A Contra Costa County Superior Court judge recently dismissed all gang enhancements in a murder case against four young Black men under provisions of California’s recently enacted Racial Justice Act (RJA). The court ruled that data showing racial bias in prosecutorial charging decisions and the racist text messages police officers sent about the defendants violated the California law, a first of its kind in the state. The RJA expands a defendant’s ability to gather evidence of racial bias and allows for the reversal or modification of a conviction or sentence even without the racial bias being shown to have altered the trial outcome. The ruling in the Contra Costa case generated optimism from supporters of reform, who expect the law to help reduce the impact of racism in the state’s justice system. But the RJA has also been criticized harshly by those who believe it will clog the court system, produce unjust outcomes for victims, and treat defendants differently based on their race.

What is the California Racial Justice Act of 2020?

Challenging criminal convictions or sentences as racially discriminatory is very difficult, due in part to the seemingly impossible standard set in 1987 by the U.S. Supreme Court in McCleskey v. Kemp. That decision established that a defendant must “prove that the decisionmakers in his case acted with discriminatory purpose” and cannot rely solely on statistical studies showing discrimination broadly. The defendant must offer evidence “specific to his own case that would support an inference that racial considerations played a part in his sentence.” Defendants are rarely successful in meeting that standard. However, because Supreme Court decisions establish a “constitutional floor”, states have the power to legislate and provide greater protections—which California did in 2020 with the RJA.

The RJA, or AB 2542, states that the “state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” Specifically, a violation under the RJA can be established when:

• a judge, attorney, law enforcement officer, expert witness, or juror in the case “exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin”;
• racially discriminatory language about the defendant’s race, ethnicity, or national origin was used in the criminal legal process, “or [a judge, attorney, law enforcement officer, expert witness, or juror] otherwise exhibited bias or animus towards the defendant . . . whether or not purposeful”;
• race was a factor in the usage of peremptory challenges (the exclusion of a potential juror without justification), but specifically and in contrast to a Batson challenge, the defendant does not need to show “purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation”;
• the defendant was charged or convicted of more serious offenses than defendants of other races who commit similar offenses, and the evidence establishes “that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race”; or
• when a longer or more severe sentence was imposed on the defendant when compared to other individuals convicted of the same offense, and “longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race.”

Under the RJA, if a court finds a violation they are required to impose a remedy specific to the violation from a set list of remedies:

• If a judgment has not yet been entered, the court may: reseat a juror removed by use of a peremptory challenge; declare a mistrial; empanel a new jury; and in the interest of justice, “dismiss enhancements, special circumstances, or special allegations, or reduce one or more charges.”
• If a judgment has been entered and the court finds the conviction was “sought or obtained in violation of” the RJA, the court “shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent” with the RJA.
• Once a violation has been established, a prosecutor can no longer seek the death penalty.

Originally, the RJA only applied to judgements rendered after January 1, 2021. However, AB 256 in 2022 amended the law to apply to cases decided prior to 2021.

What happened in McCleskey v. Kemp?

In 1978, Warren McCleskey, a Black man, was convicted of armed robbery and murder in the Superior Court of Fulton County, Georgia. Following the jury’s recommendation, the court sentenced McCleskey to death. His appeal eventually reached the U.S. Supreme Court. His primary claim was that “the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments.” To support his claim, McCleskey offered a statistical study that showed racial disparities in death penalty sentencing in Georgia. The study found that “the death penalty was assessed in 22% of the cases involving Black defendants and White victims; 8% of the cases involving White defendants and White victims; 1% of the cases involving Black defendants and Black victims; and 3% of the cases involving White defendants and Black victims.”

The Supreme Court affirmed the lower courts and rejected his claim, holding that a criminal defendant alleging an equal protection violation must not only prove there was purposeful discrimination, but that the purposeful discrimination had a discriminatory effect on him. The Court found that McCleskey offered “no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.” This decision effectively denied a defendant’s ability to use statistical evidence of racial disparities related to but not directly involving their case to establish an equal protection violation.

