concurring.
I join Justice Powell’s eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. The Court’s opinion cogently explains the pernicious nature of the racially discriminatory use of peremptory challenges, and the repugnancy of such discrimination to the Equal Protection Clause. The Court’s opinion also ably demonstrates the inadequacy of any burden of proof for racially discriminatory use of peremptories that requires that “justice ... sit supinely by” and be flouted in case after case before a remedy is available.1 I nonetheless write separately to express my views. The decision today will not end the racial discrimina*103tion that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.
I
A little over a century ago, this Court invalidated a state statute providing that black citizens could not serve as jurors. Strauder v. West Virginia, 100 U. S. 303 (1880). State officials then turned to somewhat more subtle ways of keeping blacks off jury venires. See Swain v. Alabama, 380 U. S. 202, 231-238 (1965) (Goldberg, J., dissenting); Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev. 235 (1968); see also J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 155-157 (1977) (hereinafter Van Dyke). Although the means used to exclude blacks have changed, the same pernicious consequence has continued.
Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant. Black defendants rarely have been able to compile statistics showing the extent of that practice, but the few cases setting out such figures are instructive. See United States v. Carter, 528 F. 2d 844, 848 (CA8 1975) (in 15 criminal cases in 1974 in the Western District of Missouri involving black defendants, prosecutors peremptorily challenged 81% of black jurors), cert. denied, 425 U. S. 961 (1976); United States v. McDaniels, 379 F. Supp. 1243 (ED La. 1974) (in 53 criminal cases in 1972-1974 in the Eastern District of Louisiana involving black defendants, federal prosecutors used 68.9% of their peremptory challenges against black jurors, who made up less than one-quarter of the venire); McKinney v. Walker, 394 F. Supp. 1015, 1017-1018 (SC 1974) (in 13 criminal trials in 1970-1971 in Spartansburg County, South Carolina, involving black defendants, prosecutors peremptorily challenged 82% of black jurors), affirmance order, 529 F. 2d 516 (CA4 1975).2 Pros*104ecutors have explained to courts that they routinely strike black jurors, see State v. Washington, 375 So. 2d 1162, 1163-1164 (La. 1979). An instruction book used by the prosecutor’s office in Dallas County, Texas, explicitly advised prosecutors that they conduct jury selection so as to eliminate “‘any member of a minority group.’”3 In 100 felony trials in Dallas County in 1983-1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white.4
The Court’s discussion of the utter unconstitutionality of that practice needs no amplification. This Court explained more than a century ago that “ ‘in the selection of jurors to pass upon [a defendant’s] life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of their color.’” Neal v. Delaware, 103 U. S. 370, 394 (1881), quoting Virginia v. Rives, 100 U. S. 313, 323 (1880). Justice Rehnquist, dissenting, concedes that exclusion of blacks from a jury, solely because they are black, is at best based upon “crudely stereotypical and ... in many cases hopelessly mistaken” notions. Post, at 138. Yet the Equal Protection Clause prohibits a State from taking any action based on crude, inaccurate racial stereotypes — even an action that does not serve the State’s interests. Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black defendant than it can be justified by the notion that blacks *105lack the “intelligence, experience, or moral integrity,” Neal, supra, at 397, to be entrusted with that role.
I — I hH
I wholeheartedly concur in the Court’s conclusion that use of the peremptory challenge to remove blacks from juries, on the basis of their race, violates the Equal Protection Clause. I would go further, however, in fashioning a remedy adequate to eliminate that discrimination. Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.
Evidentiary analysis similar to that set out by the Court, ante, at 97-98, has been adopted as a matter of state law in States including Massachusetts and California. Cases from those jurisdictions illustrate the limitations of the approach. First, defendants cannot attack the discriminatory use of peremptory challenges at all unless the challenges are so flagrant as to establish a prima facie case. This means, in those States, that where only one or two black jurors survive the challenges for cause, the prosecutor need have no compunction about striking them from the jury because of their race. See Commonwealth v. Robinson, 382 Mass. 189, 195, 415 N. E. 2d 805, 809-810 (1981) (no prima facie case of discrimination where defendant is black, prospective jurors include three blacks and one Puerto Rican, and prosecutor excludes one for cause and strikes the remainder peremptorily, producing all-white jury); People v. Rousseau, 129 Cal. App. 3d 526, 536-537, 179 Cal. Rptr. 892, 897-898 (1982) (no prima facie case where prosecutor peremptorily strikes only two blacks on jury panel). Prosecutors are left free to discriminate against blacks in jury selection provided that they hold that discrimination to an “acceptable” level.
