GROUND RULES: GIVING MEANING AND EFFECT TO KEY CONTESTED TERMS IN THE CALIFORNIA RACIAL JUSTICE ACT

Abstract:

The California Racial Justice Act (RJA), which applies to all pretrial, trial, and post-conviction defendants,

prohibits any state actor from relying upon racial bias to seek or obtain a conviction or sentence against a defendant. In a state where racial disparities in incarceration have been growing for decades, the law, which became retroactive in 2024, has the power to create a sea of change across California criminal institutions. Using the power of state constitutional law and relying upon the principles of comity and federalism, the California Racial Justice Act explicitly rejects the intent-to-discriminate standard set by the U.S. Supreme Court in McCleskey v. Kemp. In its place is a novel two-branched framework to challenge racism either by evidence of bias by system actors, or by demonstrating county-wide racial disparities. Together, these two approaches have the potential to create broad relief from the racial inequality that has long plagued the criminal justice system and eluded other reform efforts.

Despite its broad legislative vision, the practical and actual reach of the RJA remains an open question. Thus far, successful claims brought under the RJA—including challenges to the use of rap lyrics in gang cases, and racially biased language used by judges, prosecutors and police—have mostly resulted from evidentiary presentations about specific acts of bias by system actors. Despite the limited litigation focused on system-wide racial disparity, there is already substantial confusion and disagreement about the meaning and nature of key statutory terms — specifically the meaning of ‘similar conduct’ and ‘similarly situated,’ comparisons in the statistical measurement and evaluation of ‘disparity,’ how the relationship between racial bias and case impact is defined, and what constitutes a ‘race neutral’ explanation.

In the end, the courts’ interpretation, and thus the ultimate impact of the RJA, will be molded by the ability of defendants to demonstrate systematic disparity in a manner that is both scientifically sound and legally valid. For the RJA to rise to its expansive legislative vision, it will require factual findings and legal conclusions about what constitutes a valid and reliable scientific methodology to quantify racial disparity in crime and punishment.

Fortunately, in this, California courts are not alone. Amassing and explaining evidence presented in support of these claims is well within the expertise of statisticians, social scientists, and methodologists. The already conflicting court opinions on the RJA pose questions that can find their answers in statistical and scientific thought, debate, and review that has been established over nearly 100 years. This Article proposes an approach to the interpretations of RJA comparison for ‘similar conduct’ and ‘similarly situated’ cases based on those answers. Additionally, we lay out a related 5-point test on the meaning of ‘race-neutral’ explanation. Our goal is to standardize and streamline RJA litigation while establishing a rigorous and reasonable evidentiary standard that does not unduly burden the prosecution, the defense, or the judiciary.

GROUND RULES_ GIVING MEANING AND EFFECT TO KEY CONTESTED TERMS IN THE CALIFORNIA RACIAL JU.

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