Gov. Newsom must sign the Racial Justice Act to bar discrimination in California courts

California law prohibits racial discrimination in employment, housing and public accommodation based on race, ethnicity or national origin.

However, no such law exists for our criminal courts. Given the massive disparities in incarceration in California, where a Black person is almost nine times more likely to be incarcerated than a white person, it is clear that we are overdue to enact a statewide policy that makes it unlawful to discriminate against Black and brown people in the state’s criminal legal system.

That’s why Gov. Gavin Newsom should sign the California Racial Justice Act, Assembly Bill 2542 authored by Ash Kalra, into law.

The act prohibits state prosecutors and court officers from using discriminating means to seek or to obtain a conviction or sentence. There are many compelling reasons why this bill should have been passed and signed long ago, and none that would justify a veto. By signing this bill, Newsom and the state of California will be taking a positive, progressive and long-overdue step towards making the state’s legal system truly fair and just for all.

The Racial Justice Act will not solve all of the problems related to racial bias in California’s justice system, but it will make it easier — finally — for individuals to prove racial bias where it exists, and seek a retrial or resentencing.

In 1987, in a case called McCleskey v. Kemp, the U.S. Supreme Court ruled that people charged with crimes must do more than offer proof of discrimination in order to obtain relief. The Court ruled that it would not grant relief unless it could be shown that individual actors in the criminal justice system acted with conscious, intentional bias — a standard that is almost impossible to meet without some kind of admission by law enforcement.

In other words, no matter how much statistical evidence of bias might exist, and no matter how much corroborating evidence of discrimination might be offered, the Court ruled that relief would not be granted unless conscious, intentional bias could be shown. This decision effectively immunized systemic racial bias in the criminal justice system from meaningful judicial scrutiny, prompting Justice William Brennan to say in dissent that the decision “seems to suggest a fear of too much justice.”

There is no such thing as too much justice.

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including:

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

This legislation is needed now. Californians have relied on state and federal constitutional provisions to challenge discrimination in the criminal justice system, but courts have concluded that, due to the McCleskey case and others, proof of purposeful discrimination is still required.

As a result, California convictions and sentences are routinely upheld despite blatantly racist statements by attorneys, judges, jurors and expert witnesses, and/or the exclusion of all (or nearly all) Black, crown, Native, Indigenous and other people of color from serving on juries. Even when stark statistical evidence showing systemic bias in charging and sentencing has been offered, the McCleskey case has operated to bar meaningful relief.

Nothing prevents California from correcting this injustice. In fact, the McCleskey majority noted that state legislatures concerned about racial bias in the criminal legal system could act to address the problem. That is precisely what California must do now.

Gov. Newsom should sign the Racial Justice Act today.

This story was originally published September 23, 2020 at 5:00 AM.