted.9 On the contrary, though
there is some indication that they did: prosecutors noted the race of each
panelist on all of the juror cards, Miller-El v. Cockrell, 537 U. S., at 347,
even for those panelists who were never questioned individually because
the week ended before it was their turn.
8 Nor is pretextual indication mitigated by Macaluso’s further reason
that Warren had a brother-in-law convicted of a crime having to do with
food stamps for which he had to make restitution. App. 910. Macaluso
never questioned Warren about his errant relative at all; as with Fields’s
brother, the failure to ask undermines the persuasiveness of the claimed
concern. And Warren’s brother’s criminal history was comparable to
those of relatives of other panel members not struck by prosecutors.
Cheryl Davis’s husband had been convicted of theft and received seven
years’ probation. Id., at 695–696. Chatta Nix’s brother was involved in
white-collar fraud. Id., at 613–614. Noad Vickery’s sister served time in
a penitentiary several decades ago. Id., at 240–241.
9 But even if Macaluso actually had explained that he exercised the
strike because Warren was diffident about imposing death, it would have
been hard to square that explanation with the prosecution’s tolerance for

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Warren had indeed questioned the extent to which the death
penalty served a purpose in society, App. 205, he explained
his position in response to the very next question: it was not
any qualm about imposing what society generally deems its
harshest punishment, but his concern that the death penalty
might not be severe enough, ibid. When Warren was asked
whether he could impose the death penalty he said he
thought he could; when told that answering yes to the special
issue questions would be tantamount to voting for death he
said he could give yes answers if the evidence supported
them. Id., at 207.10
As for law, the rule in Batson provides an opportunity to
the prosecutor to give the reason for striking the juror, and
a number of ambivalent white panel members. Juror Marie Mazza, for
example, admitted some concern about what her associates might think of
her if she sat on a jury that called for the death penalty. Id., at 354–355.
Ronald Salsini, accepted by the prosecution but then struck by the de
fense, worried that if he gave the death penalty he might have a “problem”
in the future with having done so. Id., at 593. Witt, another panel mem
ber accepted by the State but struck by the defense, said she did not know
if she could give that sentence. 6 Record 2423.
10 The Court of Appeals also found ambivalence in Warren’s statement,
when asked how he felt generally about the death penalty, that, “there are
some cases where I would agree, you know, and there are others that I
don’t.” App. 202.2 (quoted in 361 F. 3d 849, 857 (CA5 2004)). But a look
at Warren’s next answers shows what he meant. The sorts of cases where
he would impose it were those where “maybe things happen that could
have been avoided,” such as where there is a choice not to kill, but he
would not impose it for killing “in self[-]defense sometimes.” App. 202.2–
202.3. Where the death penalty is sought for murder committed at the
same time as another felony, Warren thought that it “depends on the case
and the circumstances involved at the time.” Id., at 204. None of these
responses is exceptionable. A number of venire members not struck by
the State, including some seated on the jury, offered some version of the
uncontroversial, and responsible, view that imposition of the death penalty
ought to depend on the circumstances. See Joint Lodging 176 (Marie
Mazza, a seated juror); id., at 223 (Filemon Zablan, a seated juror); App.
548 (Colleen Moses, struck by the defense); id., at 618 (Mary Witt, struck
by the defense); 11–(B) Record 4455–4456 (Max O’Dell, struck by the
defense).

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it requires the judge to assess the plausibility of that reason
in light of all evidence with a bearing on it. 476 U. S., at
96–97; Miller-El v. Cockrell, 537 U. S., at 339. It is true that
peremptories are often the subjects of instinct, Batson v.
Kentucky, supra, at 106 (Marshall, J., concurring), and it can
sometimes be hard to say what the reason is. But when
illegitimate grounds like race are in issue, a prosecutor sim
ply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives. A Batson
challenge does not call for a mere exercise in thinking up
any rational basis. If the stated reason does not hold up, its
pretextual significance does not fade because a trial judge,
or an appeals court, can imagine a reason that might not
have been shown up as false. The Court of Appeals’s and
the dissent’s substitution of a reason for eliminating Warren
does nothing to satisfy the prosecutors’ burden of stating a
racially neutral explanation for their own actions.
The whole of the voir dire testimony subject to consider
ation casts the prosecution’s reasons for striking Warren in
an implausible light. Comparing his strike with the treat
ment of panel members who expressed similar views sup
ports a conclusion that race was significant in determining
who was challenged and who was not.11
11 There were other black members of the venire struck purportedly
because of some ambivalence, about the death penalty or their capacity to
impose it, who Miller-El argues must actually have been struck because
of race, none of them having expressed any more ambivalence than white
jurors Mazza and Hearn. We think these are closer calls, however.
Edwin Rand said at points that he could impose the death penalty, but he
also said “right now I say I can, but tomorrow I might not.” App. 265
(alteration omitted). Wayman Kennedy testified that he could impose the
death penalty, but on his questionnaire and voir dire, he was more specific,
saying that he believed in the death penalty for mass murder. Id., at
317; Joint Lodging 46. (Arguably Fernando Gutierrez, accepted by the
prosecution, expressed a similar view when he offered as an example of a
defendant who merited the death penalty a “criminally insane” person
who could not be rehabilitated. App. 777. But perhaps prosecutors took

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B
The case for discrimination goes beyond these comparisons
to include broader patterns of practice during the jury selec
tion. The prosecution’s shuffling of the venire panel, its en
quiry into views on the death penalty, its questioning about
minimum acceptable sentences: all indicate decisions prob
ably based on race. Finally, the appearance of discrimina
tion is confirmed by widely known evidence of the general
policy of the Dallas County District Attorney’s Office to ex
clude black venire members from juries at the time Miller-
El’s jury was selected.
The first clue to the prosecutors’ intentions, distinct from
the peremptory challenges themselves, is their resort during
voir dire to a procedure known in Texas as the jury shuffle.
In the State’s criminal practice, either side may literally re
shuffle the cards bearing panel members’ names, thus re
arranging the order in which members of a venire panel are
seated and reached for questioning.12 Once the order is es
tablished, the panel members seated at the back are likely
to escape voir dire altogether, for those not questioned
by the end of the week are dismissed. As we previously
explained,
Gutierrez to mean this only as an example.) Roderick Bozeman stated
that he thought he could vote for the death penalty but he didn’t really
know. Id., at 145. Finally, Carrol Boggess expressed uncertainty
whether she could go through with giving the death penalty, id., at 298–
299, although she later averred that she could, id., at 302–304.
We do not decide whether there were white jurors who expressed am
bivalence just as much as these black members of the venire panel. There
is no need to go into these instances, for the prosecutors’ treatment of
Fields and Warren supports stronger arguments that Batson was violated.
12 The procedure is conducted under Tex. Code Crim. Proc. Ann., Art.
35.11 (Vernon Supp. 2004–2005). While that statute says that the court
clerk is to conduct a shuffle on the request of either party, the transcripts
in this case make clear that each side did its own shuffles. See, e. g.,
App. 124.

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“the prosecution’s decision to seek a jury shuffle when a
predominant number of African-Americans were seated
in the front of the panel, along with its decision to delay
a formal objection to the defense’s shuffle until after the
new racial composition was revealed, raise a suspicion
that the State sought to exclude African-Americans
from the jury. Our concerns are amplified by the fact
that the state court also had before it, and apparently
ignored, testimony demonstrating that the Dallas
County District Attorney’s Office had, by its own admis
sion, used this process to manipulate the racial composi
tion of the jury in the past.” Miller-El v. Cockrell,
supra, at 346.
In this case, the prosecution and then the defense shuffled
the cards at the beginning of the first week of voir dire; the
record does not reflect the changes in order. App. 113–114.
At the beginning of the second week, when a number of black
members were seated at the front of the panel, the prosecu
tion shuffled.13 2 Record 836–837. At the beginning of the
third week, the first four panel members were black. The
prosecution shuffled, and these black panel members ended
up at the back. Then the defense shuffled, and the black
panel members again appeared at the front. The prosecu
tion requested another shuffle, but the trial court refused.
App. 124–132. Finally, the defense shuffled at the beginning
of the fourth and fifth weeks of voir dire; the record does not
reflect the panel’s racial composition before or after those
shuffles. Id., at 621–622; 9 Record 3585–3586.
The State notes in its brief that there might be racially
neutral reasons for shuffling the jury, Brief for Respondent
36–37, and we suppose there might be. But no racially neu
tral reason has ever been offered in this case, and nothing
13 Of the first 10 panel members before the prosecution shuffled, 4 were
black. Of the second 10, 3 were black. Of the third 10, 2 were black, and
only 1 black was among the last 10 panel members. 2 Record 837.

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stops the suspicion of discriminatory intent from rising to
an inference.14
The next body of evidence that the State was trying to
avoid black jurors is the contrasting voir dire questions
posed respectively to black and nonblack panel members, on
two different subjects. First, there were the prosecutors’
statements preceding questions about a potential juror’s
thoughts on capital punishment. Some of these prefatory
statements were cast in general terms, but some followed
the so-called graphic script, describing the method of ex
ecution in rhetorical and clinical detail. It is intended,
Miller-El contends, to prompt some expression of hesitation
to consider the death penalty and thus to elicit plausibly neu
tral grounds for a peremptory strike of a potential juror sub
jected to it, if not a strike for cause. If the graphic script is
given to a higher proportion of blacks than whites, this is
evidence that prosecutors more often wanted blacks off the
jury, absent some neutral and extenuating explanation.
As we pointed out last time, for 94% of white venire panel
members, prosecutors gave a bland description of the death
penalty before asking about the individual’s feelings on the
subject. Miller-El v. Cockrell, 537 U. S., at 332. The ab
stract account went something like this:
“I feel like it [is] only fair that we tell you our position
in this case. The State of Texas . . . is actively seeking
the death penalty in this case for Thomas Joe Miller-El.
We anticipate that we will be able to present to a jury
the quantity and type of evidence necessary to convict
him of capital murder and the quantity and type of evi
14 The Court of Appeals declined to give much weight to the evidence of
racially motivated jury shuffles because “Miller-El shuffled the jury five
times and the prosecutors shuffled the jury only twice.” 361 F. 3d, at
855. But Miller-El’s shuffles are flatly irrelevant to the question whether
prosecutors’ shuffles revealed a desire to exclude blacks. (The Appeals
Court’s statement was also inaccurate: the prosecution shuffled the jury
three times.)

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dence sufficient to allow a jury to answer these three
questions over here in the affirmative. A yes answer
to each of those questions results in an automatic death
penalty from Judge McDowell.” App. 564–565.
Only 6% of white venire panelists, but 53% of those who were
black, heard a different description of the death penalty be
fore being asked their feelings about it. This is an example
of the graphic script:
“I feel like you have a right to know right up front
what our position is. Mr. Kinne, Mr. Macaluso and my
self, representing the people of Dallas County and the
state of Texas, are actively seeking the death penalty
for Thomas Joe Miller-El. . . .
“We do that with the anticipation that, when the death
penalty is assessed, at some point Mr. Thomas Joe
Miller-El—the man sitting right down there—will be
taken to Huntsville and will be put on death row and at
some point taken to the death house and placed on a
gurney and injected with a lethal substance until he is
dead as a result of the proceedings that we have in this
court on this case. So that’s basically our position going
into this thing.” Id., at 572–573 (alteration omitted).
The State concedes that this disparate questioning did
occur but argues that use of the graphic script turned not on
a panelist’s race but on expressed ambivalence about the
death penalty in the preliminary questionnaire.15 Prosecu
15 So far as we can tell from the voluminous record before us, many of
the juror questionnaires, along with juror information cards, were added
to the habeas record after the filing of the petition in the District Court.
See Supplemental Briefing on Batson/Swain Claim Based on Previously
Unavailable Evidence, Record in No. 00–10784 (CA5), p. 2494. The State
raised no objection to receipt of the supplemental material in the District
Court or the Fifth Circuit, and in this Court the State has joined with
Miller-El in proposing that we consider this material, by providing addi

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tors were trying, the argument goes, to weed out noncom
mittal or uncertain jurors, not black jurors. And while
some white venire members expressed opposition to the
death penalty on their questionnaires, they were not read
the graphic script because their feelings were already clear.
The State says that giving the graphic script to these panel
members would only have antagonized them. Brief for Re
spondent 27–32.
This argument, however, first advanced in dissent when
the case was last here, Miller-El v. Cockrell, supra, at 364–
368 (opinion of Thomas, J.), and later adopted by the State
and the Court of Appeals, simply does not fit the facts.
Looking at the answers on the questionnaires, and at voir
dire testimony expressly discussing answers on the question
tional copies in a joint lodging (apparently as an alternative to a more
costly printing as part of the joint appendix). Neither party has referred
to the provision that the reasonableness of the state-court determination
be judged by the evidence before the state court, 28 U. S. C. § 2254(d)(2),
and it is not clear to what extent the lodged material expands upon what
the state judge knew; the same judge presided over the voir dire, the
Swain hearing, and the Batson hearing, and the jury questionnaires were
subjects of reference at the voir dire. The last time this case was here
the State expressly relied on the questionnaires for one of its arguments,
Brief for Respondent in Miller-El v. Cockrell, O. T. 2002, No. 01–7662,
p. 17, and although it objected to the Court’s consideration of some other
evidence not before the state courts, id., at 28–29, it did not object either
to questionnaires or juror cards. This time around, the State again relies
on the jury questionnaires for its argument that the prosecution’s dispar
ate questioning was not based on race. We have no occasion here to reach
any question about waiver under § 2254(d)(2).
It is worth noting that if we excluded the lodged material in this case,
the State’s arguments would fare even worse than they do. The panel
members’ cards and answers to the questionnaires were the only items of
information that the prosecutors had about them, other than their appear
ances, before reaching the point of choosing whether to employ the graphic
script; if we excluded consideration of the questionnaires, the State would
be left with no basis even to argue extenuation of the extreme racial dis
parity in the use of the graphic script.

