 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

 GEORGIA v. McCOLLUM et al.
certiorari to the supreme court of georgia
No. 91-372.   Argued February 26, 1992"Decided June 18, 1992

Respondents, who are white, were charged with assaulting two African-
Americans.  Before jury selection began, the trial judge denied the
prosecution's motion to prohibit respondents from exercising peremp-
tory challenges in a racially discriminatory manner.  The Georgia
Supreme Court affirmed, distinguishing Edmonson v. Leesville
Concrete Co., 500 U.S. ___"in which this Court held that private
litigants cannot exercise peremptory strikes in a racially discrimina-
tory manner"on the ground that it involved civil litigants rather
than criminal defendants.
Held:The Constitution prohibits a criminal defendant from engaging
in purposeful discrimination on the ground of race in the exercise of
peremptory challenges.  Pp.3-16.
(a)The exercise of racially discriminatory peremptory challenges
offends the Equal Protection Clause when the offending challenges
are made by the State,  Batson v. Kentucky, 476 U.S. 79; Powers v.
Ohio, 499 U.S. ___, and, in civil cases, when they are made by
private litigants, Edmonson, supra.  Whether the prohibition should
be extended to discriminatory challenges made by a criminal defen-
dant turns upon the following four-factor analysis.  Pp.3-5.
(b)A criminal defendant's racially discriminatory exercise of
peremptory challenges inflicts the harms addressed by Batson.
Regardless of whether it is the State or the defense who invokes
them, discriminatory challenges harm the individual juror by subject-
ing him to open and public racial discrimination and harm the
community by undermining public confidence in this country's system
of justice.  Pp.5-7.
(c)A criminal defendant's exercise of peremptory challenges
constitutes state action for purposes of the Equal Protection Clause
under the analytical framework summarized in Lugar v. Edmondson
Oil Co., 457 U.S. 922.  Respondents' argument that the adversarial
relationship between the defendant and the prosecution negates a
peremptory challenge's governmental character is rejected.  Unlike
other actions taken in support of a defendant's defense, the exercise
of a peremptory challenge determines the composition of a govern-
mental body.  The fact that a defendant exercises a peremptory
challenge to further his interest in acquittal does not conflict with a
finding of state action, since whenever a private actor's conduct is
deemed fairly attributable to the government, it is likely that private
motives will have animated the actor's decision.   Pp.7-12.
(d)The State has third-party standing to challenge a defendant's
discriminatory use of peremptory challenges, since it suffers a
concrete injury when the fairness and the integrity of its own judicial
process is undermined; since, as the representative of all its citizens,
it has a close relation to potential jurors; and since the barriers to
suit by an excluded juror are daunting.  See Powers, 499 U.S., at
___.  Pp.12-14.
(e)A prohibition against the discriminatory exercise of peremptory
challenges does not violate a criminal defendant's constitutional
rights.   It is an affront to justice to argue that the right to a fair
trial includes the right to discriminate against a group of citizens
based upon their race.  Nor does the prohibition violate the Sixth
Amendment right to the effective assistance of counsel, since counsel
can normally explain the reasons for peremptory challenges without
revealing strategy or confidential communication, and since neither
the Sixth Amendment nor the attorney-client privilege gives a
defendant the right to carry out through counsel an unlawful course
of conduct.  In addition, the prohibition does not violate the Sixth
Amendment right to a trial by a jury that is impartial with respect
to both parties.  Removing a juror whom the defendant believes
harbors racial prejudice is different from exercising a peremptory
challenge to discriminate invidiously against jurors on account of
race.  Pp.14-16.
261 Ga. 473, 405 S.E.2d 688, reversed and remanded.

Blackmun, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and White, Stevens, Kennedy, and Souter, JJ., joined.
Rehnquist, C. J., filed a concurring opinion.  Thomas, J., filed an
opinion concurring in the judgment.  O'Connor, J., and Scalia, J., filed
dissenting opinions.


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
           SUPREME COURT OF THE UNITED STATES--------
                       No. 91-372
                        --------
         GEORGIA, PETITIONER v. THOMAS McCOLLUM,
                    WILLIAM JOSEPH McCOLLUM and
                       ELLA HAMPTON McCOLLUM
           on writ of certiorari to the supreme court of
                              georgia
                          [June 18, 1992]

       Justice Blackmun delivered the opinion of the Court.
       For more than a century, this Court consistently and
repeatedly has reaffirmed that racial discrimination by the
State in jury selection offends the Equal Protection Clause.
See, e.g., Strauder v. West Virginia, 100 U. S. 303 (1880).
Last Term this Court held that racial discrimination in a
civil litigant's exercise of peremptory challenges also
violates the Equal Protection Clause.  See Edmonson v.
Leesville Concrete Co., 500 U. S. ___ (1991).  Today, we are
asked to decide whether the Constitution prohibits a
criminal defendant from engaging in purposeful racial
discrimination in the exercise of peremptory challenges.
                                 I
       On August 10, 1990, a grand jury sitting in Dougherty
County, Ga., returned a six-count indictment charging
respondents with aggravated assault and simple battery.
See App. 2.  The indictment alleged that respondents beat
and assaulted Jerry and Myra Collins.  Respondents are
white; the alleged victims are African-Americans.  Shortly
after the events, a leaflet was widely distributed in the local
African-American community reporting the assault and
urging community residents not to patronize respondents'
business.
       Before jury selection began, the prosecution moved to
prohibit respondents from exercising peremptory challenges
in a racially discriminatory manner.  The State explained
that it expected to show that the victims' race was a factor
in the alleged assault.  According to the State, counsel for
respondents had indicated a clear intention to use peremp-
tory strikes in a racially discriminatory manner, arguing
that the circumstances of their case gave them the right to
exclude African-American citizens from participating as
jurors in the trial.  Observing that 43 percent of the
county's population is African-American, the State contend-
ed that, if a statistically representative panel is assembled
for jury selection, 18 of the potential 42 jurors would be
African-American.  With 20 peremptory challenges,
respondents therefore would be able to remove all the
African-American potential jurors.  Relying on Batson v.