The “purposeful discrimination” standard has made it nearly impossible to challenge racial discrimination in the criminal legal process. According to Professor Mario Barnes and Dean Erwin Chemerinksy, the standard essentially requires “proof that the government desired to discriminate; it is not enough to prove that the government took an action with knowledge that it would have discriminatory consequences.” That is, even if statistics may “reflect the (often unconscious) biases of prosecutors, [such] as to when to seek the death penalty,” the defendant must prove that the government intended to discriminate. For example, while racial disparities in cocaine-related sentencing in California have been well-documented, Barnes and Chemerinsky point out that “efforts to challenge this disparity as violating equal protection failed because the courts said that there was not proof of a discriminatory intent for the sentencing disparity.”

The Racial Justice Act expands the ways a defendant can show discrimination in the criminal legal process.

In contrast to the McCleskey holding, the provisions in the RJA dramatically expand the ways a defendant can show discrimination. Under the RJA, defendants in California no longer need to prove intentional discrimination in their case to bring a claim of racial bias, as McCleskey required. Instead, defendants can now establish racial bias by relying on statistical data showing racial disparities in the charging, conviction, or sentencing process of other defendants who share their race.

Additionally, a violation of the RJA can be established “whether or not [bias was] purposeful.” This language changes the “discriminatory purpose” requirement set out in McCleskey to allow for a showing of implicit bias to be sufficient grounds for a challenge based on discrimination. As stated in the bill, the Legislature does not seek “to punish this type of bias, but rather to remedy the harm to the defendant’s case . . . ” and “to reject the conclusion that racial disparities within our criminal justice [system] are inevitable (as articulated in McCleskey), and to actively work to eradicate them.”

Furthermore, the RJA made discovery of relevant evidence significantly easier than under the 1996 Supreme Court decision in United States v. Armstrong. In Armstrong, the Court held that in order to be entitled to discovery, “a defendant must produce credible evidence (emphasis added) that similarly situated defendants of other races could have been prosecuted, but were not.” The RJA stipulates instead that a defendant may request disclosure of “all evidence relevant to a potential violation of [the RJA] in the possession or control of the state.” So long as the records are not privileged and the defense has shown “good cause” for its disclosure, the “court shall order the records to be released.”

But what constitutes good cause? In 2022, the First District Court of Appeal addressed this question, holding that in order to “establish good cause for discovery under the Racial Justice Act, a defendant is required only to advance a plausible factual foundation (emphasis added), based on specific facts, that a violation of the Racial Justice Act ‘could or might have occurred’ in his case.” The court admits that this is a “minimal standard” that “should not be difficult to meet.” Importantly, the court noted that the application of this more relaxed standard to the RJA is “designed to provide a defendant access to information that is uniquely in the possession of government officials.”

The Racial Justice Act creates a remedy for racial bias even if the bias was “harmless.”

RJA claims are also not subject to the “harmless error” doctrine. Harmless errors are errors made by the trial court “that an appellate court finds was not damaging enough to the appealing party’s right to a fair trial to justify reversing the judgment, or to warrant a new trial.” Under the doctrine, even clear errors, such as improper jury instructions, might not result in overturning a conviction so long as the government can show the error was “harmless”—meaning that it didn’t affect the outcome of the trial. Research has suggested that appellate courts frequently find trial errors to be harmless. For example, Professor William Landes and Judge Richard Posner found that errors were deemed harmless in 87% of 963 federal appellate criminal cases between 1996-1998. In another study, Professors Heather Scheuerman, Elizabeth Griffiths, and Daniel Medwed found that prosecutorial misconduct was deemed harmless in 68% of 150 state and federal appellate criminal cases between 2010-2015.

Nonetheless, in 2023, the Second District Court of Appeal held that the RJA “forecloses any traditional case-specific harmless error analysis” because the plain language of the statute states that “once a violation of the RJA has been established, the trial court ‘shall impose’ one of the enumerated remedies” without requiring a showing as to whether the error was harmless—that is, regardless of whether the error would have changed the outcome of the case. This is a major departure from the harmless error doctrine. Essentially, if a court finds that a defendant experienced racial bias during their trial, the RJA allows for reversal of their conviction even if the bias did not affect the trial outcome. Avoiding a harmless error analysis should allow for many more claims of racial bias in the trial process to be remedied under the RJA.

Essentially, if a court finds that a defendant experienced racial bias during their trial, the Racial Justice Act allows for reversal of their conviction even if the bias did not affect the trial outcome.

