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. Continue reading
Tag Archives: race
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. Continue reading →
Is a suspect’s race relevant when determining whether the suspect’s consent to search is voluntary? In a recent case, the court of appeals stated that it may be. Continue reading →
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. Continue reading →
[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. Continue reading →
[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. Continue reading →
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. Continue reading →
Emily Coward and I are glad to share a new resource with you: a reference manual entitled Raising Issues of Race in North Carolina Criminal Cases. If you are a person who likes to have a hard copy on the shelf, you can buy it here. Like our other manuals, it is available for free online at http://defendermanuals.sog.unc.edu. (The electronic platform has been retooled, and I think you will find that it has a nice look and is user-friendly.) Continue reading →
Jeff previously posted news items about North Carolina’s Racial Justice Act (RJA), including one here updating readers on the bill’s path to law, and one here about actual RJA filings. I was recently told by the N.C. Administrative Office of the Courts that there now are at least 204 filed RJA motions. Although most of those motions have been filed as post-conviction motions for appropriate relief (MARs) by death row inmates, a number have been filed in pending capital cases (the RJA allows for filing at the Rule 24 hearing or post-conviction as a MAR). Given the number of filings and the novelty of the act itself, I am fielding a fair number of questions about RJA procedure (discovery, nature of the hearings, etc.), and questions of statutory interpretation. In this post I’ll focus on the act’s core provisions and highlight three significant interpretation issues relating to those provisions.
The RJA provides that “[n]o person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.” G.S. 15A-2010. It further provides:
“[a] finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.”
G.S. 15A-2011(a). Thus, to prevail on a RJA claim, a defendant need not prove that race was the basis of the decision to seek or impose a death sentence in his or her particular case. By the express terms of the statute, a RJA claim may be established by showing that race was a significant factor in decisions to seek or impose the death sentence in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed. Other sections of the RJA provide that statistical evidence may be used to prove a RJA claim. Specifically, the RJA provides that evidence relevant to establish a RJA claim may include statistical or other evidence that, irrespective of statutory factors, one or more of the following applies:
(1) Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.
(2) Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race.
(3) Race was a significant factor in decisions to exercise peremptory challenges during jury selection.
G.S. 15A-2011(b). Factor (1) focuses on the defendant’s race. Factor (2) focuses on the victim’s race. And factor (3) focuses on the race of the venire members.
These core provisions present a number of interpretation issues. Among them are the following:
- What is the meaning of the term “race”? The RJA speaks of race generally, and does not limit its application to any particular race. However, the RJA does not define the core term race or incorporate by reference any commonly used racial classifications. Because all RJA claims are likely to present statistical evidence, the question of “who is in” and “who is out” of the statistical groupings can make a lot of difference on what the statistics show.
- What is a “significant factor”? While the statute provides that a defendant may establish a RJA claim by showing that race was a significant factor in decisions to seek or impose the sentence of death, it does not provide guidance on that statutory term. Clearly race has to be more than a factor; by the statute’s express terms it must be a significant factor. Does the term significant factor mean that the factor has to be statistically significant? Legally significant? We don’t know.
- What is the meaning of the phrase, “at the time the death sentence was sought or imposed”? While the statute provides that a claim may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, it does not specify the relevant period of time. Because the RJA authorizes proof by statistical evidence, questions inevitably will arise about the appropriate time period to be used in the statistical analysis. And as noted above with regard to racial groupings, the strength of the statistical case may vary dramatically depending on the period used in the analysis.
These are just three issues that judges and litigants will struggle with as the current glut of RJA motions work their way through the system. I welcome your thoughts on these questions and identification of others that warrant a closer look.