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Foreword After his first year in law school at UCLA, Barrett Foerster volunteered along with twenty-seven other law students for a summer internship collecting data on the sentencing practices of southern juries in rape cases. The year was 1965, the height of the civil rights movement, and the group of very green youth encountered hostility and resistance. Violence was often around the next corner. But these were not shock troops. They presented themselves as serious academic research assistants , not civil rights workers. Their role was to move quietly and deceptively, without attracting any more attention than need be as they begged, wheedled, and hounded court clerks, local lawyers both white and black, and even a few judges to gather the highly detailed data they needed to complete complicated research questionnaires. They were sent to the South by the NAACP Legal Defense Fund, then engaged in trying to prove to the satisfaction of federal judges that blacks convicted of raping white women were common fodder for execution while defendants convicted of rape in other circumstances were usually sent to prison. This was a proposition that was not generally doubted by knowledgeable people, but which required objective, nonanecdotal proof if it was to lead to changes in the law. Unless jurors were to report that race had led them to dispatch the black men before them to the electric chair or gas chamber—an admission once conventional but no longer likely—the only way to proceed was through a massive statistical analysis of jury behavior in sentencing convicted rapists and measuring not only differential treatment of the races, but, crucially, investigating whether any nonracial factors—prior criminal record, use of extreme violence, and so on—could explain any differential. Foerster, who had grown up in the South himself, decided that the story behind the students’ efforts had never been fully told and that its x Foreword impact on the decades-long struggle over the death penalty in the courts deserved to be better known. Despite a busy career as a practicing attorney in San Diego, and then, beginning in 2003, as a respected Superior Court judge in Imperial County, California, he interviewed colleagues from the 1965 project, collected their diaries, sent assistants to study the archived records of the cosponsoring student civil rights organization , and analyzed every court decision he could find that related to the use of the students’ research and the ultimate passage of its findings into a kind of jurisprudential version of folk wisdom. Tragically, Judge Foerster died suddenly of a pulmonary embolism in November 2010, shortly after delivering a draft manuscript of this book to the University of Tennessee Press. I was twenty-eight in 1965, a staff lawyer at the Legal Defense Fund. Responsibility and litigation experience came fast and furious at the Fund. After only four years as a practicing attorney, I felt like a hardened soldier in the civil rights struggle. I had argued a capital case before the Supreme Court so early in my career that I needed a special order from the court to appear before it. One of my roles as part of a talented, close-knit group of colleagues was to share supervision of the student researchers to the extent that their presence raised problems of access to court records or encountered practical difficulties as they moved through the South that summer. I’m sure our supposed availability comforted the students, but there was in fact little we could do. They were on their own, and to this day I am amazed that none were injured, faced trumped-up criminal charges, or were seriously distracted from the task at hand. When the press asked me to consider readying Race, Rape, and Injustice for publication, I was eager to do so, but wary of the task. This is Barrett Foerster’s story, and I wondered if I could fully honor his text and perspective while still making the modest changes I hoped he would have agreed to as part of the give-and-take of the serious editorial process required by the University of Tennessee Press. Fortunately, my views were not so different from Judge Foerster’s on most, if not all, issues that I ever felt insecure in clarifying or slightly modifying his approach. Throughout, I have tried to ask the obvious questions: how would he have responded to this editorial comment or that, this or that rereading of a law review analysis, and so forth. If I have erred...

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