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naires,16 we find that black venire members were more likely
than nonblacks to receive the graphic script regardless of
their expressions of certainty or ambivalence about the
death penalty, and the State’s chosen explanation for the
graphic script fails in the cases of four out of the eight black
panel members who received it.17 Two of them, Janice
Mackey and Anna Keaton, clearly stated opposition to the
death penalty but they received the graphic script,18 while
the black panel members Wayman Kennedy and Jeannette
Butler were unambiguously in favor 19 but got the graphic
16 We confine our analysis to these sources because the questionnaires
and any testimony about their answers provided the only information
available to prosecutors about venire members’ views on the death penalty
before they decided whether to use the graphic script.
17 The dissent has conducted a similar statistical analysis that it contends
supports the State’s argument that the graphic script was used to expose
the true feelings of jurors who professed ambivalence about the death
penalty on their questionnaires. See post, at 296–302. A few examples
suffice to show that the dissent’s conclusions rest on characterizations of
panel members’ questionnaire responses that we consider implausible. In
the dissent’s analysis, for example, Keaton and Mackey were ambivalent,
despite Keaton’s questionnaire response that she did not believe in the
death penalty and felt it was not for her to punish anyone, Joint Lodging
55, and Mackey’s response that “[t]hou shall [n]ot kill,” id., at 79. But we
believe neither can be fairly characterized as someone who might turn out
to be a juror acceptable to the State upon pointed questioning. The dis
sent also characterizes the questionnaires of Vivian Sztybel, Filemon
Zablan, and Dominick Desinise as revealing ambivalence. But Sztybel’s
questionnaire stated that she believed in the death penalty “[i]f a person
is found guilty of murder or other crime . . . without a valid defense”
because “[t]hey may continue to do this again and again.” Id., at 184.
She also reported that she had no moral, religious, or personal belief that
would prevent her from imposing the death penalty. Ibid. Zablan stated
on the questionnaire that he was able to impose the death penalty and
that he supported it “[i]f it’s the law and if the crime fits such punishment.”
Id., at 223. Desinise reported in voir dire that he had stated in the ques
tionnaire his opposition to the death penalty. App. 573.
18 Id., at 728 (Mackey); id., at 769 (Keaton).
19 Kennedy said that he believed in the death penalty but would apply
it only in an extreme case such as one involving multiple murders.
Joint Lodging 46. There is no ambivalence in his questionnaire re

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description anyway.20 The State’s explanation does even
worse in the instances of the five nonblacks who received the
graphic script, missing the mark four times out of five: Vivian
Sztybel and Filemon Zablan received it,21 although each was
unambiguously in favor of the death penalty,22 while Domi
nick Desinise and Clara Evans unambiguously opposed it 23
but were given the graphic version.24
The State’s purported rationale fails again if we look only
to the treatment of ambivalent panel members, ambivalent
black individuals having been more likely to receive the
graphic description than ambivalent nonblacks. Three non
black members of the venire indicated ambivalence to the
death penalty on their questionnaires; 25 only one of them,
sponses. Butler’s questionnaire is not available, but she affirmed in voir
dire that she had said on her questionnaire that she believed in the death
penalty, that she had no moral, religious, or personal beliefs that would
prevent her from imposing the death penalty, and that she had reported
on her questionnaire that she “believe[d] in the death penalty only when
a crime has been committed concerning a child such as beating to death
or some form of harsh physical abuse and when an innocent victim’s life is
taken.” 4 Record 1874 (internal quotation marks omitted); see also id.,
at 1906–1907.
20 App. 579 (Butler); id., at 317 (Kennedy).
21 Id., at 640–641 (Sztybel); id., at 748 (Zablan).
22 Joint Lodging 184 (Sztybel); id., at 223 (Zablan).
23 Neither questionnaire is available, but Desinise and Evans both con
firmed on voir dire that on the questionnaire they stated their opposition
to the death penalty. App. 573 (Desinise); id., at 626–628 (Evans).
24 Id., at 573 (Desinise); id., at 626 (Evans).
25 In answering the question whether she had moral, religious, or per
sonal beliefs that might prevent her from giving the death penalty, Colleen
Moses confirmed at voir dire that she said, “I don’t know. It would de
pend.” 3 Record 1141 (internal quotation marks omitted). Noad Vickery
confirmed at voir dire that he reported on the questionnaire that he was
not sure what he believed about the death penalty. 4 id., at 1611. Fer
nando Gutierrez reported on the questionnaire that he believed in the
death penalty for some crimes but answered “yes” to the question whether
he had moral, religious, or personal beliefs that might prevent him from
imposing it. Joint Lodging 231.

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Fernando Gutierrez, received the graphic script.26 But of
the four black panel members who expressed ambivalence,27
all got the graphic treatment.28
The State’s attempt at a race-neutral rationalization thus
simply fails to explain what the prosecutors did. But if we
posit instead that the prosecutors’ first object was to use
the graphic script to make a case for excluding black panel
members opposed to or ambivalent about the death penalty,
there is a much tighter fit of fact and explanation.29 Of the
10 nonblacks whose questionnaires expressed ambivalence or
opposition,30 only 30% received the graphic treatment.31
But of the seven blacks who expressed ambivalence or oppo
sition,32 86% heard the graphic script.33 As between the
State’s ambivalence explanation and Miller-El’s racial one,
race is much the better, and the reasonable inference is that
race was the major consideration when the prosecution chose
to follow the graphic script.
26 App. 775 (Gutierrez); id., at 547 (Moses); 4 Record 1569 (Vickery).
27 These were Linda Baker, Joint Lodging 71; Paul Bailey, id., at 63;
Carrol Boggess, id., at 38; and Troy Woods, id., at 207.
28 App. 294 (Boggess); id., at 652–653 (Baker); id., at 405–406 (Woods);
id., at 737 (Bailey).
29 The dissent posits that prosecutors did not use the graphic script with
panel members opposed to the death penalty because it would only have
antagonized them. See post, at 301. No answer is offered to the ques
tion why a prosecutor would take care with the feelings of a panel member
he would excuse for cause or strike yet would antagonize an ambivalent
member whose feelings he wanted to smoke out, but who might turn out
to be an acceptable juror.
30 These were John Nelson, 2 Record 625; James Holtz, id., at 1022;
Moses, 3 id., at 1141; Linda Berk, id., at 1445, 1450; Desinise, App. 573;
Vickery, 4 Record 1610; Gene Hinson, App. 576; Girard, id., at 624; Evans,
id., at 627–628; Gutierrez, Joint Lodging 231.
31 These were Desinise, App. 573; Evans, id., at 626; and Gutierrez, id.,
at 775.
32 These were Jerry Mosley, 7 Record 2658; Baker, Joint Lodging 71;
Bailey, id., at 63; Keaton, id., at 55; Mackey, id., at 79; Boggess, id., at 38;
and Woods, id., at 207.
33 Only Mosley did not. App. 630.

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The same is true for another kind of disparate question
ing, which might fairly be called trickery. The prosecutors
asked members of the panel how low a sentence they would
consider imposing for murder. Most potential jurors were
first told that Texas law provided for a minimum term of five
years, but some members of the panel were not, and if a
panel member then insisted on a minimum above five years,
the prosecutor would suppress his normal preference for
tough jurors and claim cause to strike. Two Terms ago, we
described how this disparate questioning was correlated
with race:
“Ninety-four percent of whites were informed of the
statutory minimum sentence, compared [with] only
twelve and a half percent of African-Americans. No
explanation is proffered for the statistical disparity.
Pierre v. Louisiana, 306 U. S. 354, 361–362 (1939)
(‘ “The fact that the testimony . . . was not challenged by
evidence appropriately direct, cannot be brushed aside.”
Had there been evidence obtainable to contradict and
disprove the testimony offered by petitioner, it cannot
be assumed that the State would have refrained from
introducing it’ (quoting Norris v. Alabama, 294 U. S.
587, 594–595 (1935))). Indeed, while petitioner’s appeal
was pending before the Texas Court of Criminal Ap
peals, that court found a Batson violation where this
precise line of disparate questioning on mandatory mini
mums was employed by one of the same prosecutors who
tried the instant case. Chambers v. State, 784 S. W. 2d
29, 31 (Tex. Crim. App. 1989).” Miller-El v. Cockrell,
537 U. S., at 345.
The State concedes that the manipulative minimum pun
ishment questioning was used to create cause to strike, Brief
for Respondent 33, and n. 26, but now it offers the extenua
tion that prosecutors omitted the 5-year information not on
the basis of race, but on stated opposition to the death pen

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alty, or ambivalence about it, on the questionnaires and in
the voir dire testimony, id., at 34–35. On the State’s identi
fication of black panel members opposed or ambivalent, all
were asked the trick question.34 But the State’s rationale
flatly fails to explain why most white panel members who
expressed similar opposition or ambivalence were not sub
jected to it. It is entirely true, as the State argues, id., at
35, that prosecutors struck a number of nonblack members
of the panel (as well as black members) for cause or by agree
ment before they reached the point in the standard voir dire
sequence to question about minimum punishment. But this
is no answer; 8 of the 11 nonblack individuals who voiced
opposition or ambivalence were asked about the acceptable
minimum only after being told what state law required.35
34 The State puts the number of black panel members who expressed
opposition or ambivalence at seven, and each received the minimum pun
ishment ruse. Bozeman, id., at 162; Fields, id., at 187–188; Warren, id., at
213–214; Rand, id., at 270; Boggess, id., at 306–307; Kennedy, id., at 327–
328; and Baker, id., at 654. Woods, the State argues, had been revealed
through questioning as a supporter of the death penalty, and accordingly
he was told that five years was the statutory minimum. As explained
supra, at 241–252, Fields and Warren were neither ambivalent nor op
posed; on our analysis of black venire members opposed or ambivalent,
all received the trick question, along with two proponents of capital
punishment.
35 Moses confirmed at voir dire that she reported on her questionnaire
that she did not know the answer to Question 58, 3 Record 1141, although
she did express support for the death penalty, App. 548. She was not
subjected to the manipulative script. Id., at 547. Crowson said that if
there was a chance at rehabilitation she probably would not go with death.
Id., at 554. The prosecution used a peremptory strike against her but did
not employ the manipulative minimum punishment script. 3 Record 1232.
Vickery said he did not know how he felt about the death penalty, 4 id., at
1572, but was not subjected to the manipulative script, id., at 1582. Sal
sini thought he would have a problem in the future if he voted to impose
a death sentence, App. 593, but he was not subjected to the script, id., at
595. Mazza was worried about what other people would think if she im
posed the death penalty, id., at 354–355, but was not subjected to the
script, id., at 356. Witt said she did not know if she could give the death

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Hence, only 27% of nonblacks questioned on the subject who
expressed these views were subjected to the trick question,
as against 100% of black members. Once again, the implica
tion of race in the prosecutors’ choice of questioning cannot
be explained away.36
There is a final body of evidence that confirms this conclu
sion. We know that for decades leading up to the time this
case was tried prosecutors in the Dallas County office had
followed a specific policy of systematically excluding blacks
from juries, as we explained the last time the case was here.
penalty, 6 Record 2423, but was not subjected to the script, id., at 2439.
Whaley thought that she could not give the death penalty without proof
of premeditation, even though Texas law did not require it, 10 id., at 3750,
but she was not subjected to the script, id., at 3768. Hearn said that the
death penalty should be given only to those who could not be rehabilitated,
App. 429, but she was not subjected to the script, id., at 441. The three
nonblacks who expressed ambivalence or opposition and were subjected
to the script were James Holtz, id., at 538; Margaret Gibson, id., at 514;
and Fernando Gutierrez, 11–(B) Record 4397.
36 The dissent reaches a different statistical result that supports the
State’s explanation. See post, at 302–304. There are two flaws in its
calculations. First, it excises from its calculations panel members who
were struck for cause or by agreement, on the theory that prosecutors
knew they could be rid of those panel members without resorting to the
minimum punishment ruse. See post, at 303. But the prosecution’s cal
culation about whether to ask these manipulative questions occurred be
fore prosecutors asked the trial court to strike panel members for cause
and, frequently, before prosecutors and defense counsel would have
reached agreement about removal. It is unlikely that prosecutors were
so assured of being able to remove certain panel members for cause or by
agreement that they would forgo the chance to create additional grounds
for removal by employing the minimum punishment ruse. Second, as
with its analysis of the panelists receiving the graphic script, the dissent
characterizes certain panel members in ways that in our judgment are
unconvincing. For example, for purposes of the minimum punishment
analysis, the dissent considers Colleen Moses and Noad Vickery to be pan
elists so favorable to the prosecution that there was no need to resort to
the minimum punishment ruse, post, at 304, yet the dissent acknowledged
Moses’s and Vickery’s ambivalent questionnaire responses in its discussion
of the graphic script, post, at 301.