Kentucky, 476 U. S. 79 (1986), the Sixth Amendment, and
the Georgia Constitution, the State sought an order
providing that, if it succeeded in making out a prima facie
case of racial discrimination by respondents, the latter
would be required to articulate a racially neutral explana-
tion for peremptory challenges.
  The trial judge denied the State's motion, holding that
 [n]either Georgia nor federal law prohibits criminal
defendants from exercising peremptory strikes in a racially
discriminatory manner.  App. 14.  The issue was certified
for immediate appeal.  Id., at 15 and 18.
  The Supreme Court of Georgia, by a 4-3 vote, affirmed
the trial court's ruling.  State v. McCollum, 261 Ga. 473,
405 S.E.2d 688 (1991).  The court acknowledged that in
Edmonson v. Leesville Concrete Co., 500 U. S.___ (1991),
this Court had found that the exercise of a peremptory
challenge in a racially discriminatory manner  would
constitute an impermissible injury to the excluded juror.
261 Ga., at 473; 405 S.E.2d, at 689.  The court noted,
however, that Edmonson involved private civil litigants, not
criminal defendants.   Bearing in mind the long history of
jury trials as an essential element of the protection of
human rights, the court  decline[d] to diminish the free
exercise of peremptory strikes by a criminal defendant.
Ibid.  Three justices dissented, arguing that Edmonson and
other decisions of this Court establish that racially based
peremptory challenges by a criminal defendant violate the
Constitution.  261 Ga., at 473; 405 S.E.2d, at 689 (Hunt, J.);
id., at 475; 405 S.E.2d, at 690 (Benham, J.); id., at 479; 405
S.E.2d, at 693 (Fletcher, J.).  A motion for reconsideration
was denied.  App. 60.
  We granted certiorari to resolve a question left open by
our prior cases"-whether the Constitution prohibits a
criminal defendant from engaging in purposeful racial
discrimination in the exercise of peremptory challenges.
___ U. S. ___ (1991).
                     II
  Over the last century, in an almost unbroken chain of
decisions, this Court gradually has abolished race as a
consideration for jury service.  In Strauder v. West Virginia,
100 U. S. 303 (1880), the Court invalidated a state statute
providing that only white men could serve as jurors.  While
stating that a defendant has no right to a  petit jury
composed in whole or in part of persons of his own race,
id., at 305, the Court held that a defendant does have the
right to be tried by a jury whose members are selected by
nondiscriminatory criteria.  See also Neal v. Delaware, 103
U.S. 370, 397 (1881); Norris v. Alabama, 294 U.S. 587, 599
(1935) (State cannot exclude African-Americans from jury
venire on false assumption that they, as a group, are not
qualified to serve as jurors).
  In Swain v. Alabama, 380 U. S. 202 (1965), the Court
was confronted with the question whether an African-
American defendant was denied equal protection by the
State's exercise of peremptory challenges to exclude
members of his race from the petit jury.  Id., at 209-210.
Although the Court rejected the defendant's attempt to
establish an equal protection claim premised solely on the
pattern of jury strikes in his own case, it acknowledged that
proof of systematic exclusion of African-Americans through
the use of peremptories over a period of time might estab-
lish such a violation.  Id., at 224-228.
  In Batson v. Kentucky, 476 U. S. 79 (1986), the Court
discarded Swain's evidentiary formulation.  The Batson
Court held that a defendant may establish a prima facie
case of purposeful discrimination in selection of the petit
jury based solely on the prosecutor's exercise of peremptory
challenges at the defendant's trial.  Id., at 87.   Once the
defendant makes a prima facie showing, the burden shifts
to the State to come forward with a neutral explanation for
challenging black jurors.  Id., at 97.
       Last Term this Court applied the Batson framework in
two other contexts.  In Powers v. Ohio, 499 U. S. ___ (1991),
it held that in the trial of a white criminal defendant, a
prosecutor is prohibited from excluding African-American
jurors on the basis of race.  In Edmonson v. Leesville
Concrete Co., 500 U. S. ___ (1991), the Court decided that
in a civil case, private litigants cannot exercise their
peremptory strikes in a racially discriminatory manner.
  In deciding whether the Constitution prohibits criminal
defendants from exercising racially discriminatory peremp-
tory challenges, we must answer four questions.  First,
whether a criminal defendant's exercise of peremptory
challenges in a racially discriminatory manner inflicts the
harms addressed by Batson.  Second, whether the exercise
of peremptory challenges by a criminal defendant consti-
tutes state action.  Third, whether prosecutors have
standing to raise this constitutional challenge.  And fourth,
whether the constitutional rights of a criminal defendant
nonetheless preclude the extension of our precedents to this
case.
                     III
                      A
  The majority in Powers recognized that  Batson `was
designed  to serve multiple ends,' only one of which was to
protect individual defendants from discrimination in the
selection of jurors.  499 U. S., at ___ (slip op. 5).  As in
Powers and Edmonson, the extension of Batson in this
context is designed to remedy the harm done to the  dignity
of persons and to the  integrity of the courts.  Powers, at
___ (slip op. 1).
         As long ago as Strauder, this Court recognized that
denying a person participation in jury service on account of
his race unconstitutionally discriminates against the
excluded juror.  100 U.S., at 308.  See also Batson, 476
U. S., at 87.  While  [a]n individual juror does not have a
right to sit on any particular petit jury, . . . he or she does
possess the right not to be excluded from one on account of
race.  Powers, 499 U. S., at ___ (slip op. 9).  Regardless of
who invokes the discriminatory challenge, there can be no
doubt that the harm is the same"-in all cases, the juror is
subjected to open and public racial discrimination.
