The California Racial Justice Act of 2020 (AB 2542) bars the state from seeking or securing a criminal conviction or imposing a sentence on the basis of race, ethnicity or national origin.
The Act, in part, allows a person to challenge their criminal case if there are statistical disparities in how people of different races are either charged, convicted or sentenced of crimes.
The Act counters the effect of the widely criticized 1987 Supreme Court decision in McClesky v. Kemp, which rejected the use of statistical disparities in the application of the death penalty to prove the kind of intentional discrimination required for a constitutional violation.
The CRJA reflects and is part of a growing movement to address racial injustice in the criminal legal system, including police brutality, disparate charging practices, and mass incarceration, particularly in the wake of the murder of George Floyd.
[4] The Act was part of a trio of major criminal justice reforms that were passed in the last few days of the 2019-2020 legislative session, despite certain limitations imposed by the COVID-19 pandemic.
McClesky effectively limited federal courts' ability to address systemic discrimination and left them only able to deal with egregious examples of intentional racism.
“It’s impossible to ignore the racial disparities that exists [sic] when you look at those that are prosecuted and those that are sent away to prison.”[9] The Act's legislative history also makes clear that it does not require violations to have been either purposeful or to have caused the defendant prejudicial harm.
Though the initial version of the bill passed the Assembly by a vote of 76-0 on June 8, 2020, it was subsequently amended by the Senate Appropriations Committee on August 20, 2020 to apply prospectively to cases in which judgment had not yet been entered before January 1, 2021.
[11][12] Additional amendments by Kalra added the language of “similarly situated” to the comparative analysis, required a defense motion for discovery with a showing of good cause, allowed a reviewing court to modify the sentence, extended the CRJA to apply to juveniles, raised the standard to succeed on an initial motion for a hearing and clarified that a petition for habeas is only available following a conviction.
[12] According to a Senate Committee analysis, a prospective-only Racial Justice Act would produce marginal cost savings for the California Department of Corrections and Rehabilitation (CDCR) by sending fewer people to jail.
[12] Additional amendments on the Senate Floor on August 25, 2020 added a severability provision and altered the sections of the bill regarding discriminatory language at trial, requests for records, appointment of counsel, and available remedies.
Generally, most of the laws were passed in response to traumatic events of 2020, including the devastation of the pandemic, the record-setting California wildfires, and ongoing racial terrorism.
[15] Also in the 2019-2020 legislative session, Assemblymember Marc Levine had proposed a Racial Justice Act that would have applied only to capital cases where race was a significant factor in the seeking or imposition of the death penalty.
In its findings, the legislature discusses the harm caused by both explicit and implicit racism, the pervasiveness of bias in the criminal legal system, the failure of current legal precedents to address such bias, the high bar set by federal law requiring a showing of purposeful discrimination, and the refusal of McClesky to recognize pervasive statistical disparities.
[18] For cases in which judgment has not been entered before January 1, 2021, the newly added Penal Code § 745 forbids the state from engaging in five kinds of racial discrimination.
[22] “More frequently imposed” is defined in the statute as “statistical evidence or aggregate data that demonstrate a significant difference in seeking or obtaining convictions or in imposing sentences comparing individuals who have committed similar offenses and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.”[23] In other words, claimants must identify defendants of other races in comparable cases and must establish a significant difference in the prosecutor office's seeking or obtaining harsher penalties for people of one race than comparable cases of defendants of a different race.
The Act does allow for the discovery of some non-privileged materials held by the prosecution that is triggered by a claimant’s motion describing the types of records sought.
If challenged by the state, the court’s remedy would likely be reviewed for “abuse of discretion.”[22] The Act also prevents anyone from being punished with the death penalty if there has been a violation of the CRJA.
[22] The Act adds racial discrimination (as defined by § 745(a)) to the claims that a defendant can make in a habeas petition pursuant to Penal Code § 1473.
[7] Because it has statutory protection, courts might have less authority to narrow its scope than they do when assessing judicially created remedies, such as the exclusionary rule of the Fourth Amendment for instance.
The CDAA’s opposition warned about the already-burdened courts having to “hold lengthy and costly evidentiary hearings” and sift through “massive amounts of statistic evidence” to adjudicate CRJA claims.
In theory, if claimants rely on its protections, it will offer more meaningful and practical relief for both systemic racism and incidents of bias by non-state actors than does the Constitution under the Fourth or Fourteenth Amendments, statutory regimes like 42 U.S.C.
The CRJA has been compared to the exclusionary rule of the Fourth Amendment, which prohibits particular pieces of evidence from being used in a criminal trial if they are the product of a constitutional violation.
[7] Its impact as compared to the Fourth Amendment context stems from the fact that a CRJA violation does not merely exclude any particular piece of evidence but implicates the integrity of the entire case and relatedly, that the remedy can involve charging or sentencing relief, rather than only a re-trial.
Despite his deferral to legislatures, only two other states (Kentucky and North Carolina) have enacted Racial Justice Acts in the thirty years since to allow statistical evidence of the kind McClesky rejected.
Most notably, both Kentucky and North Carolina’s versions of the Racial Justice Act applied only to capital cases and required that race be a “significant factor” in the application of the death sentence.
Moreover, the kinds of racial discrimination that amounted to a violation under the Kentucky and North Carolina statutes are much narrower than the California one, which includes non-courtroom actors and goes beyond statistical disparities in sentences.
Because of the repeal, the state dismissed the claims of four people (Tilmon Golphin, Quintel Augustine, Christina Walters, and Marcus Robinson) previously resentenced under the RJA as well as those of two other prisoners (Rayford Burke and Andrew Ramseur) who had not had a chance to present evidence at a hearing, However, on June 5, 2020, the North Carolina Supreme Court ruled in favor of Burke and Ramseur, holding that the retroactive intent of the repeal of the RJA violated the constitutional prohibition on ex post facto laws.