California Racial Justice Act of 2020

Assemblymember Ash Kalra (a Democrat representing the 27th Assembly District and a former Santa Clara County deputy public defender) proposed the Racial Justice Act to counter racial injustice in the criminal legal system. Specifically, the CRJA acts as a "countermeasure" to the 1987 Supreme Court decision McClesky v. Kemp, which set an "unreasonably high standard for victims of racism in the criminal legal system." In McClesky, the Supreme Court held that absent more direct proof of discriminatory intent, statistical disparities alone did not amount to a constitutional violation. McClesky effectively limited federal courts' ability to address systemic discrimination and left them only able to deal with egregious examples of intentional racism. In proposing the bill, Kalra was particularly concerned with the "unintentional systemic biases that are even more pervasive and damaging" than instances of outright racial hatred or bias. "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." 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. That same analysis estimated that of the 10.2 million criminal cases handled between 2009 and 2018 in California, if just 1% of claimants filed writs there would be 100,000 habeas petitions. 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. Even a bill with future effect would lead to an increase in court administration costs in the low millions of dollars. The fiscal impact on the prison system would be more indeterminate. A week later, on August 31, 2020, the Senate passed the amended bill by a vote of 26-10, followed by the Assembly with a vote of 49-16. Governor Gavin Newsom signed the bill into law on September 30, 2020. In a signing statement published by the Governor's Office, Newsom described McClesky as "almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted." In 2020, only 372 new laws were signed by the Governor and enacted in California, the lowest number since 1967. 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. 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. The bill died in the Assembly Committee on Appropriations. == Provisions ==

For a more detailed discussion and analysis of the Act's three operative provisions, see Sentencing California Crimes § 28. Section 1: Title The Act is to be titled the California Racial Justice Act of 2020. Section 2: Legislative Findings 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. Section 3: Adding Penal Code § 745 [Inoperative] This section is completely inoperative and claimants should not rely on this section. Section 3 and Section 3.5 are nearly identical, except that the former also included protections against bias in jury selection. Because there was another pending bill (AB 3070) in the same 2019-2020 legislative session that would exclusively address racial discrimination in jury selection, the legislature drafted two versions of § 745 contingent on whether AB 3070 became law. Because AB 3070 did in fact come to be enacted and became effective on January 1, 2021, Section 3.5 prevailed, as provided by Section 7 of AB 2542 (see below). Section 3.5: Adding Penal Code § 745 [Operative] 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. Upon making a prima facie case of one of the violations listed in § 745(a), a defendant is entitled to a hearing. The defendant must ultimately prove that a violation occurred by a preponderance of the evidence. The prosecution can offer race-neutral justifications, which will be a question of fact for the judge to decide. The CRJA does apply to juvenile cases. • '''§ 745(a)(1): Prohibits racial bias or animus exhibited toward the defendant by an attorney, judge, law enforcement officer, expert witness or juror involved in the case because of the defendant's race, ethnicity, or national origin.''' This category includes conduct at any stage of the criminal proceeding, even before trial and after sentencing. Plaintiffs must prove three elements: that there was 1) bias or animus 2) by a designated person 3) exhibited towards the defendant. Alternate jurors would probably be included as "jurors", but probably not prospective jurors who haven't been sworn in. 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. • § 745(a)(4)(A): Statistical disparities in sentencing where the defendant received a longer or more severe sentence than similarly situated individuals convicted of the same offense and longer or more severe sentences were more frequently imposed for that offense on that race than defendants of other races in that county. • § 745(a)(4)(B): Statistical disparities in sentencing where the defendant received a longer or more severe sentence than similarly situated individuals convicted of the same offense and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race than in cases with victims of other races in that county. The two violations listed under § 745(a)(4) address disparate sentencing practices by judges within the same county. Presumably, as for § 745(a)(3), the court would evaluate the claim by comparing the criminal record, sentence, and circumstances of similarly situated defendants and by reviewing county-level data for everyone sentenced to that particular crime. However, it is unclear how far back in time the data should (or could) go. AB 2542's discovery provisions do not provide for a Brady-like affirmative obligation for the prosecution to disclose what they have. If the claimant proves their claim by a preponderance of the evidence, the court must impose one of the remedies listed in § 745(e). The specific remedy would likely depend on the facts of the violation and when the court adjudicated the claim in relation to the posture of the case. Post-judgment remedies include vacating the conviction or sentence and ordering new proceedings, or alternatively, vacating the sentence and imposing a new one that is not longer than the one just vacated. Though the exact remedy in any given case is at the discretion of the judge, a court-issued remedy is mandatory if a violation is found. If challenged by the state, the court's remedy would likely be reviewed for "abuse of discretion". However, this prohibition might legally conflict with California voter initiatives establishing the death penalty. If the claim were to succeed, the statute does not specifically mandate a remedy. Depending on the procedural posture of the case, either a new trial or a resentencing would likely be appropriate. Section 5: Amending Penal Code § 1473.7 (Vacatur) Violations of the Racial Justice Act are also included as a basis for vacatur pursuant to Penal Code § 1473.7. The proceedings would operate in the same manner as any other petition for vacatur provided for under § 1473.7. The remedy would likely match the violation: if the conviction was tainted by racial discrimination, the conviction should be vacated; if the sentence is tainted, the sentenced should be vacated. Section 6: Severability Clause This section contains a standard severability provision, establishing that if any part of the Act is found to be invalid, the rest of the provisions independent from the part in question should stand. Section 7: Operability of Section 3.5 Section 7 outlines the condition for when Section 3.5 of AB 2542 is to become operative, thereby replacing Section 3. Since AB 3070 did become effective on January 1, 2021, Section 3 is entirely inoperative (see above). A Note on Retroactivity AB 2542 contains an express savings clause stating that the legislature did not intend for it to apply retroactively. Such an express indication of prospectivity thereby overcomes the Estrada presumption that statutes which reduce punishment are ordinarily retroactive. However, the statement of intent contained in Section 2(g) of AB 2542 states that racial disparities will not be tolerated "both prospectively and retroactively". Given the unambiguous prospective application contained in the statute itself, any contrary legislative intent contained in Section 2(g) is inapposite. As to the other operative provisions, the first sentence of § 1473(f) is very clear that a habeas claim alleging racial discrimination under the CRJA would also only apply to cases sentenced after January 1, 2021. Penal Code § 1473.7 also applies only prospectively by incorporating § 745 and its January 1, 2021 date contained therein. Therefore, the legislative intent is clear that all the operative provisions of the CRJA would run prospectively. == Impact and Commentary ==