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264 MILLER-EL v. DRETKE
Opinion of the Court
“Although most of the witnesses [presented at the
Swain hearing in 1986] denied the existence of a system
atic policy to exclude African-Americans, others dis
agreed. A Dallas County district judge testified that,
when he had served in the District Attorney’s Office
from the late-1950’s to early-1960’s, his superior warned
him that he would be fired if he permitted any African-
Americans to serve on a jury. Similarly, another Dallas
County district judge and former assistant district at
torney from 1976 to 1978 testified that he believed the
office had a systematic policy of excluding African-
Americans from juries.
“Of more importance, the defense presented evidence
that the District Attorney’s Office had adopted a formal
policy to exclude minorities from jury service. . . . A
manual entitled ‘Jury Selection in a Criminal Case’
[sometimes known as the Sparling Manual] was distrib
uted to prosecutors. It contained an article authored
by a former prosecutor (and later a judge) under the
direction of his superiors in the District Attorney’s Of
fice, outlining the reasoning for excluding minorities
from jury service. Although the manual was written in
1968, it remained in circulation until 1976, if not later,
and was available at least to one of the prosecutors in
Miller-El’s trial.” Miller-El v. Cockrell, 537 U. S., at
334–335.37
Prosecutors here “marked the race of each prospective
juror on their juror cards.” Id., at 347.38
37 The material omitted from the quotation includes an excerpt from a
1963 circular given to prosecutors in the District Attorney’s Office, which
the State points out was not in evidence in the state trial court. The
Sparling Manual, however, was before the state court.
38 The State claimed at oral argument that prosecutors could have been
tracking jurors’ races to be sure of avoiding a Batson violation. Tr. of
Oral Arg. 44. Batson, of course, was decided the month after Miller-El
was tried.

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Opinion of the Court
The Court of Appeals concluded that Miller-El failed to
show by clear and convincing evidence that the state court’s
finding of no discrimination was wrong, whether his evidence
was viewed collectively or separately. 361 F. 3d, at 862.
We find this conclusion as unsupportable as the “dismissive
and strained interpretation” of his evidence that we disap
proved when we decided Miller-El was entitled to a certifi
cate of appealability. See Miller-El v. Cockrell, supra, at
344. It is true, of course, that at some points the signifi
cance of Miller-El’s evidence is open to judgment calls, but
when this evidence on the issues raised is viewed cumula
tively its direction is too powerful to conclude anything but
discrimination.
In the course of drawing a jury to try a black defendant,
10 of the 11 qualified black venire panel members were pe
remptorily struck. At least two of them, Fields and Warren,
were ostensibly acceptable to prosecutors seeking a death
verdict, and Fields was ideal. The prosecutors’ chosen
race-neutral reasons for the strikes do not hold up and are
so far at odds with the evidence that pretext is the fair con
clusion, indicating the very discrimination the explanations
were meant to deny.
The strikes that drew these incredible explanations oc
curred in a selection process replete with evidence that the
prosecutors were selecting and rejecting potential jurors be
cause of race. At least two of the jury shuffles conducted
by the State make no sense except as efforts to delay consid
eration of black jury panelists to the end of the week, when
they might not even be reached. The State has in fact never
offered any other explanation. Nor has the State denied
that disparate lines of questioning were pursued: 53% of
black panelists but only 3% of nonblacks were questioned
with a graphic script meant to induce qualms about applying
the death penalty (and thus explain a strike), and 100% of
blacks but only 27% of nonblacks were subjected to a trick
question about the minimum acceptable penalty for murder,

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266 MILLER-EL v. DRETKE
Breyer, J., concurring
meant to induce a disqualifying answer. The State’s at
tempts to explain the prosecutors’ questioning of particular
witnesses on nonracial grounds fit the evidence less well than
the racially discriminatory hypothesis.
If anything more is needed for an undeniable explanation
of what was going on, history supplies it. The prosecutors
took their cues from a 20-year-old manual of tips on jury
selection, as shown by their notes of the race of each poten
tial juror. By the time a jury was chosen, the State had
peremptorily challenged 12% of qualified nonblack panel
members, but eliminated 91% of the black ones.
It blinks reality to deny that the State struck Fields and
Warren, included in that 91%, because they were black. The
strikes correlate with no fact as well as they correlate with
race, and they occurred during a selection infected by shuf
fling and disparate questioning that race explains better than
any race-neutral reason advanced by the State. The State’s
pretextual positions confirm Miller-El’s claim, and the prose
cutors’ own notes proclaim that the Sparling Manual’s em
phasis on race was on their minds when they considered
every potential juror.
The state court’s conclusion that the prosecutors’ strikes
of Fields and Warren were not racially determined is shown
up as wrong to a clear and convincing degree; the state
court’s conclusion was unreasonable as well as erroneous.
The judgment of the Court of Appeals is reversed, and
the case is remanded for entry of judgment for petitioner
together with orders of appropriate relief.
It is so ordered.
Justice Breyer, concurring.
In Batson v. Kentucky, 476 U. S. 79 (1986), the Court
adopted a burden-shifting rule designed to ferret out the
unconstitutional use of race in jury selection. In his sepa
rate opinion, Justice Thurgood Marshall predicted that the
Court’s rule would not achieve its goal. The only way to

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Breyer, J., concurring
“end the racial discrimination that peremptories inject into
the jury-selection process,” he concluded, was to “eliminat[e]
peremptory challenges entirely.” Id., at 102–103 (concur
ring opinion). Today’s case reinforces Justice Marshall’s
concerns.
I
To begin with, this case illustrates the practical problems
of proof that Justice Marshall described. As the Court’s
opinion makes clear, Miller-El marshaled extensive evidence
of racial bias. But despite the strength of his claim, Miller-
El’s challenge has resulted in 17 years of largely unsuccessful
and protracted litigation—including 8 different judicial pro
ceedings and 8 different judicial opinions, and involving 23
judges, of whom 6 found the Batson standard violated and
16 the contrary.
The complexity of this process reflects the difficulty of
finding a legal test that will objectively measure the in
herently subjective reasons that underlie use of a peremp
tory challenge. Batson seeks to square this circle by
(1) requiring defendants to establish a prima facie case of
discrimination, (2) asking prosecutors then to offer a race
neutral explanation for their use of the peremptory, and then
(3) requiring defendants to prove that the neutral reason
offered is pretextual. See ante, at 239. But Batson em
bodies defects intrinsic to the task.
At Batson’s first step, litigants remain free to misuse pe
remptory challenges as long as the strikes fall below the
prima facie threshold level. See 476 U. S., at 105 (Marshall,
J., concurring). At Batson’s second step, prosecutors need
only tender a neutral reason, not a “persuasive, or even plau
sible,” one. Purkett v. Elem, 514 U. S. 765, 768 (1995) (per
curiam); see also id., at 766 (“ ‘mustaches and the beards
look suspicious’ ”). And most importantly, at step three,
Batson asks judges to engage in the awkward, sometime
hopeless, task of second-guessing a prosecutor’s instinctive
judgment—the underlying basis for which may be invisible

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268 MILLER-EL v. DRETKE
Breyer, J., concurring
even to the prosecutor exercising the challenge. See 476
U. S., at 106 (Marshall, J., concurring) (noting that the uncon
scious internalization of racial stereotypes may lead litigants
more easily to conclude “that a prospective black juror is
‘sullen,’ or ‘distant,’ ” even though that characterization
would not have sprung to mind had the prospective juror
been white); see also Page, Batson’s Blind-Spot: Unconscious
Stereotyping and the Peremptory Challenge, 85 B. U. L. Rev.
155, 161 (2005) (“ ‘[s]ubtle forms of bias are automatic, uncon
scious, and unintentional’ ” and “ ‘escape notice, even the no
tice of those enacting the bias’ ” (quoting Fiske, What’s in a
Category?: Responsibility, Intent, and the Avoidability of
Bias Against Outgroups, in The Social Psychology of Good
and Evil 127, 127–128 (A. Miller ed. 2004))). In such circum
stances, it may be impossible for trial courts to discern if a
“ ‘seat-of-the-pants’ ” peremptory challenge reflects a “ ‘seat
of-the-pants’ ” racial stereotype. Batson, 476 U. S., at 106
(Marshall, J., concurring) (quoting id., at 138 (Rehnquist,
J., dissenting)).
Given the inevitably clumsy fit between any objectively
measurable standard and the subjective decisionmaking at
issue, I am not surprised to find studies and anecdotal re
ports suggesting that, despite Batson, the discriminatory
use of peremptory challenges remains a problem. See, e. g.,
Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, The Use
of Peremptory Challenges in Capital Murder Trials: A Legal
and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52–53, 73,
n. 197 (2001) (in 317 capital trials in Philadelphia between
1981 and 1997, prosecutors struck 51% of black jurors and
26% of nonblack jurors; defense counsel struck 26% of black
jurors and 54% of nonblack jurors; and race-based uses of
prosecutorial peremptories declined by only 2% after Bat
son); Rose, The Peremptory Challenge Accused of Race or
Gender Discrimination? Some Data from One County, 23
Law and Human Behavior 695, 698–699 (1999) (in one North
Carolina county, 71% of excused black jurors were removed

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269 Cite as: 545 U. S. 231 (2005)
Breyer, J., concurring
by the prosecution; 81% of excused white jurors were re
moved by the defense); Tucker, In Moore’s Trials, Excluded
Jurors Fit Racial Pattern, Washington Post, Apr. 2, 2001,
p. A1 (in D. C. murder case spanning four trials, prosecutors
excused 41 blacks or other minorities and 6 whites; defense
counsel struck 29 whites and 13 black venire members); Mize,
A Legal Discrimination; Juries Aren’t Supposed to be Picked
on the Basis of Race and Sex, But It Happens All the Time,
Washington Post, Oct. 8, 2000, p. B8 (authored by judge on
the D. C. Superior Court); see also Melilli, Batson in Prac
tice: What We Have Learned About Batson and Peremptory
Challenges, 71 Notre Dame L. Rev. 447, 462–464 (1996) (find
ing Batson challenges’ success rates lower where peremptor
ies were used to strike black, rather than white, potential
jurors); Brand, The Supreme Court, Equal Protection and
Jury Selection: Denying That Race Still Matters, 1994 Wis.
L. Rev. 511, 583–589 (examining judicial decisions and con
cluding that few Batson challenges succeed); Note, Batson
v. Kentucky and J. E. B. v. Alabama ex rel. T. B.: Is the
Peremptory Challenge Still Preeminent? 36 Boston College
L. Rev. 161, 189, and n. 303 (1994) (same); Montoya, The Fu
ture of the Post-Batson Peremptory Challenge: Voir Dire by
Questionnaire and the “Blind” Peremptory, 29 U. Mich. J. L.
Reform 981, 1006, nn. 126–127, 1035 (1996) (reporting attor
neys’ views on the difficulty of proving Batson claims).
II
Practical problems of proof to the side, peremptory chal
lenges seem increasingly anomalous in our judicial system.
On the one hand, the Court has widened and deepened Bat
son’s basic constitutional rule. It has applied Batson’s anti
discrimination test to the use of peremptories by criminal
defendants, Georgia v. McCollum, 505 U. S. 42 (1992), by pri
vate litigants in civil cases, Edmonson v. Leesville Concrete
Co., 500 U. S. 614 (1991), and by prosecutors where the de
fendant and the excluded juror are of different races, Powers

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270 MILLER-EL v. DRETKE
Breyer, J., concurring
v. Ohio, 499 U. S. 400 (1991). It has recognized that the Con
stitution protects not just defendants, but the jurors them
selves. Id., at 409. And it has held that equal protection
principles prohibit excusing jurors on account of gender.
See J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994).
Some lower courts have extended Batson’s rule to religious
affiliation as well. See, e. g., United States v. Brown, 352
F. 3d 654, 668–669 (CA2 2003); State v. Hodge, 248 Conn. 207,
244–246, 726 A. 2d 531, 553 (1999); United States v. Stafford,
136 F. 3d 1109, 1114 (CA7 1998) (suggesting same); see also
Davis v. Minnesota, 511 U. S. 1115, 1117 (1994) (Thomas, J.,
dissenting from denial of certiorari). But see Casarez v.
State, 913 S. W. 2d 468, 496 (Tex. Crim. App. 1994) (en banc)
(declining to extend Batson to religious affiliation); State v.
Davis, 504 N. W. 2d 767, 771 (Minn. 1993) (same).
On the other hand, the use of race- and gender-based ste
reotypes in the jury-selection process seems better orga
nized and more systematized than ever before. See, e. g.,
Post, A Loaded Box of Stereotypes: Despite ‘Batson,’ Race,
Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25,
2005, pp. 1, 18 (discussing common reliance on race and
gender in jury selection). For example, one jury-selection
guide counsels attorneys to perform a “demographic analy
sis” that assigns numerical points to characteristics such as
age, occupation, and marital status—in addition to race as
well as gender. See V. Starr & M. McCormick, Jury Selec
tion 193–200 (3d ed. 2001). Thus, in a hypothetical dispute
between a white landlord and an African-American tenant,
the authors suggest awarding two points to an African-
American venire member while subtracting one point from
her white counterpart. Id., at 197–199.
For example, a bar journal article counsels lawyers to
“rate” potential jurors “demographically (age, gender, mari
tal status, etc.) and mark who would be under stereotypical
circumstances [their] natural enemies and allies.” Drake,

