Toward the end of 2020, the state of California took a big step in its fight against racial bias. Previously, Californian law prohibited discrimination based on race, ethnicity or national origin in areas such as housing, public accommodation and employment. However, no such laws existed in the criminal courts. Given that persons of color are more than eight times more likely to be incarcerated than a white person, this issue needed to be urgently addressed.
The passing of Assembly Bill 2542, better known as the California Racial Justice Act (CRJA), goes some way toward rectifying this issue and has far-reaching consequences. The new act that takes effect this January makes it possible for defendants charged or convicted of crimes to raise a challenge if it is believed racial bias might be involved. This discrimination can be exhibited in a variety of ways.
If an attorney, judge, law enforcement officer, expert witness or juror involved in the case exhibits racial bias, the defendant can challenge. This also holds if any racially discriminatory language is used at any point in the trial, no matter to whom it is directed.
The new act also takes into account statistical disparities in charging, convictions and sentencing. If it can be shown that a particular race is disproportionately charged, convicted or even in extreme cases, more likely be sentenced to death, this is now a factor that has to be considered and can lead to a legal challenge.
The new act has gained a lot of attention as it establishes the CRJA as a direct countermeasure to a somewhat infamous ruling in a case in 1987 - known as McCleskey v. Kemp. In that case, the U.S. Supreme Court ruled that someone charged with a crime must do more than offer proof of discrimination. Instead, they must show ‘exceptionally clear proof’ that they were explicitly targeted due to their race or ethnicity. In reality, this was almost impossible to do without an admission of racism from the law enforcement involved.
The McCleskey ruling also established that even if there was proof of statistical bias or corroborating evidence of discrimination, unless there is it could be shown that individual actors were intentionally biased, no challenge would be heard.
It is worth noting that four years after retiring, Justice Powell, who authored the majority opinion on the McCleskey case, said that it was the one case where, given another chance, he would change his vote.
Assembly member and former public defender Ash Kalra was the sponsor of the bill. When asked about his motivation, he stated, “It’s impossible to ignore the racial disparities that exist when you look at those that are prosecuted and those that are sent away to prison.” California has one of the highest rates of sentencing disparity in the country and the CRJA hopes to rectify that.
Kentucky has similarly enacted Racial Justice Acts concerning the death penalty. North Carolina also brought in a similar law until it was overturned by a State Legislative majority. More may follow.
There was opposition to the CJRA based on fears that it was too broad, and its application may overwhelm the system. However, the bill passed easily with a final Assembly vote of 49-16. It will apply only to cases in which trial court judgement was issued on or after January 1st, 2021.
Prior to the California Racial Justice Act, convictions in the state were routinely upheld despite openly discriminatory statements by legal representatives and witnesses. This ruling should go some way to rectifying this injustice and will hopefully lead to similar acts being passed in other states.
Image: Craig Marlof