California bill on racial bias in sentencing should be passed with one crucial change

The California Legislature should strengthen the Racial Justice Act, passed two years ago to discourage racial bias in sentencing. A bill on the Senate floor would do just that, but it still needs work.

Countless studies have documented pervasive racial bias at every stage of the criminal justice system. The Racial Justice Act, adopted in 2020, prohibits the state from seeking or obtaining a criminal conviction or imposing a sentence based upon race, ethnicity or national origin. The act is a safeguard against racial bias directed at a defendant by a judge, juror, attorney, expert witness or law enforcement officer; racially coded language used in a trial by a judge, juror, attorney, expert witness or law enforcement officer; racial disparities in charges or convictions; and racial disparities in sentences.

The act provides that if a violation of it is demonstrated, the court must impose a remedy that may include dismissing or reducing charges or sentences or granting a new trial.

However, the act only applies to cases tried after Jan. 1, 2021. It does not provide any relief for those who were previously convicted, no matter how blatant or egregious the expression of racial bias.

A bill now pending on the state Senate floor, Assembly Bill 256, the California Racial Justice Act for All, would remedy that by applying the act retroactively according to a phased-in schedule. Simply put, AB 256 extends the protections of the Racial Justice Act to those who have been unfairly convicted or sentenced.

The Legislature and governor should enact this bill so that our state can begin to rectify past wrongs caused by racial bias in the criminal courts.

A late amendment to the bill, however, means that more work needs to be done in the future. The Senate Appropriations Committee added a provision that there will be no remedy for racial bias in sentences given prior to 2021 if the prosecution proves “that the violation did not contribute to the judgment.” Specifically, the amendment provides that for retroactive claims based on racial bias directed at a defendant or a use of racially offensive language in court, even after the convicted person proves the racial bias, a remedy will not be imposed if the judge believes the person is guilty.

But the guilty as well as the innocent deserve trials that are not tainted by racial bias. Indeed, a guilty verdict may be tainted by racial bias. It is not acceptable to conclude that a defendant’s conviction or sentence was the product of racial bias and then accept it as valid.

The legal standard here is what lawyers call “harmless error.” Indeed, the original amendment used that phrase, leading critics to respond that racism is never harmless. That language was changed, but the legal effects will likely be the same. Experience in federal court shows that it’s easy for a judge to claim “harmless error” and provide no relief.

Ironically, implicit biases may influence conclusions made by judges with the best of intentions. The U.S. Supreme Court has rejected the “harmless error” doctrine for some constitutional violations, such as when there is racial bias in jury selection.

In Buck v. Davis, in 2017, Chief Justice John Roberts wrote: “Some toxins can be deadly in small doses. … Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Relying on race to impose a criminal sanction poisons public confidence in the judicial process. It thus injures not just the defendant, but the law as an institution, the community at large and the democratic ideal reflected in the processes of our courts.”

The harmless error doctrine has never been placed in a California statute, and it should not be now, even under another name. The Racial Justice for All Act should be passed without the amendment.