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.AB 2542, Sec. 2. The Act, however, goes beyond countering McClesky to also allow a defendant to challenge their charge, conviction or sentence if a judge, attorney, law enforcement officer, expert witness, or juror exhibited bias or animus towards the defendant because of their race, ethnicity, or national origin or if one of those same actors used racially discriminatory language during the trial. The CRJA only applies prospectively to cases sentenced after January 1, 2021.Cal. Penal Code § 745(j). The Act is codified in Sections 745, 1473 and 1473.7 of the California Penal Code.
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.1 Witkin, Cal. Crim. Law 4th Intro--Crimes § 120 (2022). 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. The other two reforms included AB 3070 (a jury selection reform requiring clear and convincing evidence that a preemptory strike was not related to a protected class) and AB 2512 (amending the death penalty disability statute to prevent anyone who satisfies the scientific definition of intellectual disability to be eligible for the death penalty). Of the three, the CRJA is considered to be the most expansive. However, given its recent enactment, few defendants have brought claims and little is known about how robustly courts will interpret it.
Background and Legislative History 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.""08/05/20- Senate Public Safety," AB 2542, S. Comm. Pub. Safety, 2019-2020 Reg. Sess. (Cal. 2020). 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.§ 28:2. Declaration of legislative intent, Sentencing California Crimes § 28:2. 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. According to Kalra, the COVID-19 pandemic made the CRJA more necessary than ever before.
Kalra's bill was initially meant to apply to all California criminal cases. The legislative history outlines the fiscal implications of the original version of Kalra's bill. The Senate Appropriations Committee estimated that courts should anticipate a $9.3 to $40.6 million increase in costs for a bill with both prospective and retroactive application."08/14/20- Senate Appropriations," AB 2542, S. Comm. Appropriations, 2019-2020 Reg. Sess. (Cal. 2020). 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.In California criminal cases, judgment is entered "when the trial court orally pronounces sentence.” People v. Mendoza, 171 Cal. App. 4th 1142, 1150, 90 Cal. Rptr. 3d 315 (6th Dist. 2009), quoting People v. Karaman, 4 Cal. 4th 335, 344 n.9, 14 Cal. Rptr. 2d 801, 842 P.2d 100 (1992). 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."08/20/20- Senate Appropriations," AB 2542, S. Comm. Appropriations, 2019-2020 Reg. Sess. (Cal. 2020). 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. 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. Only if the prison population was reduced sufficiently to close a yard or a wing of a prison would CDCR experience more meaningful institutional savings.
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."08/26/20- Senate Floor Analyses," AB 2542, S. Rules Comm, 2019-2020 Reg. Sess. (Cal. 2020). 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.James S. Azadian, Good Riddance 2020: New Laws for 2021, Orange County Law., March 2021, at 42. 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.See, e.g., AB 2542, Sec. 3, § 745(a)(3), and § 745(e)(1)(A). 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).AB 3070 has operative dates further in the future, but it became effective on January 1, 2021.
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.Cal. Penal Code § 745(c). The defendant must ultimately prove that a violation occurred by a preponderance of the evidence.Cal. Penal Code § 745(f). The prosecution can offer race-neutral justifications, which will be a question of fact for the judge to decide.Cal. Penal Code § 745(h)(1). The CRJA does apply to juvenile cases. Proceedings regarding probation violations and, in some situations, cases that have been adjudicated by plea bargain might also be included.§ 28:5. Penal Code section 745, Sentencing California Crimes § 28:5.
§ 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.
§ 745(a)(2): Prohibits racially discriminatory language (or otherwise exhibiting bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin) during the trial, in court or during the proceedings by a judge, law enforcement officer, expert witness, or juror, regardless of whether it was purposeful.
The type of violation listed here also requires three elements: that it was 1) by a designated person (including jurors as described above) 2) during open court 3) with proof of either racially discriminatory language that was not necessarily directed toward the defendant or any other form of bias that was directed toward the defendant. The discriminatory language or bias does not need to have been purposeful. In other words, the subjective intent of the speaker is irrelevant. Actions or words outside of the courtroom would not qualify under this type of violation but might under the next category listed at § 745(a)(3).
§ 745(a)(3): Statistical disparities in charging or convicting the defendant of a more serious offense than people of other races who commit similar offenses and are similarly situated along with evidence that the prosecution more frequently sought or obtained convictions for more serious offenses against people of the defendant's race in that county.