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Breyer, J., concurring
The Art of Litigating: Deselecting Jurors Like the Pros, 34
Md. Bar J. 18, 22 (Mar. /Apr. 2001) (emphasis in original).
For example, materials from a legal convention, while not
ing that “nationality” is less important than “once was
thought,” and emphasizing that “the answers a prospective
juror gives to questions are much more valuable,” still point
out that “[s]tereotypically” those of “Italian, French, and
Spanish” origin “are thought to be pro-plaintiff as well as
other minorities, such as Mexican and Jewish[;] [p]ersons of
German, Scandinavian, Swedish, Finnish, Dutch, Nordic,
British, Scottish, Oriental, and Russian origin are thought to
be better for the defense”; African-Americans “have always
been considered good for the plaintiff,” and “[m]ore politi
cally conservative minorities will be more likely to lean to
ward defendants.” Blue, Mirroring, Proxemics, Nonverbal
Communication, and Other Psychological Tools, Advocacy
Track—Psychology of Trial, Association of Trial Lawyers of
America Annual Convention Reference Materials, 1 Ann.
2001 ATLA–CLE 153, available at WESTLAW, ATLA–CLE
database (June 8, 2005).
For example, a trial consulting firm advertises a new
jury-selection technology: “Whether you are trying a civil
case or a criminal case, SmartJURY� has likely determined
the exact demographics (age, race, gender, education, occu
pation, marital status, number of children, religion, and in
come) of the type of jurors you should select and the type
you should strike.” SmartJURY Product Information,
http://www.cts-america.com/smart jury_pi.asp (as visited
June 8, 2005, and available in Clerk of Court’s case file).
These examples reflect a professional effort to fulfill the
lawyer’s obligation to help his or her client. Cf. J. E. B.,
supra, at 148–149 (O’Connor, J., concurring) (observing that
jurors’ race and gender may inform their perspective).
Nevertheless, the outcome in terms of jury selection is the
same as it would be were the motive less benign. And as
long as that is so, the law’s antidiscrimination command and

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272 MILLER-EL v. DRETKE
Breyer, J., concurring
a peremptory jury-selection system that permits or encour
ages the use of stereotypes work at cross-purposes.
Finally, a jury system without peremptories is no longer
unthinkable. Members of the legal profession have begun
serious consideration of that possibility. See, e. g., Alen v.
State, 596 So. 2d 1083, 1088–1089 (Fla. App. 1992) (Hubbart,
J., concurring); Broderick, Why the Peremptory Challenge
Should Be Abolished, 65 Temp. L. Rev. 369 (1992) (authored
by Senior Judge on the U. S. District Court for the Eastern
District of Pennsylvania); Hoffman, Peremptory Challenges
Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi.
L. Rev. 809 (1997) (authored by a Colorado state-court
judge); Alschuler, The Supreme Court and the Jury: Voir
Dire, Peremptory Challenges, and the Review of Jury Ver
dicts, 56 U. Chi. L. Rev. 153, 199–211 (1989); Amar, Rein
venting Juries: Ten Suggested Reforms, 28 U. C. D. L. Rev.
1169, 1182–1183 (1995); Melilli, 71 Notre Dame L. Rev., at
502–503; Page, 85 B. U. L. Rev., at 245–246. And England,
a common-law jurisdiction that has eliminated peremptory
challenges, continues to administer fair trials based largely
on random jury selection. See Criminal Justice Act, 1988,
ch. 33, § 118(1), 22 Halsbury’s Statutes 357 (4th ed. 2003 reis
sue) (U. K.); see also 2 Jury Service in Victoria, Final Report,
ch. 5, p. 165 (Dec. 1997) (1993 study of English barristers
showed majority support for system without peremptory
challenges).
III
I recognize that peremptory challenges have a long histor
ical pedigree. They may help to reassure a party of the fair
ness of the jury. But long ago, Blackstone recognized the
peremptory challenge as an “arbitrary and capricious species
of [a] challenge.” 4 W. Blackstone, Commentaries on the
Laws of England 346 (1769). If used to express stereotypi
cal judgments about race, gender, religion, or national origin,
peremptory challenges betray the jury’s democratic origins
and undermine its representative function. See 1 A. de

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Breyer, J., concurring
Tocqueville, Democracy in America 287 (H. Reeve transl.,
rev. ed. 1900) (“[T]he institution of the jury raises the
people . . . to the bench of judicial authority [and] invests
[them] with the direction of society”); A. Amar, The Bill of
Rights 94–96 (1998) (describing the Founders’ vision of juries
as venues for democratic participation); see also Stevens,
Foreword, Symposium: The Jury at a Crossroad: The Ameri
can Experience, 78 Chi.-Kent L. Rev. 907, 907–908 (2003) (cit
izens should not be denied the opportunity to serve as jurors
unless an impartial judge states a reason for the denial, as
with a strike for cause). The “scientific” use of peremptory
challenges may also contribute to public cynicism about the
fairness of the jury system and its role in American govern
ment. See, e. g., S. O’Connor, Juries: They May Be Broke,
But We Can Fix Them, Chautauqua Institution Lecture, July
6, 1995. And, of course, the right to a jury free of discrimi
natory taint is constitutionally protected—the right to use
peremptory challenges is not. See Stilson v. United States,
250 U. S. 583, 586 (1919); see also Ross v. Oklahoma, 487
U. S. 81, 88 (1988) (defendant’s loss of a peremptory challenge
does not violate his right to an impartial jury).
Justice Goldberg, dissenting in Swain v. Alabama, 380
U. S. 202 (1965), wrote, “Were it necessary to make an abso
lute choice between the right of a defendant to have a jury
chosen in conformity with the requirements of the Four
teenth Amendment and the right to challenge peremptorily,
the Constitution compels a choice of the former.” Id., at
244; see also Batson, 476 U. S., at 107 (Marshall, J., concur
ring) (same); Edmonson, 500 U. S., at 630 (opinion for the
Court by Kennedy, J.) (“[I]f race stereotypes are the price
for acceptance of a jury panel as fair, the price is too high to
meet the standard of the Constitution”). This case suggests
the need to confront that choice. In light of the considera
tions I have mentioned, I believe it necessary to reconsider
Batson’s test and the peremptory challenge system as a
whole. With that qualification, I join the Court’s opinion.

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274 MILLER-EL v. DRETKE
Thomas, J., dissenting
Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
In the early morning hours of November 16, 1985, peti
tioner Thomas Joe Miller-El and an accomplice, Kennard
Flowers, robbed a Holiday Inn in Dallas, Texas. Miller-El
and Flowers bound and gagged hotel employees Donald Hall
and Doug Walker, and then laid them face down on the floor.
When Flowers refused to shoot them, Miller-El shot each
twice in the back, killing Walker and rendering Hall a para
plegic. Miller-El was convicted of capital murder by a jury
composed of seven white females, two white males, a black
male, a Filipino male, and a Hispanic male.
For nearly 20 years now, Miller-El has contended that
prosecutors peremptorily struck potential jurors on the basis
of race. In that time, seven state and six federal judges
have reviewed the evidence and found no error. This Court
concludes otherwise, because it relies on evidence never pre
sented to the Texas state courts. That evidence does not,
much less “clear[ly] and convincing[ly],” show that the State
racially discriminated against potential jurors. 28 U. S. C.
§ 2254(e)(1). However, we ought not even to consider it: In
deciding whether to grant Miller-El relief, we may look only
to “the evidence presented in the State court proceeding.”
§ 2254(d)(2). The majority ignores that restriction on our
review to grant Miller-El relief. I respectfully dissent.
I
Miller-El requests federal habeas relief from a state-court
judgment, and hence our review is controlled by the Antiter
rorism and Effective Death Penalty Act of 1996 (AEDPA),
110 Stat. 1214. Because Miller-El’s claim of racial discrimi
nation in jury selection was adjudicated on the merits in
Texas state court, AEDPA directs that a writ of habeas cor
pus “shall not be granted” unless the state court’s decision
“was based on an unreasonable determination of the facts in

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Thomas, J., dissenting
light of the evidence presented in the State court proceed
ing.” 28 U. S. C. § 2254(d)(2) (emphasis added).
To obtain habeas relief, then, Miller-El must show that,
based on the evidence before the Texas state courts, the only
reasonable conclusion was that prosecutors had racially dis
criminated against prospective jurors. He has not even
come close to such a showing. The state courts held two
hearings, but despite ample opportunity, Miller-El presented
little evidence that discrimination occurred during jury se
lection. In view of the evidence actually presented to the
Texas courts, their conclusion that the State did not discrimi
nate was eminently reasonable. As a close look at the
state-court proceedings reveals, the majority relies almost
entirely on evidence that Miller-El has never presented to
any Texas state court.
A
Jury selection in Miller-El’s trial took place over five
weeks in February and March 1986. During the process, 19
of the 20 blacks on the 108-person venire panel were not
seated on the jury: 3 were dismissed for cause, 6 were dis
missed by the parties’ agreement, and 10 were peremptorily
struck by prosecutors. Miller-El objected to 8 of these 10
strikes, asserting that the prosecutors were discriminating
against black veniremen. Each time, the prosecutors prof
fered a race-neutral, case-related reason for exercising the
challenge, and the trial court permitted the venireman to
be removed. The remaining black venireman, Troy Woods,
served on the jury that convicted Miller-El.
At the completion of voir dire, Miller-El moved to strike
the jury under this Court’s decision in Swain v. Alabama,
380 U. S. 202 (1965), which required Miller-El to prove “sys
tematic exclusion of black persons through the use of pe
remptories over a period of time.” Powers v. Ohio, 499 U. S.
400, 405 (1991). At the pretrial Swain hearing in March
1986, Miller-El presented three types of documentary evi
dence: the juror questionnaires of the 10 black veniremen

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struck by the State; excerpts from a series of newspaper
articles on racial bias in jury selection; and a manual on jury
selection in criminal cases authored by a former Dallas
County prosecutor. The voir dire transcript was part of the
official record. Miller-El, however, introduced none of the
other 98 juror questionnaires, no juror cards, and no evidence
related to jury shuffling. See ante, at 256–257, n. 15.
Miller-El also presented nine witnesses, five of whom had
spent time as prosecutors in the Dallas County District At
torney’s (D. A.) Office and five of whom were current or for
mer judges in Dallas County. Their testimony made three
things clear. First, the D. A.’s Office had never officially
sanctioned or promoted racial discrimination in jury selec
tion, as several witnesses testified, including the county’s
Chief Public Defender as well as one of the first black prose
cutors to serve in the D. A.’s Office. App. 842 (Baraka); id.,
at 846–848 (Tait); id., at 860 (Entz); id., at 864 (Kinkeade).
Second, witnesses testified that, despite the absence of any
official policy, individual prosecutors had almost certainly ex
cluded blacks in particular cases. Id., at 830, 833 (Hampton);
id., at 841–842 (Baraka); id., at 846–848 (Tait); id., at 863–864
(Kinkeade). Third and most important, no witness testified
that the prosecutors in Miller-El’s trial—Norman Kinne,
Paul Macaluso, and Jim Nelson—had ever engaged in racially
discriminatory jury selection. Id., at 843 (Baraka); id., at
859 (Entz); id., at 863 (Kinkeade). The trial court concluded
that, although racial discrimination “may have been done by
individual prosecutors in individual cases,” there was no evi
dence of “any systematic exclusion of blacks as a matter of
policy by the District Attorney’s office.” Id., at 882–883.
Miller-El was then tried, convicted, and sentenced to
death. While his appeal was pending, this Court decided
Batson v. Kentucky, 476 U. S. 79 (1986). Batson announced
a new three-step process for evaluating claims that a prose
cutor used peremptory challenges to strike prospective ju
rors because of their race:

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“First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race[; s]econd, if that showing has been made,
the prosecution must offer a race-neutral basis for strik
ing the juror in question[; and t]hird, in light of the
parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrimi
nation.” Miller-El v. Cockrell, 537 U. S. 322, 328–329
(2003) (Miller-El I).
The Texas Court of Criminal Appeals remanded Miller-El’s
case for a hearing to be held under Batson.
B
At the Batson hearing in May 1988, before the same judge
who had presided over his trial, Miller-El sought to estab
lish that prosecutors at his trial had struck potential jurors
on the basis of their race. To make his prima facie case,
Miller-El reintroduced some of what he had presented two
years earlier at the Swain hearing: the testimony of the nine
witnesses, the 10 juror questionnaires, and the excerpted
newspaper articles. App. 893–895. The court instructed
the State to explain its strikes. Id., at 898–899. Of the 10
peremptory strikes at issue, prosecutors had already ex
plained 8 at trial in response to Miller-El’s objections. The
State therefore called Paul Macaluso, one of the prosecutors
who had conducted the voir dire, to testify regarding his
reasons for striking veniremen Paul Bailey and Joe Warren.
Macaluso testified that he had struck Bailey because Bai
ley seemed firmly opposed to the death penalty, even though
Bailey tempered his stance during voir dire. Id., at 905–
906. This was accurate. Bailey expressed forceful opposi
tion to the death penalty when questioned by Macaluso.
See, e. g., 11–(A) Record of Voir Dire 4110 (hereinafter Rec
ord) (“I don’t believe in capital punishment. Like I said on
[my juror questionnaire], I don’t believe anyone has the right
to take another person’s life”); id., at 4112 (saying that he