  But  the harm from discriminatory jury selection extends
beyond that inflicted on the defendant and the excluded
juror to touch the entire community.  Batson, 476 U. S., at
87.  One of the goals of our jury system is  to impress upon
the criminal defendant and the community as a whole that
a verdict of conviction or acquittal is given in accordance
with the law by persons who are fair.  Powers, 499 U. S.,
at ___ (slip op. 12).  Selection procedures that purposefully
exclude African-Americans from juries undermine that
public confidence"as well they should.   The overt wrong,
often apparent to the entire jury panel, casts doubt over the
obligation of the parties, the jury, and indeed the court to
adhere to the law throughout the trial of the cause.  Id., at
___ (slip op. 11-12).  See generally Underwood, Ending
Race Discrimination in Jury Selection: Whose Right Is It,
Anyway?, 92 Colum. L. Rev. 725, 748-750 (1992).
  The need for public confidence is especially high in cases
involving race-related crimes.  In such cases, emotions in
the affected community will inevitably be heated and
volatile.  Public confidence in the integrity of the criminal
justice system is essential for preserving community peace
in trials involving race-related crimes.  See Alschuler, The
Supreme Court and the Jury:  Voir Dire, Peremptory
Challenges, and the Review of Jury Verdicts, 56 U.Chi. L.
Rev. 153, 195-196 (1989) (describing two trials in Miami,
Fla., in which all African-American jurors were peremptori-
ly struck by white defendants accused of racial beating, and
the public outrage and riots that followed the defendants'
acquittal).
  Be it at the hands of the State or the defense, if a court
allows jurors to be excluded because of group bias, it is a
willing participant in a scheme that could only undermine
the very foundation of our system of justice"our citizens'
confidence in it.  Just as public confidence in criminal
justice is undermined by a conviction in a trial where racial
discrimination has occurred in jury selection, so is public
confidence undermined where a defendant, assisted by
racially discriminatory peremptory strikes, obtains an
acquittal.
                      B
  The fact that a defendant's use of discriminatory peremp-
tory challenges harms the jurors and the community does
not end our equal protection inquiry.  Racial discrimination,
although repugnant in all contexts, violates the Constitu-
tion only when it is attributable to state action.  See Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972).  Thus, the
second question that must be answered is whether a
criminal defendant's exercise of a peremptory challenge
constitutes state action for purposes of the Equal Protection
Clause.
         Until Edmonson, the cases decided by this Court that
presented the problem of racially discriminatory peremptory
challenges involved assertions of discrimination by a
prosecutor, a quintessential state actor.  In Edmonson, by
contrast, the contested peremptory challenges were exer-
cised by a private defendant in a civil action.  In order to
determine whether state action was present in that setting,
the Court in Edmonson used the analytical framework
summarized in Lugar v. Edmondson Oil Co., 457 U. S. 922
(1982).
  The first inquiry is  whether the claimed [constitutional]
deprivation has resulted from the exercise of a right or
privilege having its source in state authority.  Id., at 939.
 There can be no question that peremptory challenges
satisfy this first requirement, as they  are permitted only
when the government, by statute or decisional law, deems
it appropriate to allow parties to exclude a given number of
persons who otherwise would satisfy the requirements for
service on the petit jury.  Edmonson, 500 U. S., at ___ (slip
op. 5).  As in Edmonson, a Georgia defendant's right to
exercise peremptory challenges and the scope of that right
are established by a provision of state law.  Ga. Code Ann.
15-12-165 (1990).
  The second inquiry is whether the private party charged
with the deprivation can be described as a state actor.  See
Lugar, 457 U. S., at 941-942.  In resolving that issue, the
Court in Edmonson found it useful to apply three princi-
ples:  1)  the extent to which the actor relies on governmen-
tal assistance and benefits; 2)  whether the actor is
performing a traditional governmental function; and 3)
 whether the injury caused is aggravated in a unique way
by the incidents of governmental authority.  500 U. S., at
___ (slip op. 6-7).
  As to the first principle, the Edmonson Court found that
the peremptory challenge system, as well as the jury system
as a whole,  simply could not exist without the  overt and
significant participation of the government.  Id., at ___
(slip op. 7).  Georgia provides for the compilation of jury
lists by the board of jury commissioners in each county and
establishes the general criteria for service and the sources
for creating a pool of qualified jurors representing a fair
cross section of the community. Ga. Code Ann. 15-12-40.
State law further provides that jurors are to be selected by
a specified process, 15-12-42; they are to be summoned to
court under the authority of the State, 15-12-120; and
they are to be paid an expense allowance by the State
whether or not they serve on a jury, 15-12-9.  At court,
potential jurors are placed in panels in order to facilitate
examination by counsel, 15-12-131; they are administered
an oath, 15-12-132; they are questioned on voir dire to
determine whether they are impartial, 15-12-164; and
they are subject to challenge for cause, 15-12-163.
  In light of these procedures, the defendant in a Georgia
criminal case relies on  governmental assistance and
benefits that are equivalent to those found in the civil
context in Edmonson.   By enforcing a discriminatory
peremptory challenge, the Court `has ... elected to place its
power, property and prestige behind the [alleged] discrimi-
nation.'  Edmonson, 500 U. S., at ___ (slip op. 9) (citation
omitted).
  In regard to the second principle, the Court in Edmonson
found that peremptory challenges perform a traditional
function of the government:   Their sole purpose is to
permit litigants to assist the government in the selection of
an impartial trier of fact] the selection of an impartial trier
of fact.  Id., at ___ (slip op. 5).  And, as the Edmonson
Court recognized, the jury system in turn  performs the
critical governmental functions of guarding the rights of
litigants and `insur[ing] continued acceptance of the laws by
all of the people'  Id., at ___ (slip op. 9) (citation omitted).]
These same conclusions apply with even greater force in the
criminal context because the selection of a jury in a
criminal case fulfills a unique and constitutionally com-
pelled governmental function.  Compare Duncan v. Louisi-
ana, 391 U. S. 145 (1968) (making Sixth Amendment
applicable to States through Fourteenth Amendment) with
Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211
(1916) (States do not have a constitutional obligation to
provide a jury trial in civil cases).  Cf. West v. Atkins, 487
U.S. 42, 53, n. 10, 57 (1988) (private physician hired by
State to provide medical care to prisoners was state actor
because doctor was hired to fulfill State's constitutional
obligation to attend to necessary medical care of prison
inmates).  The State cannot avoid its constitutional respon-
sibilities by delegating a public function to private parties.
