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Moving Beyond "Racial Blindsight"? The Influence of Social Science Evidence after the North Carolina Racial Justice Act

The North Carolina Racial Justice Act of 2009 (RJA) broke new ground in its recognition of the role that social science research can play in identifying racial discrimination in the criminal justice system.

The RJA expressly authorizes a claimant to rely on statistical evidence of race of defendant discrimination, race of victim discrimination, or racial discrimination in jury selection. This directly confronts the legacy of McCleskey v. Kemp (1987), which foreclosed the possibility of meaningful analysis of the role of race in death penalty systems by denying claimants the possibility of bringing claims based on social science research. McCleskey left defendants in search of the ever-elusive smoking gun.

Perhaps a claim under Batson v. Kentucky (1986) of the racially motivated exercise of a peremptory strike found somewhat more room for analytical evidence. Batson, however, confines a court’s inquiry to a few isolated decision points in a particular trial and makes it difficult for a defendant to show that race, as opposed to other factors, motivated a particular decision. The RJA again endorses the value of social science evidence by allowing analysis of trends that emerge across the state or in geographic subsets in support of jury selection claims.

By allowing capital defendants to assert race discrimination through statistical evidence encompassing more than a single defendant’s case, the North Carolina legislature demonstrated a willingness to move beyond the McCleskey straightjacket when addressing claims of race discrimination. This symposium addresses not only the implication of such a remarkable shift for the death penalty in North Carolina, but also the possibility that the RJA heralds a new openness to the use of social science research to inform questions obscured through exclusive reliance on direct evidence.

The exact contours of the symposium are still taking shape. We are delighted to have confirmed participation from a number of scholars already, including David Baldus, Jeffrey Fagan, Sam Gross, and Michael Radelet. If you have work that would contribute to this discussion, please consider participating. If you have any questions or require additional information, please do not hesitate to contact either one of us.

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