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felt “[v]ery strongly” that the State should not impose the
death penalty). Later, however, when questioned by de
fense counsel, Bailey said that he could impose the death
penalty if the State proved the necessary aggravating cir
cumstances. Id., at 4148–4150, 4152. When the trial court
overruled the State’s challenge for cause, the State exercised
a peremptory challenge. Id., at 4168.
Macaluso next testified that he dismissed venireman War
ren because Warren gave inconsistent answers regarding his
ability to apply the death penalty and because Warren’s
brother had been recently convicted. App. 908–910. Maca
luso conceded that Warren was not as clearly unfavorable
to the State as Bailey. Id., at 911. Nevertheless, Macaluso
struck Warren because it was early in the jury selection
process and the State had plenty of remaining peremptories
with which it could remove marginal jurors. Macaluso can
didly stated that he might not have removed Warren if fewer
peremptories had been available. Id., at 910.
After the State presented nonracial, case-related reasons
for all its strikes, the focus shifted to Batson’s third step:
whether Miller-El had “carried his burden of proving pur
poseful discrimination.” Purkett v. Elem, 514 U. S. 765, 768
(1995) (per curiam); Batson, supra, at 97–98. At this point,
Miller-El stood on his Swain evidence. App. 921. That evi
dence bore on whether some Dallas County prosecutors had
discriminated generally in past years; none of the evidence
indicated that the prosecutors at Miller-El’s trial—Kinne,
Macaluso, and Nelson—had discriminated in the selection of
Miller-El’s jury. Moreover, none of this generalized evi
dence came close to demonstrating that the State’s expla
nations were pretextual in Miller-El’s particular trial.
Miller-El did not even attempt to rebut the State’s racially
neutral reasons at the hearing. He presented no evidence
and made no arguments. Id., at 919–922.
Nevertheless, the majority concludes that the trial judge
was unreasonable in finding as a factual matter that the

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State did not discriminate against black veniremen. Ante,
at 266. That is not so “in light of the evidence presented in
the State court proceeding.” 28 U. S. C. § 2254(d)(2). From
the scanty evidence presented to the trial court, “it is at least
reasonable to conclude” that purposeful discrimination did
not occur, “which means that the state court’s determination
to that effect must stand.” Early v. Packer, 537 U. S. 3, 11
(2002) (per curiam).
II
Not even the majority is willing to argue that the evidence
before the state court shows that the State discriminated
against black veniremen. Instead, it bases its decision on
juror questionnaires and juror cards that Miller-El’s new at
torneys unearthed during his federal habeas proceedings and
that he never presented to the state courts.1 Ante, at 256–
257, n. 15. Worse still, the majority marshals those docu
ments in support of theories that Miller-El never argued
to the state courts. AEDPA does not permit habeas peti
tioners to engage in this sort of sandbagging of state courts.
A
The majority discusses four types of evidence: (1) the al
leged similarity between black veniremen who were struck
by the prosecution and white veniremen who were not;
(2) the apparent disparate questioning of black and white
veniremen with respect to their views on the death penalty
and their ability to impose the minimum punishment; (3) the
use of the “jury shuffle” by the prosecution; and (4) evidence
of historical discrimination by the D. A.’s Office in the selec
tion of juries. Only the last was ever put before the Texas
courts—and it does not prove that any constitutional viola
1 The supplemental material appears in a joint lodging submitted by the
parties. It includes the State’s copies of questionnaires for 12 prospective
jurors (11 of whom served at Miller-El’s trial) and the State’s juror cards
for all 108 members of the venire panel.

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tion occurred at Miller-El’s trial. The majority’s discussion
of the other types of evidence relies on documents like juror
questionnaires and juror cards that were added to the record
before the District Court.
The majority’s willingness to reach outside the state-court
record and embrace evidence never presented to the Texas
state courts is hard to fathom. AEDPA mandates that the
reasonableness of a state court’s factual findings be assessed
“in light of the evidence presented in the State court pro
ceeding,” 28 U. S. C. § 2254(d)(2), and also circumscribes the
ability of federal habeas litigants to present evidence that
they “failed to develop” before the state courts. § 2254(e)(2);
Williams v. Taylor, 529 U. S. 420, 429–430 (2000). Miller-El
did not argue disparate treatment or disparate questioning
at the Batson hearing, so he had no reason to submit the
juror questionnaires or cards to the trial court. However,
Miller-El could have developed and presented all of that evi
dence at the Batson hearing.2 Consequently, he must sat
isfy § 2254(e)(2)’s requirements to adduce the evidence in fed
eral court—something he cannot do. Williams, supra, at
437 (“Federal courts sitting in habeas are not an alternative
forum for trying facts and issues which a prisoner made
insufficient effort to pursue in state proceedings”). For
instance, there is no doubt that Miller-El’s supplemental ma
terial could have been “previously discovered through the
exercise of due diligence.” § 2254(e)(2)(A)(ii).
Just last Term, we summarily reversed the Court of Ap
peals for the Sixth Circuit for doing what the Court does
2 The juror questionnaires had been in Miller-El’s possession since be
fore the 1986 Swain hearing; Miller-El’s attorneys used them during the
voir dire. But because Miller-El did not argue disparate treatment or
questioning at the Batson hearing, Miller-El’s attorneys had no reason to
submit the questionnaires to the trial court. The juror cards could have
been requested at any point under the Texas Public Information Act. See
Supplemental Briefing on Batson/Swain Claim Based on Previously Un
available Evidence, Record in No. 00–10784 (CA5), p. 2494.

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here: granting habeas relief on the basis of evidence not pre
sented to the state court. See Holland v. Jackson, 542 U. S.
649, 652 (2004) (per curiam). We reaffirmed “that whether
a state court’s decision was unreasonable must be assessed
in light of the record the court had before it.” Ibid.; see
also Miller-El I, 537 U. S., at 348 (“[P]etitioner must dem
onstrate that a state court’s . . . factual determination was
‘objectively unreasonable’ in light of the record before the
court”). In an about-face, the majority now reverses the
Court of Appeals for the Fifth Circuit for failing to grant
habeas relief on the basis of evidence not before the state
court. By crediting evidence that Miller-El never placed be
fore the state courts, the majority flouts AEDPA’s plain
terms and encourages habeas applicants to attack state judg
ments collaterally with evidence never tested by the original
triers of fact.
B
The majority presents three arguments for ignoring
AEDPA’s requirement that the state-court decision be
unreasonable “in light of the evidence presented in the
State court proceeding.” 28 U. S. C. § 2254(d)(2). None is
persuasive.
1
First, without briefing or argument on the question, the
majority hints that we may ignore AEDPA’s limitation
on the record under § 2254(d)(2) because the parties have
ignored it. Ante, at 256–257, n. 15. The majority then
quickly retreats and expressly does not decide the question.
Ibid. But its retreat is as inexplicable as its advance: Un
less § 2254(d)(2) is waivable and the parties have waived it,
the majority cannot consider evidence outside the state-court
proceedings, as it concededly does.
The majority’s venture beyond the state-court record is
indefensible. Even if § 2254(d) is not jurisdictional, but see
Lindh v. Murphy, 521 U. S. 320, 343–344 (1997) (Rehnquist,

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C. J., dissenting), “it shares the most salient characteristic of
jurisdictional statutes: Its commands are addressed to courts
rather than to individuals,” id., at 344. Section 2254(d)
speaks directly to federal courts when it states that a habeas
application by a state prisoner “shall not be granted” except
under the specified conditions. (Emphasis added); ibid.
The strictures of § 2254(d) are not discretionary or waivable.
Through AEDPA, Congress sought to ensure that federal
courts would defer to the judgments of state courts, not the
wishes of litigants.
Nevertheless, there is no need to decide whether
§ 2254(d)(2) may be waived, for the State has not waived it.
Contrary to the majority’s assertions, ante, at 256–257, n. 15,
the State has argued that § 2254(d)(2) bars our review of cer
tain evidence not before the state trial court, Brief for Re
spondent 41–42, just as it did in its last appearance, see Brief
for Respondent in Miller-El I, O. T. 2002, No. 01–7662,
pp. 28–29, 39. The majority is correct that the State has
not argued § 2254(d)(2) precludes consideration of the juror
questionnaires and juror cards in particular, ante, at 256–257,
n. 15, but the majority does not assert that the State may
selectively invoke § 2254(d)(2) to cherry-pick only favorable
evidence that lies outside the state-court record.
2
The majority next suggests that the supplemental mate
rial, particularly the juror questionnaires, might not expand
on what the state trial court knew, since “the same judge
presided over the voir dire, the Swain hearing, and the Bat
son hearing, and the jury questionnaires were subjects of
reference at the voir dire.” Ante, at 257, n. 15. This is
incorrect. At the Batson hearing, Miller-El introduced into
evidence only the questionnaires of the 10 black veniremen
peremptorily struck by the State. App. 893–895. The
questionnaires of the other 98 veniremen—including many
on which the majority relies—were never introduced into ev

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idence or otherwise placed before the trial judge. Miller-El
and the State had copies; the trial judge did not.
Yet the majority insinuates that the questionnaires effec
tively were before the state court because they “were sub
jects of reference at the voir dire.” Ante, at 257, n. 15.
That is extremely misleading on the facts of this case. Al
though counsel for Miller-El and the State questioned wit
nesses partially on the basis of their questionnaire responses,
the lawyers’ references to questionnaires were scattered and
sporadic. Even the majority does not attempt to show that
the specific questionnaire responses on which it relies were
called to the trial court’s attention. Clearly they were not
called to the trial court’s attention at the only time that mat
tered: the Batson hearing.
The majority’s insinuation is doubly misleading when cou
pled with its insistence that “the transcript of voir dire . . .
was before the state courts.” Ante, at 242, n. 2. Miller-El’s
arguments gave the state court no reason to go leafing
through the voir dire transcript. What is more, voir dire at
Miller-El’s trial lasted five weeks, and the transcript occupies
11 volumes numbering 4,662 pages. To think that two years
after the fact a trial court should dredge up on its own initia
tive passing references to unseen questionnaires—references
buried in a more than 4,600-page transcript no less—is unre
alistic. That is why § 2254(d)(2) demands that state courts
be taken to task only on the basis of evidence “presented in
the State court proceeding.” The 98 questionnaires before
the parties, unlike the 10 questionnaires that Miller-El en
tered into evidence, were not “presented” to the state court.
The majority also asserts that by considering the question
naires, it is only attempting to help the State. After all, the
State claims that any disparate questioning and treatment of
black and white veniremen resulted from their question
naires, not their respective races. As the majority sees it,
if the questionnaires are not properly before us, then the
State cannot substantiate its defense.

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This is a startling repudiation of both Batson and AEDPA.
A strong presumption of validity attaches to a trial court’s
factual finding at Batson’s third step, Hernandez v. New
York, 500 U. S. 352, 364 (1991) (plurality opinion); id., at 372
(O’Connor, J., concurring in judgment); see also Batson, 476
U. S., at 98, n. 21, and that presumption is doubly strong
when the Batson finding is under collateral attack in habeas,
Miller-El I, 537 U. S., at 340. Thus, it is Miller-El’s burden
to prove racial discrimination under Batson, and it is his bur
den to prove it by clear and convincing evidence under
AEDPA. Without the questionnaires never submitted to
the trial court, Miller-El comes nowhere near establishing
that race motivated any disparate questioning or treatment,
which is precisely why the majority must strain to include
the questionnaires within the state-court record.
That Miller-El needs the juror questionnaires could not be
clearer in light of how the Batson hearing unfolded. After
offering racially neutral reasons for all of its strikes, the
State could have remained silent—as Miller-El did. How
ever, the State pointed out, among other things, that any
disparate questioning of black and white veniremen was
based on answers given on the juror questionnaires or dur
ing the voir dire process. App. 920–921. The State further
noted that Miller-El had never alleged disparate treatment
of black and white veniremen. Id., at 921. Because
Miller-El did not dispute the State’s assertions, there was no
need for the State to enter the juror questionnaires into the
record. There was nothing to argue about. Miller-El had
presented only generalized evidence of historical discrimina
tion by the D. A.’s Office, which no one believes was sufficient
in itself to prove a Batson violation. That is why Miller-El,
not the State, marshaled supplemental material during his
federal habeas proceedings. Without that evidence, he can
not prove now what he never attempted to prove 17 years
ago: that the State’s justifications for its strikes were a pre
text for discrimination.