Cf. Terry v. Adams, 345 U.S. 461 (1953) (private political
party's determination of qualifications for primary voters
held to constitute state action).
  Finally, the Edmonson Court indicated that the court-
room setting in which the peremptory challenge is exercised
intensifies the harmful effects of the private litigant's
discriminatory act and contributes to its characterization as
state action.  These concerns are equally present in the
context of a criminal trial.  Regardless of who precipitated
the jurors' removal, the perception and the reality in a
criminal trial will be that the court has excused jurors
based on race, an outcome that will be attributed to the
State.
  Respondents nonetheless contend that the adversarial
relationship between the defendant and the prosecution
negates the governmental character of the peremptory
challenge.  Respondents rely on Polk County v. Dodson, 454
U.S. 312 (1981), in which a defendant sued, under 42 U.S.C.
1983, the public defender who represented him.  The
defendant claimed that the public defender had violated his
constitutional rights in failing to provide adequate repre-
sentation.  This Court determined that a public defender
does not qualify as a state actor when engaged in his
general representation of a criminal defendant.
  Polk County did not hold that the adversarial relationship
of a public defender with the State precludes a finding of
state action"it held that this adversarial relationship
prevented the attorney's public employment from alone
being sufficient to support a finding of state action.
Instead, the determination whether a public defender is a
state actor for a particular purpose depends on the nature
and context of the function he is performing.  For example,
in Branti v. Finkel, 445 U.S. 507 (1980), this Court held
that a public defender, in making personnel decisions on
behalf of the State, is a state actor who must comply with
constitutional requirements.  And the Dodson Court itself
noted, without deciding, that a public defender may act
under color of state law while performing certain adminis-
trative, and possibly investigative, functions.  See 454 U.S.,
at 325.
  The exercise of a peremptory challenge differs significant-
ly from other actions taken in support of a defendant's
defense.  In exercising a peremptory challenge, a criminal
defendant is wielding the power to choose a quintessential
governmental body"-indeed, the institution of government
on which our judicial system depends.  Thus, as we held in
Edmonson, when  a government confers on a private body
the power to choose the government's employees or officials,
the private body will be bound by the constitutional
mandate of race neutrality.  500 U.S., at ___ (slip op. 10).
  Lastly, the fact that a defendant exercises a peremptory
challenge to further his interest in acquittal does not
conflict with a finding of state action.  Whenever a private
actor's conduct is deemed  fairly attributable to the
government, it is likely that private motives will have
animated the actor's decision.  Indeed, in Edmonson, the
Court recognized that the private party's exercise of
peremptory challenges constituted state action, even though
the motive underlying the exercise of the peremptory
challenge may be to protect a private interest.  See 500
U. S., at ___ (slip op. 11).
                      C
  Having held that a defendant's discriminatory exercise of
a peremptory challenge is a violation of equal protection, we
move to the question whether the State has standing to
challenge a defendant's discriminatory use of peremptory
challenges.  In Powers, 499 U. S., at ___, this Court held
that a white criminal defendant has standing to raise the
equal protection rights of black jurors wrongfully excluded
from jury service.  While third-party standing is a limited
exception, the Powers Court recognized that a litigant may
raise a claim on behalf of a third party if the litigant can
demonstrate that he has suffered a concrete injury, that he
has a close relation to the third party, and that there exists
some hindrance to the third party's ability to protect its
own interests.  Id., at ___ (slip op. 10).  In Edmonson, the
Court applied the same analysis in deciding that civil
litigants had standing to raise the equal protection rights
of jurors excluded on the basis of their race.
  In applying the first prong of its standing analysis, the
Powers Court found that a criminal defendant suffered
cognizable injury  because racial discrimination in the
selection of jurors `casts doubt on the integrity of the
judicial process,' and places the fairness of a criminal
proceeding in doubt.  Id., at ___ (slip op. 11) (citation
omitted).  In Edmonson, this Court found that these harms
were not limited to the criminal sphere.  500 U. S., at ___
(slip op. 15).  Surely, a State suffers a similar injury when
the fairness and integrity of its own judicial process is
undermined.
  In applying the second prong of its standing analysis, the
Powers Court held that voir dire permits a defendant to
 establish a relation, if not a bond of trust, with the jurors,
a relation that  continues throughout the entire trial.  499
U. S., at ___ (slip op. 13).   Exclusion of a juror on the basis
of race severs that relation in an invidious way.  Edmon-
son, 500 U. S., at ___ (slip op. 14).
  The State's relation to potential jurors in this case is
closer than the relationships approved in Powers and
Edmonson.  As the representative of all its citizens, the
State is the logical and proper party to assert the invasion
of the constitutional rights of the excluded jurors in a
criminal trial.  Indeed, the Fourteenth Amendment forbids
the State from denying persons within its jurisdiction the
equal protection of the laws.
     In applying the final prong of its standing analysis, the
Powers Court recognized that, although individuals exclud-
ed from jury service on the basis of race have a right to
bring suit on their own behalf, the  barriers to a suit by an
excluded juror are daunting.  499 U. S., at ___ (slip op. 14).
See also Edmonson, 500 U. S., at ___ (slip op. 14).  The
barriers are no less formidable in this context.  See
Dunnigan, 88 Colum. L. Rev., at 367; Underwood, 92
Colum. L. Rev., at 757 (summarizing barriers to suit by
excluded juror).  Accordingly, we hold that the State has
standing to assert the excluded jurors' rights.
                      D
  The final question is whether the interests served by
Batson must give way to the rights of a criminal defendant.
As a preliminary matter, it is important to recall that
peremptory challenges are not constitutionally protected
fundamental rights; rather, they are but one state-created
means to the constitutional end of an impartial jury and a
fair trial.  This Court repeatedly has stated that the right
to a peremptory challenge may be withheld altogether
without impairing the constitutional guarantee of an
impartial jury and a fair trial.  See Frazier v. United States,
335 U. S. 497, 505, n. 11 (1948); United States v. Wood, 299
U. S. 123, 145 (1936); Stilson v. United States, 250 U. S.
583, 586 (1919); see also Swain, 380 U. S., at 219.