As with many criminal justice issues, the Racial Justice Act has both supporters and critics. For a list of all the sponsors and opponents of the bill, please see the bill analysis from the Senate Floor dated August 26, 2020. Support The Act has been championed by civil rights groups and criminal justice reform advocates in both California and at the national level. AB 2542 has been called a "template and inspiration for other legislation." 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. Opposition According to the American Bar Association, the main concern regarding AB 2542 was that it would overwhelm the courts and cause further delays in the adjudication of criminal cases. The California District Attorneys Association (CDAA) and the California State Sheriff's Association opposed the passage of the CRJA. 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. They also opposed the initial draft of the bill which would have applied to all criminal cases in California, because "[p]ractically every single conviction that has ever occurred in California can now be re-opened and potentially reversed." Lastly, the CDAA also criticized the fact that a petitioner does not have to make any showing of prejudice in order to motion the court for relief. Though they did not officially oppose the bill, the California Judges Association voiced their concerns that AB 2542 would upset the delicate balance that current law had achieved between making judgments final and preserving the rights of defendants, particularly because the original version of the bill had not required a prima facie showing to obtain an evidentiary hearing. Academic Commentary The CRJA aims to provide more meaningful relief for people who have experienced racism in the criminal justice system. 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. § 1983, or municipal accountability mechanisms like internal police reporting. Though largely ignored by both supporters and critics, the Act provides a novel approach to addressing police racism. Both § 745(a)(1) and § 745(a)(2) include racist statements and conduct by police officers among their prohibitions. 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. The CRJA has been called a "super-exclusionary" rule because if a violation is proven, it affords much greater relief than its Fourth Amendment counterpart. 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. Unlike the Fourth Amendment's exclusionary rule, the CRJA does not require a showing of prejudicial error. In other words, it does not matter if the alleged violation did not alter the outcome of the case. Increasing transparency around prosecutors' charging practices and judges' sentencing patterns remains a concern. The Act's discovery provisions are not affirmative Brady-like obligations to turn over relevant exculpatory or impeachable information to the defense. Nor does the Act contain any requirement that counties publish or even collect charging, conviction, or sentencing data. As exhibited by the experience of advocates in Kentucky who have remarked on the difficulty in obtaining the data necessary to litigate their Racial Justice Act, a stronger CRJA would require that prosecutor's offices and even courts proactively collect and publish county-level data.'''''' One law review article has recommended the development of "county-level, single-prosecutor statistical studies and historical records of discrimination." == Litigation ==