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3
Finally, the majority suggests that the 2-year delay be
tween the voir dire and the post-trial Batson hearing is rea
son for weakened deference. See ante, at 241, n. 1. This is
an argument not for setting aside § 2254(d)(2)’s limit on the
record, but for relaxing the level of deference due state
courts’ factual findings under §§ 2254(d)(2) and (e)(1). The
presumption of correctness afforded factual findings on ha
beas review, however, does not depend on the manner in
which the trial court reaches its factual findings, for rea
sons I have explained before. Miller-El I, supra, at 357–359
(dissenting opinion). The majority leaves those arguments
unanswered.
The majority’s own argument is implausible on its face:
“ ‘[T]he usual risks of imprecision and distortion from the
passage of time’ ” are far greater after 17 years than after 2.
Ante, at 241, n. 1 (quoting Miller-El I, supra, at 343). The
majority has it just backward. The passage of time, as
AEDPA requires and as this Court has held, counsels in
favor of more deference, not less. At least the trial court,
unlike this Court, had the benefit of gauging the witnesses’
and prosecutors’ credibility at both the Swain and Batson
hearings. Miller-El I, supra, at 339 (“Deference is neces
sary because a reviewing court, which analyzes only the
transcripts from voir dire, is not as well positioned as the
trial court is to make credibility determinations”); see also
Hernandez, supra, at 364 (plurality opinion); Batson, supra,
at 98, n. 21.
III
Even taken on its own terms, Miller-El’s cumulative evi
dence does not come remotely close to clearly and convinc
ingly establishing that the state court’s factual finding was
unreasonable. I discuss in turn Miller-El’s four types of evi
dence: (1) the alleged disparate treatment and (2) disparate
questioning of black and white veniremen; (3) the prosecu

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tion’s jury shuffles; and (4) historical discrimination by the
D. A.’s Office in the selection of juries. Although each type
of evidence “is open to judgment calls,” ante, at 265, the
majority finds that a succession of unpersuasive arguments
amounts to a compelling case. In the end, the majority’s
opinion is its own best refutation: It strains to demonstrate
what should instead be patently obvious.
A
The majority devotes the bulk of its opinion to a side-by
side comparison of white panelists who were allowed to
serve and two black panelists who were struck, Billy Jean
Fields and Joe Warren. Ante, at 240–252. The majority ar
gues that the prosecution’s reasons for striking Fields and
Warren apply equally to whites who were permitted to
serve, and thus those reasons must have been pretextual.
The voir dire transcript reveals that the majority is
mistaken.
It is worth noting at the outset, however, that Miller-El’s
and the Court’s claims have always been a moving target.
Of the 20 black veniremen at Miller-El’s trial, 9 were struck
for cause or by the parties’ agreement, and 1 served on the
jury. Miller-El claimed at the Batson hearing that all 10
remaining black veniremen were dismissed on account of
race. That number dropped to 7 on appeal, and then again
to 6 during his federal habeas proceedings. Of those 6 black
veniremen, this Court once found debatable that the entire
lot was struck based on race. Miller-El I, supra, at 343.
However, 4 (Carrol Boggess, Roderick Bozeman, Wayman
Kennedy, and Edwin Rand) were dismissed for reasons other
than race, as the majority effectively concedes. Ante, at
252–253, n. 11; Miller-El I, supra, at 351–354 (Scalia, J.,
concurring).
The majority now focuses exclusively on Fields and War
ren. But Warren was obviously equivocal about the death
penalty. In the end, the majority’s case reduces to a single
venireman, Fields, and its reading of a 20-year-old voir dire

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transcript that is ambiguous at best. This is the antithesis
of clear and convincing evidence.
1
From the outset of questioning, Warren did not specify
when he would vote to impose the death penalty. When
asked by prosecutor Paul Macaluso about his ability to im
pose the death penalty, Warren stated, “[T]here are some
cases where I would agree, you know, and there are others
that I don’t.” 3 Record 1526. Macaluso then explained at
length the types of crimes that qualified as capital murder
under Texas law, and asked whether Warren would be able
to impose the death penalty for those types of heinous
crimes. Id., at 1527–1530. Warren continued to hedge:
“I would say it depends on the case and the circumstances
involved at the time.” Id., at 1530. He offered no sense of
the circumstances that would lead him to conclude that the
death penalty was an appropriate punishment.
Macaluso then changed tack and asked whether Warren
believed that the death penalty accomplished any social pur
pose. Id., at 1531–1532. Once again, Warren proved impos
sible to pin down: “Yes and no. Sometimes I think it does
and sometimes I think it don’t. Sometimes you have mixed
feelings about things like that.” Id., at 1532. Macaluso
then focused on what the death penalty accomplished in
those cases where Warren believed it useful. Ibid. Even
then, Warren expressed no firm view:
“I don’t know. It’s really hard to say because I know
sometimes you feel that it might help to deter crime
and then you feel that the person is not really suffering.
You’re taking the suffering away from him. So it’s
like I said, sometimes you have mixed feelings about
whether or not this is punishment or, you know, you’re
relieving personal punishment.” Ibid.
While Warren’s ambivalence was driven by his uncertainty
that the death penalty was severe enough, ante, at 250–251,

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that is beside the point. Throughout the examination, War
ren gave no indication whether or when he would prefer the
death penalty to other forms of punishment, specifically life
imprisonment. 3 Record 1532–1533. To prosecutors seek
ing the death penalty, the reason for Warren’s ambivalence
was irrelevant.
At voir dire, there was no dispute that the prosecution
struck Warren not for his race, but for his ambivalence on
the death penalty. Miller-El’s attorneys did not object to
the State’s strikes of Warren or Paul Bailey, though they
objected to the removal of every other black venireman.
Both Bailey and Warren shared the same characteristic: It
was not clear, based on their questionnaires and voir dire
testimony, that they could impose the death penalty. See
supra, at 277–278. In fact, Bailey was so clearly struck for
nonracial reasons that Miller-El has never objected to his
removal at any stage in this case.
There also was no question at the Batson hearing why the
prosecution struck Warren. Macaluso testified:
“I thought [Warren’s statements on voir dire] were in
consistent responses. At one point he says, you know,
on a case-by-case basis and at another point he said,
well, I think—I got the impression, at least, that he sug
gested that the death penalty was an easy way out, that
they should be made to suffer more.” App. 909.
In addition, Macaluso noted that Warren’s brother recently
had been convicted for a crime involving food stamps. Id.,
at 909–910. This suggested that Warren might be more
sympathetic to defendants than other jurors. Macaluso was
quite candid that Warren was not as obviously disfavorable
to the State as Bailey, and Macaluso stated that he might not
have exercised a peremptory against Warren later in jury
selection. Id., at 910–911. But Macaluso used only his 6th
of 15 peremptory challenges against Warren.

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According to the majority, Macaluso testified that he
struck Warren for his statement that the death penalty was
“ ‘an easy way out,’ ” ante, at 248 (quoting App. 909), and not
for his ambivalence about the death penalty, ante, at 250–
251. This grossly mischaracterizes the record. Macaluso
specifically testified at the Batson hearing that he was trou
bled by the “inconsisten[cy]” of Warren’s responses. App.
909 (emphasis added). Macaluso was speaking of Warren’s
ambivalence about the death penalty, a reason wholly un
related to race. This was Macaluso’s “stated reason,” and
Macaluso ought to “stand or fall on the plausibility” of this
reason—not one concocted by the majority. Ante, at 252.
The majority points to four other panel members—Kevin
Duke, Troy Woods, Sandra Jenkins, and Leta Girard—who
supposedly expressed views much like Warren’s, but who
were not struck by the State. Ante, at 248. According
to the majority, this is evidence of pretext. But the majori
ty’s premise is faulty. None of these veniremen was as dif
ficult to pin down on the death penalty as Warren. For in
stance, Duke supported the death penalty. App. 373 (“I’ve
always believed in having the death penalty. I think it
serves a purpose”); ibid. (“I mean, it’s a sad thing to see, to
have to kill someone, but they shouldn’t have done the things
that they did. Sometimes they deserve to be killed”); id., at
394 (“If I feel that I can answer all three of these [special
issue] questions yes and I feel that he’s done a crime worthy
of the death penalty, yes, I will give the death penalty”).
By contrast, Warren never expressed a firm view one way
or the other.
Troy Woods, who was black and who served on the jury,
was even more supportive of the death penalty than Duke.
The majority suggests that prosecutors might have allowed
Woods to serve on the jury because they were running low
on peremptories or they wanted to obscure a pattern of dis
crimination. Ante, at 249–250. That such rank conjecture

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can serve as “clear and convincing evidence” is error in its
own right, but it is also belied by the record. Woods said
that capital punishment was “too quick” because defendants
“don’t feel the pain.” App. 409. When asked what sort of
punishment defendants ought to receive, Woods said that he
would “[p]our some honey on them and stake them out over
an ant bed.” Ibid. He testified that he would mete out
such sentences because if defendants “survive for a length of
time, that would be enough punishment and . . . they
wouldn’t do it again.” Id., at 410 (alteration omitted).
Woods also testified that he was a lifelong believer in the
death penalty, id., at 410–411; that he could impose death
generally as a juror, id., at 413; and that he could impose
death for murder during the course of a robbery, the specific
crime of which Miller-El stood accused, ibid. It is beyond
cavil why the State accepted Woods as a juror: He could
impose the punishment sought by the State.
Nevertheless, even assuming that any of these veniremen
expressed views similar to Warren’s, Duke, Woods, and Gi
rard were questioned much later in the jury selection proc
ess, when the State had fewer peremptories to spare. Only
Sandra Jenkins was questioned early in the voir dire process,
and thus only Jenkins was even arguably similarly situated
to Warren. However, Jenkins and Warren were different in
important respects. Jenkins expressed no doubt whatso
ever about the death penalty. She testified that she had re
searched the death penalty in high school, and she said in
response to questioning by both parties that she strongly
believed in the death penalty’s value as a deterrent to crime.
3 Record 1074–1075, 1103–1104. This alone explains why
the State accepted Jenkins as a juror, while Miller-El struck
her. In addition, Jenkins did not have a relative who had
been convicted of a crime, but Warren did. At the Batson
hearing, Macaluso testified that he struck Warren both for
Warren’s inconsistent responses regarding the death penalty
and for his brother’s conviction. Supra, at 278.

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The majority thinks it can prove pretext by pointing to
white veniremen who match only one of the State’s proffered
reasons for striking Warren. Ante, at 248. This defies
logic. “ ‘Similarly situated’ does not mean matching any one
of several reasons the prosecution gave for striking a poten
tial juror—it means matching all of them.” Miller-El I, 537
U. S., at 362–363 (Thomas, J., dissenting); cf. Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 683
(1983) (Title VII of the Civil Rights Act of 1964 discrimina
tion occurs when an employee is treated “ ‘ “in a manner
which but for that person’s sex would be different” ’ ” (quot
ing Los Angeles Dept. of Water and Power v. Manhart, 435
U. S. 702, 711 (1978))). Given limited peremptories, prosecu
tors often must focus on the potential jurors most likely to
disfavor their case. By ignoring the totality of reasons that
a prosecutor strikes any particular venireman, it is the ma
jority that treats potential jurors as “products of a set of
cookie cutters,” ante, at 247, n. 6—as if potential jurors who
share only some among many traits must be treated the same
to avoid a Batson violation. Of course jurors must not be
“identical in all respects” to gauge pretext, ante, at 247, n. 6,
but to isolate race as a variable, the jurors must be compara
ble in all respects that the prosecutor proffers as important.
This does not mean “that a defendant cannot win a Batson
claim unless there is an exactly identical white juror.” Ibid.
It means that a defendant cannot support a Batson claim by
comparing veniremen of different races unless the veniremen
are truly similar.
2
The second black venireman on whom the majority relies
is Billy Jean Fields. Fields expressed support for the death
penalty, App. 174–175, but Fields also expressed views that
called into question his ability to impose the death penalty.
Fields was a deeply religious man, id., at 173–174, 192–194,
and prosecutors feared that his religious convictions might
make him reluctant to impose the death penalty. Those

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fears were confirmed by Fields’ view that all people could be
rehabilitated if introduced to God, a fear that had special
force considering the special-issue questions necessary to im
pose the death penalty in Texas. One of those questions
asked whether there was a probability that the defendant
would engage in future violence that threatened society.
When they reached this question, Macaluso and Fields had
the following exchange:
“[MACALUSO:] What does that word probability mean
to you in that connotation?
“[FIELDS:] Well, it means is there a possibility that [a
defendant] will continue to lead this type of life, will he
be rehabilitated or does he intend to make this a life
long ambition.
“[MACALUSO:] Let me ask you, Mr. Fields, do you feel
as though some people simply cannot be rehabilitated?
“[FIELDS:] No.
“ [ M AC A LU S O : ] Yo u t h i n k ev e r y o n e c a n b e
rehabilitated?
“[FIELDS:] Yes.” Id., at 183–184.
Thus, Fields indicated that the possibility of rehabilitation
was ever-present and relevant to whether a defendant might
commit future acts of violence. In light of that view, it is
understandable that prosecutors doubted whether he could
vote to impose the death penalty.
Fields did testify that he could impose the death penalty,
even on a defendant who could be rehabilitated. Id., at 185.
For the majority, this shows that the State’s reason was pre
textual. Ante, at 244. But of course Fields said that he
could fairly consider the death penalty—if he had answered
otherwise, he would have been challengeable for cause.
The point is that Fields’ earlier answers cast significant
doubt on whether he could impose the death penalty. The
very purpose of peremptory strikes is to allow parties to

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remove potential jurors whom they suspect, but cannot
prove, may exhibit a particular bias. See Swain, 380 U. S.,
at 220; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 148
(1994) (O’Connor, J., concurring). Based on Fields’ voir
dire testimony, it was perfectly reasonable for prosecutors to
suspect that Fields might be swayed by a penitent defend
ant’s testimony.3 The prosecutors may have been worried
for nothing about Fields’ religious sentiments, but that does
not mean they were instead worried about Fields’ race.
As with Warren, the majority attempts to point to simi
larly situated nonblack veniremen who were not struck by
the State, but its efforts again miss their mark for several
reasons. First, the majority would do better to begin with
white veniremen who were struck by the State. For in
stance, it skips over Penny Crowson, a white panelist who
expressed a firm belief in the death penalty, but who also
stated that she probably would not impose the death penalty
if she believed there was a chance the defendant could be
rehabilitated. Ante, at 245, n. 5; 3 Record 1211. The State
struck Crowson, which demonstrates that it “was concerned
3 The majority argues that prosecutors mischaracterized Fields’ testi
mony when they struck him. Ante, at 244. This is partially true but
wholly irrelevant. When Miller-El’s counsel suggested that Fields’ strike
was related to race, prosecutor Jim Nelson responded:
“[W]e’re certainly not exercising a preemptory [sic] strike on Mr. Fields
because of his race in this case, but we do have concern with reference to
some of his statements as to the death penalty in that he said that he
could only give death if he thought a person could not be rehabilitated and
he later made the comment that any person could be rehabilitated if they
find God or are introduced to God and the fact that we have a concern
that his religious feelings may affect his jury service in this case.” App.
197 (alteration omitted).
Nelson partially misstated Fields’ testimony. Fields had not said that
he would give the death penalty only if a person was beyond rehabilita
tion, id., at 185, but he had said that any person could be rehabilitated if
introduced to God, id., at 184. This is precisely why prosecutors were
concerned that Fields’ “religious feelings [might] affect his jury service.”
Id., at 197.