  Yet in Swain, the Court reviewed the  very old creden-
tials, id., at 212, of the peremptory challenge and noted the
 long and widely held belief that the peremptory challenge
is a necessary part of trial by jury.  Id., at 219; see id., at
212-219.  This Court likewise has recognized that  the role
of litigants in determining the jury's composition provides
one reason for wide acceptance of the jury system and of its
verdicts.  Edmonson, 500 U. S., at ___ (slip op. 15).
  We do not believe that this decision will undermine the
contribution of the peremptory challenge to the admin-
istration of justice.  Nonetheless,  if race stereotypes are the
price for acceptance of a jury panel as fair, we reaffirm
today that such a  price is too high to meet the standard of
the Constitution.  Edmonson, 500 U. S., at ___ (slip op.
15-16).  Defense counsel is limited to  legitimate, lawful
conduct.  Nix v. Whiteside, 475 U. S. 157, 166 (1986)
(defense counsel does not render ineffective assistance when
he informs his client that he would disclose the client's
perjury to the court and move to withdraw from representa-
tion).  It is an affront to justice to argue that a fair trial
includes the right to discriminate against a group of citizens
based upon their race.
  Nor does a prohibition of the exercise of discriminatory
peremptory challenges violate a defendant's Sixth Amend-
ment right to the effective assistance of counsel.  Counsel
can ordinarily explain the reasons for peremptory challeng-
es without revealing anything about trial strategy or any
confidential client communications.  In the rare case in
which the explanation for a challenges would entail
confidential communications or reveal trial strategy, an in
camera discussion can be arranged.  See United States v.
Zolin, 491 U. S. 554 (1989); cf. Batson, 476 U. S., at 97
(expressing confidence that trial judges can develop proce-
dures to implement the Court's holding).  In any event,
neither the Sixth Amendment right nor the attorney-client
privilege gives a criminal defendant the right to carry out
through counsel an unlawful course of conduct.  See Nix,
475 U. S., at 166; Zolin, 491 U. S., at 562-563.  See Swift,
Defendants, Racism and the Peremptory Challenge, 22
Colum. Hum. Rts. L. Rev. 177, 207-208 (1991).
  Lastly, a prohibition of the discriminatory exercise of
peremptory challenges does not violate a defendant's Sixth
Amendment right to a trial by an impartial jury.  The goal
of the Sixth Amendment is  jury impartiality with respect
to both contestants.  Holland v. Illinois, 493 U. S. 474, 483
(1990).  See also Hayes v. Missouri, 120 U. S. 68 (1887).
  We recognize, of course, that a defendant has the right to
an impartial jury that can view him without racial animus,
which so long has distorted our system of criminal justice.
We have, accordingly, held that there should be a mecha-
nism for removing those on the venire whom the defendant
has specific reason to believe would be incapable of con-
fronting and suppressing their racism.  See Ham v. South
Carolina, 409 U. S. 524, 526-527 (1973); Rosales-Lopez v.
United States, 451 U. S. 182, 189-190 (1981) (plurality
opinion of White, J.).  Cf. Morgan v. Illinois, ___ U.S. ___
(1992) (exclusion of juror in capital trial is permissible upon
showing that juror is incapable of considering sentences
other than death).
  But there is a distinction between exercising a perempto-
ry challenge to discriminate invidiously against jurors on
account of race and exercising a peremptory challenge to
remove an individual juror who harbors racial prejudice.
This Court firmly has rejected the view that assumptions of
partiality based on race provide a legitimate basis for
disqualifying a person as an impartial juror.  As this Court
stated just last Term in Powers,  [w]e may not accept as a
defense to racial discrimination the very stereotype the law
condemns.  499 U. S., at ___ (slip op. 9).   In our heteroge-
neous society policy as well as constitutional considerations
militate against the divisive assumption"as a per se
rule"that justice in a court of law may turn upon the
pigmentation of skin, the accident of birth, or the choice of
religion.  Ristaino v. Ross, 424 U. S. 589, 596, n. 8 (1976).
We therefore reaffirm today that the exercise of a perempto-
ry challenge must not be based on either the race of the
juror or the racial stereotypes held by the party.
                     IV
  We hold that the Constitution prohibits a criminal
defendant from engaging in purposeful discrimination on
the ground of race in the exercise of peremptory challenges.
Accordingly, if the State demonstrates a prima facie case of
racial discrimination by the defendants, the defendants,
must articulate a racially neutral explanation for perempto-
ry challenges.  The judgment of the Supreme Court of
Georgia is reversed and the case is remanded for further
proceedings not inconsistent with this opinion.

It is so ordered.




          SUPREME COURT OF THE UNITED STATES--------
                       No. 91-372
                        --------
         GEORGIA, PETITIONER v. THOMAS McCOLLUM,
                    WILLIAM JOSEPH McCOLLUM and
                       ELLA HAMPTON McCOLLUM
           on writ of certiorari to the supreme court of
                              georgia
                          [June 18, 1992]

       Chief Justice Rehnquist, concurring.
       I was in dissent in Edmonson v. Leesville Concrete Co., __
U. S. __ (1991), and continue to believe that case to have
been wrongly decided.  But so long as it remains the law, I
believe that it controls the disposition of this case on the
issue of  state action under the Fourteenth Amendment.
I therefore join the opinion of the Court.




         SUPREME COURT OF THE UNITED STATES--------
                       No. 91-372
                        --------
         GEORGIA, PETITIONER v. THOMAS McCOLLUM,
                    WILLIAM JOSEPH McCOLLUM and
                       ELLA HAMPTON McCOLLUM
           on writ of certiorari to the supreme court of
                              georgia
                          [June 18, 1992]

       Justice Thomas, concurring in the judgment.
