In 2009, North Carolina enacted the Racial Justice Act (RJA) in an effort to combat implicit racial bias through the use of several possible measures, most significantly, statistical evidence. Later in 2012, the legislature amended the Act aiming to address what appeared to be only explicit bias, in contrast to its original purpose. Under the RJA, courts were permitted to commute the sentences of death row inmates to life in prison without the possibility of parole, upon a showing of racial discrimination.
Prior to the enactment of the RJA, American courts have focused on eradicating explicit racial bias from the criminal trial process. As of January 2013, North Carolina and Kentucky have been the only states to attempt to address implicit racial bias in death penalty sentencing through legislation. Explicit racial bias occurs when an individual displays an intentional act of racial discrimination. Implicit racial bias, however, are attitudes, feelings, and stereotypes that one possesses without realizing they do.Research shows that implicit bias is pervasive, and has been found “to influence behavior by professionals and laypeople in contexts that include employment, medicine, voting, and law enforcement[,]” as well as in the criminal and juvenile justice arenas. Thus, in an attempt to eradicate implicit bias, North Carolina crafted monumental legislation, which allowed defendants to utilize statistical evidence to illustrate racial discrimination, without mandating a showing of intentionaldiscrimination.
In April 2012, the first application of the 2009 RJA in North Carolina v. Robinson was decided. The court ruled that prosecution was unable to surmount the mountain of statistical evidence provided by the defense, coupled with the defendant’s non-mandatory showing of intentional racially motivated preemptory strikes in his individual case. As a result, Mr. Robinson’s sentence was commuted to life in prison without the possibility of parole. However, despite the substantial amount of evidence indicating widespread discrimination in death penalty cases, the North Carolina legislature voted to amend the RJA, requiring evidence of intentional discrimination. Statistics alone would no longer be adequate to prove racial bias.The burden defendants now faced under the 2012 Amendment, seemed virtually insurmountable given the clandestine decision-making process of the prosecutor and the common make-up of a jury.
Notwithstanding the purposeful gutting of the RJA, three more defendants received commuted sentences of life without the possibility of parole before the North Carolina Republican-run legislature voted to repeal the RJA in its entirety in June 2013. Upon signing the RJA repeal, Governor Pat McCroy stated, "[n]early every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act[.]” As a result the state has not executed an inmate since 2006. The application of the RJA has demonstrated widespread discrimination within the state’s death penalty system; however, the repeal of the RJA has indicated that North Carolina has chosen to ignore this evidence. Although in 2006, North Carolina enacted monumental legislation—an example for the rest of the country to follow—the state has now left capital defendants affected by racial bias without a remedy. Nevertheless, racial biases are pervasive and the least we can do is be real about it.
In June 2013, the second-degree murder trial of George Zimmerman commenced. This trial has captured the nation grabbing the hearts and minds of most who are aware of the facts of this case. Almost immediately after the prosecution unveiled its “star witness,” Rachel Jeantel, a 19-year-old young woman who was the last person to speak to Trayvon Martin before his death, the public erupted. Attorneys, celebrities, the media, and the public instantly began commenting on the young woman’s intelligence,diction, and appearance.
We need to be real about what happened here. Is it supposed to be easy for a 19-year-old girl, thrust into the spotlight of a highly publicized case, to retell the story of the last time she spoke to her best friend before he was killed? Is it easy to sit in a courtroom and relive this tragedy in front of both your late friend’s parents and his killer? Are we so far removed from the pain and tragedy of others that it is impossible to imagine why Rachel Jeantel was defensive and, at times, hostile when she was being questioned by the defense? But that is what happened here. Rachel Samara of Global Grind contends, “[a] predominantly white jury is not going to like Rachel Jeantel.” Jeantel has been viewed as not as intelligent as “we are,” because of her diction. We have to be careful not to let our own implicit biases lead us, those who would be chosen as jury members, to believe that those who do not speak the way we do, who do not respond to situations as we would, and those who do not look like we do, are “the Other” and therefore, less credible.
