Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place. Scholars, judges, and practitioners have criticized the decision for its failure to curb the role of racial stereotypes in jury election. Likewise, previous research in North Carolina has suggested both that race continues to play a role in jury selection and that courts are reluctant to enforce Batson rigorously. Recently, however, the North Carolina General Assembly passed legislation aimed at curing this defect by providing trial courts a unique opportunity to consider the role of race in peremptory challenges from a different angle.
The North Carolina Racial Justice Act of 2009 (“RJA”) created a state claim for relief for defendants currently on death row who can show that race was a significant factor in the exercise of peremptory challenges in their cases. A defendant who makes such a showing is entitled to have a death sentence reduced to life without parole. The RJA expressly deems a broad range of evidence relevant by allowing claimants to prove their cases using “statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both.” This Article presents the results of a study undertaken in order to evaluate the potential for statistical evidence to support claims under this part of the RJA.
In particular, we examined how prosecutors exercised peremptory challenges in capital trials of all defendants on death row in North Carolina as of July 1, 2010, to assess whether potential jurors’ race played any role in those decisions. We found substantial disparities in which potential jurors prosecutors struck. Over the twenty-year period we examined, prosecutors struck eligible black venire members at about 2.5 times the rate they struck eligible venire members who were not black. These disparities remained consistent over time and across the state, and did not diminish when we controlled for information about venire members that potentially bore on the decision to strike them, such as views on the death penalty or prior experience with crime.
In Part II, we review the prior research on jury selection, particularly on the issue of racial bias. In Part III, we present our study methodology and design. Part IV presents the statewide unadjusted racial disparities in prosecutors’ exercise of peremptory strikes, and Part V presents the results of analyses controlling for other factors potentially relevant to jury selection.
Catherine M. Grosso & Barbara O'Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012).