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about views on rehabilitation when the venireperson was not
black.” Ante, at 245, n. 4.
Second, the nonblack veniremen to whom the majority
points—Sandra Hearn, Mary Witt, and Fernando Gutier
rez—were more favorable to the State than Fields for vari
ous reasons.4 For instance, Sandra Hearn was adamant
about the value of the death penalty for callous crimes.
App. 430, 451–452. Miller-El, of course, shot in cold blood
two men who were lying before him bound and gagged. In
addition, Hearn’s father was a special agent for the Federal
Bureau of Investigation, and her job put her in daily contact
with police officers for whom she expressed the utmost admi
ration. Id., at 445–446, 457–460. This is likely why the
State accepted Hearn and Miller-El challenged her for cause.
Id., at 447, 467.
In fact, on appeal Miller-El’s counsel had this to say about
Hearn: “If ever—if ever—there was a Venireperson that
should have been excluded for cause from the Jury in this
case, or any capital Murder Jury, it was Venirewoman
HEARN. It is hoped that the Lord will save us from future
jurors with her type of thinking and beliefs.” Id., at 1015
(emphasis added and alteration omitted); see also id., at 1010.
This same juror whom Miller-El’s counsel once found so re
pugnant has been transformed by the majority’s revisionist
history into a defense-prone juror just as objectionable to
the State as Fields. Ante, at 244.
4 In explaining why veniremen Hearn, Witt, and Gutierrez were more
favorable to the State than Fields, the majority faults me for “focus[ing]
on reasons the prosecution itself did not offer.” Ante, at 245, n. 4. The
majority’s complaint is hard to understand. The State accepted Hearn,
Witt, and Gutierrez. Although it is apparent from the voir dire transcript
why the State wanted to seat these veniremen on the jury, it was never
required to “offer” its reasons for doing so. If the majority instead means
that I focus on whether these veniremen opposed the death penalty and
whether they had relatives with significant criminal histories, those are
precisely the reasons offered by the State for its strike of Fields.

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Mary Witt did not even have the same views on rehabilita
tion as Fields: She testified to the commonplace view that
some, but not all, people can be rehabilitated. 6 Record
2461. Moreover, Witt expressed strong support for the
death penalty. Id., at 2414–2416, 2443–2444. She testified
that the death penalty was appropriate for the crime of mur
der in the course of a robbery, id., at 2428, or for a convict
who was released from prison and committed murder
(Miller-El previously had twice spent time in prison for
armed robberies), id., at 2462–2463. This is likely why the
State accepted Witt and Miller-El struck her. Id., at 2464–
2465. Finally, Fernando Gutierrez testified that he could
impose the death penalty for brutal crimes. 11–(B) Record
4391–4392. In fact, the only issue during voir dire was
whether Gutierrez could apply Texas’ more lenient penalties,
not its more severe ones. Id., at 4398–4399, 4413–4414,
4431. The court questioned Gutierrez at length, and ulti
mately he was accepted by both parties and seated on the
jury. Id., at 4439–4449.
Third, Hearn, Witt, and Gutierrez were not similarly situ
ated to Fields even apart from their views on the death pen
alty. Fields was dismissed not only for his prodefense views
on rehabilitation, but also because his brother had several
drug convictions and had served time in prison. App. 190,
199. Hearn, Witt, and Gutierrez did not have relatives with
significant criminal histories. Thus, there was an additional
race-neutral reason to dismiss Fields that simply was not
true of the other jurors. Surely the State did not need to
expend peremptories on all veniremen who expressed some
faith in rehabilitation to avoid violating Batson.
The majority dismisses as “makeweight” the State’s justi
fication as to Fields’ brother, ante, at 246, but it is the majori
ty’s arguments that are contrived. The State questioned
Fields during voir dire about his brother’s drug offenses,
where the offenses occurred, whether his brother had been
tried, whether his brother had been convicted, and whether

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his brother’s criminal history would affect Fields’ ability to
serve on the jury. App. 190. The State did not fail to en
gage in a “ ‘meaningful voir dire examination,’ ” as the major
ity contends. Ante, at 246 (quoting Ex parte Travis, 776
So. 2d 874, 881 (Ala. 2000)).
The majority also contends that the State’s justification as
to Fields’ brother illustrates pretext, because the State first
pointed to Fields’ views on rehabilitation as the reason
for its strike. Ante, at 245–246. The timing of the State’s
explanation was unexceptional. In context, the State
discussed Fields’ brother at essentially the same time it
discussed Fields’ religious views. The entire exchange be
tween the State and counsel for Miller-El took place in a
couple of minutes at most. App. 197–199. Thus, to call the
State’s second reason an “afterthought,” ante, at 246, ignores
what is obvious even from a cold record: that the State
simply offered both of its reasons in quick succession.
B
Miller-El’s claims of disparate questioning also do not fit
the facts. Miller-El argues, and the majority accepts, that
the prosecution asked different questions at voir dire of
black and nonblack veniremen on two subjects: (1) the man
ner of execution and (2) the minimum punishment allowed
by state law. The last time this case was here, I refuted
Miller-El’s claim that the prosecutors’ disparate questioning
evinced racial bias, and explained why it did not even entitle
him to a certificate of appealability. Miller-El I, 537 U. S.,
at 363–370 (dissenting opinion).
This time, the majority has shifted gears, claiming that a
different set of jurors demonstrates the State’s racial bias.
The majority’s new claim is just as flawed as its last. The
State questioned panelists differently when their question
naire responses indicated ambivalence about the death pen
alty. Any racial disparity in questioning resulted from the

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reality that more nonblack veniremen favored the death pen
alty and were willing to impose it.
1
While most veniremen were given a generic description of
the death penalty at the outset of their voir dire examina
tions, some were questioned with a “graphic script” that de
tailed Texas’ method of execution. Ante, at 255. According
to Miller-El and the majority, prosecutors used the graphic
script to create cause for removing black veniremen who
were ambivalent about or opposed to the death penalty.
Ante, at 260. This is incorrect.
The jury questionnaires asked two questions directly rele
vant to the death penalty. Question 56 asked, “Do you be
lieve in the death penalty?” It offered panelists the chance
to circle “yes” or “no,” and then asked them to “[p]lease
explain your answer” in the provided space. E. g., Joint
Lodging 6. Question 58 asked, “Do you have any moral,
religious, or personal beliefs that would prevent you from
returning a verdict which would ultimately result in the exe
cution of another human being?” and offered panelists only
the chance to circle “yes” or “no.” Ibid.
According to the State, those veniremen who took a con
sistent stand on the death penalty—either for or against it—
did not receive the graphic script. These prospective jurors
either answered “no” to question 56 and “yes” to question 58
(meaning they did not believe in the death penalty and had
qualms about imposing it), or answered “yes” to question 56
and “no” to question 58 (meaning they did believe in the
death penalty and had no qualms about imposing it). Only
those potential jurors who answered inconsistently, thereby
indicating ambivalence about the death penalty, received the
graphic script.
The questionnaires bear out this distinction. Fifteen
blacks were questioned during voir dire. Only eight of
them—or 53%—received the graphic script. All eight had

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given ambivalent questionnaire answers regarding their
ability to impose the death penalty. There is no question
that veniremen Baker, Bailey, Boggess, Woods, and Butler
were ambivalent in their questionnaire answers. See ante,
at 260, n. 27; 4 Record 1874–1875.5 The majority claims that
Keaton, Kennedy, and Mackey were not ambivalent, ante, at
258–259, and nn. 17, 19, but their questionnaire answers show
otherwise. For instance, Keaton circled “no” for question
56, indicating she did not believe in the death penalty, and
wrote, “It’s not for me to punished [sic] anyone.” Joint
Lodging 55. However, she then circled “no” for question 58,
indicating that she had no qualms about imposing the death
penalty. Ibid. Likewise, Mackey indicated she did not be
lieve in the death penalty and wrote “Thou Shall Not Kill”
in the explanation space. Id., at 79. Mackey then said that
she had no qualms, religious or otherwise, about imposing
the death penalty, even though she had just quoted one
of the Ten Commandments. Ibid. Keaton’s and Mackey’s
answers cannot be reconciled, and the majority makes no
attempt to do so. Ante, at 258, n. 17. Kennedy wrote on
his questionnaire that he would impose the death penalty
“[o]nly in extreme cases, such as multiple murders.” Joint
Lodging 46. This left prosecutors uncertain about whether
Kennedy could impose the death penalty on Miller-El, who
had murdered only one person (though he had paralyzed
another).
Of the seven blacks who did not receive the graphic script,
six took a stand on the death penalty—either for or against
it—in their questionnaires. There was no need to use the
graphic script to clarify their positions. Veniremen Boze
5 The majority’s own recitation of the voir dire transcript captures But
ler’s ambivalence. Ante, at 258–259, n. 19. Butler said both that she had
no qualms about imposing the death penalty, 4 Record 1906–1907, and that
she would impose the death penalty “only when a crime has been com
mitted concerning a child such as beating to death or some form of harsh
physical abuse and when an innocent victim’s life is taken,” id., at 1874.

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man, Fields, Rand, and Warren all answered “yes” to ques
tion 56 (indicating that they believed in the death penalty)
and “no” to question 58 (indicating that they had no qualms
about imposing it).6 Id., at 6 (Bozeman); id., at 14 (Fields);
id., at 30 (Rand); id., at 22 (Warren). Venireman Mosley was
the opposite: He said that he was opposed to the death pen
alty, 7 Record 2656, 2681, and that he definitely could not
impose it, id., at 2669–2670. The same appears true of ve
nireman Smith, 2 id., at 927–928, who was so adamantly op
posed to the death penalty throughout her voir dire that she
was struck for cause, id., at 1006. The only apparent excep
tion is venireman Carter. She said that she believed in the
death penalty, but wrote on the questionnaire, “Yes and no.
It would depend on what the person had done.” 4 id., at
1993 (internal quotation marks omitted). She then an
swered “ ‘[y]es’ ” to question 58, indicating that she had some
difficulties with imposing the death penalty. Ibid. Despite
her ambivalence, Carter did not receive the full graphic
script. Prosecutors told her only that Miller-El “[would] be
executed by lethal injection at Huntsville.” Id., at 1952.
Thus far, the State’s explanation for its use of the graphic
script fares far better than Miller-El’s or the majority’s.
Questionnaire answers explain prosecutors’ use of the
graphic script with 14 out of the 15 blacks, or 93%. By con
trast, race explains use of the script with only 8 out of 15
veniremen, or 53%. The majority’s more nuanced explana
tion is likewise inferior to the State’s. It hypothesizes that
the script was used to remove only those black veniremen
ambivalent about or opposed to the death penalty. Ante,
at 260. But that explanation accounts for only 12 out of 15
veniremen, or 80%. The majority cannot explain why prose
cutors did not use the script on Mosley and Smith, who were
opposed to the death penalty, or Carter, who was ambivalent.
6 The State’s concerns with Fields and Warren stemmed not from their
questionnaire responses, but from their subsequent voir dire testimony.
Supra, at 288, 293.