Since the CRJA is relatively new, there is little case law on the subject as of May 2022 and little is known about how effective it will prove to be. The few cases that do leverage the CRJA are listed below in chronological order: • In People v. Jackson, No. B311740, 2021 WL 4144983 (Cal. Ct. App. Sept. 13, 2021), petitioner Jackson sought relief under AB 2542 and was denied. The CRJA does not apply to his 1997 conviction. • In Flores v. Superior Ct., No. S270692, 2021 Cal. LEXIS 7827 (Nov. 10, 2021), denying petition for review to No. G060445 (Cal. Ct. App. Aug. 26, 2021), the California Supreme Court turned down the opportunity to review the Court of Appeal's decision in this case, which had narrowly construed CRJA's discovery provisions. • In Wynn v. Foulk, No. 20-CV-00181-SI, 2021 WL 6135325 (N.D. Cal. Dec. 29, 2021), the United States District Court for the Northern District of California denied a federal habeas petition under 28 U.S.C §2254 because, according to the Antiterrorism and Effective Death Penalty Act of 1996, a federal court does not have the authority to review a claim arising under state statutes (such as the CRJA) unless the state court's decision "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Mr. Wynn was sentenced on August 11, 2016, thereby making him ineligible for relief under AB 2542. • In Harris v. Cisneros, No. 22-CV-00074-CRB (PR), 2022 WL 1082015 (N.D. Cal. Apr. 11, 2022), the United States District Court for the Northern District of California denied a petition for a writ of habeas corpus pursuant to § 745 from a 1988 sentence. The Contra Costa County Superior Court had previously denied the petitioner's claim because he had provided only "conclusory statements regarding the presence or absence of physical evidence involved in the case" which do not "create an inference that someone involved in investigating or trying his case were motivated by racial animus." Neither do the petitioner's claims, the Superior Court reasoned, provide a statistical basis to challenge either the initial charges or the sentence imposed. The Northern District of California concluded that, because the CRJA does not apply to cases in which judgment was entered prior to January 1, 2021, petitioner cannot claim that the Superior Court's denial of his petition violated his federal rights. Accord Wynn v. Foulk, No. 20-cv-0181-SI, 2021 WL 6135325, at *4 (N.D. Cal. Dec. 29, 2021) (finding claim for relief under the CRJA not cognizable in federal habeas law under § 2254). == Ambiguities and Proposed Amendments ==

Statutory Ambiguities One legal treatise has identified a number of ambiguities in the procedural and remedial dictates of the CRJA. Only a few are listed here: • It is unclear who hears a CRJA motion. If the default is to have the trial judge hear all matters, what happens when the accusation is leveled against the trial judge himself? AB 2542 does not provide any guidance. • What form should statistical data disclosed pursuant to discovery take? While the state is not obligated to collect, synthesize and publish data, it is unclear what exactly would be shared with defense counsel and how. • While a remedy is required by the CRJA, it is uncertain whether such a remedy depends on when the violation occurred or when it was adjudicated. This legal treatise suggests it probably depends on the latter. • According to § 745(e)(2)(A), if "the court has the ability to rectify the violation by modifying the judgment," the court is required to "vacate the conviction and sentence, find that the conviction is legally invalid, and modify the judgment to impose an appropriate remedy for the violation that occurred." What constitutes an "ability to rectify" is undefined. Moreover, how is the court meant to "modify the judgement" if it has already vacated the conviction at issue? There's no indication from the text alone that the court should grant a new trial. Courts might put more weight on the statutory directive to modify and impose an "appropriate remedy" rather than the instruction to vacate. The Assembly simultaneously amended the Racial Justice Act for All to clarify certain statutory ambiguities that had since been identified in the original CRJA (see above). • Delete the provision in § 745(e)(2)(A) that requires the court to "modify the judgment to impose an appropriate remedy," leaving unaltered the remedy mandating that the judge vacate the conviction and sentence and initiate new proceedings. • Establish that if it is alleged that the judge has, in whole or in part, violated the CRJA, the judge should disqualify themselves from adjudicating the violation. • Clarify that "juror" means prospective or sworn jurors, as well as alternate jurors. The Senate Committee on Appropriations moved the bill to the suspense file on July 15, 2021 and subsequently held it under submission on August 26, 2021. == Racial Justice Acts in Other States ==

In his decision in McClesky, Justice Powell invoked a separation-of-powers concern to argue that legislatures are best suited to address statistical racial disparities in the criminal legal system. 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. Widespread litigation following the enactment of the 2009 Act appeared to validate concerns that the Act, which applied to all criminal cases, would lead to a "floodgate of litigation". In response, the state legislature amended the statute to allow only county-level (not state-wide) statistics. The law was amended once more, by a then Republican-controlled legislature, to make even county-level statistics insufficient to prove a violation. The law was repealed altogether in 2013. The retroactive repeal caused problems even for defendants who had brought successful claims under the RJA. 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. Because the repeal altered the punishment for a crime that had already been committed, it was thereby unconstitutional. In North Carolina, there were over 100 people who had been denied hearings after the RJA's repeal in 2013. In part because the Act only operates in the relatively brief window of time after a prosecutor has stated their intention to seek the death penalty but before the case proceeds to trial, the Act has been rarely used and its efficacy is unknown. Advocates in Kentucky have described the "difficulty in collecting data for statistical studies and other information necessary to make a successful claim" and have recommended that the legislature require prosecutor's offices to affirmatively collect and report data for death-eligible cases. == References ==