Second, when a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors’ motives. See King v. County of Nassau, 581 F. Supp. 493, *106501-502 (EDNY 1984). Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor’s statement that he struck a juror because the juror had a son about the same age as defendant, see People v. Hall, 35 Cal. 3d 161, 672 P. 2d 854 (1983), or seemed “uncommunicative,” King, supra, at 498, or “never cracked a smile” and, therefore “did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case,” Hall, supra, at 165, 672 P. 2d, at 856? If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory.
Nor is outright prevarication by prosecutors the only danger here. • “[I]t is even possible that an attorney may he to himself in an effort to convince himself that his motives are legal.” King, supra, at 502. A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported. As Justice Rehnquist concedes, prosecutors’ peremptories are based on their “seat-of-the-pants instincts” as to how particular jurors will vote. Post, at 138; see also The Chief Justice’s dissenting opinion, post, at 123. Yet “seat-of-the-pants instincts” may often be just another term for racial prejudice. Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels — a challenge I doubt all of them can meet. It is worth remembering that “114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in *107our society as a whole.” Rose v. Mitchell, 443 U. S. 545, 558-559 (1979), quoted in Vasquez v. Hillery, 474 U. S. 254, 264 (1986).
Ill
The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system. See Van Dyke, at 167-169; Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 Loyola (LA) L. Rev. 247, 269-270 (1973). Justice Goldberg, dissenting in Swain, emphasized that “[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former.” 380 U. S., at 244. I believe that this case presents just such a choice, and I would resolve that choice by eliminating peremptory challenges entirely in criminal cases.
Some authors have suggested that the courts should ban prosecutors’ peremptories entirely, but should zealously guard the defendant’s peremptory as “essential to the fairness of trial by jury,” Lewis v. United States, 146 U. S. 370, 376 (1892), and “one of the most important of the rights secured to the accused,” Pointer v. United States, 151 U. S. 396, 408 (1894). See Van Dyke, at 167; Brown, McGuire, & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New England L. Rev. 192 (1978). I would not find that an acceptable solution. Our criminal justice system “requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.” Hayes v. Missouri, 120 U. S. 68, 70 (1887). We can maintain that balance, not by permitting both prosecutor and defendant to engage in racial discrimination injury selection, but by banning the use of *108peremptory challenges by prosecutors and by allowing the States to eliminate the defendant’s peremptories as well.
Much ink has been spilled regarding the historic importance of defendants’ peremptory challenges. The approving comments of the Lewis and Pointer Courts are noted above; the Swain Court emphasized the “very old credentials” of the peremptory challenge, 380 U. S., at 212, and cited the “long and widely held belief that peremptory challenge is a necessary part of trial by jury.” Id., at 219. But this Court has also repeatedly stated that the right of peremptory challenge is not of constitutional magnitude, and may be withheld altogether without impairing the constitutional guarantee of impartial jury and fair trial. 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. The potential for racial prejudice, further, inheres in the defendant’s challenge as well. If the prosecutor’s peremptory challenge could be eliminated only at the cost of eliminating the defendant’s challenge as well, I do not think that would be too great a price to pay.
I applaud the Court’s holding that the racially discriminatory use of peremptory challenges violates the Equal Protection Clause, and I join the Court’s opinion. However, only by banning peremptories entirely can such discrimination be ended.
Commonwealth v. Martin, 461 Pa. 289, 299, 336 A. 2d 290, 295 (1975) (Nix, J., dissenting), quoted in McCray v. New York, 461 U. S. 961, 965, n. 2 (1983) (Marshall, J., dissenting from denial of certiorari).
See also Harris v. Texas, 467 U. S. 1261 (1984) (Marshall, J., dissenting from denial of certiorari); Williams v. Illinois, 466 U. S. 981 (1984) (Marshall, J., dissenting from denial of certiorari).
Van Dyke, at 152, quoting Texas Observer, May 11, 1973, p. 9, col. 2. An earlier jury-selection treatise circulated in the same county instructed prosecutors: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” Quoted in Dallas Morning News, Mar. 9, 1986, p. 29, col. 1.
Id., at 1, col. 1; see also Comment, A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process, 18 St. Louis U. L. J. 662 (1974).