       As a matter of first impression, I think that I would have
shared the view of the dissenting opinions:  A criminal
defendant's use of peremptory strikes cannot violate the
Fourteenth Amendment because it does not involve state
action.  Yet, I agree with the Court and The Chief Justice
that our decision last term in Edmonson v. Leesville
Concrete Co., 500 U. S. --- (1991), governs this case and
requires the opposite conclusion.  Because the respondents
do not question Edmonson, I believe that we must accept its
consequences.  I therefore concur in the judgment reversing
the Georgia Supreme Court.
       I write separately to express my general dissatisfaction
with our continuing attempts to use the Constitution to
regulate peremptory challenges.  See, e.g., Batson v.
Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S.
--- (1991); Edmonson, supra.  In my view, by restricting a
criminal defendant's use of such challenges, this case takes
us further from the reasoning and the result of Strauder v.
West Virginia, 100 U. S. 303 (1880).  I doubt that this
departure will produce favorable consequences.  On the
contrary, I am certain that black criminal defendants will
rue the day that this court ventured down this road that
inexorably will lead to the elimination of peremptory
strikes.
       In Strauder, as the Court notes, we invalidated a state
law that prohibited blacks from serving on juries.  In the
course of the decision, we observed that the racial composi-
tion of a jury may affect the outcome of a criminal case.  We
explained:   It is well known that prejudices often exist
against particular classes in the community, which sway
the judgment of jurors, and which, therefore, operate in
some cases to deny to persons of those classes the full
enjoyment of that protection which others enjoy.  Id., at
309.  We thus recognized, over a century ago, the precise
point that Justice O'Connor makes today.  Simply stated,
securing representation of the defendant's race on the jury
may help to overcome racial bias and provide the defendant
with a better chance of having a fair trial.  Post, at 7.
       I do not think that this basic premise of Strauder has
become obsolete.  The public, in general, continues to
believe that the makeup of juries can matter in certain
instances.  Consider, for example, how the press reports
criminal trials.  Major newspapers regularly note the
number of whites and blacks that sit on juries in important
cases.  Their editors and readers apparently recognize that
conscious and unconscious prejudice persists in our society
and that it may influence some juries.  Common experience
and common sense confirm this understanding.
       In Batson, however, this Court began to depart from
Strauder by holding that, without some actual showing,
suppositions about the possibility that jurors may harbor
prejudice have no legitimacy.  We said, in particular, that
a prosecutor could not justify peremptory strikes  by stating
merely that he challenged jurors of the defendant's race on
the assumption"or his intuitive judgment"that they
would be partial to the defendant because of their shared
race.  476 U. S., at 97.  As noted, however, our decision in
Strauder rested on precisely such an  assumption or
 intuition.  We reasonably surmised, without direct evi-
dence in any particular case, that all-white juries might
judge black defendants unfairly.
       Our departure from Strauder has two negative conse-
quences.  First, it produces a serious misordering of our
priorities.  In Strauder, we put the rights of defendants
foremost.  Today's decision, while protecting jurors, leaves
defendants with less means of protecting themselves.
Unless jurors actually admit prejudice during voir dire,
defendants generally must allow them to sit and run the
risk that racial animus will affect the verdict.  Cf. Fed. Rule
Evid. 606(b) (generally excluding juror testimony after trial
to impeach the verdict).  In effect, we have exalted the right
of citizens to sit on juries over the rights of the criminal
defendant, even though it is the defendant, not the jurors,
who faces imprisonment or even death.  At a minimum, I
think that this inversion of priorities should give us pause.
       Second, our departure from Strauder has taken us down
a slope of inquiry that had no clear stopping point.  Today,
we decide only that white defendants may not strike black
veniremen on the basis of race.  Eventually, we will have to
decide whether black defendants may strike white venire-
men.  See, e.g., State v. Carr, 261 Ga. 845, 413 S.E. 2d
192 (1992).  Next will come the question whether defen-
dants may exercise peremptories on the basis of sex.  See,
e.g., United States v. De Gross, 960 F. 2d 1433 (CA9 1992).
The consequences for defendants of our decision and of
these future cases remain to be seen.  But whatever the
benefits were that this Court perceived in a criminal
defendant's having members of his class on the jury, see
Strauder, 100 U. S., at 309-310, they have evaporated.



           SUPREME COURT OF THE UNITED STATES--------
                       No. 91-372
                        --------
         GEORGIA, PETITIONER v. THOMAS McCOLLUM,
                    WILLIAM JOSEPH McCOLLUM and
                       ELLA HAMPTON McCOLLUM
           on writ of certiorari to the supreme court of
                              georgia
                          [June 18, 1992]

       Justice O'Connor, dissenting.
       The Court reaches the remarkable conclusion that
criminal defendants being prosecuted by the State act on
behalf of their adversary when they exercise peremptory
challenges during jury selection.  The Court purports
merely to follow precedents, but our cases do not compel
this perverse result.  To the contrary, our decisions specifi-
cally establish that criminal defendants and their lawyers
are not government actors when they perform traditional
trial functions.
                                 I
       It is well and properly settled that the Constitution's
equal protection guarantee forbids prosecutors from exer-
cising peremptory challenges in a racially discriminatory
fashion.  See Batson v. Kentucky, 476 U. S. 79 (1986);
Powers v. Ohio, 449 U. S. ___, ___ (1991) (slip op., at 9).
The Constitution, however, affords no similar protection
against private action.   Embedded in our Fourteenth
Amendment jurisprudence is a dichotomy between state
action, which is subject to scrutiny under the Amendmen[t]
. . . , and private conduct, against which the Amendment
affords no shield, no matter how unfair that conduct may
be.  National Collegiate Athletic Assn. v. Tarkanian, 488
U. S. 179, 191 (1988) (footnote omitted).  This distinction
appears on the face of the Fourteenth Amendment, which
provides that  No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.  U. S.
Const., Amdt. 14, 1 (emphasis added).  The critical but
straightforward question this case presents is whether
criminal defendants and their lawyers, when exercising
peremptory challenges as part of a defense, are state actors.