How has the Racial Justice Act been used and what have been the outcomes?

The RJA has been used throughout California, with differing levels of success. As mentioned above, the recent Contra Costa County murder case included one of the most successful challenges, resulting in the dismissal of all gang enhancements against four young Black men. There, Keyshawn McGee, Trent Allen, Eric Windom, and Terryonn Pugh were charged with murder and attempted murder following an alleged gang-related shooting that killed one person and wounded another. Prosecutors added gang enhancements that would lengthen prison terms if they were convicted, but a Superior Court judge found that the enhancements were biased based on Contra Costa County charging records from 2015–2022. This data showed that “Black men accused of gang-related murders were 44% more likely to be charged with enhancements than defendants of other races accused of similar gang-related murders”—that is, enhancements were more frequently used for Black gang members but not for other races of gang members who committed similar murders. Moreover, the defendants contended the police department was biased in its investigation, pointing to racist text messages exchanged between officers tasked with surveilling them. Based on the RJA, these discoveries led the judge to dismiss all gang enhancements.

Several other cases involving the RJA are pending. For example, in 2022, a San Diego police officer stopped Tommy Bonds III, a Black man, and cited him for misdemeanor possession of a concealed weapon. In San Diego Superior Court, Bonds invoked the RJA, believing he was pulled over because of his race. However, the judge ruled that the officer did not show bias in his interaction with Bonds. Bonds appealed, and the Fourth District Court of Appeal found that the Superior Court judge “fail(ed) to address the abundant evidence suggesting that the traffic stop may have been the product of unintended racial bias.” Although the officer had previously testified that he did not see the driver’s race before deciding to stop him, he did say that “the person was wearing a hooded sweatshirt with the hood up.” The appeals court said “it was not necessary that [the officer] had verified the occupants were Black before he stopped their vehicle, because he may well have subconsciously assumed they were based on their clothing, their presence in the neighborhood, or other subtle factors.”

The appeals court also pointed to the factual circumstances of the stop, including the officer’s decision to immediately make a U-turn and pull Bonds over after seeing his car. In the ensuing conversation captured on the officer’s body-worn camera, Bonds said to the officer, “[Y]ou turn around like you saw two guys, like two Black guys in the car obviously.” The officer responded, “Well, part of it the hoodies up and stuff, just . . . .” After a brief exchange, Bonds asked, “Do you all pull over White people like that?” To which the officer responded that he often gets pulled over for his tattoos and backwards hat. Furthermore, the appeals court noted that although the officer said he stopped Bonds for a rear license plate violation, the officer “did not say how he noticed the violation of the plate on the back of the car when he had approached from the front, or what prompted him to make the U-turn.” Based on this evidence, the appeals court ordered the lower court to rehear Bonds’ case.

Some racial bias claims under the RJA have been outright unsuccessful. Last month, the Fourth District Court of Appeal upheld the conviction of a Black man, Jamon Buggs, who killed a couple in Newport Beach in 2019. Before sentencing, an Orange County Superior Court judge found that the prosecutor, Todd Spitzer, violated the RJA when during a sentencing meeting with other prosecutors Spitzer said he “knew many Black people who get themselves out of their bad circumstances and bad situations by only dating ‘White women.’” However, Spitzer’s office ultimately did not seek the death penalty, a new prosecutor was assigned to the case, and Spitzer “walled off” the case from everyone involved in the meeting, including himself. Buggs argued that the Superior Court judge could have granted a new trial, dismissed the case, or imposed concurrent sentences. However, the appeals court ruled that such actions were not necessary because Spitzer had already remedied and removed any bias against Buggs.

What do supporters say about the Racial Justice Act?

Assemblymember Ash Kalra (D-San Jose), the RJA’s primary author, suggested that the law serves as a “countermeasure” to McCleskey, arguing that the decision “established an unreasonably high standard for victims of racism in the criminal legal system that is almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted.” The RJA would therefore help the state of California “take an important step in prohibiting the use of race and ethnicity as a factor in the state’s justice system across the board.”

