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Ramos v. Louisiana and the Jim Crow Origins of Nonunanimous Juries

Ramos v. Louisiana, decided by the U.S. Supreme Court last Monday and summarized here, holds that the Sixth Amendment impartial jury guarantee gives defendants a right to a unanimous jury verdict in state trials. The case is making waves for reasons tangential to the dispute between the parties: in a dizzyingly split opinion, the justices argue more over the meaning of stare decisis (the court’s obligation to follow its prior holdings) than whether defendants in state courts may be convicted by a less-than-unanimous jury. This aspect of the opinion has been widely discussed (see analysis here, here, here, and here), and foreshadows the justices’ likely battle over an upcoming reproductive rights case. Since the divergent perspectives on stare decisis have been covered elsewhere, I will consider another issue that split the justices: the legal relevance of the nonunanimous jury law’s Jim Crow origins.

First, a pop quiz

Did North Carolina ever allow non unanimous jury verdicts in criminal trials? Read on for the answer.

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The Past, Present, and Future of the NC Racial Equity Network

Five years ago, the UNC School of Government published a unique manual, Raising Issues of Race in North Carolina Criminal Cases, as part of our Defender Manual Series. Supported by a grant from the Z Smith Reynolds Foundation, the manual examines how issues of race and bias can improperly influence criminal processes and outcomes, and it suggests strategies for lawyers to consider when addressing these issues. I coauthored the manual with former Defender Educator Alyson A. Grine, Professor John Rubin edited it, and a stellar volunteer advisory board, including James Williams, Tye Hunter, Rich Rosen, Mary Pollard, and Breana Smith, provided guidance during the creation of the manual.

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State v. Copley: Addressing Race During Closing Argument

Last month, the North Carolina Court of Appeals decided State v. Copley, __ N.C. App. __, 2019 WL 1996441 (May 7, 2019), in which a divided panel held that the trial court abused its discretion by overruling the defendant’s objections to the prosecutor’s remarks about race during closing argument. For that reason, the Court vacated the defendant’s first degree murder conviction. This post discusses the law governing when parties in a criminal trial may discuss issues of race, as well as emerging strategies for mitigating the effects of implicit racial bias on decision-makers.

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Sharks, Minnows, and the Drug War

A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings.

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Stop and Account, Stop and Search, and Racial Disparities

For U.S. readers, the title of this post may not seem quite right. You’ve heard of stops, based on either reasonable suspicion or probable cause, and frisks for weapons following a stop. You know about racial disparities in criminal justice data. But, what’s stop and account? Stop and search? And, how do they differ from stops and frisks? As I’m in London for the fall, the answer is pretty obvious that these terms refer to police authority in the UK. What may be less obvious is how this authority resembles the stopping powers of law enforcement officers in the US.

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Prying Open the Jury Room: Supreme Court Creates an Exception to the No-Impeachment Rule for Racial Bias

[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]

Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications.

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U.S. Supreme Court Strikes Down Racial Discrimination in Jury Selection

[Editor’s note: Emily Coward, the author of today’s post, is an attorney who works with the indigent defense education team at the School of Government. She is a co-author of Raising Issues of Race in North Carolina Criminal Cases.]

In Foster v. Chatman, a 7-1 opinion authored by Chief Justice John Roberts, the U.S. Supreme Court held that prosecutors in Georgia discriminated on the basis of race during jury selection in a 1987 death penalty trial. This post explains the ruling and considers its impact on Batson challenges in North Carolina.

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Implicit Bias: Why Race is Hard Even when People are Good*

Scholar john powell succinctly defines implicit bias as “a habit of the mind.” He explains that our brains have a natural tendency to form associations (for example, we might see a tall person and think “basketball player”) in order to make sense of the 5,000 or so images with which we are bombarded each day. This process happens rapidly at an unconscious level and helps us to navigate the world. However, concerns arise when our brains form associations between race and negative traits. For example, in one recent study, researchers concluded that participants held implicit associations between “Black” and “guilty,” and that such associations predicted how they would evaluate ambiguous evidence. A growing body of scholarship, discussed in the School of Government manual Raising Issues of Race in North Carolina Criminal Cases (see Section 1.3D in particular), suggests that such unconscious associations affect the perceptions and decisions of court actors, and may contribute to disparate treatment and outcomes in the criminal justice system.

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