       In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), the
Court developed a two-step approach to identifying state
action in cases such as this.  First, the Court will ask
 whether the claimed deprivation has resulted from the
exercise of a right or privilege having its source in state
authority.  Id., at 939.  Next, it will decide whether, on the
particular facts at issue, the parties who allegedly caused
the deprivation of a federal right can  appropriately and
 in all fairness be characterized as state actors.  Ibid.;
Edmonson v. Leesville Concrete Co., 500 U. S. ___, ___
(1991) (slip op., at 5).  The Court's determination in this
case that the peremptory challenge is a creation of state
authority, ante, at 8, breaks no new ground.  See
Edmonson, supra, at ___ (slip op., at 5-6).  But disposing of
this threshold matter leaves the Court with the task of
showing that criminal defendants who exercise perempto-
ries should be deemed governmental actors.  What our
cases require, and what the Court neglects, is a realistic
appraisal of the relationship between defendants and the
government that has brought them to trial.
       We discussed that relationship in Polk County v. Dodson,
454 U. S. 312 (1981), which held that a public defender does
not act  under color of state law for purposes of 42 U. S. C.
1983  when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding.  454 U. S.,
at 325.  We began our analysis by explaining that a public
defender's obligations toward her client are no different
than the obligations of any other defense attorney.  Id., at
318.  These obligations preclude attributing the acts of
defense lawyers to the State:  [T]he duties of a defense
lawyer are those of a personal counselor and advocate.  It
is often said that lawyers are `officers of the court.'  But the
Courts of Appeals are agreed that a lawyer representing a
client is not, by virtue of being an officer of the court, a
state actor . . . .  Ibid.
       We went on to stress the inconsistency between our
adversarial system of justice and theories that would make
defense lawyers state actors.   In our system, we said,  a
defense lawyer characteristically opposes the designated
representatives of the State.  Ibid.  This adversarial
posture rests on the assumption that a defense lawyer best
serves the public  not by acting on behalf of the State or in
concert with it, but rather by advancing `the undivided
interests of his client.'  Id., at 318-319 (quoting Ferri v.
Ackerman, 444 U. S. 193, 204 (1979)).  Moreover, we
pointed out that the independence of defense attorneys from
state control has a constitutional dimension.  Gideon v.
Wainwright, 372 U. S. 335 (1963),  established the right of
state criminal defendants to the guiding hand of counsel at
every step in the proceedings against [them].  454 U. S., at
322 (internal quotation marks omitted).  Implicit in this
right  is the assumption that counsel will be free of state
control.  There can be no fair trial unless the accused
receives the services of an effective and independent
advocate.  Ibid.  Thus, the defense's freedom from state
authority is not just empirically true, but is a constitution-
ally mandated attribute of our adversarial system.
       Because this Court deems the  under color of state law
requirement that was not satisfied in Dodson identical to
the Fourteenth Amendment's state action requirement, see
Lugar, supra, at 929, the holding of Dodson simply cannot
be squared with today's decision.  In particular, Dodson
cannot be explained away as a case concerned exclusively
with the employment status of public defenders.  See ante,
at 11.  The Dodson Court reasoned that public defenders
performing traditional defense functions are not state actors
because they occupy the same position as other defense
attorneys in relevant respects.  454 U. S., at 319-325.  This
reasoning followed on the heels of a critical determination:
defending an accused  is essentially a private function, not
state action.  Id., at 319.  The Court's refusal to acknowl-
edge Dodson's initial holding, on which the entire opinion
turned, will not make that holding go away.
       The Court also seeks to evade Dodson's logic by spinning
out a theory that defendants and their lawyers transmogri-
fy from government adversaries into state actors when they
exercise a peremptory challenge, and then change back to
perform other defense functions.  See ante, at 11-12.
Dodson, however, established that even though public
defenders might act under color of state law when carrying
out administrative or investigative functions outside a
courtroom, they are not vested with state authority  when
performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding.  454 U. S., at 325.
Since making peremptory challenges plainly qualifies as a
 traditional function of criminal defense lawyers, see
Swain v. Alabama, 380 U. S. 202, 212-219 (1965); Lewis v.
United States, 146 U. S. 370, 376 (1892), Dodson forecloses
the Court's functional analysis.
       Even aside from our prior rejection of it, the Court's
functional theory fails.   [A] State normally can be held
responsible for a private decision only when it has exercised
coercive power or has provided such significant encourage-
ment . . . that the choice must in law be deemed to be that
of the State.  Blum v. Yaretsky, 457 U. S. 991, 1004 (1982).
Thus, a private party's exercise of choice allowed by state
law does not amount to state action for purposes of the
Fourteenth Amendment so long as  the initiative comes
from [the private party] and not from the State.  Jackson
v. Metropolitan Edison Co., 419 U. S. 345, 357 (1974).  See
Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 165 (1978) (State
not responsible for a decision it  permits but does not
compel).  The government in no way influences the
defense's decision to use a peremptory challenge to strike a
particular juror.  Our adversarial system of criminal justice
and the traditions of the peremptory challenge vest the
decision to strike a juror entirely with the accused.  A
defendant  may, if he chooses, peremptorily challenge `on
his own dislike, without showing any cause;' he may
exercise that right without reason or for no reason, arbi-
trarily and capriciously.  Pointer v. United States, 151
U. S. 396, 408 (1894) (quoting 1 E. Coke, Institutes 156b
(19th ed. 1832)).   The essential nature of the peremptory
challenge is that it is one exercised without a reason stated,
without inquiry and without being subject to the court's
control.  Swain, supra, at 220.  See Dodson, supra, at
321-322; Lewis, supra, at 376, 378.
       Certainly, Edmonson v. Leesville Concrete Co. did not
render Dodson and its realistic approach to the state action
inquiry dead letters.  The Edmonson Court distinguished
Dodson by saying:  In the ordinary context of civil litigation
in which the government is not a party, an adversarial
relation does not exist between the government and a
private litigant.  In the jury-selection process, the govern-
ment and private litigants work for the same end.