Racial bias may have already negatively infected this case for the State. Both George Zimmerman and the friends and family of the late Trayvon Martin have a lot at stake in this case. Racial bias has no place in this case specifically or in the courtroom generally. But we have not yet arrived to an age of colorblindness and equality. It is vital that society recognizes that biases still invade criminal trials and take measures to remedy the process. While the RJA attempted to eradicate implicit racial bias within death penalty cases, due to the pervasiveness of implicit racial bias throughout society, it is important as law students, attorneys, and judges we fight to ensure that those who walk into courts-of-law, walk into an arena where the stories of witnesses and defendants can be heard by unbiased ears. However, in order to ensure that justice prevails, we have to be real about the society in which we live, and fight for the enactment of legislation with a purpose similar to that of RJA.
Publications Editor, Criminal Law Brief
Image By Frerieke from The Hague, The Netherlands (Flickr: Day 20.06 _ Diversity and Unity) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.
 See N.C. Gen. Stat. Ann. § 15A-2010 (West 2011) ("No 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.").
 See Ali Eacho, Surviving Implicit Bias: Why the Appellate Court’s Interpretation of the 2012 Amendment to the Racial Justice Act Will Be a Life or Death Decision for No4rth Carolina Death Row Prisoners, 21 Am. U.J. Gender, Soc. Pol’y & L. 647, 650, 650 n.12 (2013) (noting “[t]he United States Congress twice attempted to pass national legislation on the issue but failed, in 1988 and 1994”).
 Anna Roberts, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias, 44 Conn. L. Rev. 827, 833 (2012) (“Levels of implicit bias frequently conflict with self-reported attitudes, usually because explicit measures show no bias, while implicit measures show bias.”).
 Id. at 834.
 The Order Granting Motion for Appropriate Relief can be found here: http://www.aclu.org/capital-punishment/north-carolina-v-robinson-order.
 See Act of July 2, 2012, 2012 N.C. Sess. Laws 136, sec. 3, § 15A-2011(e) (2012).
 Given the demographic make-up of the United States, all-White juries are common. Thus, most verdicts mirror the views of the “predeliberation majority.” Research shows that normative racial attitudes are triggered, in trials where race is a salient issue. Samuel R. Sommers & Phoebe C. Ellsworth, Jury Decision Making: White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psych. Pub. Pol’y & L. 201, 202 (2001).
 Uchechi Kalu, George Zimmerman Trial: The News Media Tries to Put Rachel Jeantel on Trial Instead, PolicyMic (June 28, 2013) http://www.policymic.com/articles/51983/george-zimmerman-trial-the-news-media-tries-to-put-rachel-jeantel-on-trial-instead.
 Kelly’s Court: Heated Debate Over Testimony of Star Witness in Zimmerman Trial, Fox News Insider(June 27, 2013, 3:35 PM) http://foxnewsinsider.com/2013/06/27/kellys-court-heated-debate-over-testimony-star-witness-zimmerman-trial (quoting former prosecutor Jonna Spilbor, “I think she comes across brutally ignorant . . . and I think she's going to aggravate the jury ... every time she opens her mouth, her credibility gets chipped away and chipped away”); see also Erik Wemple, George Zimmerman Trial: No One Can Agree on Rachel Jeantel, Wash. Post(June 27, 2013, 5:59 PM) http://www.washingtonpost.com/blogs/erik-wemple/wp/2013/06/27/george-zimmerman-trial-no-one-can-agree-on-rachel-jeantel/.
 Hal Boedecker, George Zimmerman: How Was Star Witness?, Orlando Sentinel (June 26, 2013, 4:08 PM) http://www.orlandosentinel.com/entertainment/blogs/tv-guy/os-george-zimmerman-how-was-star-witness-20130626,0,4178818.post (quoting Central Florida News 13 Mark NeJame, “She doesn't present well . . . [f]rom watching her on TV, I'm sorry I have a hard time with her credibility.”).
Rachel Samara, What White People Don’t Understand About Rachel Jeantel, GlobalGrind (June 26, 2013) (“I can imagine George Zimmerman's defense is just hoping some of those 5 white jurors have some prejudices (as most people do), or hell, are even racist, because if they are, their tactic to make Rachel out to be less intelligent, rather than less credible than she actually is, might actually work.”).