Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t

43 Pages Posted: 19 Sep 2012

See all articles by Barbara O'Brien

Barbara O'Brien

Michigan State University - College of Law

Catherine M. Grosso

Michigan State University College of Law

Date Written: September 19, 2012


In McCleskey v. Kemp, the United States Supreme Court rejected the use of statistical evidence of racism in the criminal justice system to show a violation of the Equal Protection Clause. If states are seeking or imposing the death penalty in a racially disparate manner, the Court noted, that is a matter for state legislatures to address. More than twenty years later, North Carolina heeded this suggestion and passed the Racial Justice Act of 2009 (RJA). North Carolina was only the second state to pass legislation in response to the McCleskey decision despite numerous local and federal efforts to pass a racial justice act. Kentucky passed similar legislation in 1998, but the Kentucky law provides for only an almost fatally narrow claim. In this respect, North Carolina stands alone in providing capital defendants a strong claim for relief based on statistical evidence 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.”

The paper considers why North Carolina passed the RJA when it did. North Carolina (or any state) could have accepted the Court’s invitation to expand its inquiry into the role of race in its death penalty system at any point in the past two decades. North Carolina is hardly averse to capital punishment; it has more than 150 people on death row and dozens facing capital prosecutions. It has executed forty-three people since 1976. What changed over the past two decades to prompt the North Carolina General Assembly to pass a law of this scope and magnitude?

As a starting point, simple politics cannot explain it: the balance of power between Democrats and Republicans did not undergo a dramatic shift during the relevant time period. In addition, no evidence suggests that the influence of race in capital punishment has grown more pernicious since McCleskey, reaching a tipping point that forced legislators to act. Many studies have been done on the role of race in capital punishment in the years since McCleskey, including at least three studies in North Carolina. Most of these studies show that race of victim discrimination continues to play a role in many capital punishment systems. Likewise, evidence suggests that race continues to be a factor in jury selection. Yet, we are not aware of a single instance of legislative or judicial reform in response to a finding of race discrimination. We are aware of only one case prior to the passage of the RJA in which a defendant’s claim of race discrimination met with success. Indeed, the narrative on race and capital punishment has stagnated with each side repeating a well-practiced argument to little avail.

So what changed in North Carolina? And, what can the remarkable passage of the RJA tell us about future efforts to address racism in capital punishment regimes or the criminal justice system? In Part II, we consider the litigation strategy that led to the landmark decisions in Furman v. Georgia (1972) and McCleskey v. Kemp (1987). While the primary goal of these movements was the abolition of capital punishment, a strong secondary goal concerned addressing the impact of race in criminal justice. This section contrasts the results of the litigation strategy to the RJA and highlights the ways the RJA expands opportunities to inquire into the role of race in criminal justice that exceed the limits of McCleskey v. Kemp. In Part III, we draw on the work of socio-legal scholars examining the ways in which social movement organizations have effected change in other domains, such as civil rights and environmental reform, to consider the strengths of a united social movement (the RJA movement) that emerged from the confluence of the North Carolina Legislative Black Caucus, the North Carolina branch of the National Association for the Advancement of Colored People (NAACP), and the wide group of organizations loosely organized under the umbrella of the North Carolina Coalition for a Moratorium (NCCM). The RJA movement was instrumental in passing the RJA. This social movement has drawn together a diverse array of associations and individuals interested in limiting the impact of race on the criminal justice system. We then look, in Part IV, at how the social and political landscape in North Carolina, and nationally, changed in the years preceding the RJA’s passage to understand how external changes may have facilitated North Carolina’s receptivity to reforms like a racial justice act. In Part V, we look more closely at key aspects of the 2009 campaign to pass a racial justice act. The racial justice act campaign, itself, provides useful information on RJA’s potential impact. In conclusion, we consider what the passage of the RJA may tell us about the potential for the RJA to succeed in opening a broader discussion on the role of race in capital punishment in North Carolina, concluding that there are reasons to be optimistic.

Suggested Citation

O'Brien, Barbara and Grosso, Catherine M., Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t (September 19, 2012). Michigan State Law Review, Vol. 2011, No. 3, 2011, MSU Legal Studies Research Paper No. 10-21, Available at SSRN:

Barbara O'Brien (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Catherine M. Grosso

Michigan State University College of Law ( email )

Law College Building
648 N. Shaw Lane, Office 417
East Lansing, MI 48824-1300
United States

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