Edmonson, 500 U. S., at ___ (slip op., at 12).  While the
nonpartisan administrative interests of the State and the
partisan interests of private litigants may not be at odds
during civil jury selection, the same cannot be said of the
partisan interests of the State and the defendant during
jury selection in a criminal trial.  A private civil litigant
opposes a private counterpart, but a criminal defendant is
by design in an adversarial relationship with the govern-
ment.  Simply put, the defendant seeks to strike jurors
predisposed to convict, while the State seeks to strike jurors
predisposed to acquit.  The Edmonson Court clearly
recognized this point when it limited the statement that  an
adversarial relation does not exist between the government
and a private litigant to  the ordinary context of civil
litigation in which the government is not a party.  Ibid.
(emphasis added).
       From arrest, to trial, to possible sentencing and punish-
ment, the antagonistic relationship between government
and the accused is clear for all to see.  Rather than squarely
facing this fact, the Court, as in Edmonson, rests its finding
of governmental action on the points that defendants
exercise peremptory challenges in a courtroom and judges
alter the composition of the jury in response to defendants'
choices.  I found this approach wanting in the context of
civil controversies between private litigants, for reasons
that need not be repeated here.  See id., at ___ (O'Connor,
J., dissenting).  But even if I thought Edmonson was
correctly decided, I could not accept today's simplistic
extension of it.  Dodson makes clear that the unique
relationship between criminal defendants and the State
precludes attributing defendants' actions to the State,
whatever is the case in civil trials.  How could it be other-
wise when the underlying question is whether the accused
 c[an] be described in all fairness as a state actor?  Id., at
___ (slip op., at 5).  As Dodson accords with our state action
jurisprudence and with common sense, I would honor it.
                                II
       What really seems to bother the Court is the prospect
that leaving criminal defendants and their attorneys free to
make racially motivated peremptory challenges will
undermine the ideal of nondiscriminatory jury selection we
espoused in Batson, 476 U. S., at 85-88.  The concept that
the government alone must honor constitutional dictates,
however, is a fundamental tenet of our legal order, not an
obstacle to be circumvented.  This is particularly so in the
context of criminal trials, where we have held the prosecu-
tion to uniquely high standards of conduct.  See Brady v.
Maryland, 373 U. S. 83 (1963) (disclosure of evidence
favorable to the accused); Berger v. United States, 295 U. S.
78, 88 (1935) ( The [prosecutor] is the representative not of
an ordinary party to a controversy, but of a sovereignty . . .
whose interest . . . in a criminal prosecution is not that it
shall win a case, but that justice shall be done).
       Considered in purely pragmatic terms, moreover, the
Court's holding may fail to advance nondiscriminatory
criminal justice.  It is by now clear that conscious and
unconscious racism can affect the way white jurors perceive
minority defendants and the facts presented at their trials,
perhaps determining the verdict of guilt or innocence.  See
Developments in the Law"Race and the Criminal Process,
101 Harv. L. Rev. 1472, 1559-1560 (1988); Colbert, Chal-
lenging the Challenge: Thirteenth Amendment as a Prohibi-
tion against the Racial Use of Peremptory Challenges, 76
Cornell L. Rev. 1, 110-112 (1990).  Using peremptory
challenges to secure minority representation on the jury
may help to overcome such racial bias, for there is substan-
tial reason to believe that the distorting influence of race is
minimized on a racially mixed jury.  See id., at 112-115;
Developments in the Law, supra, at 1559-1560.  As amicus
NAACP Legal Defense and Educational Fund explained in
this case:
 The ability to use peremptory challenges to exclude
majority race jurors may be crucial to empaneling a
fair jury.  In many cases an African American, or other
minority defendant, may be faced with a jury array in
which his racial group is underrepresented to some
degree, but not sufficiently to permit challenge under
the Fourteenth Amendment.  The only possible chance
the defendant may have of having any minority jurors
on the jury that actually tries him will be if he uses his
peremptories to strike members of the majority race.
Brief for NAACP Legal Defense and Educational Fund,
Inc. as Amicus Curiae 9-10 (footnote omitted).
See Brief for National Association of Criminal Defense
Lawyers as Amicus Curiae 56-57; Edmonson, 500 U. S., at
___ (Scalia, J., dissenting).  In a world where the outcome
of a minority defendant's trial may turn on the misconcep-
tions or biases of white jurors, there is cause to question
the implications of this Court's good intentions.
       That the Constitution does not give federal judges the
reach to wipe all marks of racism from every courtroom in
the land is frustrating, to be sure.  But such limitations are
the necessary and intended consequence of the Fourteenth
Amendment's state action requirement.  Because I cannot
accept the Court's conclusion that government is responsi-
ble for decisions criminal defendants make while fighting
state prosecution, I respectfully dissent.



          SUPREME COURT OF THE UNITED STATES--------
                       No. 91-372
                        --------
         GEORGIA, PETITIONER v. THOMAS McCOLLUM,
                    WILLIAM JOSEPH McCOLLUM and
                       ELLA HAMPTON McCOLLUM
           on writ of certiorari to the supreme court of
                              georgia
                          [June 18, 1992]

       Justice Scalia, dissenting.
       I agree with the Court that its judgment follows logically
from Edmonson v. Leesville Concrete Co., Inc., ___ U. S. ___
(1991).  For the reasons given in the Edmonson dissents,
however, I think that case was wrongly decided.  Barely a
year later, we witness its reduction to the terminally
absurd: A criminal defendant, in the process of defending
himself against the state, is held to be acting on behalf of
the state.  Justice O'Connor demonstrates the sheer
inanity of this proposition (in case the mere statement of it
does not suffice), and the contrived nature of the Court's
justifications.  I see no need to add to her discussion, and
differ from her views only in that I do not consider
Edmonson distinguishable in principle"except in the
principle that a bad decision should not be followed logically
to its illogical conclusion.
       Today's decision gives the lie once again to the belief that
an activist,  evolutionary constitutional jurisprudence
always evolves in the direction of greater individual rights.
In the interest of promoting the supposedly greater good of
race relations in the society as a whole (make no mistake
that that is what underlies all of this), we use the Constitu-
tion to destroy the ages-old right of criminal defendants to
exercise peremptory challenges as they wish, to secure a
jury that they consider fair.  I dissent.



