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 North Carolina Death Row Prisoners

I. Introduction 649II. Background 650A. The Supreme Court's Racial Bias Jurisprudence Reflects a Focus on Addressing Explicit Bias in the Courtroom 650B. The Court Has Failed to Address Implicit Bias That Pervades Jury Selection in the Death Penalty Process 651C. The 2009 Racial Justice Act Accounts for Both Explicit and Implicit Racial Bias 653D. The Robinson Trial Proves That the 2009 Racial Justice Act Can Be Successful in Combating Implicit Racial Bias.....655E. The 2012 Amendment Eviscerates the Purpose of the Act to Eliminate Implicit Bias 657F. Golphin Illustrates How Both Versions of the Racial Justice Act Address Explicit and Implicit Bias 658III. Analysis 659A. Allowing Statistical Analysis as Sufficient Evidence to Prove Discrimination and Grant Relief Under the Racial Justice Act Is Imperative to Counteract Implicit Bias in Jury Selection in the Golphin Case 6591. The 2009 Racial Justice Act Will Provide Relief for Golphin Using Statistics as Evidence of Discrimination...6592. Allowing Statistics as Evidence to Prove Implicit Bias Under the 2009 Racial Justice Act Weakens the Prosecution's Rebuttal Argument in Golphin 6623. The Time Frame Constraints on Available Statistics Under the 2012 Amendment Will Not Greatly Affect Golphin, but the Constraints Will Harm Future Defendants 6634. A Narrow Interpretation of the 2012 Amendment Will Not Provide Relief to Golphin Because of the Geographical Constraints of Available Statistics 6635. The Prosecution's Rebuttal Will Be Stronger in Golphin Under a Narrow Interpretation of the 2012 Amendment Because the Statute Does Not Place Limitations on the Prosecution's Use of Statistics 665B. To Uncover Implicit Bias in Golphin, the Racial Justice Act Should Not Require Proof of Intentional Discrimination 6661. Golphin Will Be Granted Relief Under the 2009 Racial Justice Act Because the Act Recognizes the Role of Implicit Racial Bias by Omitting a Requirement for Proof of Intentional Discrimination 6672. Under a Narrow Interpretation of the 2012 Amendment, Golphin Will Not Be Granted Relief Because an Intentional Discrimination Requirement Creates a Burden Equivalent to the Batson Challenge That Ignores Implicit Bias 669IV. Subsequent History: Judge Weeks's Broad Interpretation of the 2012 Amendment in North Carolina v. Golphin 672A. Judicial Division and Statewide Statistics Are Permissible Evidence 672B. The Legislature Did Not Intend to Include a Case-Specific Intent Requirement 674C. The 2012 Amendment Is Not Retroactive 675D. The Court Explicitly Addresses Implicit Bias 676V. Policy Recommendation 677VI. Conclusion 679I. INTRODUCTIONGregg v. Georgia reinstated capital punishment with the understanding that states had rewritten their statutes to ensure that capital punishment would no longer be applied on an arbitrary or discriminatory basis.1 Unfortunately, history demonstrates that the legislatures have not upheld their promises.2 In North Carolina, minorities currently make up nearly sixty percent of death row inmates, but the minority population of the state is only twenty-seven percent.3 In an attempt to correct the racial injustice in North Carolina, the state legislature passed in 2009, and later amended in 2012, a statute called the Racial Justice Act to permit courts to commute death sentences that were sought or imposed on the basis of racial discrimination.4 Though the purpose of the 2009 Racial Justice Act and the 2012 Amendment may facially appear to be the same, the content of the statute plays a critical role in determining whether it seeks to dispel explicit or implicit bias; this in turn has an effect on whether a defendant will be granted relief. …