Denying Access to Data and Counsel is a “Silent Evisceration” of the Racial Justice Act

Editor's Note: Author Zach Kirk reflects and examines the California Supreme Court Justice Liu's dissent that calls to reflection the misreading of California's Racial Justice Act. Zach looks through the data and the denial of the CA Supreme Court Case and the impact this ruling has on Racial Justice Act implementation across California.

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Illustration by Adrian Avila

In a recent denial of CA Supreme Court review, Justice Goodwin Liu published a dissent to the

denial order that called out the misreading of RJA that we have seen in the courts all over

California. Justice Liu points out individuals seeking to use the retroactive portions of the Racial

Justice Act to retrieve data related to charging and sentencing discrepancies are being denied

resentencing through a dishonest reading of the law. Justice Liu pointed to the failure of his

fellow California Supreme Court Justices and admitted that their “inaction portends a silent

evisceration” of the RJA. As cosponsors of AB 256 that helped form the legislative intent, we

couldn’t agree more.

The Data

The case being discussed is from a monolingual Spanish speaker Latino individual convicted of a

homicide and serving life without parole (LWOP). Justice Liu explains:

The individual “was disparately charged with three felony-murder special circumstances and that this violated the RJA. He proffered statewide data in support of his RJA claim - specifically, an excerpt from a report by the Committee on the Revision of the Penal Code showing disparities in LWOP sentencing for people of color and youth of color.”  

The committee on the Revision of the Penal Code offers sensible recommendations to the

criminal legal system, not coming from an abolitionist perspective as we do, but focusing on

reform by following legislative intent, clarity of the law, and decarceration in line with the intent of California legislature towards realignment and reducing the prison population.

Justice Liu lays out shocking racial disparity, situating the individual’s case within the racist

carceral “super-predator myth” that specifically targeted Black and Brown men and boys and

classified them as unredeemable:

“Of relevance here, the report also notes that among people sentenced to LWOP for a crime committed before the age of 21, 48.8 percent are Black and 31.5 percent are Hispanic or Latino, while 13.1 percent are White. Notably, petitioner was charged and sentenced in 1993 during the era of the "super-predator myth," which has left a "legacy of dehumanization and harm against Black and Brown youth." (People v. Hardin (2024) 15 Cal.5th 834, 907 (Hardin) (dis. opn. of Evans, J.); see id. at p. 887 (dis. opn. of Liu, J.).)

The Denial

“However, the court determined petitioner had not made out a prima facie case for relief under the RJA. It further determined petitioner did not make the requisite showings for appointment of RJA counsel and discovery.”

Justice Liu summarizes the decision by the trial court to deny appointment of counsel and

discovery which would include the relevant LWOP data that Justice Liu discussed earlier.

The individual “has established sufficient justification for appointment of counsel and discovery under the RJA. He has alleged comprehensible and factually plausible RJA claims, and he has proffered statewide data in support of his claims.” 

Justice Liu disagrees with the decision of the trial court and the denial of review by his fellow

CA Supreme Court justices. Justice Liu believes that the statewide data which showed stark

disparities for Latino individuals charged with LWOP are enough to warrant appointment of

counsel and discovery

“Unless RJA petitioners have some other means of accessing comprehensive county-level data, today's denial of review leaves petitioners like this petitioner in an impossible catch-22: Their petitions are deemed inadequate for lack of the very data they seek counsel and discovery under the RJA to obtain. Our inaction portends a silent evisceration of the RJA.” 

Here at De-Bug, we have tried asking the Santa Clara County District Attorney for data under

the California Public Records Act, but they often refuse to even respond to our requests as

required by law. Justice Liu is right; this reading of RJA by the other CA Supreme Court justices

make the law useless for the individual trying to claw their way back into free society from a

conviction gained through racism. Statewide data shows that DA’s and judges stacked up

charges, enhancements, and special circumstances disproportionately on Latino individuals.

Shouldn’t that be enough to compel the DA to hand over the specific data to prove the motion?

“Given the Legislature's broad purpose in enacting the RJA, I do not see why the statewide dat petitioner presents are insufficient to trigger the RJA's appointment of counsel and discovery provisions. If the concern is that allowing petitioner's petition to go forward would mean that (too) many other petitions will go forward, we should recall the scope of the Legislature's ambition.”

Justice Liu seems to suggest that there are fears from the CA Supreme Court of “too much

justice” from claims like these. 

“Despite this urgent call to action, the court seems unmoved by the statewide conviction and sentencing disparities petitioner presents and appears content to foreclose petitioner and other petitioners from obtaining discovery of the county-level data they need to further develop their RJA claims. The upshot of today's denial of review is to insulate convictions and sentences that have plausibly been tainted by racial bias - in direct contravention of the Legislature's intent to depart from the business-as-usual that has led to well-documented racial disparities in our justice system, including among California youth sentenced to LWOP. (See Hardin, supra, 15 Cal.5th at p. 887 (dis. opn. of Liu, J.); id. at pp. 901-909 (dis. opn. of Evans, J.).) 

We agree with Justice Liu; the CA Legislature was crystal clear in its refusal to see racism as

harmless and its mandate to treat convictions infected with racism seriously, not with its

“business-as-usual” approach.

“In the face of judicial inaction, the Legislature may wish to clarify what showing is adequate to secure appointment of counsel and discovery under the RJA, and to require state and county agencies to make relevant charging, conviction, and sentencing data publicly available.” 

Justice Liu’s final point is disappointing, but telling. If the courts continue their inaction through

dishonest reading of the law and/or refusal to grant too much justice, advocates will have to

clarify the law further in further bill cycles, tying the hands of the CA Supreme Court and trial

judges who have been openly hostile to dealing with California’s racist past. Further, they show

that the age of the “super-predator myth” is not over until the racist myth ceases to have a hold

on the way our Black and Brown community members are treated in courts today.

The law is clear, but the minds of our California Supreme Court are seemingly hardened against

RJA and consequently, a modest step toward racial justice. We cosponsored and fought for this

law precisely because the time for modest racial justice is now. This is not the end; just another

roadblock in the winding path for racial justice. Justice Liu’s courageous opinion shows us that

the true answer to improving our society lies within our communities and our unity, not the

California judiciary who created these racial disparities who is, predictably, terrified of “too

much justice.”