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Because the majority does not account for veniremen like
Carter, and also mischaracterizes veniremen like Keaton,
Kennedy, and Mackey, it arrives at different percentages.
This is not clear and convincing evidence of racial bias.
The State’s explanation also accounts for its treatment of
the 12 nonblack veniremen (10 whites, 1 Hispanic, and 1 Fili
pino) on whom the majority relies. Granted, it is more dif
ficult to draw conclusions about these nonblack veniremen.
With the blacks, 11 of their 15 questionnaires are available;
with the nonblacks, that number plummets to 3 of 12, be
cause those veniremen were not discussed before the state
court. See supra, at 279. Nevertheless, the questionnaires
and voir dire permit some tentative conclusions.
First, of the five nonblacks who received the graphic
script—Desinise, Evans, Gutierrez, Sztybel, and Zablan—
four were ambivalent. On his questionnaire, Gutierrez an
swered both that he believed in the death penalty and that
he had qualms about imposing it. Joint Lodging 231. Szty
bel and Zablan averred that they believed in the death pen
alty and could impose it, but their written answers to ques
tion 56 made it unclear under what circumstances they could
vote to impose the death penalty.7 Desinise is a closer call,
but he was genuinely undecided about his ability to impose
the death penalty, and the parties struck him by agreement.
3 Record 1505–1506, 1509, 1511, 1514. Of the five nonblacks
who received the graphic script, Evans was the only one
steadfastly opposed to the death penalty. 6 id., at 2588–
2589, 2591, 2595.
Of the seven nonblacks who allegedly did not receive the
graphic script, four were strongly opposed to the death pen
alty. See Miller-El I, 537 U. S., at 364–365 (Thomas, J., dis
7 Joint Lodging 184 (Sztybel) (“If a person is found guilty of murder or
other crime, which they have taken someone else’s life, without a valid
defense. They may continue to do this again and again. Even if they
are sentenced to jail when they are released this could keep happening”);
id., at 223 (Zablan) (“If it’s the law and if the crime fits such punishment”).

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senting). Berk, Hinson, and Nelson were so opposed that
they were struck for cause, and Holtz was struck by the
State because he was opposed unless a policeman or fireman
was murdered. Ibid. Administering the graphic script to
these potential jurors would have been useless. “No trial
lawyer would willingly antagonize a potential juror ardently
opposed to the death penalty with an extreme portrait of its
implementation.” Id., at 364.
Of the remaining three nonblacks, the majority is correct
that Moses was ambivalent in her questionnaire responses, 3
Record 1140–1141, 1177, although it is not certain that Vick
ery was, 4 id., at 1611. Neither received the graphic script.
However, the final nonblack, Girard, confirms the State’s
explanation. It was not clear from Girard’s questionnaire
whether she was ambivalent.8 On the stand, prosecutor
Nelson started off with the abstract script. 6 id., at 2520–
2521. But it quickly became apparent that Girard was “just
not real sure” about her ability to impose the death penalty,
and she testified that she had not decided its value as a form
of punishment. Id., at 2522–2523. At that point, Nelson
gave her the graphic script—for no other reason than to dis
cern her basic reaction. Id., at 2524–2525. Not only did it
succeed—Girard testified that she did not want to serve on
a capital jury, id., at 2529, 2531—but Miller-El’s attorney also
used the graphic script when he questioned Girard, id., at
2553. Miller-El’s counsel was using the graphic script just
as the State was: to discern a potential juror’s true feelings,
not to create cause for removing a venireman. After all,
Girard’s views were favorable to Miller-El.
In any event, again the State’s explanation fares well.
The State’s explanation accounts for prosecutors’ choice be
tween the abstract and graphic scripts for 9 of 12 nonblack
8 Girard did not answer question 56 about her belief in the death penalty,
6 Record 2522, but she indicated in answer to question 58 that her personal
beliefs would not prevent her from imposing the death penalty, id., at
2555–2556.

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veniremen, or 75%. Moses and Vickery were likely ambiva
lent but did not receive the graphic script, while Evans was
opposed to the death penalty but did receive it. However,
the majority’s theory accounts for the State’s treatment of
only 6 of 12 nonblacks, or 50%. The majority can explain
why jurors like Moses and Vickery did not receive the
graphic script, because it believes the State was using the
graphic script primarily with blacks opposed to or ambiva
lent about the death penalty. Ante, at 260. But the ma
jority cannot explain the State’s use of the script with an
opposed nonblack like Evans, or ambivalent nonblacks like
Desinise, Girard, Gutierrez, Sztybel, and Zablan.
Finally, the majority cannot take refuge in any supposed
disparity between use of the graphic script with ambivalent
black and nonblack veniremen. Ante, at 257–259. The
State gave the graphic script to 8 of 9 ambivalent blacks, or
88%, and 5 of 7 ambivalent nonblacks, or 71%. This is
hardly much of a difference. However, when the majority
lumps in veniremen opposed to the death penalty, ibid., the
disparity increases. The State gave the graphic script to 8
of 11 ambivalent or opposed blacks, or 73%, and 6 of 12 am
bivalent or opposed nonblacks, or 50%. But the reason for
the increased disparity is not race: It is, as the State main
tains, that veniremen who were opposed to the death penalty
did not receive the graphic script.
In sum, the State can explain its treatment of 23 of 27
potential jurors, or 85%, while the majority can only account
for the State’s treatment of 18 of 27 potential jurors, or 67%.
This is a far cry from clear and convincing evidence of ra
cial bias.
2
Miller-El also alleges that the State employed two differ
ent scripts on the basis of race when asking questions about
imposition of the minimum sentence. This disparate
questioning argument is even more flawed than the last one.
The evidence confirms that, as the State argues, prosecutors

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used different questioning on minimum sentences to create
cause to strike veniremen who were ambivalent about or op
posed to the death penalty. Brief for Respondent 33, and
n. 26.
Of the 15 blacks, 7 were given the minimum punishment
script (MPS). All had expressed ambivalence about the
death penalty, either in their questionnaires (Baker, Boggess,
and Kennedy) or during voir dire (Bozeman, Fields, Rand,
and Warren).9 Woods expressed ambivalence in his ques
tionnaire, but his voir dire testimony made clear that he was
a superb juror for the State. See supra, at 289–290. Thus,
Woods did not receive the MPS. There was no reason to
give the MPS to Butler, Carter, Mosley, or Smith, all of
whom were dismissed for cause or by agreement of the par
ties. That leaves Bailey, Keaton, and Mackey, all of whom
were so adamantly opposed to the death penalty during voir
dire that the State attempted to remove them for cause.
11–(A) Record 4112, 4120, 4142 (Bailey); id., at 4316 (Keaton);
10 id., at 3950, 3953 (Mackey). Because the State believed
that it already had grounds to strike these potential jurors,
it did not need the MPS to disqualify them. However, even
assuming that the State should have used the MPS on these
3 veniremen, the State’s explanation still accounts for 7 of
the 10 ambivalent blacks, or 70%.
The majority does not seriously contest any of this. Ante,
at 261–262, and n. 34. Instead, it contends that the State
used the MPS less often with nonblacks, which demonstrates
that the MPS was a ruse to remove blacks. This is not true:
The State used the MPS more often with ambivalent non
blacks who were not otherwise removable for cause or by
agreement.
9 In making the decision whether to employ the MPS, prosecutors could
rely on both the questionnaires and substantial voir dire testimony, be
cause the minimum punishment questioning occurred much later in the
voir dire than questioning about the death penalty. Miller-El I, 537 U. S.
322, 369 (2003) (Thomas, J., dissenting).

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Of the nonblacks who reached the point in the voir dire
sequence where the MPS was typically administered, the
majority points to 11 whom it alleges were ambivalent and
should have received the script. Ante, at 262, and n. 34.
Three of these veniremen—Gibson, Gutierrez, and Holtz—
were given the MPS, just like many of the blacks. Four of
the remaining eight veniremen—Moses, Salsini, Vickery, and
Witt—were favorable enough to the State that Miller-El pe
remptorily struck them.10 The State had no interest in dis
qualifying these jurors. Two of the remaining four venire
men—Hearn and Mazza—indicated that they could impose
the death penalty, both on their questionnaires and during
voir dire. The State likewise had no interest in disqualify
ing these jurors. Assuming that the State should have used
the MPS on the two remaining veniremen, Crowson and
Whaley, the State’s explanation still accounts for 9 of the 11
ambivalent nonblacks, or 81%. Miller-El’s evidence is not
even minimally persuasive, much less clear and convincing.
C
Miller-El’s argument that prosecutors shuffled the jury to
remove blacks is pure speculation. At the Batson hearing,
Miller-El did not raise, nor was there any discussion of, the
topic of jury shuffling as a racial tactic. The record shows
only that the State shuffled the jury during the first three
weeks of jury selection, while Miller-El shuffled the jury dur
ing each of the five weeks. This evidence no more proves
that prosecutors sought to eliminate blacks from the jury,
than it proves that Miller-El sought to eliminate whites even
more often. Miller-El I, 537 U. S., at 360 (Thomas, J.,
dissenting).
10 Moses gave ambivalent answers on her questionnaire, as perhaps did
Vickery. Supra, at 302. However, Moses and Vickery indicated during
their voir dire testimony that they could impose the death penalty, 3 Rec
ord 1139–1141; 4 id., at 1576–1579, and thus they were not questioned on
minimum sentences. But see ante, at 263, n. 36.

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Miller-El notes that the State twice shuffled the jury (in
the second and third weeks) when a number of blacks were
seated at the front of the panel. Ante, at 254. According
to the majority, this gives rise to an “inference” that pros
ecutors were discriminating. Ante, at 255. But Miller-El
should not be asking this Court to draw “inference[s]”; he
should be asking it to examine clear and convincing proof.
And the inference is not even a strong one. We do not know
if the nonblacks near the front shared characteristics with
the blacks near the front, providing race-neutral reasons for
the shuffles. We also do not know the racial composition of
the panel during the first week when the State shuffled, or
during the fourth and fifth weeks when it did not.
More importantly, any number of characteristics other
than race could have been apparent to prosecutors from a
visual inspection of the jury panel. See Ladd v. State, 3
S. W. 3d 547, 563–564 (Tex. Crim. App. 1999). Granted, we
do not know whether prosecutors relied on racially neutral
reasons, ante, at 254–255, but that is because Miller-El never
asked at the Batson hearing. It is Miller-El’s burden to
prove racial discrimination, and the jury-shuffle evidence it
self does not provide such proof.
D
The majority’s speculation would not be complete, how
ever, without its discussion (block-quoted from Miller-El I)
of the history of discrimination in the D. A.’s Office. This is
nothing more than guilt by association that is unsupported
by the record. Some of the witnesses at the Swain hearing
did testify that individual prosecutors had discriminated.
Ante, at 264. However, no one testified that the prosecutors
in Miller-El’s trial—Norman Kinne, Paul Macaluso, and Jim
Nelson—had ever been among those to engage in racially
discriminatory jury selection. Supra, at 276.
The majority then tars prosecutors with a manual entitled
Jury Selection in a Criminal Case (hereinafter Manual or

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Sparling Manual), authored by John Sparling, a former Dal
las County prosecutor. There is no evidence, however, that
Kinne, Macaluso, or Nelson had ever read the Manual—
which was written in 1968, almost two decades before
Miller-El’s trial.11 The reason there is no evidence on the
question is that Miller-El never asked. During the entire
Batson hearing, there is no mention of the Sparling Manual.
Miller-El never questioned Macaluso about it, and he never
questioned Kinne or Nelson at all. The majority simply as
sumes that all Dallas County prosecutors were racist and
remained that way through the mid-1980’s.
Nor does the majority rely on the Manual for anything
more than show. The Manual contains a single, admittedly
stereotypical line on race: “Minority races almost always em
pathize with the Defendant.” App. 102. Yet the Manual
also tells prosecutors not to select “anyone who had a close
friend or relative that was prosecuted by the State.” Id., at
112. That was true of both Warren and Fields, and yet the
majority cavalierly dismisses as “makeweight” the State’s
justification that Warren and Fields were struck because
they were related to individuals convicted of crimes. Ante,
at 246, 250, n. 8. If the Manual is to be attributed to Kinne,
Macaluso, and Nelson, then it ought to be attributed in its
entirety. But if the majority did that, then it could not point
to any black venireman who was even arguably dismissed on
account of race.
Finally, the majority notes that prosecutors “ ‘marked the
race of each prospective juror on their juror cards.’ ” Ante,
at 264 (quoting Miller-El I, supra, at 347). This suffers
from the same problems as Miller-El’s other evidence.
Prosecutors did mark the juror cards with the jurors’ race,
sex, and juror number. We have no idea—and even the ma
jority cannot bring itself to speculate—whether this was
11 Judge Larry Baraka, one of the first black prosecutors to serve in the
D. A.’s Office, testified that, to the best of his recollection, the Manual was
no longer used in 1977 when he attended the training course. App. 844.

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done merely for identification purposes or for some more ne
farious reason. The reason we have no idea is that the juror
cards were never introduced before the state courts, and
thus prosecutors were never questioned about their use of
them.
* * *
Thomas Joe Miller-El’s charges of racism have swayed the
Court, and AEDPA’s restrictions will not stand in its way.
But Miller-El has not established, much less established by
clear and convincing evidence, that prosecutors racially dis
criminated in the selection of his jury—and he certainly has
not done so on the basis of the evidence presented to the
Texas courts. On the basis of facts and law, rather than sen
timents, Miller-El does not merit the writ. I respectfully
dissent.