Kalra and other supporters believe the RJA will reduce racial disparities in California’s criminal justice system—disparities which are well documented. For example, according to a 2021 report by the California Budget & Policy Center, people of color continue to be overrepresented in state prisons. The report notes that despite reforms to California’s criminal laws, such as Proposition 47 which reclassified certain drug and property crimes as misdemeanors, disparities have actually widened for Black men, who were incarcerated at a rate 9.6 times that of White men in 2019 as compared to 9.1 in 2010.

Furthermore, research by Professors Colleen Chien, W. David Ball, and William Sundstrom reported that “Black Californians are nearly three times as likely to have an arrest record as White Californians, four times as likely to have at least one felony conviction, and six times as likely to have received at least one incarceration sentence.” The authors said the RJA “gives by state statute what the McCleskey decision foreclosed constitutionally—a pathway to relief based solely on evidence of unexplained racial disparity.”

What do critics say about the Racial Justice Act?

While the RJA has been considered a win for advocates, there remains much criticism. Heather Mac Donald, a fellow at the Manhattan Institute, has argued that the RJA “will produce unequal justice for victims as well as offenders.” She posits that racial disparities in incarceration reflect disparities in who is more likely to commit criminal offenses. Citing police department data, Mac Donald said, “In Los Angeles, Blacks are 21 times as likely as Whites to commit a violent crime, 36 times as likely to commit a robbery, and 57 times as likely to commit a homicide.” She further argued that the RJA will have a disproportionate impact on Black victims, stating that the victims and witnesses who contribute to police department data are “themselves disproportionately Black . . . [and] are 17 times as likely to be homicide victims as Whites.”

Some have also claimed that the RJA perpetuates reverse discrimination towards White defendants. According to Chuck DeVore, the Chief National Initiatives Officer at the Texas Public Policy Foundation, the RJA gives preferential treatment to individuals of certain races and “extending preferential treatment to a criminal based on their race wrongly punishes individuals not benefiting from that leniency.” Black and Latino defendants, because their groups are disproportionately prosecuted and incarcerated, may be able to bring claims under the RJA that would be unavailable to White defendants. Consider a Black and White person who together commit the same crime, and are charged exactly the same—both with more serious offenses than others who commit a similar crime. Under the RJA, the Black defendant may be able to use statistical data to argue that the prosecution more frequently sought these types of convictions against other Black defendants, while that argument might be foreclosed for the White defendant if the same disparity doesn’t exist for other White defendants. In this scenario, although the Black defendant would be entitled to remedies under the RJA, the White defendant would not—even though they were both charged with the same crime.

As the bill made its way through the California legislature, the California District Attorneys Association (CDAA) and California State Sheriffs’ Association stood in opposition to the RJA. Specifically, the CDAA argued that the bill would require “lengthy and costly evidentiary hearings involving the testimony of attorneys, law enforcement officers, jurors, experts, or other members of the criminal justice system,” which would “grind the system to a halt.” These practical concerns are why they were particularly opposed to the bill not requiring a showing of intentional discrimination.

Criticism didn’t just come from prosecutors. At the recent California Racial Justice Act Symposium hosted by Berkeley Law, Lisa Romo, an attorney at the Office of the State Public Defender, noted, “There’s not enough money; we have defenders who are overwhelmed and not enough staff to process all the requests coming in. We desperately need more resources. The legislature just appropriated $2 million just for retroactive RJA claims, which is appreciated, but that’s just a drop in the bucket because so many people need assistance.” Additionally, UC Berkeley Goldman School of Public Policy Professor Mia Bird suggested that because data is so heavily decentralized, “It’s not assembled in a way that can be used for research purposes, and may fail to account for differences at earlier stages of the criminal legal process.”

It is still to be determined what type of impact the RJA will have on criminal justice in California, particularly for communities most impacted by racial disparities. The results have so far been mixed, with ongoing questions about efficacy, practicality, and fairness. Nonetheless, the RJA has raised several important issues regarding the criminal legal process worth further examination and provoked the kind of dialogue that will hopefully challenge the thinking around and approach to racial justice in America.

---

Hoang Pham is the Associate Director and Manager of Education Design at the Stanford Center for Racial Justice.

Amira Dehmani (BA, MA ’24) is an intern at the Stanford Center for Racial Justice interested in civil rights and criminal defense law.

Follow the Stanford Center for Racial Justice on LinkedIn and Instagram. Subscribe to the Racial Justice Weekly digest and our monthly newsletter.